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COPS & LAWYERS: Concerns on Public Bodies Legal Fees spending as figures reveal Scottish Police Authority fork out over £1m in legal fees, Police Scotland spend at least £1.3 million on external lawyers

Millions from Police budget ends up funding lawyers. SCOTLAND’S single national Police service – Police Scotland is spending millions of pounds of public cash on external law firms, advocates & QCs over and above the significant costs of it’s own in-house legal teams.

The single national Police service for Scotland has admitted paying at least £1,316,819 to external solicitors, QCs, advocates and the courts over a three year period – over and above costs for in-house legal teams.

The largest beneficiaries of public cash from Police Scotland are Clyde & Co (formerly Simpson & Marwick) who were paid £361,801.91.

However, while that firm was still Simpson & Marwick prior to its merger with Clyde & Co, they earned £284,914.15, giving total earnings since January 2014, of £646,716.06.

Other big-earning firms from Police Scotland’s public cash splurge on major law firms were Morton Fraser (£278,069.60) and Ledingham Chalmers (£103,906.08).

However, the figures – released in response to a Freedom of Information request – Police Scotland & SPA Fees to external lawyers, law firms & QCs 2014 to 2017 – are now subject to scrutiny – after journalists questioned the Police as to why over half a million pounds paid by the Police to a law firm named in a £400m collapsed Hedge Fund scandal and a suspended judge were excluded from the figures handed over by Police well out of timescales tolerated by the Scottish Information Commissioner.

It was reported by the Scottish Sun in March 2016, a sum of £187K was paid to lawyer Peter Watson – a sheriff who has been suspended from the judicial bench for well over two years, and a further £364,830 was paid to Levy and Mcrae – the Glasgow based law firm named in a £28m writ in connection with the collapse of the Heather Capital hedge fund, run by Gregory King who is subject to a Crown Office probe now in it’s fourth year.

Police Scotland also disclosed at least £52,014 has been paid to in respect of Opinions of Counsel and Senior Counsel instructed by in-house Legal Services directly and at least £32,378 has been paid to the Scottish Court Service since January 2014 by in-house Legal Services directly.

Police Scotland also disclosed the names of law firms and Advocates Chambers who have received legal fees.

And, today, it has emerged in an additional, three months late FOI disclosure – the controversial Scottish Police Authority (SPA) has admitted to spending millions more on legal fees for it’s own use, with at least £623K spent on external law firms and £435K on it’s own in-house legal teams.

SPA Legal Costs (in-house and Third Party) From Jan 2014 to June 2017 saw the following public cash spends on third party legal costs: £154,449 (2013/14) £104,570 (2014/15) £175,785 (2015/16) £167,667 (2016/17) and £20,543 spent already in this financial year which runs to 2018 making a total of £623,012 on third party legal costs.

Costs for the SPA’s own in-house legal team has now reached £434,512 in just three years.

However, unlike Police Scotland, the secretive Scottish Police Authority refused to identify the names of law firms & counsel involved in it’s £1million plus legal expenses bill.

The SPA’s refusal to identify legal firms via FOI legislation has now been submitted for review, and possible investigation by the Scottish Information Commissioner, after weeks of deliberate delays by the SPA in disclosing the legal costs.

Additionally, questions are also being raised with the Scottish Information Commissioner on Police Scotland’s attitude towards Freedom of Information timescales after weeks of deliberate delays in the force’s handling of FOI requests.

The breakdown of the total figure for solicitors’ fees by solicitor from 2014 – 2017 as paid by Police Scotland are as follows:

AC White £396; Allan Black & McCaskie £300; Allcourt Solicitors £462; Balfour & Manson £1236.3; Blackadder & McMonagle £342; Brazenall & Orr £168; Carruthers Curdie Sturrock & Co. £324; Clyde & Co.(Simpson & Marwick) £361801.91; Cockburns  £54; Corrigal Black £306; Criggies £42; Douglas Gilmour & Son £36; DWF £134.8; Gray & Gray £60; George Mathers & Co £600; Grigor & Young £1920; Hamish L Melrose £540; Hunter & Robertson Solicitors £1872; John Henderson & Sons £2232; Leddingham Chalmers £103906.08; Linda George Family Law £984; MacIntosh Humble £174; Mackie Thomson £96; Mackintosh Wylie £48; Macnabs Solicitors £312; Malcolm & Hutchison £132; Mathie McCluskey £78; McCluskey Browne £2032; McCusker McElroy & Gallanagh £30; McIntyre & Co £258; McLellan Adam Davis £54; MacDonald McIver & Co £353.1; Morton Fraser £278069.6; Patten Prentice £96; Rankin & Aitken £42; Reid Cooper £15901.92 ;Russel & Aitken £60; Russell, Gibson McCaffrey £4084.8; Simpson and Marwick £284914.15; Stewart Balfour £48; Thorntons £3760.16; W & AS Bruce £60 TOTAL: £1,068,320.82

The sum paid to advocates broken down by chamber and year are as follows:-

Chambers fees from 2014 – 2017: 5 Essex court £16620; Ampersand £84000; Arnot Manderson £12840; Axiom  £8640;  Black  £6600; Compass £20334; Terra Firma £3780 TOTAL: £152,814

The National newspaper reports on the Police spend on external law firms, here:

Police Scotland ‘spends £1k a day to fight legal battles’

Martin Hannan Journalist 13th August

Police Scotland’s legal costs were exposed after FoI requests

DESPITE having its own legal team, Police Scotland has spent more than £1000 per day on external legal lawyers and court costs since January, 2014.

In the three years and six months to June of this year, Police Scotland paid out £1,316,819 to external solicitors, QCs, advocates and the courts, according to figures released under Freedom of Information (FoI) rules.

Peter Cherbi, the legal issues campaigner and blogger who made the FoI requests, has criticised the force after it refused to answer The National’s questions on the issue, directing us to use FoI questions.

Cherbi said: “There are firms on the FoI list provided by Police Scotland who specialise in legal issues relating to defence of damages claims and other similar legal issues, yet at this time the force appears unwilling to cough up the real reasons for running to lawyers at all hours of the day.”

More than 950 fee notes were issued to Police Scotland by law firms and individual solicitors, with £32,378 paid directly to the Scottish Courts Service for costs incurred in numerous actions.

More than 40 law practices across Scotland were paid for work, some of which is believed to have been connected to the many police property disposals which have taken place over the past few years since the national force was created in 2013. Other firms were paid for expertise in various personnel and legally complex matters, and QCs, solicitor and advocates all represented the force in court, including cases at the Court of Session.

In all, solicitors received £1,068,320 in that time. The National can reveal that the biggest earners from police work were Clyde & Co (formerly Simpson & Marwick) who were paid £361,801.91 for their involvement in such high-profile cases as former Assistant Chief Constable John Mauger’s failed action for judicial review of a decision by then Chief Constable Sir Stephen House – Maria Maguire QC acted for the force in that case.

While that firm was still Simpson & Marwick prior to its merger with Clyde & Co, they earned £284,914.15, giving total earnings since January 2014, of £646,716.06.

Other big-earning firms were Morton Fraser (£278,069.60) and Ledingham Chalmers (£103,906.08). By contrast, Renfrewshire law firm McCusker, McElroy and Gallanagh were paid just £30.

The total sum paid to advocates and QCs was £152,814 – in its response to the FoI request, Police Scotland explained: “These figures relates to instances where advocates have been instructed directly by Legal Services.”

The force’s response added: “I regret to inform you that I am unable to provide you with the figure in respect of fees charged on occasions where Counsel and/or Senior Counsel have been instructed by external solicitors acting for the Chief Constable as it would prove too costly to do so within the context of the fee regulations.”

The response did state, “951 fee notes have been rendered by external solicitors since January 2014”.

The National asked the Scottish Police Authority (SPA) which is supposed to superintend the national force if it was aware of the extent of usage of lawyers outside the legal services section of Police Scotland. We also asked if Police Scotland had to pay the legal costs of anybody taking out a court action against the force, and why do many solicitors firms were used?

