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Category Archives: Judicial Reform

DECLARE YOUR JUSTICE: Judicial Office consults with Lord Carloway on including Justices of the Peace in Register of Judicial Recusals – as questions surface over Lord Gill’s omission of 500 JPs from judicial transparency probe

Calls to include Justices of the Peace in Recusals Register. SCOTLAND’S top judge has been called upon to include nearly five hundred members of the Judiciary of Scotland in a Register of Judicial Recusals which was created in response to a five year Scottish Parliament probe on lack of transparency within the judiciary.

The Lord President – Lord Carloway (real name Colin Sutherland) – is currently being consulted by the Head of Strategy and Governance of the Judicial Office on collecting recusal data from Justices of the Peace courts.

The move comes after journalists queried why JPs were not included in the current register of recusals listing when judges stand down from a case due to conflicts of interest.

The addition of Justices of the Peace to the recusals register follows recent development where Lord Carloway conceded to calls for full transparency on judicial recusals, reported here: RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

However, amid an ongoing probe on Justices of the Peace – where it has now been established some JPs have undeclared criminal convictions – there has been no explanation provided by the Judicial Office as to why some five hundred Justices of the Peace who comprise the bulk of membership of the Judiciary of Scotland – were left out of the publication of recusals by Lord Gill during the register’s creation in April 2014.

Moves by Scotland’s judiciary to become more transparent and open up the workings of Scotland’s courts and judiciary to the public, have come in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The petition, 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.

The creation of such a register would ensure full transparency for the most powerful people in the justice system – the judiciary.

The resulting publicly available register of judicial interests would contain information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

A full listing of evidence in support of the petition calling for a register of judicial interests can be found here: JUDICIAL REGISTER: Evidence lodged by Judicial Investigators, campaigners, judges & journalists in four year Holyrood probe on judges’ interests – points to increased public awareness of judiciary, expectation of transparency in court.

The move to create a register of judicial interests has also secured the support of two Judicial Complaints Reviewers.

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.

At the hearing, Ms Ali supported 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 backed the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

Both of Scotland’s recent top judges – former Lord President Lord Brian Gill, and current Lord President Lord Carloway, have testified before the Scottish Parliament on the petition, both failing to prove any case against creating a register of judicial interests.

A report on Lord Brian Gill’s 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”

A report on Lord Carloway’s 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 National newspaper reports on the call to include Justices of the Peace in the Judiciary of Scotland Register of Judicial Recusals.

Campaigner calls on Scotland’s top judge to extend register of recusals

Exclusive by Martin Hannan Journalist The National 3rd October 2017

SCOTLAND’S Justices of the Peace should have to register their recusals when they step aside from cases in their courts due to conflicts of interests, according to the man who is leading a campaign on judges’ interests.

The judicial register of recusals was established by Scotland’s most senior judge in April 2014, former Lord President Lord Gill, and the judiciary website shows all such recusals by judges and sheriffs and the reasons why they stepped away from a case.

Now legal campaigner Peter Cherbi has called for the register to be extended to Justices of the Peace, who are lay magistrates dealing with less serious cases such as breach of the peace or minor driving offences.

For five years Cherbi has been petitioning the Scottish Parliament on the issue of judges’ interests, and he sees a register of recusals as vital for public confidence in all the judiciary.

Cherbi said: “Given there are nearly 500 Justices of the Peace in Scotland who must act in accordance with the same rules laid down for other members of the judiciary, JPs should now be included in the Register of Recusals.

“I am surprised Lord Gill omitted Justices of the Peace when he created the Register of Recusals in April 2014. This was a significant omission, given the numbers of JPs across Scotland, and Lord Gill should have corrected this flaw before he left office in May 2015.

“I note Lord Carloway (left) has not attended to this glaring omission since taking office as Lord President in January 2016 until now being asked to do so.

“The omission of Justices of the Peace from the Register of Recusals has left out a significant portion of the judiciary and therefore concealed a more truer representation of numbers of recusals and interests across Scotland’s judges and courts, which are of significant public interest.

“I shall be informing the Public Petitions Committee of this development and if the need should arise, I will request MSPs write to the Judicial Office and Scottish Justices Association to make enquiries as to when JPs will be added to the Register of Recusals, and to seek an explanation why they were originally left out from the data, despite it being a relatively simple operation to include JPs in the recusals statistics.”

The National contacted the Scottish Justices Association, which represents the Justices of the Peace, but no reply had been received by the time we went to press.

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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KEEN TO TALK: Advocate General with criminal conviction for firearms offence promotes ‘UK Legal Services are best’ campaign in Singapore – in effort to attract Asian customers to Brexit-hit UK legal market

Lord Keen of Elie in Singapore. A GOVERNMENT minister with a conviction for a firearms offence is currently in Singapore on a taxpayer funded bash – promoting a UK Legal Services are great campaign in the hope of attracting Asian customers to the UK’s dwindling legal services sector and courts.

Lord Keen – real name Richard Sanderson Keen – who joined the Lords on 8 June 2015 and was appointed Advocate General for Scotland – has flown to Singapore to promote the UK legal industry in a social media & twitter #LegalServicesAreGREAT campaign to promote the UK as a hub of legal excellence.

However, the same Lord Keen was convicted of a firearms related offence in March 2017.

The campaign, hosted at the UK High Commission and other venues in Singapore – brings together lobby groups such as the Law Society of England & Wales, the Law Society of Scotland, a host of legal firms, and so-called ‘independent’ legal regulators – the Legal Ombudsman, Bar Council and others.

Asian customers attending the Singapore conference are invited to “Discover what makes UK legal services great – The UK’s legal system has inspired and influenced similar legal systems worldwide. Every year, we attract many international businesses who want to take advantage of the UK’s globally respected legal services.”

Attendees to the conference have listened to Lord Keen promoting UK legal services and the so-called world respected UK legal profession & industry.

However, in March 2017, Lord Keen – who also once held the post of Dean of the Faculty of Advocates – was fined £1,000 after admitting a firearms offence at Edinburgh Sheriff Court.

Earlier this year, Advocate General for Scotland Richard Keen QC pleaded guilty – by letter – to breaching section two of the Firearms Act 1968 by ‘failing to secure a shotgun’.

Police investigating a ‘break-in’ at one of Mr Keen’s properties – a house in Edinburgh – found that the weapon had been left outside a secure cabinet.

The weapon, a Stephen Grant 12 Gauge shotgun – was outside its required storage area and was in a position to have been made use of, should the need have arisen – observed one firearms expert.

The incident & related court hearings,-  which sources claim contained “incredulous assertions” prompted a media investigation revealing the extent of firearms ownership by top lawyers & judges, reported here:  SILENCERS IN COURT: ‘Guns & Ammo’ rife in Scotland’s legal elite – Police Scotland disclose firearms ownership of judges, sheriffs, lawyers, advocates, QCs & Crown Office prosecutors

The new Legal Services Are Great campaign, staged by the UK Government and funded by taxpayers cash – in which Lord Keen plays a role – comes amid fears Brexit could turn to Lexit – where legal firms & litigants may chose to conduct arbitration & court business in other jurisdictions.

A post by the Ministry of Justice on Medium.com titled “Why UK legal services are GREAT”  claims: The UK is home to the best legal services in the world. That is the message of our new global campaign to promote the UK’s legal services.
With over 200 international law firms, the UK is a global hub of legal expertise

From nearly four decades in the legal profession and as a UK Government minister and Advocate General for Scotland, I have seen first-hand the exceptional talent and expertise within our legal services sector across the whole of the UK.

In a global and competitive marketplace, we know what international clients want when they’re looking for legal services.