We also asked what is the annual budget for the legal services section and asked both Police Scotland and the SPA to say if any of the costs were for defending Police Scotland personnel accused of crimes, or if any external cost was incurred in defending Police Scotland personnel in civil cases. The reply we received was “you would have to submit an FOI request in relation to these questions”.

Peter Cherbi commented: “While chief constables and senior officers have been talking up their lack of resources and funding in public, Police Scotland have been keeping law firms afloat with huge public spends of funds better spent on front line policing.

“The force’s overuse of law firms for legal action and other legal services must be opened for public inspection on a case-by-case basis. What are Police Scotland spending all this money on lawyers, and why? What are the processes employed by Police Scotland for using legal services? A key question given they have their own in-house lawyers.

“The public have a right to know and the Scottish Parliament should be looking to raise questions on this issue, which would make for some interesting exchanges before the Scottish Parliament’s Justice sub committee on Policing.

“This addiction to lawyers and exorbitant legal fees by Police Scotland and other public bodies must be brought to a halt as the operational budgets for policing and any public service are not meant to act as unaccountable public subsidies for the legal profession.”

Previous articles on the Scottish Police Authority can be found here: Scottish Police Authority – Poor governance, private meetings & lack of accountability at Police regulator

 

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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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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

Lord Carloway – judges will not declare interests. SCOTLAND’S top judge has come in for sharp criticism after telling MSPs he is against judicial transparency and the creation of a register of judges’ interests – unless scandal or corruption is discovered by the judiciary within their own ranks.

Yesterday, Lord Carloway (real name Colin Sutherland) appeared before members of Holyrood’s Public Petitions Committee, where in his evidence, the judge blasted transparency, court users, litigants the press, public, the internet and even social media – as reasons judges must be exempt from declaring their interests.

Carloway – who earns over £220,000 a year as Scotland’s ‘top judge’ – even declared to MSPs that creating a register of interests for judges would deter recruitment of ‘talented’ lawyers – reported in more detail by The National

The protests from Scotland’s current top judge are in response to MSPs consideration of judicial transparency proposals contained in 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.

The short session with Lord Carloway held yesterday, lasted a mere thirty six minutes.

Carloway’s stuttering performance was brought to a swift end by the Convener after detailed lines of questions from Alex Neil MSP saw Scotland’s top judge bounce from subject to subject, unable to offer a single clear reason as to why judges should be treated any differently from others in public life.

The Scottish Sun newspaper reported in today’s edition Alex Neil MSP (SNP Airdrie and Shotts) slammed Lord Carloway’s “extremely unconvincing” argument. He added: “He put no rational case against.”

Lord Carloway’s appearance before MSPs was rated as “poor” by legal insiders, comparing the session to that of his predecessor Lord Brian Gill, who gave evidence to MSPs in November 2015 – after resigning earlier from the post of Lord President in May 2015.

Gill, who had waged a three year battle against the petition, refused to attend the Scottish Parliament on several occasions – a refusal resulting in heavy criticism in the press and from politicians who said Gill had insulted Holyrood.

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.

In a statement issued to the media late yesterday, Moi Ali – Scotland’s first Judicial Complaints Reviewer who gave evidence to the Scottish Parliament in 2013, criticised the stance of the Lord President at today’s hearing.

Moi Ali said: “I hold judges in high esteem for the important work they do, but I regret to say that Lord Carloway did a great disservice to the judiciary in his evidence to the Petitions Committee. He appears to have a very low opinion of users of the Court Service, suggesting that people who do not get the result they want may act with resentful, malicious and hostile intent. This is insulting to the public at large.

“His suggestion that a register of interests would lead to retaliation by unsuccessful litigants in the form of online fraud is frankly ludicrous and deeply offensive. I personally handled complaints reviews by unsuccessful litigants when I was the independent Judicial Complaints Reviewer, without any kind of threat or malicious action – even where I did not find in favour of the complainant.”

“I published a register of interests when in that role, despite not being required to do so. Why? Because it’s a basic expectation that that’s what public servants do in the twenty-first century.”

“The fact is that the judiciary do not wish to be open and transparent in this respect, and choose to present themselves as a special case. It seems to me that if a register is required to be completed by MPs, MSPs and public Board members, then it must also be required of the judiciary.”

“My opinion is not founded on a belief that judges are corrupt; rather, it comes from the view that transparency builds trust and confidence. As a society, we must be able to have complete confidence in our judiciary – and that starts with their openness and transparency.”

In a statement to the media, law blogger & petitioner Peter Cherbi said: “Transparency apparently stops at the doors of our courts and that’s it, Judges are to remain judges in their own cause and we shouldn’t have a register of interests until there is a scandal. Not on in 2017.”

Lord Carloway doesn’t seem to consider the fact these litigants and their legal representatives he holds in such distain – prop up his £220K a year job and our courts in exorbitant fees and hundreds of millions of pounds in publicly funded legal aid.

“And just exactly why does transparency inhibit the recruitment of judges? All other branches of public life have registers of interest and do just fine on recruitment. Lord Carloway is really struggling with this one.”

“Moi Ali was right all along. These people are the most powerful, and require the most transparency. Everyone gets the idea of transparency except the judiciary. Time now for a full register of judicial interests and for Parliament to act where the Lord President has failed.”

“Carloway’s arguments against a register are waffle – look at how the Sunday Times was treated in England over the Cruddas case where judges failed to declare interests in their links to political parties.”

“We should remember this is not just about protecting court users, a register is about protecting the public and the media who in many cases as we know, advance the cause of transparency and public interest where Governments, the Executive, public bodies and the courts all fail.”

Full report & video footage of Lord Carloway’s evidence to the Public Petitions Committee:

Lord Carloway evidence on Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017

As the hearing began, Johann Lamont opened questions to Lord Carloway on arguments he put forward relating to “online fraud” as an inhibition to a register of judicial interests.

Carloway failed to provide any example in response to the questions on his own argument, and then claimed he was unaware of details of any other registers of interest.

The Lord President then turned on court litigants, claiming a register of judicial interests and any attempts to bring transparency to the judicial bench would help “paranoid” litigants take revenge on a judge after losing their cases.

Carloway – who has been a judge for 18 years, then went on to castigate financial declarations of interest, claiming if such a register existed he would not be able to hire “lawyers of excellence” for positions up to £200,000 a year judicial jobs.

The Lord President even complained about the level of judicial salaries and pensions during his evidence to MSPs as yet another reason and “disincentive to lawyers of experience and skill to become members of the judiciary”.

He said: “We have a relatively small pool of lawyers of excellence who are capable of taking on the job of being a member of our senior judiciary.

“We have particular difficulties with recruitment at the moment. If I were to say to senior members of the profession, ‘By the way, if you wish to become a judge you will have to declare all your pecuniary interests and open them to public scrutiny’, I have no doubt whatsoever that that would act as a powerful disincentive for lawyers of experience and skill becoming members of the judiciary.

“I can assure the committee, we need them more than they need us.”

In response to questions from Angus MacDonald on declarations of judicial interests in the United States, Lord Carloway said he was not in a position to comment on the US judicial system as he did not know enough about it.

However, it recently emerged Carloway regularly visits judicial gatherings in North America at taxpayers expense and mingles with judicial groups at plush locations for ‘legal conferences’.

Angus MacDonald then challenged Lord Carloway on recusals, in relation to cases where judges have either concealed conflicts of interest or have refused to stand aside from a case.

Mr MacDonald quizzed the Lord President on omissions in the recusals register – to which Lord Carloway said he was not concerned about.

The Lord President then told MSPs there was only one omission he was aware of in the recusals register.

However in response to a recent DOI investigation into judicial recusals, a number of cases are now being studied by journalists which appear to have been omitted from the recusals register.

And in at least one case, it has been alleged court clerks actively discouraged a motion for recusal, and suspicions are, more cases may fall into this category.

In a question from Rhona Mackay MSP (SNP) who asked Lord Carloway what the Law Society of Scotland’s view was on a register of interests.

Lord Carloway bluntly replied “I don’t know the answer to that”.

Maurice Corry MSP then asked Lord Carloway if he would provide further details to the register of recusals and options to make the recusals register more transparent.

Lord Carloway said it was not particularly required to apply further details to the current register of recusals, which is currently published by the Judicial Office with sparse detail.

Angus MacDonald then asked the top judge if he could be content to see clerical errors corrected in the register with a footnote if applied at a later date. Lord Carloway said yes.

Alex Neil MSP, who attended the Petitions Committee as a guest, then asked Lord Carloway if it should be left up to a judge to decide on an issue of principal if it should be left up to a judge to recuse themselves or should it be for the Lord President or the keeper of the rolls to insist upon if there is a conflict of interest.

Lord Caloway said he was happy with the system as it stood.

However Mr Neil pressed Lord Carloway on the point, saying the system was balanced against people who come to court for justice, particularly if they are under resourced or never find out about conflicts of interest in court.

Responding, Lord Carloway reverted to an obscure report prepared by a group of European judges which said there was no need for a register of judicial interests in the UK.

However, the judges and legal team who prepared the GRECO report referred to by Lord Carloway – are also against the introduction of registers of interests for members of the judiciary in the EU.

Carloway then insisted the Scottish judiciary was “not corrupt”, and said he would not even consider a register of interests until there was evidence of corruption.

The Lord President said: “Until such time as it’s demonstrated that there is corruption within the Scottish judiciary, I’m entirely satisfied that there is no requirement for a register of interests and that it would be positively detrimental to the administration of justice, particularly in relation to the recruitment of judges and especially at the higher level of the judiciary.”

Alex Neil put further questions to Lord Carloway, comparing the existence of the register of interests for MSPs which exists at the Scottish Parliament to ensure transparency.

Mr Neil reminded the Lord President the existence of the register of interests for MSPs did not exist due to allegations of corruption, rather to ensure transparency.

Responding to a case quoted by Alex Neil in relation to a construction firm –  Advance Construction Ltd – in which a Court of Session judge & Privy Councillor heard a case eight times which involved his own son – Lord Carloway said he was happy Lord Malcolm acted properly without recusing himself in the case.

Carloway claimed that Lord Malcolm had acted in accordance with the code of judicial ethics.

Carloway was then challenged by Alex Neil on whether the top judge had actually investigated details of the case – to which Carloway initially claimed he was not aware of any documents.

However, pressed on the matter, the judge admitted he had read documents from the individuals named by Mr Neil.

Lord Carloway said “As far as I am aware the documents were not addressed to me, but I could be wrong about that”

An earlier investigation by the media revealed  Lord Malcolm (real name Colin Campbell QC) heard the case in question no less than eight times while his son – Ewen Campbell – worked for Levy & Mcrae  – the Glasgow law firm now subject to multi million pound writs in connection with the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

Ewen Campbell had been appointed to run the case by a judicial colleague of Lord Malcolm & Lord Carloway – Sheriff Peter Watson who was at the time a senior partner of Levy & Mcrae.

Sheriff Watson was since suspended from the judiciary by Lord Brian Gill, who as Lord President in 2015, suspended Watson to protect public confidence in the judiciary – after both Watson and Levy & Mcrae were named in a multi million pound writ relating to the loss of millions of pounds in the collapse of the Heather Capital hedge fund.

Responding to further points raised by Alex Neil, Lord Carloway hit out against suggestions judges should register what their relatives are doing and where they are working.

Carloway said “this was going way beyond I suspect what is expected of politicians in a register of interests”.

However, Alex Neil informed Lord Carloway that MSPs are already required to register what their close relatives do.

In response, Lord Carloway compared politicians to members of the judiciary, and claimed judges require a different type of independence as enjoyed by politicians.

The top judge said interests in the judiciary usually relate to social connections with people rather than pecuniary interests, which do not appear in the register of recusals.

However, as there are no requirements to declare pecuniary interests in the current recusals register, it is of particular note not one financial related recusal has appeared in the register of recusals, which covers 700 members of the judiciary, some of whom are earning up to £220,000 a year, and for many years.

In further points put to Lord Carloway, Mr Neil said that the perception of fairness is not present in the way matters are conducted in court.

In response, Carloway again referred back to the case mentioned by Mr Neil, saying he was happy with the way in which Lord Malcolm, had handled the court correctly.

Carloway claimed there was no active involvement whatsoever by Lord Malcolm’s son – Ewen Campbell – who is now an advocate.

However, Ewen Campbell’s name is listed on court papers from the outset of hearings in the Court of Session in front of his father, Lord Malcolm.

And, it has since emerged a written and signed statement by Ewen Campbell as a witness in the case mentioned by Alex Neil has been provided to journalists, along with a statement signed by suspended sheriff Peter Watson – a judicial colleague of Lord Carloway.

These developments and statements, which are to be published in a further investigation into judicial recusals, now calls into question Lord Carloway’s claims in his evidence to MSPs.

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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CASHBACK QC: Legal regulator’s files reveal senior QC reduced claim without instructions, withheld key evidence & witnesses including Cabinet Secretary from Court of Session case

John Campbell QC – evidence to legal regulator contradicts judge. DOCUMENTS obtained by the media from a legal complaints investigation – reveal a senior QC was unable to produce substantive evidence against allegations he stripped out a £4m head of claim & legal and professional expenses without consulting his client.

The overall tone of responses from John Campbell QC to the Scottish Legal Complaints Commission (SLCC) give a series of contradictory accounts to legal regulators of services he provided in a case now linked to serious failings of the judiciary.

In one lengthy explanation Campbell claims he did not act without instruction, however, the senior QC refuses to produce any evidence of said instructions.

In another exchange, the long time QC dismisses the appearance and evidence from a star witness Cabinet Secretary – Alex Neil MSP (SNP Airdrie and Shotts).

Campbell personally took the top politician’s precognition and had him set to appear on the first day of the proof, then failed to call the Cabinet Secretary in a move now raising serious concerns over the performance of the once ‘top’ rated Planning Law QC.

And, in a bizarre twist to the case the senior QC – now the subject of media coverage – claimed he had no professional relationship with Mr Nolan’s partner – even though evidence has since been published in the press Campbell demanded and obtained cash sums of £5,000 from his client’s partner.

The cash payments sought by John Campbell QC are in breach of rules of the Faculty of Advocates – who stipulate fees can only be paid via solicitors to Faculty Services. A full report on Campbell’s cash demands can be read here: Investigation reveals Scotland’s ‘top’ Planning QC demanded cash payments & cheques from clients in Court of Session case

In an attempt to answer allegations he removed a £4m head of claim & legal expenses from the high value damages action in the Court of Session on the last day of proof – the senior Planning Law QC gave the SLCC a laboured account of events without being able to back up his position.

Complaints against Campbell’s reduction of the claim relate to sweeping statements made by Court of Session judge Lord Woolman in his 2014 opinion of Nolan v Advance Construction (Scotland) Ltd.

An evidence review of court documents, including transcripts from the case, and now John Campbell’s response to the SLCC indicate Lord Woolman’s statement – that Nr Nolan “vastly” reduced the claim on his own – is incorrect.

Woolman’s opinion, of 17 January 2014 stated “In the course of the proceedings, Mr Nolan has greatly narrowed his claim. In June 2012, he deleted his conclusion for specific implement. At the close of the proof, he abandoned his claim for lost development value, which he had originally valued at £4 million. He also accepted that some elements of the claim for investigative costs are properly classified as litigation expenses.”

However, and in a move which now discredits key parts of the Woolman opinion – John Campbell failed to produce to legal regulators – any evidence of a consultation with his client or evidence that he obtained proper authorisation to strip out key parts of a £6m damages claim – rendering the judge’s now unfounded statements  worthless.

A study of material from the SLCC complaint file handed to investigators at the Scottish Legal Complaints Commission reveals a set of exchanges and written testimony handed to the regulator which show John Campbell QC acted on his own, and without instruction when he removed the £4m head of claim along with legal and professional expenses on the last day of a proof hearing.

The sudden, and unauthorised move by the QC stunned the court and even the judge – who had acknowledged on the preceding day Mr Nolan had a valid claim.