Clients want to choose a law to govern their contracts that gives them the flexibility, confidence and certainty they need. They want legal firms that have a track record in and reputation for providing expert advice. They want judges that are not only experts but also incorruptible and fair when it comes to settling disputes. They want courts that are expeditious and that harness the latest technology. These qualities are all woven into the fabric of the UK’s legal services.

The Ministry of Justice campaign goes onto claim:

Experienced judges: Our judges are renowned for their independence, rigour and commercial expertise in all aspects of the law. As a result, UK court judgments carry a guarantee of excellence which is respected internationally.

Professional expertise: The UK’s regulated barristers and solicitors represent clients worldwide. From helping you close cross-border business deals and manage financial transactions to resolving international disputes, our lawyers have the global expertise to help you build your business.

Robust contract law: English law is the most popular choice of law for commercial contracts. Valued for its clarity, it’s the world’s most enduring common law system and can provide certainty and security for your business deals.

UK: the cradle of the rule of law: The UK is the cradle of the rule of law. The roots of English law are deep; its adoption and influence is wide. It is the product of hundreds of years of evolution — of gradual refinement, development and extension, precedent after precedent.

As a result, English common law is clear, predictable and familiar. It underpins over a quarter of the world’s jurisdictions. It is the most popular choice of law in the world for commercial contracts and governs about 40% of all global corporate arbitrations.

UK: home to great law firms, expert judges and modern courts: But it is not just the pedigree of English law that makes the UK attractive. Our law firms, our judges and our courts that administer, interpret and arbitrate on the law are world-renowned.

Take UK law firms. With four of the top ten law firms in the world and with over 16,000 barristers, the UK has a wealth of talent and top legal expertise and advocacy.

Take UK Judges. They are respected internationally for their intellect, independence and commercial expertise, with many having specialist knowledge and practical understanding of commercial matters they are judging.

Take the UK’s judicial processes and courts. They do not just have hundreds of years of history behind them, they are among the best in the world in terms of being digitally-enabled.

The UK’s legal heritage, together with its expertise and innovation, makes it a popular choice for clients around the world. London brings access to the world’s biggest specialist legal centre for dispute resolution and commercial litigation.

However, the carefully worded claims make no mention of the fact parts of the UK judiciary has been engaged in a five year fight against proposals to require the judiciary to declare their vast wealth, and business interests – which have resulted in countless conflicts of interest in case after case.

And, more recently it has been uncovered the Ministry of Justice has been concealing statistics on judicial recusals in England & Wales – despite the same information being published in Scotland as paret of the Register of Judicial Recusals – now made available after the work of journalists, Judicial Complaints Reviewer Moi Ali, and members of the Scottish Parliament’s Public Petitions Committee.

The battle between members of the Judiciary of Scotland and the Scottish Parliament over a petition calling on judges to declare their interests has sparked ire among judges, amid concerns the judiciary are deliberately concealing significant conflicts of interest which has led to injustice across the spectrum of criminal, and civil cases in Scotland’s courts.

The Register of Recusals was created by Lord Brian Gill in April 2014 as a response to a probe by the Scottish Parliament’s Public Petitions Committee’s deliberations on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

Of further note – all of the claims currently published by the Ministry of Justice in the #LegalServicesAreGREAT campaign – have been challenged by two successive Lord Justice Generals – the ranking top judge in Scotland –  where both Lord Presidents Lord Gill, and recently Lord Carloway – branding Scotland’s justice system as stuck in the “Victorian” era, and centuries behind the rest of the world.

Further studies by the EU have ranked Scotland’s justice system as one of the slowest, and most expensive in the world – with the most highly paid judges delivering the poorest results on civil and criminal justice – reported here: Scots Legal Aid ‘a £161Million public subsidy for legal profession’ as EU report reveals judges salaries & lawyers legal aid claims come before public’s access to justice

While keen to promote legal services to the world, the Ministry of Justice could not offer any further comment on the campaign or answer questions on how much public cash was allocated to the project.

The Ministry of Justice have refused to confirm claims attendees first, & business class flights & travel to the Singapore conference, hotel stays & hospitality have been paid by taxpayers.

 

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TRIBUNAL REGISTER: Calls for transparency as legal & wealthy, well connected interests dominate Tribunals system membership – Register of Recusals & Interests should be extended to cover all Tribunals in Scotland

Calls for tribunal members to publish interests & recusals. WITH THE announcement earlier this week of at least thirty solicitors have joined the First-tier Tribunal for Scotland, Housing & Property Chamber – there are calls for all members to be held to account by way of the publication of registers of interests for those who wish to take part in judgements affecting the lives of others.

The move comes after media enquiries have established a number of members of the tribunals have links to property businesses including letting, landlords services and other related interests which are not yet publicly declared by the Scottish Courts & Tribunals Service (SCTS).

And, with the existence of a Register of Judicial Recusals since 2014 – which recently saw significant improvements after a media investigation exposed failures to record judges standing aside in cases – there are also calls for a fully pubic Register of Tribunal Recusals to be published with equivalent detail on cases and Tribunal members as is currently disclosed by the Judiciary of Scotland.

Moves to improve transparency in the Tribunals system – and bring it up to speed with the judiciary – have come about after a number of cases have been brought to the attention of the media – where Tribunal members have failed to declare significant interests or step aside from hearings – which some participants have described as “rigged”.

An enquiry to the Scottish Courts & Tribunals Service last month – in the form of a Freedom of Information request – also revealed the SCTS is failing to keep any records of recusals of Tribunal members – despite the requirements in place for over three years that members of the judiciary have to notify and publish their recusals from court hearings.

In a response to the FOI request, the Scottish Courts & Tribunals Service refused to provide any information on Tribunal members standing aside from cases. The SCTS – who manage the tribunals – indicated no such information was held.

The SCTS response ended with a note all Tribunal members are subject to the same guidance to judicial office holders in terms of the Statement of Principles of Judicial Ethics – which has already been found to be flouted on a regular basis by even senior Court of Session judges who have been the subject of cases now reported in the media where they deliberately concealed conflicts of interest.

The SCTS said in response to the request asking for information on Recusals of Tribunal members: “The only information held by the Scottish Courts and Tribunals Service that falls within the description of your request is contained within guidance issued to judicial office holders. That guidance is the Statement of Principles of Judicial Ethics.”

A Tribunals User Charter for the Tribunals managed by the SCTS makes no mention of Tribunal members recusals or any registers of Tribunal members interests.

The announcement of the latest intake of members into the Tribunals system – an intake which is managed by the Judicial Appointments Board, was made by the Judiciary of Scotland here:

New Legal and Ordinary Members of the First-tier Tribunal for Scotland, Housing & Property Chamber

Thirty new Legal Members and 19 Ordinary Members have been appointed by the Scottish Ministers to the First-tier Tribunal for Scotland and assigned to the Housing and Property Chamber by the President of Scottish Tribunals, Lady Smith.

The announcement follows a recruitment round by the Judicial Appointments Board for Scotland (JABS), which invited applications from any suitably qualified individuals who wished to be considered for appointment.

The new members were recruited to assist in managing the increased jurisdiction of the Housing and Property Chamber that will handle more private rented sector cases from December 2017, including the new letting agents’ regime; transfer of jurisdiction from the sheriff courts; and new private tenancies.

The new members are as follows:

Legal Members

Yvonne McKenna; Lesley-Anne Mulholland; Nairn Young; Shirley Evans; Alastair Houston; Steven Quither; Petra Hennig McFatridge; Colin Dunipace; Lesley Johnston; Anne Mathie; Kay Springham; Alan Strain; Aidan O’Neill; Jan Todd; Alison Kelly; Valerie Bremner; Eleanor Mannion; Virgil Crawford; Pamela Woodman; Lynsey MacDonald; Karen Kirk; Neil Kinnear; Fiona Watson; Nicola Irvine; Graham Dunlop; Andrew Upton; Joel Conn; Melanie Barbour; Lesley Ward; Andrew McLaughlin.