However, Mr Campbell’s own client – the well respected former National Hunt jockey & trainer Donal Nolan was kept in the dark by the senior QC and his assistant – Advocate Craig Murray of Compass Chambers.

Responding to allegations Campbell acted on his own, the QC claimed: ”I did not act without instructions. The Court adjourned while I took instructions on this very matter. Mr Nolan was not in attendance.”

“I asked that he be brought to Court. The Court’s Minute of Proceedings discloses that i sought and obtained an adjournment for that purpose. The same day, I wrote a Note for Mr Nolan.”

However, an email presented to the SLCC as part of the complaints file reveals a much different version of events where John Campbell writes in an email to Mr Nolan’s solicitor saying he does not want to see his client.

Campbell’s email to his client’s solicitor reads: “Melanie has given instructions to do without Steven Brown. I am content with those instructions. Craig is getting them in writing and l will write a Note of Advice. You DO NOT need to bring Donal through here this afternoon”

In reality, the ‘instructions’ Mr Campbell referred to in his email – never existed.

Advocate Craig Murray – mentioned in the email and who was serving as Junior Counsel – later denied he ever received any written instructions from Mr Nolan’s partner with regard to dealings with the witness referred to by Campbell.

And despite repeated requests by the pursuer for Mr Campbell and other members of the legal team to produce such written instructions to the SLCC investigation, none were forthcoming.

Campbell’s explanation goes on to say: “I also have a verbatim note of proceedings on that day, taken by junior counsel, which demonstrates quite clearly that I sought and obtained an adjournment to take instructions on this matter, and to have the pursuer himself attend. I can make that verbatim note available if the SLCC wishes to see it …”

However, the additional “verbatim note” referred to by John Campbell – was never produced despite repeated requests.

Campbell further attempted to justify his removal of the £4.1m head of claim.

John Campbell wrote: “Further, the decision to proceed without this part of the claim was fully explained, first to Mrs Collins, and then subsequently to Mr Nolan. It was endorsed by junior counsel, and understood by the solicitors. I am in no doubt at all that it was fully understood by all.”

However, a media investigation and study of the case file has concluded there is NO discoverable trail of consultation or any subsequent written or verbal authorisation for removal of the £4.1m head of claim between the QC, the Edinburgh Agents Drummond Miller, the solicitor in charge of the case or the client – Mr Nolan.

In the same letter to the SLCC, John Campbell attempted to blame the client’s solicitor for a failure to include the words “without prejudice” in a letter to Levy & Mcrae – the defender’s legal agents – even though it was Campbell himself who drafted the letter and had omitted to put in the words now under dispute.

Mr Campbell then claimed he discussed with his client – the possibility of capping the site at Branchal in Wishaw – the same site the defenders had accepted their dumping of the contaminated material had been unlawful.

Capping – a technical term of dealing with dumped material refers to layers of soil placed over the dumped material. However, if the material is contaminated, this method of dealing with hazardous waste renders a site unusable.

An interview with the client – Mr Nolan, has established no such discussion with Mr Campbell on the subject of ‘capping’ ever took place.

And expert testimony seen by reporters has revealed any ‘capping’ of the Branchal site would have rendered it worthless for future development.

In the same response to the SLCC, John Campbell claimed bombshell evidence from a North Lanarkshire Councillor – who alleged bribes or inducements had been offered for him not to give evidence in court – “was in the end irrelevant to the issues which the judge had to determine”.

The Councillor gave a precognition to Campbell’s Junior – Craig Murray of Compass Chambers. Murray is now an ad-hoc Advocate Depute for the Crown Office in the High Court. Also present during the Councillor’s precognition was Fiona Moore – head of litigation for Edinburgh law firm Drummond Miller.

Both Craig Murray and Fiona Moore have been asked questions by the press over their involvement in the case, however both refused to comment.

A full report on Craig Murray’s involvement in the case features here: Second version of Advocate Depute’s letter to legal regulator ‘removed bribe offer’ in evidence considered by Faculty under ex-dean, now Lord Advocate James Wolffe QC

In respect of the evidence relating to bribery, legal insiders speculate if the court had heard the evidence of an attempt to bribe an elected councillor – it is most likely hearings would have been halted while a criminal investigation by Police Scotland took place, along with attendant media interest.

And, a recent press interview with the councillor has since established the offer of an inducement did in fact, take place, naming two individuals connected to companies involved in the court action.

Serious questions remain as to why this evidence relating to bribery was not introduced during the court case, and the motives of Mr Campbell in omitting such headline grabbing material from the court.

One witness who has since spoken to journalists said he felt Mr Campbell had an “alternate agenda” in the lines of questioning he had previously indicated would be asked compared to what questions Campbell eventually asked of witnesses in court..

On the point of calling a star witness in the case – Cabinet Minister Alex Neil MSP – John Campbell writes “The evidence of Mr Neil MSP was not required. I accept responsibility for not calling him”

However, it is likely the headlines generated by a Scottish Minister with the rank of Alex Neil – who was Cabinet Secretary for Health at the time – would have generated headline attention to his evidence which in turn may have led to developments in the case.

Papers obtained by journalists including a witness list from the case – have now established the Cabinet Secretary for Health & Wellbeing was to be called as a witness on the first day of the proof in Nolan v Advance Construction (Scotland) Ltd.

The move to call Mr Neil on the first day gave a clear indication of the importance placed on Mr Neil’s evidence.

However, the Cabinet Minister was kept waiting in the witness room for around four hours by senior counsel John Campbell – to a point where it became clear Mr Neil was not destined to appear that day.

Mr Neil then had to leave the court for a meeting, and was not called again by Campbell QC.

A study of evidence from Mr Campbell’s written explanation to the SLCC clearly indicates the senior QC never had any intention of calling Mr Neil despite all the plans made to do so and the expectation of his client.

Despite Campbell’s claim to the SLCC the evidence of Alex Neil was unimportant and not relevant to the case, it has now emerged John Campbell personally took Alex Neil’s precognition statement – an unusual move but one indicating the emphasis placed on testimony of such a high ranking politician.

Ultimately, the episode involving Mr Neil not being called as a witness could be viewed as symptomatic of John Campbell’s treatment of the case and his client.

Speaking to Diary of Injustice, Mr Nolan’s partner has indicated a clear and consistent line of dishonesty ran throughout their dealings with the Senior counsel.

Further material now handed to journalists on the case includes a copy of an audio interview with John Campbell QC, Advocate Craig Murray, Gregpr McPhail, the pursuer’s solicitor and the pursuer’s partner.

The explosive audio recording – in which Campbell admits taking instructions from Ms Collins – even though he claimed to the SLCC he had no professional relationship with her, is set to be submitted to the Scottish Legal Complaints Commission and the Faculty of Advocates in a revamped complaint against the senior QC.

And now, additional material passed to journalists which covers work done by Edinburgh law firm Drummond Miller on behalf of Mr Nolan – raises serious concerns as to their conduct and work carried out on behalf of their client.

In a letter dated 9 October 2014 from Fiona Miller – Head of Litigation for Drummond Miller – to Simpson & Marwick (now Clyde & Co) who were now defending John Campbell QC against the complaints raised in relation to his provision of legal services, Fiona Moore confirms “Many consultations and meetings took place between Mrs Collins and counsel which we [Drummond Miller] were not party to.” – blowing apart claims by Campbell to the SLCC he had no relationship with Ms Collins.

However, Fiona Moore then goes on to state to Simpson & Marwick “I trust this assists and that the complaint is successfully defended. If you require anything further, please do not hesitate to contact me.”

The tone of Fiona Moore’s letter raises serious questions over Drummond Miller’s relationship with their own client, Mr Nolan and the law firm’s apparent willingness to engage in a concerted attempt to thwart investigation of the complaints against the QC.

The firm’s willingness to side with their legal colleague came even though all parties had been aware Campbell was regularly breaking Faculty rules and ostensibly wanted to control the case on his own rather than use proper channels of solicitor, Edinburgh agents to speak to his client.