Ordinary Members

Eileen Shand; Elizabeth Williams; Janine Green; Jennifer Moore; Linda Reid; Angus Lamont; David Fotheringham; David MacIver; David Wilson; Gerard Darroch; Gordon Laurie; James Battye; Leslie Forrest; Tony Cain; Elizabeth Currie; Frances Wood; Jane Heppenstall; Melanie Booth; Sandra Brydon.

The appointments came into effect on 18 September 2017.

Under changes to Scotland’s tribunals system which came into effect in July 2014, the Lord President is the head of Scottish Tribunals.  He has various statutory functions, including responsibility for the training, welfare and conduct of its members.

The Lord President has assigned Lady Smith to the role of President of Scottish Tribunals. She has various statutory functions, including responsibility for the efficient disposal of business in the Scottish tribunals, for the assignment of members to individual Chambers within the First-tier Tribunal, and for review of the members.

The First-Tier Tribunal for Scotland comprises a number of separate Chambers within which similar jurisdictions are grouped. The Housing and Property Chamber, which was established on 1 December 2016, performs the functions of the former Private Rented Housing Panel (PHRP) and the Homeowner Housing Panel (HOHP) in relation to tenancy and property related disputes. The Chamber will also start to handle more private rented sector cases from December 2017 including those arising in relation to the new letting agents’ regime; transfer of jurisdiction from the sheriff courts; and new private tenancies.

Appeals from the First-tier Tribunal go to the second tier of the new structure, the Upper Tribunal for Scotland.

Appeals from decisions of the Upper Tribunal go to the Inner House of the Court of Session.

Further information about the Scottish Tribunals visit the Scottish Courts and Tribunals Service can be found here: About Scottish Tribunals

The Tribunals (Scotland) Act 2014 created a new, simplified statutory framework for tribunals in Scotland, bringing existing jurisdictions together and providing a structure for new ones. The Act created two new tribunals, the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland.

The Lord President is the head of the Scottish Tribunals and has delegated various functions to the President of Scottish Tribunals, the Rt Hon Lady Smith.

The Upper Tribunal for Scotland: The Upper Tribunal hears appeals on decisions of the chambers of the First-tier Tribunal.

The First-tier Tribunal is organised into a series of chambers .

From 1 December 2016, the Housing and Property Chamber was established and took on the functions of the former Home Owner and Housing Panel and the Private Rented Housing Panel.

From 24 April 2017, the Tax Chamber was established and took on the functions of the former Tax Tribunals for Scotland.

Housing and Property Chamber

Tax Chamber

Tribunals Administered by the SCTS:

The Mental Health Tribunal for Scotland

The Additional Support Needs Tribunals for Scotland

The Council Tax Reduction Review Panel

The Pensions Appeals Tribunal

The Lands Tribunal for Scotland

The Scottish Charity Appeals Panel

If you have any experience before any of these Tribunals, or information in relation to cases, Diary of Injustice journalists would like to hear about it. All information and sources will be treated in strict confidence, contact us at scottishlawreporters@gmail.com

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.

Previous reports on moves to publish judicial recusals in Scotland and a media investigation which prompted further reforms of the Scottish Register of Judicial Recusals can be found here: Judicial Recusals in Scotland – Cases where judges have stood down over conflicts of interest

 

 

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GOOD LORD, GLITCHES: “Gremlins & Glitches” theme of Lord Carloway’s opening of new legal year – Court of Session misses out on promised digital reforms, top judge takes swipe on judicial appointments in Law Society speech

Lord Carloway opens legal year 17-18. SCOTLAND’S top judge has marked the opening of the new legal year with an admission of significant problems with the rollout of digital technology in Scotland’s creaking, Victorian era courts & justice system.

Lord President and Lord Justice General – Lord Carloway (real name Colin Sutherland) – who presides over a £42milion a year 700 strong group of Sheriffs & Sheriffs Principal, Justices of the Peace and Court of Session judges who call themselves “Senators” – told his handpicked, closed door legal world audience that “Gremlins and glitches” had yet again slowed down major digital technology reforms.

Luckily for the creaking Court of Session and it’s judges – who are known to despise transparency and openly snear, perhaps even smite media intrusions into their haphazard and often calamitously costly hearings to litigants – Lord Carloway added integrated digital reforms were still some way off from impinging on salivating legal teams fees, which can in some cases have resulted in tens of thousands of pounds for what passes as a day’s ‘work’.

Carloway, spoke to an audience which included Lord Thomas, the Lord Chief Justice of England and Wales  and Lady Thomas, along with Sir Declan Morgan, the Chief Justice of Northern Ireland and Lady Morgan, Mr Justice Frank Clarke the new Chief Justice of Ireland and President of the Irish Supreme Court, Mr Justice John MacMenamin, a member of the Supreme Court in Ireland – and the new President of the United Kingdom Supreme Court, Baroness Hale and her husband, Dr Julian Farrand.

Lord Carloway told his audience: “As is often the case, pronouncements, about the advent of digital technology as the panacea for procedural and evidential woes, have proved somewhat optimistic. The new digital Integrated Case Management System has been rolled out in the sheriff courts, but glitches and gremlins have slowed its process. Even assuming that the digital portal, which is designed to absorb all court documents, including productions, into the ICMS, will be operational in the not too distant future, it may still be some time before the ICMS is introduced to the Court of Session.”

However, earlier this year, in late February of this year, The Times reportedLord Carloway –  “Scotland’s most senior judge has claimed that the Scots legal system is stuck in the 19th century and needs to be modernised to provide better justice.

Lord Carloway, the lord president of the Court of Session and lord justice general of the High Court, claimed that many rules and procedures appeared to be “preserved in aspic”.

Dear oh dear. The Scottish Courts and Tribunals Service (SCTS) received over £105million of public cash in the latest Scottish Government budget. If the courts cannot achieve a visit to PC World on £100million a year to equip the ageing Court of Session justiciary with an integrated computer framework, well, the public are not getting value for money.

Admittedly, over £11million of that figure is directed to the judiciary, in an effort to split the ever burgeoning judicial budget which hit £40.5million in 2016.

Alas, as in many public body accounts in Scotland – Cayman Islands style creative accounting  became the in-thing – where some Scottish Government Minister decided it would be good figure fiddling to split the judicial budget into two. That way, the financial accounts look like the judiciary took a £12million a year hit, yet in reality they now receive a near £12million bung via the main Courts budget.

And, yet, in yesterday’s Opening of the Legal Year 2017-2018 address to the usual closed shop audience, ever closed for fear of public criticism – amongst a speech of gremlins, glitches & the goonies, Lord Carloway reverts back to the myths of a ‘respectable’ and functioning justice system, which rests firmly in the day dreams of Scotland’s judicary, and annual profits of mostly Edinburgh based law firms and cash collectors – otherwise known as the Faculty of Advocates.

Lord Carloway’s Opening of the Legal Year 2017-2018 speech in full:

Welcome everyone to the opening of the legal year. First let me thank you all for coming. Can I first introduce our guests from our neighbouring jurisdictions:

Lord Thomas, the Lord Chief Justice of England and Wales and President of the Courts of that jurisdiction and Lady Thomas;

Sir Declan Morgan, the Chief Justice of Northern Ireland and Lady Morgan

Mr Justice Frank Clarke the new Chief Justice of Ireland and President of the Irish Supreme Court

Mr Justice John MacMenamin, a member of the Supreme Court in Ireland

and a welcome return to Edinburgh to the new President of the United Kingdom Supreme Court, Lady Hale and Dr Julian Farrand

I am also pleased to welcome the Cabinet Secretary for Justice, Michael Matheson, Annabelle Ewing, Minister for Community Safety and Legal Affairs and Paul Johnston, the Director General for Education, Communities and Justice.

It is also a pleasure to have with us Liam McCollum, Chair of the Bar of Northern Ireland, Paul McGarry, the Chair of the Bar of Ireland, Seamus Woulfe, the Attorney General of Ireland and David Barniville, also from the Bar of Ireland.

Without indulging in a lengthy essay on the current state of the Scottish Courts and Tribunals, I would like to say a few words about where we are now and where we are going next.

We have now seen the structural changes of the Courts Reform Act bedding in; with the advent of the Sheriff Appeal Court, the All Scotland Sheriff Personal Injuries Court and the raising of the exclusive jurisdiction of the sheriff court to £100,000. We have introduced important changes to the structure of Scotland’s tribunals, with the establishment of the First-tier Tribunal for Scotland and the creation of distinct chambers for housing and property and for taxation.

As anticipated by the reforms, there has been a significant reduction in both appellate and first instance civil work in the Court of Session and in summary criminal appeals to the High Court. There has also been a predicted drop in the number of commercial cases. As a consequence of all of this, this court the Court of Session ought to become leaner, trimmer and fitter in the coming years.

There ought to be a significant reduction in waiting times for civil first instance and appellate hearings. This has already happened with appeals, which are generally being disposed of (including judgment) on average within 8 months of marking. Proofs of 4 days duration are fixed within 6 months of the request to do so. However, I fully recognise that further work requires to be carried out to accommodate longer proofs, within much shorter time-scales. I include in that equation the issue of the final opinion. This will be achieved partly as a consequence of the abolition of court terms in the coming year. This has already seen some of these proofs being allocated over what was formerly known as the Summer Vacation or Recess.

The policy of having at least 4 non-commercial judges in the Outer House over a period of at least three months will continue, or rather increase to five, so as to avoid any criticism that ordinary first instance business is being regarded as less of a priority than other work. Major inroads have been made in relation to providing all judges with sufficient writing time in civil cases. Statistically, there has been a substantial improvement in the time taken to issue judgments, even if there continue to be problems in specific cases.

The High Court is already processing solemn appeals as efficiently as is reasonably practicable with disposals occurring within 6 months of the grant of leave. It is anticipated that far fewer criminal appeal courts will be needed in the coming months. This will mean that we will be able to continue to run two civil Divisions each week if necessary. The post reform developments will result in much less reliance on retired or temporary judges and, in the sheriff courts, dependence upon fee paid and retired sheriffs. I remain very conscious of the fact that almost all High Court cases require an extension of time. However, I do not consider that this is caused by an inefficiency in the system. Rather, the introduction of enhanced disclosure, the need to search electronic databases and social media and advances in forensic science have made it all but impossible to comply with timescales set in a different era whilst at the same time accommodating the diaries of parties’ legal representatives. As a result of concerted efforts over the past year, all sheriff courts are now able to fix summary trial diets within the optimal 16 week timescale. In relation to domestic abuse cases that timescale is under 10 weeks. Reform in sheriff and jury practice ought to place the sheriff courts onto a similar efficient footing to the High Court.

As I said at this time last year, the focus must now change from structure to function. As is often the case, pronouncements, about the advent of digital technology as the panacea for procedural and evidential woes, have proved somewhat optimistic. The new digital Integrated Case Management System has been rolled out in the sheriff courts, but glitches and gremlins have slowed its process. Even assuming that the digital portal, which is designed to absorb all court documents, including productions, into the ICMS, will be operational in the not too distant future, it may still be some time before the ICMS is introduced to the Court of Session.

The enormously ambitious rules rewrite project, under the auspices of the Scottish Civil Justice Council, continues apace. Having produced its first report, the project now enters a second stage designed to develop a core narrative of draft civil rules applicable in both the Court of Session and the sheriff court. It has, to some, rather dull aspects, but the development of case management powers in relation to the conduct of proofs and other hearings will see an exciting change in the way things are done and the time which it takes to do them; provided, that is, that we continue to have a judiciary committed to improvement.

The next significant reform in solemn criminal procedure will be the expanded use of recorded evidence with vulnerable and child witnesses. This is already done, although not always consistently across the board. It is in summary criminal procedure that greater change is anticipated with fundamental proposals being made following upon the “New Model” paper produced earlier this year. The plan is to have all pre-trial procedures conducted by a digital case management process. More important will be the creation of a means to store, manage and share evidence digitally and securely. The idea that truth can be ascertained by using a combination of memory test, pressure and general inconvenience to witnesses will be replaced by a system which gives far greater precedence to images and statements recorded electronically at or about the time of the relevant incident and to the need to accommodate witnesses generally.

I would now wish to thank all of my judicial colleagues, especially the Lord Justice Clerk, Lady Dorrian, for their continued help and support. I am grateful to the administrative judges Lords Malcolm (formerly Lord Menzies), Turnbull, Boyd and Matthews, for all their assistance throughout the year. I also thank the SCTS chief executive, Eric McQueen, the new head of the Judicial Office, Tim Barraclough, our new Principal Clerk, Gillian Prentice, and all the court clerks and other staff working here in Parliament House, in the High Court Centres and throughout the country. Their commitment and hard work remain important an driving force in ensuring not only the continued existence of the justice system but also its progress. I have also very much appreciated the court’s continuing engagement with the Law Officers, all of whom are here today, in helping to develop policies and plans, both past and future, which make the system, as it is at present, fit for the 21st century.

Not least, I wish to thank the legal profession, especially those institutions represented here today, including the Faculty, the WS, SSC and Law Society, and also all those many counsel and solicitors who have participated so willingly, and for no reward, in the committees and working groups now beavering away in the background, for their dedication to the Scottish Legal System, for the effort which all have put in over the last year and in anticipation of the invaluable work which they will be carrying out in the coming year.

Lord Carloway, Lord President 25 September 2017

THE LORD PRESIDENT’S OTHER SPEECH:

The duties of a Lord President and his judges are far and wide.

International travel junkets akin to playing diplomat, or perhaps as unmasked by media attention – just charging up the taxpayer for ‘law conferences’ around the world in 5-Star hotels with golf courses, river tours and first class travel.

Or just a trip across Edinburgh to a law conference, the Lord President does not miss an opportunity to get his oar in give a speech, even if only to a shady bunch at the Law Society of Scotland annual conference – whose members are well practiced in dodging those murky Police Scotland & Crown Office hit-a-brick-wall probes into mortgage dealing, money laundering & bulk buying of properties on the cheap.

While the focus of Lord Carloway’s speech to the Law Society of Scotland audience, already fattened on over £1.3billion pounds of legal aid since the 2008 financial crash, and countless Scottish Government contracts of up to £20million a year and tens of millions more fleeced from public authorities & public bodies, the top judge took another swipe at those who may ‘interfere’ with a measure of transparency in the junta-like regime of Scotland’s courts & judiciary.

Lord Carloway breezed to his Law Society audience: “Under the ancien regime, before the advent of the Judicial Appointments Board, judges and sheriffs were recommended to the Queen for appointment by the Secretary of State, following consultation with the Lord Advocate and, in practice, the Lord President . It was perceived, by some, perhaps many, that judges were the product of cronyism or political patronage. It is true to say that every Lord Advocate in the century or so prior to 1970 was appointed to a superior court bench. Many nominated themselves as Lord President , Lord Justice Clerk  or became judges in the House of Lords .”

“That tradition was broken not so much with the appointment of Lord Wilson of Langside, who became Director of the old Scottish Courts Administration (now the Scottish Courts and Tribunal Service) and then Sheriff Principal of Glasgow, but when Norman Wylie appointed George Emslie to be Lord President in 1972. Nevertheless, Lord Advocates  continued to be appointed as Lords Ordinary and, one way or another, often progressed rapidly to similar positions of high judicial office .”