It has also been pointed out Drummond Miller frequently appear in the Court of Session for clients – and would easily have been aware of the identify of Lord Malcolm, who is reported to have heard the Nolan v Advance Construction (Scotland) Ltd case no less than eight times, while failing to declare a conflict of interest.

Yet when asked questions as to why Drummond Miller did not alert their client – Mr Nolan – to any potential conflict of interest between Lord Malcolm and the solicitor who represented the defenders – his son – Ewen Campbell, Drummond Miller partner Fiona Moore refused to comment.

With the complaints file now being available for study and full publication – there is a possibility of further complaints against Craig Murray and other legal agents involved in the case who sought huge fees and legal aid for their work being made to legal regulators.

A recent attempt to illicit comment from John Campbell QC failed, marking a consistent line of silence from the senior QC in response to questions from the press.

Asked for a comment, the Scottish Legal Complaints Commission said it would give no further statement to the press on this case.

The Faculty of Advocates have also refused to speak to the press on Mr Campbell’s actions and their previous investigation which it has since been confirmed relied on a second, highly edited version of written evidence given by fellow Advocate Craig Murray – which Murray now contests ever existed.

Journalists are now studying a series of damning environmental reports from Court of Session papers – which accuse North Lanarkshire Council, and two construction companies – Advance Construction (Scotland) Ltd and Graham Construction Ltd of being responsible for the dumping of contaminated material at Branchal.

The investigation has so far revealed John Campbell QC had sight of the material but failed to make proper use of the damning reports – raising concerns he was not presenting the full facts of the case as instructed by his client.

The reports – due to be published by the press in full – also raise serious questions about the conduct of Scotland’s environmental regulator – the Scottish Environment Protection Agency (SEPA) – whose failures in this case could not be categorised as ‘accidental’.

“The National” newspaper carried an exclusive investigation into the Nolan V Advance Construction Ltd case, here: Couple’s human rights breach claim raises questions about how judicial conflicts of interest are policed. The newspaper’s investigation revealed there are moves to take an appeal to the UK Supreme Court at a date to be decided.

BURNING QUESTIONS: QC fails to answer queries from Media

The QC at the centre of the cash for services scandal – John Campbell QC has consistently refused to talk to any media.

Campbell’s silence comes after publication of his own communications revealed the senior QC demanded sums of £5,000 at a time be paid to him in cash or cheque form – a breach of the rules as laid down by the Faculty of Advocates.

Journalists put the following questions to the senior QC, however John Campbell failed to reply to all requests for comment.

1. In a letter dated 5th of June 2014 sent to the SLCC you state to the SLCC that you had no professional relationship with Mrs Collins who is Mr Nolan’s partner. Any comment on this?

2. In a letter sent to Simpson Marwick dated 9th of October 2014 from Fiona Moore she states clearly that as you are no doubt aware , the case was in any event being run by Melanie Collins, Mr Nolan’s partner and that it was she who gave all the instructions in the case. This is clearly at odds with what you state to the SLCC. Any comments on this?

3. Returning to your letter to the SLCC you state you did not act without instructions    Who gave you these instructions? Any comment on this?

4. Copy correspondence also received from the instructing solicitor to Ms Collins clearly states no instructions were ever given by him to remove this part of the claim. Drummond Miller also state they gave no instruction to drop any part of this claim. Any comment on this?

5.It is clearly evidenced by court transcripts that Mr Woods of DMHall was only in court to speak to productions D5 and D 10 which were valuations he prepared for the Heritable Creditor the Clydesdale Bank and nothing else. Any comment on this?

6. Again in your letter to the SLCC page 2 you state the decision to proceed without the blight claim was fully explained to Mrs Collins, Mr Nolan and Mr Falls when in fact I have now been passed an audio tape recording where you clearly state you removed this claim yourself without any instructions. Any comment on this?

7. Lastly, the emails you sent to Ms Collins asking for collections of £5k in fees at a time, again you stated you had no professional relationship with Ms Collins yet frequently broke Faculty rules by demanding collection of fees in cash to be provided by her. How can it be you claim no professional relationship with Ms Collins yet seek to engather fees? Any comment?

DO you have a complaint with the Scottish Legal Complaints Commission or Faculty of Advocates?

What is your experiences of dealing with the SLCC or the Faculty? Has your solicitor, advocate or QC demanded cash payments from you at any stage of a civil or criminal case? Tell us more about it in confidence, by email to scottishlawreporters@gmail.com

 

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CASH IN THE CROWN: Forget millions on bonuses, mortgages, junkets & dodgy prosecutions – Holyrood Crown Office probe raises concerns, recommends changes for £113m ‘under-resourced’ & untrustworthy Prosecution service

Scots Prosecutors ‘getting by’ on £113m a year. SCOTLAND’S PROSECUTORS are “just about managing” on £113million a year of taxpayers cash – according to a report produced by the Scottish Parliament’s Justice Committee of the ‘Role and Purpose of the Crown Office & Procurator Fiscal Service (COPFS).

During the ‘bombshell’ inquiry into the Crown Office – an organisation once dubbed ‘the most corrupt institution in Scotland’ by a Cabinet minister – the Scottish Parliament’s Justice Committee heard claims COPFS staff suffered from shortage of resources,weak morale – including more than average levels of sick leave, claims of overwork.

MSPs also heard grips from the Lord Advocate – James Wolffe QC and his team over the level of public cash thrown at the infamous Edinburgh based Crown Office which now stands at a whopping £112.5million a year – according to figures in the Scottish Government’s own budget for 2016.

The report – into the ‘crime fighting’ Crown Office – which refused to prosecute the driver of the Glasgow bin lorry which left six people dead and injured 15 others in the centre of Glasgow – concludes: “On the whole, the public should have confidence that it is a rigorous and fair prosecutor. “However, the service remains under considerable pressure. There can be no room for complacency.”

The Committee’s inquiry also identified room for improvement in a number of Crown Office functions, including the support given to victims and witnesses – who are often poorly treated by COPFS staff.

However – during 2014 it was reported a senior manager in the Crown Office was suspended after openly criticising the treatment of crime victims.

John Fox, 47, made postings on an internal staff forum accusing his bosses of putting victims of domestic violence at risk. His criticism emerged days after the Sunday Mail newspaper revealed how victims of crime felt betrayed by Scotland’s justice system and were demanding reforms.

Mr Fox was formerly in charge of the 100-strong Victim Information and Advice Service (VIA), responsible for helping to improve services to crime victims and their families across Scotland. One of their tasks is to inform victims of domestic violence about the release from custody of the person charged with attacking them.

In some cases, victims of crime and witness have since alleged Crown Office employees told outright lies.

And, a recent investigation by the media reported key Crown Office employees hold secret criminal convictions for serious offences. The investigation, assisted by documents obtained by Freedom of Information legislation published here: Prosecutors own crime gang revealed  also found some victims and witnesses to crime had been threatened by Crown Office prosecutors and staff.

In a period of just two years – from November 2013 to November 2015 – the Crown Office admitted it retained records showing 15 cases reported to COPFS containing allegations of criminal offences by COPFS staff. Court proceedings were taken in 11 cases, three cases were disposed of by non-court disposal and no proceedings were taken in one case.

The charges brought against staff include assault and vandalism; road traffic offences; threatening and abusive conduct; breach of the peace; Misuse of drugs and offences against the police; data protection offences and an attempt to pervert the course of justice.

The Holyrood enquiry was apparently not handed any of this information. The inquiry did not take  steps to act upon it and quiz COPFS representatives, despite reports being available in the media  and to the inquiry – for some time.

Much of the inquiry’s focus on staff morale heard claims the Crown Office was underfunded and overworked, however figures revealed in a Freedom of Information request for the immediate three years after the collapse of several high street banks & huge cuts to public services – revealed successive Lord Advocates have spent over £572,307,16 on paying supposedly hard up staff everything from mortgages, relocation, rental costs and even phone bills, council tax and personal legal bills.

During financial year 2008/2009, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to 32 employees were: £212,500.76.
During financial year 2009/2010, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to 38  employees were £242,586.59.
During financial year 2010/2011, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to  26 employees were £117,220.14.