“The appointment of judges generally was political in the sense of the selection being by government; a system which is common, albeit with different focus, in many western democracies. It is seen as an element in the balance of power. Its merits and demerits have recently been analysed by the new President of the UK Supreme Court, who has mooted re-involvement of politicians from both government and opposition in the appointment of the most important chairs in the English legal system.”

“No-one would pretend that every judicial appointment from that era was of a person with complete legal and personal skills equipping him (as all judges then were) for high judicial office or a sheriffdom. There were problems. What is clear, however, is that the person who was, in practice, recommending the appointment would be fully appraised of the candidate’s qualities and failings. The Lord Advocate would be well aware of his prospective appointee’s experience, ability and knowledge. Consultation with the Lord President ensured that there was substantial input on suitability from the person who would be responsible for the new judge’s future performance and behaviour.”

Judicial Appointments

“There has been much recent public discussion, both in Scotland and in neighbouring jurisdictions, about the challenges which exist in the recruitment of new members of the judiciary. It is imperative, if Scotland is to maintain a high quality judiciary, especially at Court of Session level, that those at the top of the profession in the litigation field are highly motivated to apply for judicial office. It is equally important that the selection process itself does not deter or subsequently reject those candidates best qualified to fulfil the role. The aim must be to secure the services of those whom the profession regard as the leaders in their field and who are seen as the most able of their generation.”

“The independence of the judiciary is a vital element in our system. It is maintained primarily by selecting persons who have acted as independent advocates or solicitors throughout their professional lives, who have prosecuted and defended, and who have acted on the one hand for government, insurance companies and global conglomerates and on the other for the private individual, legal aided or otherwise, who has allegedly been oppressed or who has a legal right requiring vindication.”

“What must not be lost sight of is the simple fact, which cannot be underestimated, that for the Scottish justice system to operate properly, it needs judges and sheriffs who are not just competent lawyers with reasonable or even good people skills. It needs, at the high end, the best lawyers of the generation to lead the way; to take over the chairs of the permanent Divisions and to provide their wings. In the sheriff courts, although the same quality of legal skill and experience may not be a necessity, the appointments must be of people whom the profession recognise as prominent within their ranks.”

“I very much welcome the willingness of the new Chair of the Judicial Appointments Board to engage in a discussion about how the selection process might be improved to ensure that we do persuade the leading lights of the profession to apply for judicial office, and that the very best are successful in their applications.”

The full speech is available here:  LP Law Society of Scotland Annual Conference Keynote Address 19September2017

Put it this way. If suddenly, the Government banned elections, any form of public vote was suspended, and instead politicians were selected in the way the Lord President extols as fit for judges who head a £2.5 billion pound per annum publicly funded justice system, it would be branded undemocratic, a system of jobs for the boys, and well, in all honesty – totalitarian.

The “Greater Good” – The phrase used by the Lord President in the opening paragraph of his speech to the Law Society conference – is served by Transparency, in increasing amounts, and taken several times daily by a judiciary, courts and justice system in dire need of reform.

 

 

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SUPREME SECRETS: UK Supreme Court refuses to publish recusal data – Court rejects release of info on UKSC justices conflicts of interest in response to Freedom of Information recusals probe on top UK court

Top UK court obstructed Scots media judicial recusals probe. THE UK Supreme Court (UKSC) has refused to disclose how many of it’s justices have recused themselves from court hearings over conflicts of interest or requests to step aside from cases.

And, the top court’s refusal to disclose the information only came about after the Information Commissioner (ICO) decided to issue a decision notice forcing the Supreme Court to respond to Freedom of Information requests submitted in May 2017.

Unlike in Scotland, where the Judiciary of Scotland publish a Register of Judicial Recusals– listing judges who have stood aside in cases for certain conflicts of interest (not including financial, wealth or other status related interests), the United Kingdom’s Supreme Court in London does not publish any recusal information.

However, Freedom of Information requests seeking disclosure of the UK Supreme Court’s recusal data encountered obstacles after UKSC officials took a decision to refuse to respond to Scottish journalists FOI requests.

And, it can also be revealed the Ministry of Justice – the body in charge of all courts in England & Wales followed the Supreme Court’s anti-transparency position – refusing to respond to a similar FOI request again sent from Scotland in May 2017.

Four months after the original Freedom of Information request was made to the UK Supreme Court, and amid numerous reminders to UKSC officials, the Information Commissioner’s office was contacted in July for assistance.

After discussions with ICO staff, the Information Commissioner gave the top court an extra month to reply.

However, the Supreme Court again refused to respond to any Freedom of Information requests from Scotland on the subject of recusals.

A legal insider claimed the refusal to reply to the requests originated over fears the material was to be referred to at the Scottish Parliament in connection with a five year probe on judges’ interests and a call to create a register of judicial interests – Petition PE1458: Register of Interests for members of Scotland’s judiciary.

However, after the Information Commissioner again contacted Scottish journalists making the requests, the ICO confirmed it would issue a determination to order the UK Supreme Court to respond to the requests.

In an email of 25 August 2017, Matthew Cresswell of the Information Commissioner’s office informed journalists seeking the recusal information: “As the Supreme Court have failed to respond to your information request within the statutory time limit set out in section 10(1) of the FOIA, the Commissioner can now start the process of ordering a decision notice on this case. A decision notice is a legally binding document that will require the public authority to provide a response.”

Coverage of the case then appeared in The National newspaper on 30 August – which prompted the Supreme Court to finally issue a response to the Freedom of Information requests.

However, the UKSC refused to divulge any details of UKSC justices’ recusals, citing cost grounds of gathering the information.

Paul Brigland, for the UK Supreme Court claimed logging errors where the real reasons for a lack of reply to the FOI requests, rather than a determined policy by the UK Supreme Court not to respond to a Scottish Freedom of Information request.

Paul Brigland, the Head of Office and Building Services & Departmental Records Officer said: “Firstly, I would like to apologise for the mishandling of your request and the failure to reply. This is entirely due to an error in our logging process in which this request was incorrectly marked as dealt with, but had in fact been mistaken for a separate request you made under the FOLA at the same time which we responded to within the correct time limit. I hope you will accept our apologies for this error. I should also explain that since you made your request we have changed the way in which we log and handle FOI requests, so this situation should not arise in the future.”

Paul Brigland then confirmed the UKSC held information relevant to the request.

Mr Brigland said: “I can confirm that we do hold some information relevant to your request.”

However, Paul Brigland claimed the work involved and cost would prohibit the information being disclosed.

Brigland added: “In order to provide you with the information on the scale that you have requested would require a search of individual paper case records. We do not maintain a central record of any such requests as there is no business need to do so.”

“Section 12 of the FOLA makes provision for public authorities to refuse requests for information where the cost of dealing with them would exceed the appropriate limit, which for central government is set at £600. This represents the estimated cost of one person spending 3.5 working days in determining whether the Department holds the information, locating, retrieving and extracting the information.”

“As your request is widely framed, I estimate that it will take us more than 3.5 working days to determine appropriate material within the scope of your request, and locate, retrieve and extract that information.”

“I am sorry that on this occasion I cannot suggest ways in which you could narrow the scope of your request to bring it within the cost limit. This is because any information sought under a revised request, for example requesting information for a shorter time period, would still be exempt under section 32 (court records).”

“However, outside the terms of the Act, and to be helpful, I can explain the following.”

“Where there are reasons that a Justice considers there might be an issue of recusal, that information is sent to the Justice chairing the panel (normally the President or Deputy President) and then a letter is sent to the parties. I can confirm that there have been no instances where we have written to parties that has subsequently led to a request from the parties for a Justice to stand down.”

“Similarly, I can confirm that there have been no instances where a Justice has recused themselves following a request initiated by a party to a case.”

However, the explanation offered by the UKSC does not actually confirm if any justices have refused to recuse themselves following any request from litigants or parties to do so.

And, as no register of recusals currently exists at the UK Supreme Court, legal insiders have suggested the explanations from the UKSC on recusal data should be taken with a pinch of salt.

A legal insider has suggested legal teams operating in the UK Supreme Court are dissuaded from – or not minded to ask for recusals.

The source said “ justices do not take well to their position being questioned to recuse from a hearing”.

A solicitor from England who has now come forward on the issue said he was aware of certain cases at the Supreme Court which may have necessitated a recusal.

The solicitor, who has studied the details contained in Scotland’s register of judicial recusals said it was clear in some cases before the UKSC, comparable examples of justices links to issues do exist, and therefore should be acknowledged in a similar register of recusals at the Supreme Court.

However, the solicitor cited the Supreme Court’s determination to avoid declaring justice’s interests in a register of interests as one reason which the UKSC is avoiding publishing any data on it’s justices’ recusals.

Amid the Supreme Court’s refusal to release information on recusals, Scottish journalists asked for a review of the decision, which was handled by William Arnold, the Head of Corporate Services.

Mr Arnold did not provide a review response on material with the UK Supreme Court logo, instead responding by email in the following terms.

Willian Arnold said: “As Mr Brigland explained, the UK Supreme Court does not maintain any formal central register of requests  to Justices to recuse themselves  from particular cases, since there has never been any operational need to do so.”

“Identifying the record of any such requests would therefore entail reviewing all the case papers in every case heard since January 2014 to the present date. I am satisfied that Mr Brigland was correct in assessing that carrying out this review would require staff resource input, which would exceed the cost limit for answering FOI requests of £600.”

“As Mr Brigland went on to say, this would be a pointless exercise in any event, because any such recusal request, if one was found, would form part of the records of the individual court case; and in Section 32 of the FOI Act Parliament has enacted an exemption of court records from the FOI regime. This exemption is not subject to any kind of public interest test, so the UKSC would not in any case be able to release any such recusal request, if one was found, to you under the FOI regime. I agree with this analysis.”

“In order to try to be helpful, Mr Brigland, however, went on to tell you, outside the provisions of the Act, since this is not recorded information which the UKSC holds, that the practice is that where a Justice considers he might have interests which might generate a request for recusal, a letter is sent to the parties outlining those interests.”

“Nobody here of those staff who have been at the UKSC since its inception in 2009 can remember any instance where such a letter has resulted in a request from a party to a case for a Justice to recuse themselves. Equally nobody here can recall any instance where a party has ever initiated a request for a Justice to recuse themselves, so the question of acceding to or rejecting such a request has never arisen.”

Mr Arnold went on to contradict Paul Brigland’s initial explanation where he stated the UKSC did hold material in relation to recusal information.

William Arnold stated: “The only sentence in Mr Brigland’s letter which I do repudiate is on page one  where he says “I can confirm that we do hold some information relevant to your request.”

“He may have been thinking of the letters we send to parties, where a Justice believes they have interests they should disclose, as set out above, but it is not clear to me that these are strictly relevant to your request; and I cannot find any other evidence which leads to the conclusion that the UKSC ‘holds some information relevant to your request’.”

“Indeed I have reached the opposite conclusion – that we likely do not hold any such information, although we could not be formally sure of that without carrying out the review of all our cases, which on cost grounds, as set out above, we have declined to do.”

A barrister who studied the correspondence from the UK Supreme Court, including the initial FOI response and the UKSC’s review – said the responses were evasive.

He also noted the UKSC’s position on holding no recusal data revolved around process where a letter is sent out to parties in relation to a justices’ conflict of interest – rather than an interest being raised by a party or legal representative.

The barrister said: “The UK Supreme Court has existed for eight years. I think it highly unlikely not one single request for a recusal at the Supreme Court has been made during such a considerable length of time.”

While the UK Supreme Court remains determined to refuse any further disclosure of information on judicial recusals, the Information Commissioner has been contacted again over the Ministry of Justice’s refusal to answer similar requests for disclosure of recusal information from the English courts.

A decision from the Information Commissioner on this matter is awaited.

However, the position Scottish users of the UK Supreme Court now face is that judges in Scotland are required to publish their recusal data, while the UKSC has decided against any such transparency – leaving Scottish court users at a considerable disadvantage.

The National reported on the battle to obtain recusal information from the UK Supreme Court and the Ministry of Justice in two articles, published below:

Victory for Scottish information campaigner in battle with Supreme Court

Martin Hannan Journalist 30th August

THE UK Supreme Court will be ordered by the Information Commissioner to reply to question from a Scottish legal rights campaigner, after it refused to say whether it had a register of recusals by court justices.

Recusal is the term used when a judge has to step aside from a case because of a possible conflict of interest. It is thought that various Supreme Court justices have recused themselves from numerous cases, but no such information is made public.

The National can reveal the Information Commissioner has decided to act after the Supreme Court and the Ministry of Justice for England and Wales failed to reply to blogger and campaigner Peter Cherbi’s request for information.

A register of recusals has been in existence for several years in Scotland – it can be viewed online – and Cherbi wants to see the system extended to all the judiciary in the UK.

The Information Commissioner told Cherbi, above: “As the Supreme Court has failed to respond to your information request within the statutory time limit set out in section 10 (1) of the Freedom of Information Act, the Commissioner can now start the process of ordering a decision notice on this case.

“A decision notice is a legally binding document that will require the public authority to provide a response.”

Sources at the Supreme Court have indicated that the decision notice has not been received by the court, but that it will be acted upon.

Cherbi’s long-term aim is to see the creation of a register of judicial interests similar to that which MPs, MSPs and police officers must complete. His petition calling for that register has been debated by MSPs for nearly six years, and a decision is due next year. He feels the delay is an attempt to stop the register of interests. The National can reveal that lawyers in London support Cherbi’s case, but think judges will oppose it.

One legal source said: “They fear recusals up here in Scotland are inevitably leading to a register of judicial interests and it will lead to the same thing happening in England and Wales.”

The Supreme Court has already decided against a register of interests, stating: “The justices have decided it would not be appropriate, or indeed feasible, for them to have a comprehensive register of interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them.

“To draw up a register of interests, which people believed to be complete, could potentially be misleading. Instead the justices of the Supreme Court have agreed a formal code of conduct by which they will all be bound, and which is now publicly available on the court’s website.

“In addition, all the justices have taken the judicial oath … which obliges them to ‘do right to all manner of people after the law and usages of this realm without fear or favour, affection or ill will.

“And, as is already the practice with other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves, whether it is a substantive hearing, or an application for permission to appeal.”

Cherbi said: “Refusing access to information is not accidental. We are looking here at a coordinated attempt to thwart the introduction of Scottish judicial transparency to the rest of the UK.”

The Ministry of Justice referred The National to the Supreme Court where a spokesman confirmed that they were awaiting the Commissioner’s formal decision.

Supreme Court finally responds to Scottish FoI request about recusals … and rejects it

Martin Hannan Journalist 06 September 2017

THE UK Supreme Court has refused to issue information on how many of its justices have stood aside from cases because of a conflict of interest.

The National revealed last week that the Information Commissioner in England had ordered the Supreme Court to deal with Scottish law campaigner Peter Cherbi’s freedom of information request after it failed to reply to him in time.

Now the Supreme Court has written to Cherbi apologising for failing to deal with his request timeously but saying it will not give him the information as it would cost too much to provide it.

“That’s just ludicrous,” Cherbi said yesterday, “and it just makes people all the more suspicious that the Supreme Court is covering up something that the public should have the right to know.”

In another development, Cherbi is to ask the Scottish Parliament’s Petitions Committee to invite the new President of the Supreme Court to give evidence as to why she and her fellow justices oppose a register of interests for the judiciary similar to that for MPs and police officers.