The cash expenses & junkets claims from COPFS staff continue, with figures released in another Freedom of Information request revealing a whopping £137,744.43 spent on further staff perks and junkets in 2014-2016. The FOI revealed:

During financial year 2011/2012, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to 16 employees were £85,513.21.
During financial year 2012/2013,payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to   8 employees were £38,711.35.
During financial year 2013/2014, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to  5 employees were £13,519.87.

The cash expenses & junkets claims from COPFS staff continue, with figures released in another Freedom of Information request revealing a further £28,090 spent on further staff mortgages, rent , phone bills, legal bills and other perks and junkets in 2014-2016. However, these figures are now thought to be in dispute – and of a much higher sum than was originally quoted by the Crown Office. Nevertheless the FOI revealed:

Payments made by COPFS for housing, rent or relocation allowances, or help with mortgages, for COPFS staff including Procurators Fiscal from 1 April 2014 to 31 March 2016, were made by 33  COPFS employees, totalling an extra £28,090.

A separate Freedom of Information request revealed the hard-up Crown Office media unit spent over £376,168.06 in one year alone on media relations – this despite the Lord Advocate’s staff of 6 full time media staff and one part time employee – operating a policy of “no comment” to journalists – who are in increasing numbers of cases told to put their request for comment in a Freedom of Information request.

And, an investigation by the Sunday Mail newspaper in 2011 established the Lord Advocate had authorised massive bonuses for Crown Office staff who pocketed bonus payments of more than £580,000 in just two years.

Figures released via Freedom of Information requests revealed 419 COPFS employees shared payouts totalling £326,844 in 2009-2010, while 518 COPFS staff were handed £253,330 for 2010-11.

In 2009-2010, eight employees of the Crown Office received Bonuses of up to £20,000 while a further 15 COPFS employees received bonuses of up to £8,000.

In the same year up to 200 members of staff received bonus pay-outs of up to £500 while a further 200 COPFS employees were paid bonuses of up to £1000 each.

And, an investigation by the Scottish Sun newspaper revealed supposedly hard up Crown Office staff were travelling to international destinations all bankrolled by taxpayers cash.

The allegedly hard up Crown Office spent more than £57,000 of taxpayers’ cash last year alone flying staff across the globe. Hong Kong, Mauritius, Taiwan and New York were among 15 exotic destinations visited by Crown Office employees. And since 2012, they have taken off on a total of 109 international flights to places like South Africa, Australia and Malta.

The Crown, led by Lord Advocate Frank Mulholland, racked up £29,504 on 39 international flights to meetings and conferences last year and £27,603 on 143 domestic trips.The number of overseas flights has remained fairly steady over three years at 36, 34 then 39. But domestic flights have increased sharply from 97 to 131, then 143 last year.

Amsterdam was the most common destination, with 30 trips since 2012. The Dutch city is a major travel hub and close to the International Criminal Court in The Hague. Flights to Washington DC and Malta were in connection with the ongoing probe into the 1988 Lockerbie bombing.

While the information has been available in the public arena for some time, COPFS representatives appearing in front of the Justice Committee did not face any lines of questioning of the massive cash spends on personal junkets, mortgages, rent and other bills accumulated by staff who managed to have them all paid off by taxpayers.

The Justice Committee also had to make do without attendance of Scotland’s top judge and other members of the judiciary after Lord Carloway issued a letter to all branches level of the judiciary informing them of his decision to refuse to give evidence to the Justice Committee’s probe into the Crown Office.

Lord Carloway  – who earns £222,862 a year for his role as Lord President & Lord Justice General – said the Scottish Courts & Tribunals Service (SCTS) should give evidence to the Justice Committee, rather than individual members of the judiciary – even retired ones

Carloway’s letter went out to every high court judge, the Sheriffs’ Association and the Scottish Justices Association (SJA) – which represents Justices of the Peace.

After Lord Carloway’s decision to refuse to attend the Justice Committee was made known – the SJA pulled out of its scheduled appearance in front of MSPs.

The report found that Scotland’s public prosecutor is coping in its core role of steering trials through the courts to an appropriate outcome, but the level of adjournments and postponements is unacceptably high and inadequate communication is a key problem.

It recommends that the COPFS develop more efficient and effective ways to update people whose attendance is no longer required at a trial.

It also says the COPFS should consider concerns raised about the erosion of prosecutors’ autonomy and discretion, the lack of preparation time and the consequences for morale.

Justice Committee convener Margaret Mitchell said: “An effective Crown Office is fundamental to an effective criminal justice system in Scotland.”

Ms Mitchell continued: “The committee heard many concerns during our inquiry. Across the board, witnesses identified possible improvements which could be made to how COPFS works – and better serve justice and the public. This report, its findings on the service’s strengths and weaknesses, and its recommendations are a considered, cross-party view following six months of work. These findings must be taken into account by COPFS management and the Scottish Government. There is no room for complacency, and the committee will be keeping close watch on developments.”

Justice Committee report – Role and Purpose of the Crown Office and Procurator Fiscal Service

Focussing on areas of Crown Office operation, the following excerpts are reproduced from the Committee’s final report:

Digital strategy

110. The “vision” of the Digital Strategy, published in 2014, is “to have modern, user-focused justice systems which use digital justice technology to deliver simple, fast and effective justice at best cost”. It is estimated by the Scottish Government that full implementation of the strategy across the entire justice sector (including the administrative and civil spheres) could save some £20-25 million per annum. The strategy sets out three objectives—

allow people and businesses to access the right information at the right time, principally by expanding online the amount of available information about the justice system. This objective also includes a commitment, by the end of 2017, to enable victims of crime to track their case online;

fully digitised justice systems;

make data work for us, ie collect and use data including stakeholder feedback to develop a more efficient and responsive justice system.

111. It is the second of these objectives that appears to have most potential to unlock efficiencies in the prosecution system, particularly in tandem with complementary reforms envisaged under the Evidence and Procedure Review. It includes plans for—

a “digital evidence vault” enabling the secure storage of all digital evidence in civil and criminal cases;

greatly increased use of live video links to reduce the need for accused, victims and witnesses to have to come to court in all instances;

the serving of more court documentation (eg arrest warrants) digitally; and

disclosure by the COPFS of all evidence to defence agents electronically.

112. The strategy also envisages the police being equipped with body-worn cameras and the integration of all legacy force ICT services within Police Scotland. The Committee notes the potential impact of these objectives on the prosecution of crimes, although they are not within the direct remit of this inquiry. Scrutiny of these issues is within the current work programme of the Justice Sub-Committee on Policing

and on

Evidence and Procedure Review

113. Lord Carloway’s March 2015 Evidence and Procedure Review concluded that the conduct of criminal trials needs to change because the process had not kept pace with entry into a digital age. The main recommendations related to—

child and vulnerable witnesses: as much as possible, taking evidence from them should be removed from the courtroom setting;

digital evidence: audio and video witness statements should ordinarily be admissible. This was seen as paving the way for the elimination of written witness statements, in most cases, in the future;

modernising criminal trial procedures: in essence, shifting the weight of trial preparation to earlier in the process, in part through greater judicial case management. Trial dates should only be fixed when it is clear that the case will be ready to run on the relevant date.

114. This was followed by a February 2016 “next steps” paper, setting out proposals on which the SCTS is currently working.158 These are intended to build on Lord Carloway’s three main recommendations and to align with relevant objectives in the digital strategy. The overall vision is of a more streamlined criminal justice system, with far less evidence having to be led in the courtroom.

115. As set out in the preceding section, the Lord Advocate and Crown Agent both indicated the COPFS’s readiness for reform, and said they saw real opportunities for progress, particularly in relation to the work of the Evidence and Procedure Review.The Crown Agent said the goal was to crystallise as much evidence as possible in advance of the actual trial.160 Amongst other things, this would greatly reduce the need for witnesses to attend trials – and the non-attendance of witnesses is one of the main causes of churn.