The committee has been discussing Cherbi’s call for a register of judicial interests in Scotland for almost five years.

Cherbi said: “I would like Lady Hale to come to Holyrood and explain why the UK Supreme Court’s members are so set against a register of interests.

“We have already seen Scotland’s top judges opposing it, and it would be good to know why the UK Supreme Court opposes it – after all, the Supreme Court sits in judgement on Scottish cases all the time, so why should the public not be able to see what interests, financial and otherwise, that judges have?

“As the President of the UK Supreme Court, Baroness Hale will be able to give a substantive account of why Supreme Court justices no longer consider they require to adhere to the expectation of completing a register of interests as they did pre-UK Supreme Court days as Law Lords in the House of Lords.

“After all, we ask our MPs and MSPs and police officers to register their interests so that everything is seen to be above board, so why not the judges in the highest court in the land?”

Cherbi also wants Lady Hale to tell the committee why the Supreme Court does not keep a register of recusals (when judges step aside from a case) as happens in the Scottish courts.

In its delayed response to Cherbi, the Supreme Court said: “To provide you with the information on the scale that you have requested would require a search of individual paper case records. We do not maintain a central record of any such requests as there is no business need to do so. Section 12 of the Freedom Of Information Act makes provision for public authorities to refuse requests for information where the cost of dealing with them would exceed the appropriate limit, which for central government is set at £600.

“This represents the estimated cost of one person spending 3.5 working days in determining whether the department holds the information, locating, retrieving and extracting the information.

“As your request is widely framed, I estimate that it will take us more than 3.5 working days to determine appropriate material within the scope of your request, and locate, retrieve and extract that information.”

A legal expert told The National: “The information on recusals certainly exists, so all that needs to be done is to send an email to the justices and their assistants and the information could be gathered in a day.”

Cherbi said: “We have a register of recusals in Scotland. It’s time they had one for the Supreme Court and all English and Welsh courts.”

Previous reports on moves to publish judicial recusals in Scotland and a media investigation which prompted further reforms of the Scottish Register of Judicial Recusals can be found here: Judicial Recusals in Scotland – Cases where judges have stood down over conflicts of interest

Recent reforms to the way in which judicial recusals are recorded and entered in Scotland’s register of judicial recusals were reported here: RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

 

 

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APPROVED BY M’LORD: Former Police Chief & Legal Complaints board member receives approval from Lord Carloway to fill ‘window dressing’ Judicial Complaints Reviewer post

Ex top cop & SLCC Board member is new Judicial Investigator. A FORMER Deputy Chief Constable of Tayside Police who served as Convener of the Standards Commission for Scotland and was a board member of a tainted legal complaints quango – has been approved by Scotland’s top judge to investigate judges and serve as Scotland’s third Judicial Complaints Reviewer (JCR).

Ian Gordon, who also formerly served as a board member of the pro-lawyer Scottish Legal Complaints Commission (SLCC) and is currently Acting Commissioner with the Northern Ireland Public Service Ombudsman Office – will now serve as Judicial Complaints Reviewer from 1 September 2017 to 31 August 2020.

Ian Gordon’s appointment as JCR, which is required to be approved by Scotland’s top judge – currently Lord Carloway – was announced by Justice Secretary Michael Matheson yesterday, Monday 14 August.

However, MSPs from across the political spectrum have called for the judicial watchdog to be given new powers and a review of the role undertaken by the Scottish Government amid controversy over the lack of powers to the JCR.

Moi Ali – Scotland’s first Judicial Complaints Reviewer branded the JCR role as “window dressing” in evidence to MSPs at Holyrood during September 2013 – featured in a report here: As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

Moi Ali continually called for extra powers until she quit the role in 2014 amid lack of cooperation from the judiciary & Scottish Government.

Gordon’s appointment as Judicial Complaints Reviewer comes after both his predecessors complained the SNP Government starved the post of resources.

Last week, the Sunday Herald published a further report on the controversy around the office of Judicial Complaints Reviewer, revealing current Gillian Thompson has published further concerns on the relevance and efficacy of the job.

Gillian Thompson said her contracted hours of just three days a month “inevitably” led to delays, “inconvenience for complainants” and ultimately “a poor service”.

She said she doubted public expectations were being met, complained her access to investigation files was limited, and urged ministers to “review the relevance of the role”.

Gillian Thompson published two annual reports on her work as JCR, last week – which contain no case histories after the Scottish Government suggested such references be excluded in published reports.

Several weeks ago Thompson was caught in a controversy where documents released by the Scottish Government revealed she had accused her predecessor of being the source of media interest in the lack of published annual reports by the JCR.

The accusations turned out to be false, and the Scottish Government ordered journalists to destroy the initial release of documents, which was swapped for another version by Stuart Lewis, a Senior Media Manager for the Scottish Government’s Justice & Education hub. Lewis refused to identify who took the decision to order destruction of the FOI documents.

Further concerns have been raised after the Scottish Information Commissioner dodged calls to look into the case, after journalists called for a re-examination of how exemptions are used by the Scottish Government where Thompson’s written accusations were then censored under the guise of ‘protecting free and frank discussions between officials’.

A full report and publication of the FOI documents on the controversy around Thompson and the Scottish Government’s FOI release can be found here: Scottish Government request destruction of FOI papers – Files reveal Ministers silence on judicial complaints & civil servants attempts to exclude case histories from Judicial Investigator’s annual reports

Ms Thompson’s predecessor Moi Ali also complained a lack of funds and support had made the role of Judicial Complaints Reviewer “enormously frustrating and difficult”.

Today, it has been reported LibDem MSP Liam McArthur has urged Mr Matheson to review the post of JCR.

In a letter to the Justice Secretary, Mr McArthur said: “The only two holders of the post have both provided blistering accounts of their experiences. In appointing the third JCR the Scottish Government cannot ignore the criticisms of his predecessors and the serious questions that surround the credibility of this office. It is clear that the current system is not working.”

Tory MSP Liam Kerr said: “Given the criticism levelled at the Scottish Government by the former reviewer, it appears her successor has quite a job on his hands.

“If this role is to be a success, ministers have to provide the resources and support necessary. We can’t afford for this to be yet another wasted 12 months.”

Labour MSP Claire Baker added: “It is clear that the new JCR needs far greater support.

“For the SNP to simply announce a new JCR but fail to address any of the serious structural shortcomings in the role is simply unacceptable.

“The Scottish Government cannot hide from their responsibility. They must fully fund and resource the new JCR so that he can carry out his role in the best interests of the public.”

However the biography issued by the Scottish Government on Mr Gordon contains no references to his time as one of the first intake of Board members at the discredited Scottish Legal Complaints Commission.

The SLCC was recently branded as a “toothless waste of time” by former Cabinet Secretary Alex Neil MSP (SNP Airdrie and Shotts) after the legal services regulator failed to act in a high profile case involving a senior QC caught up in a cash payments scandal.

The team responsible for setting up the Scottish Legal Complaints Commission and it’s board members in 2008 was led by Angela McArthur, Chief Executive of the Parole Board since December 2009

During Mr Gordon’s time on the board of the Scottish Legal Complaints Commission, the pro-lawyer regulator lurched from controversy to scandal, where media reports revealed board members infighting over dealing with members of the public, campaign groups, and drunken exchanges between board members & senior SLCC staff.

Ministerial Announcement of new Judicial Complaints Reviewer: Judicial Complaints Reviewer appointed

Cabinet Secretary for Justice Michael Matheson has announced the appointment of the third Judicial Complaints Reviewer.

Ian Gordon is a retired Deputy Chief Constable of Tayside Police. He is currently an Acting Commissioner with the Northern Ireland Public Service Ombudsman Office.