116. The Cabinet Secretary also set out his strong support for the Review. However, he referred in addition to a need for a “cultural change” on the part of all stakeholders if the full benefits of the Review were to be realised. He indicated that legislation would be required at some point to implement elements of the Review.

and on ‘Specialist Prosecutions’ MSPs heard evidence from a former COPFS Prosecutor linked to events in the David Goodwillie rape case – where the victim was forced to sue her assailant through the civil courts after the Lord Advocate refused to prosecute the footballer.

Specialist prosecutions

167. The Committee sought views on whether the COPFS had the appropriate skillsets it needed to carry out its prosecutorial role. This includes prosecuting the wide range of different crimes that the COPFS may encounter, ranging from historic child sexual abuse to corporate accounting fraud. As noted elsewhere in the report, the COPFS has moved towards greater specialisation in recent years, setting up offices dealing with sexual offences, serious and organised crime, and international cooperation, amongst others. The Committee notes that, in a relatively small jurisdiction such as Scotland, there are limits to this approach. There may be some types of case that only come before the criminal courts a handful of times in a few years, but which are of a particular complexity. It is hard to build up specialist expertise in such cases. Derek Ogg QC, a former head of the COPFS sexual offences unit told the Committee that, if there is considered to be a lack of in-house specialism to prosecute particularly complex crimes coming before the High Court, this could be addressed by borrowing that expertise; recruiting “locum” advocates depute with experience in that field for the duration of the case.

168. Some submissions expressed the view that the COPFS did not always have the specialist skillsets needed to prosecute certain types of crime as effectively as it should, for instance corporate or regulatory offences.HM Revenue and Customs gave positive evidence about its working relationship with the COPFS in the prosecution of crimes in which it was involved, although it indicated that the COPFS’s relative under-resourcing in some areas, for instance technology, sometimes put it under strain.

Centralised policy-making and local autonomy

184. The COPFS is a national service aspiring to achieve consistently high standards across Scotland. It is in the public interest that both accused and victims should expect the same professional standard of prosecution wherever their case calls. There was a consensus in evidence that the COPFS has become a more centralised organisation in recent years. Some evidence broadly welcomed this, but the Committee also heard views that this process had gone too far; to the point where it was impacting negatively on the COPFS’s effectiveness as a public prosecutor. Whether the COPFS was striking the right balance between pursuing centrally driven policies and letting local prosecutors take their own decisions emerged as one of the key themes of the inquiry.

Specialisation and central case-marking

185. A closely related issue is that of specialisation. In effect, specialisation is a form of centralisation, as it means that a small group of specialist prosecutors will tend to determine national approach to prosecuting particular crimes wherever they occur.

186. Specialisation has included the setting up a case-marking unit around 15 years ago. Local fiscals no longer mark cases at the initial stage of the prosecution. Instead, there are two centres – at Paisley and Stirling – where practically all cases are now marked. As the Committee understands it, the case marking process may involve not only a determination as to whether or not a case should be prosecuted, but further instructions on how to handle the case, for instance whether to accept plea bargains and, if so, on what basis.

Other types of specialisation

187. The setting up of a national sexual crimes unit at the COPFS in 2009 was welcomed by many stakeholders. They thought it had led to such cases (which now constitute around 70% of all High Court cases) being better handled at least at a strategic and policy level, with the views and interests of victims and their advocates better taken account of. This was the view of organisations including Scottish Women’s Aid and Rape Crisis. Susan Gallagher of Victim Support Scotland told the Committee that her organisation’s experience of centralisation – or specialisation – as it applied to victims was largely positive; it was when the Victim Information and Advice service had become more decentralised that inconsistency had crept back in.As noted above, the setting up of a specialist wildlife crime unit was also welcomed by stakeholders as having helped professionalise the COPFS’s approach to these offences.

Views from COPFS representatives

199. The FDA, representing fiscals, took a balanced view of the move towards a more centralised and more specialist service in recent year, recognising that it had its advantages and disadvantages. However, it was overall considered to have been positive. In relation to case-marking, the union’s Rachael Weir told the Committee that she considered it had been beneficial because it had led to greater specialist expertise in case marking being built up.

200. As noted elsewhere in the report, the Lord Advocate publicly affirmed his confidence in COPFS staff as the organisation’s “greatest asset” and expressed his “absolute trust and confidence in the judgment of those who prosecute on my behalf up and down the country”. However, the COPFS also made clear in its evidence to the Committee that one of the drivers of the move towards centralisation had been a desire to achieve greater consistency, and a higher quality public service overall.Overall, nothing in the COPFS’s evidence indicated to the Committee that the COPFS was minded to fundamentally reconsider its approach, in the light of views that had been expressed. The Lord Advocate cited learned authority from the 19th century that it was his role to ensure “the due and equal distribution of criminal justice”, so that all may have equal protection under the law, in order to underline that the concept of achieving consistency in prosecution policy was not a new one. It was his view that the current system did allow for some flexibility—

The system can accommodate matters that are of concern in local areas. Indeed, in their reports, the police might identify a particular issue as being a matter of concern. I can put it in this way: through having a national approach, we can ensure that, where there is justification for a variation from the norm to be applied in a particular locality, that is done consistently and does not depend on the views of a particular individual in a particular local area.

201. The Crown Agent said that previous less centralised models had run into problems of their own, such as some courts sitting until late evening. He said that the current system had brought greater professionalism and consistency. Inasmuch as it had probably brought down the number of court sittings, it may have reduced overall costs, although that was not, he stressed, the main reason behind the policy.In relation to the comments of the GBA and others that the current decision-making approach to individual cases can appear opaque and unnecessarily hierarchical, the Crown Agent acknowledged that there was, or had been an issue, explaining that recent internal reforms had led to the number of “approval levels” for ongoing cases being rationalised, with the grade for approval reduced to a local level.

Diversions and local knowledge

202. The Lord Advocate explained to the Committee that teams at the two central case-marking centres are organised by reference to Scotland’s six sheriffdoms. He argued this helped enable case-markers to develop local knowledge of particular areas. In relation to diversions from prosecution, the Lord Advocate said he had reflected on the evidence and posed an open question as to whether it indicated a lack of consistency across the country on the availability of diversion schemes as much as any perceived lack of local knowledge on the part of case markers.

203. Supplementary written evidence from the Crown Agent queried SACRO’s evidence that there had been a trend away from referrals to restorative justice schemes, arguing that it was not strongly supported in the follow-up information SACRO had itself provided to the Committee. The COPFS’s own statistics had indicated a gradual rise in the number of diversions from prosecution over the course of the current decade.The Committee notes that it would require further analysis to determine the extent to which diversions by case markers appear to have had outcomes that could be described as successful.

204. The Crown Agent’s written evidence also queried the JPs’ evidence to the Committee, which he interpreted as being to the effect that—

…prosecutors issue direct measures to avoid the expense of prosecuting cases in court. This is inaccurate and contrary to the Lord Advocate’s policies on decision making. The Scottish Parliament has given prosecutors a range of powers to take action against offenders and we seek to make effective use of all these powers.

205. Both the COPFS and the SCTS referred to statistics indicating that around 80% of direct measures consisting of fines or fixed penalties end up being paid.

206. The Committee notes the COPFS’s view that a drive towards increased centralisation and specialisation is likely to have helped it become a more efficient and professional organisation. The setting up of specialist prosecution units (for instance in relation to sexual offences) has been broadly welcomed. However, evidence has made clear that some trade-offs have been involved. It has been concerning to note evidence that local fiscals may sometimes find themselves running cases against their own professional judgment. The Committee also notes views that increased centralisation may have had an effect on morale and job satisfaction in local offices.

207. The Committee seeks clarification from the COPFS that consideration of the autonomy and decision-making capacity of local fiscals is being taken forward in its current “Fair Futures” programme being developed in consultation with its staff.

208. The Committee notes views that the centralisation of case marking has led to an erosion of knowledge as to the availability of local schemes and programmes where case markers are considering alternatives to prosecution. The Committee asks the Scottish Government to consider whether, if these perceptions are valid, Community Justice Scotland could be invited to address them in its ongoing work to develop a new model for community justice delivery.