He was seconded to HM Inspectorate of Constabulary and was the lead police officer on the annual statutory inspection of five UK police forces, and was a member of the UK Police Professional Standards Group. He has conducted criminal, conduct and complaints investigations in the UK and undertaken enquires abroad on behalf of the Foreign Office.

Mr Gordon was also a Convener for the Standards Commission between 2010 and 2017 and contributed to a focused improvement to awareness of the codes of Conduct by elected members and Boards of Public Bodies.

This appointment was established by the Judiciary and Courts (Scotland) Act 2008 to review, when asked, the handling of a complaints investigation into members of the judiciary, to ensure that it has been dealt with in accordance with The Complaints About the Judiciary (Scotland) Rules 2016. The Reviewer has no powers to consider the merits of any complaint or the disposal of the complaint.

The appointment will be for a period of three years from 1 September 2017 to 31 August 2020, and will be paid a daily fee of £217. The appointment has been made with the approval of the Lord President.

All appointments are made on merit and political activity plays no part in the selection process.

FROM EX-COP TO JUDGING JUDGES – BIOGRAPHY IAN GORDON:

Ian Gordon is listed as Chair on the website of the Ericht Trust and is an active director of the Ericht Trust which is also registered as a company limited by guarantee, managed by a Board of Trustees who are elected at an Annual General Meeting, and a Company Secretary.

The Ericht Trust has since reported in March 2017 to be in the process of changing it’s name to the Erich Trust.

The Ericht Trust describes itself as a ‘not for profit’ charitable organisation, which focuses on community development and regeneration in line with Scottish Government policies on community empowerment. It is a member of Development Trusts Association Scotland (DTAS). DTAS provides support to its members and a link into a network of the many comparable Trusts working for the benefit of their communities across Scotland. Being part of this bigger family gives strength to the organisation when voicing opinion or seeking support from Government and Local Authorities.

The object of the Trust is to stimulate a range of community projects which will benefit residents and businesses and draw visitors to this area.

A register of interests posted by the Scottish Legal Complaints Commission also listed Mr Gordon as a director of Quarere Ltd.

Quaere Limited was set up on 20 Dec 2006 has its registered office in Perthshire. Its current status is listed as “Dissolved”. The company’s first directors were Marion Therese Gordon, Ian Alexander Gordon. Quaere Limited has no subsidiaries.

The company was listed under the headings of SIC 2003:7414 — Business And Management Consultancy Activities & SIC 2007: 70229 — Management Consultancy Activities (Other Than Financial Management)

Last annual accounts of Quarere Ltd were filed in 2009.

Other interests listed in Mr Gordon’s register of interests from his time at the Scottish Legal Complaints Commission include:

• Associate Professor in Policing for Charles Sturt University (Australia).
• Formerly Chair of the Association of Chief Police Officers in Scotland (ACPOS) Professional Standards Business Area.
• Vice-Chair of ACPOS General Policing Business Area.

Previous articles on the Judicial Complaints Reviewer and complaints against Scotland’s judiciary can be found here: Judicial Complaints Reviewer – Reviewing complaints against Scotland’s judiciary

 

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JUDICIAL REGISTER: Calls for all UK judges including UK Supreme Court, and Tribunals to declare links to business, wealth, professional & other interests in published registers of interests

All UK Judges & tribunals should declare interests. AS THE Scottish Parliament continues an investigation into proposals calling for members of the Judiciary of Scotland to declare their interests, a call has been made to roll out a publicly available judicial register for all judges & tribunals all across the UK.

Calls to bring all UK judges, including top judges based at the UK Supreme Court, and all tribunal members into line with judicial transparency proposals currently being considered in Scotland – would require those who sit in judgement to declare all interests, professional & personal links, wealth, property and other interests, in a register of interests, similar to disclosures made by politicians and others in public life.

The move comes after a recent development where Scotland’s top judge conceded to calls for full transparency on judicial recusals, reported last week here: RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

Attempts by Scotland’s judiciary to become more transparent and open up the workings of Scotland’s courts and judiciary to the public, have come in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The petition, 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.

The creation of such a register would ensure full transparency for the most powerful people in the justice system – the judiciary.

The resulting publicly available register of judicial interests would contain information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

A full listing of evidence in support of the petition calling for a register of judicial interests can be found here: JUDICIAL REGISTER: Evidence lodged by Judicial Investigators, campaigners, judges & journalists in four year Holyrood probe on judges’ interests – points to increased public awareness of judiciary, expectation of transparency in court

And, two of Scotland’s recent top judges, former Lord President Lord Brian Gill, and current Lord President Lord Carloway, have testified before the Scottish Parliament on the petition, both failing to prove any case against creating a register of judicial interests.

A report on Lord Brian Gill’s 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”

A report on Lord Carloway’s 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 National reports on recent developments here:

Fresh call for all UK judges to register interests

Campaigner says UKSupreme Court should follow Scotland example on Judicial Recusals

Martin Hannan Journalist 2 August 2017 The National

THE UK Supreme Court and the courts in England and Wales and all tribunals across Britain do not have a system that shows where judges and tribunal members have been forced to step aside from cases due to actual or possible conflicts of interest.

As The National revealed on Monday, Scotland is shortly going to have an expanded register of judicial recusals that records when judges and sheriffs withdraw from cases, but no such register exists for the judiciary south of the Border or for any public tribunal.

Now the legal campaigner who has fought for Scottish judges to declare their interests for more than five years is calling on UK Supreme Court justices, the English and Welsh judiciary and the various tribunals to do the same and keep a register of recusals.

Peter Cherbi’s current petition before the Scottish Parliament is asking that the judiciary in this country declare their financial interests, as US Supreme Court Justices must do.

Cherbi accepts, however, that the Judicial Office in Scotland has already acted to bring in a more details register of recusals. Now he wants the UK Supreme Court to do the same.

Cherbi said: “We have now moved forward in Scotland in terms of judicial transparency with the publication of judicial recusals. If Scotland can do it, so can England and Wales, and the courts in Northern Ireland. The English justice system touts itself worldwide as the law of choice for litigants. If this is truly the case, then it is for the UK judiciary to be as transparent as Scotland and publish their own recusal register, and a register of interests as we are working on here.

“With the recent announcement of Lady Hale being appointed as President of the UK Supreme Court, I will be writing to her, requesting she consider creating a register of recusals for UKSC, as so far, the UK Supreme Court has also been silent on matters of recusals, which the public, court users, and legal representatives have a right to know.

“I shall also be contacting the European Court of Justice and the European Union to ask that courts throughout the EU be encouraged to publish recusal data and more detail on their judges. All EU citizens should have the same entitlements to judicial transparency we are now creating in Scotland.”

Cherbi thinks the Supreme Court and English and Welsh courts can lean learn from the experience here, where a register of recusals has been kept since 2014 and which is to be expanded.

He said: “Our approach in Scotland to improving courtroom and judicial transparency, fuelled by the hard work of cross party MSPs, the Scottish Parliament, fantastic support from Judicial Complaints Reviewers Moi Ali and Gillian Thompson, and backing by the media is a good reminder that team work and cross party support can bring significant change for the good.”

He also wants entities such as employment tribunals to be more open: “My ongoing investigations into tribunals suggests declarations of interests are more often than not concealed, and recusals are few and far between, if ever occurring, and there is little if anything those before tribunals can do about it.

“The public, who are being judged, are entitled to know who their judges are. It is as simple as that.

“Those who judge cannot be judge in their own cause, nor write and approve their own rules, without expectation of full transparency and accountability. Independence of the judiciary is guaranteed, and no one would ever question it. However, those who judge must live by the same laws and expectations of transparency they enforce upon the rest of us.

A spokesman for the UK Supreme Courts said: “Justices are bound by their judicial oath and a code of conduct to declare any relevant interest in a case to the parties, before they consider the matter. There are no current plans to publish a register of recusals.”

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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