209. More generally, the Committee asks the COPFS and Scottish Government as to what monitoring there is of the effectiveness of diversion from prosecution and whether and how the results of that monitoring are fed back to the COPFS for continuous improvement purposes.

Now, turning to the recommendations of the Scottish Parliament’s Justice Committee – funding of the Crown Office comes into sharp focus, despite evidence of massive waste of millions of pounds of taxpayers cash on Crown Office staff:

Recommendations: Resources and funding of the COPFS

The COPFS, in common with agencies across the public sector, has faced significant challenges as a result of a prolonged period of flat-lining budgets. This looks set to continue into 2017-18. The Committee notes the Lord Advocate’s remarks that he considered his 2017-18 budget to be a “sound settlement” that will enable him to continue to provide a fundamentally effective prosecution service.

For the most part, the COPFS has coped in this tougher financial environment as well as can be expected, and its frontline staff deserve credit and recognition for their resilience under sometimes difficult circumstances. It would be unreasonable for the COPFS to continue to rely on the resilience of its staff indefinitely. The Committee considers that change is necessary before the risks that are undoubtedly embedded in the prosecution system, as presently constituted, begin to crystallise.

The Committee agrees with evidence from the COPFS and the Cabinet Secretary for Justice that more efficient ways need to be found to manage the whole prosecution process. Whilst the COPFS is the single most important organisation involved in managing the prosecution process, it cannot achieve this reform on its own. The Committee notes that it is expected that change will be primarily driven by the cross-agency Justice Board, on which the COPFS is represented, and expects the Lord Advocate and Cabinet Secretary to provide the necessary backing for the Board as it proceeds in implementing key elements of the Justice Strategy

The Lord Advocate and Crown Agent have acknowledged in evidence that there is a need to address staffing concerns dating back several years. Above average numbers of staff on short-term contracts, on sick leave, or in long-term temporary promotions are danger signs. The Committee is pleased the current leadership appears to recognise this, to be listening to staff, and to be looking for ways to deal with these issues. The Committee will continue to maintain a watching brief on this issue and requests an update on staffing matters from the COPFS when it responds to this report.

In relations to matters such as job satisfaction and work-life balance, returns from staff surveys in recent years have been concerning. The Committee notes some evidence that, in these areas, the organisation might now be making progress. The Committee also notes evidence and public statements from the Lord Advocate that he has confidence in the judgment of his prosecutors and trusts them to take decisions in his name. However, it is still very early days and, in this context, indications that the COPFS may have to shed around 30 staff in 2017-18 to deal with real-terms budget cuts are worrying. It is difficult to see, given the current pressures staff are under, how further losses are sustainable. The Committee seeks clarification from the COPFS on the operational rationale for job losses and where they will fall.

The Committee also warns the COPFS against an over-reliance on digital solutions to deliver greater efficiencies.

Efficiency of the prosecution service

“Churn” – adjournment and delay of cases scheduled for trial – is one of the main sources of frustration for anyone having to engage with the prosecution process. The Committee accepts that a degree of churn is inevitable and unavoidable, but evidence received over the inquiry indicates that it remains unacceptably high.

The Committee accepts that the problem of delay and inefficiency in the prosecution process cannot be solved by the COPFS acting on its own. The Committee also accepts that churn is a part-consequence of the COPFS’s limited staffing resources, but calls on the COPFS to find methods of mitigating it. For instance, it should be within the capacity of the COPFS to develop more efficient and effective means of notifying those whose attendance is no longer required at a trial. The Committee asks the COPFS and the Scottish Government to take this forward within the Justice Digital Strategy.

The Committee notes evidence that 80% of Crown motions to adjourn arise because of the non-attendance of witnesses. Giving evidence in a trial is a civic duty and failure to do so can be deemed a contempt of court. The Committee accepts that there can be understandable reasons why witnesses do not attend a hearing, but seeks clarification from COPFS and Scottish Government as to: what measures are in place to encourage and, if necessary, ensure witness attendance; the extent to which these measures are being used; and whether alternative approaches are being considered over and above whatever may emerge in due course from the Evidence and Procedure Review.

No blame can be attached to witnesses for non-attendance when they have not in fact been cited to attend court. The Committee is concerned by evidence that the process is sometimes unreliable. The Committee asks the Scottish Government, COPFS and SCTS whether it accepts this evidence and, if so, what measures are being considered to address this, including for instance, the Sheriffs’ Association suggestion of a dedicated COPFS unit to issue citations.

Proposals set out in the Evidence and Procedure Review and the Justice Digital Strategy are welcome and, in some cases, long overdue. Aspects of current criminal law procedure could rightly be described as archaic. The Committee notes the potential for considerable savings to be made if far fewer witnesses are required to attend court and are able to give their evidence in other ways.

However, the Committee notes with concern that the timetable for implementation of some aspects of the Digital Strategy has slipped, with some targets already missed. The Committee further notes that there appears to be no public timetable for implementing the Evidence and Procedure Review.

The Committee asks for a progress report from the Scottish Government in respect of each main element of the Review and the Strategy, setting out the timescale, the anticipated effect on the prosecution process, and where possible, the projected cost saving in relation to each such element.

The Committee also asks for an update from the Scottish Government as to what legislative changes it envisages may be required to unlock the full potential of the Evidence and Procedure Review and the Justice Digital Strategy, and what plans it has in respect of these.

The Committee seeks further information from the Scottish Government as to how proposals to encourage increased judicial case management in the context of criminal proceedings will be progressed and what additional support, if any (eg training), it envisages the judiciary may require in this modified role.

The Committee also seeks further information from the Scottish Government as to whether additional funding will be required to fully implement the Digital Strategy and the Evidence and Procedure Review and, if so, whether these have been costed and what proportion of these costs fall on the COPFS.

Given acknowledged difficulties with the delivery of major IT projects in the public sector, the Committee is concerned that there should not be an over-reliance on information technology to drive reform in the criminal justice system.

Proposals set out in the Evidence and Procedure Review and the Justice Digital Strategy are welcome and, in some cases, long overdue. Aspects of current criminal law procedure could rightly be described as archaic. The Committee notes the potential for considerable savings to be made if far fewer witnesses are required to attend court and are able to give their evidence in other ways.

However, the Committee notes with concern that the timetable for implementation of some aspects of the Digital Strategy has slipped, with some targets already missed. The Committee further notes that there appears to be no public timetable for implementing the Evidence and Procedure Review.

The Committee asks for a progress report from the Scottish Government in respect of each main element of the Review and the Strategy, setting out the timescale, the anticipated effect on the prosecution process, and where possible, the projected cost saving in relation to each such element.

The Committee also asks for an update from the Scottish Government as to what legislative changes it envisages may be required to unlock the full potential of the Evidence and Procedure Review and the Justice Digital Strategy, and what plans it has in respect of these.

The Committee seeks further information from the Scottish Government as to how proposals to encourage increased judicial case management in the context of criminal proceedings will be progressed and what additional support, if any (eg training), it envisages the judiciary may require in this modified role.

The Committee also seeks further information from the Scottish Government as to whether additional funding will be required to fully implement the Digital Strategy and the Evidence and Procedure Review and, if so, whether these have been costed and what proportion of these costs fall on the COPFS.

Given acknowledged difficulties with the delivery of major IT projects in the public sector, the Committee is concerned that there should not be an over-reliance on information technology to drive reform in the criminal justice system.

Effectiveness of the prosecution service

The Committee agrees with the Lord Advocate that the COPFS is, overall, “effective, rigorous, fair and independent” in the prosecution of crime. The evidence received indicates that, in general, Scotland is fundamentally well served by the COPFS in its core role as public prosecutor. However, the same evidence also makes clear that there should be no room for complacency and that the various shortcomings stakeholders have identified must be addressed.

The Committee acknowledges that the criminal justice system has not always prioritised domestic abuse as it should have or treated it with the seriousness it deserves. It was necessary for a clear message to be sent by public agencies working in the system that domestic abuse is unacceptable and would be tackled robustly, in order to give victims confidence that their case would be taken seriously. The COPFS/Police Scotland Joint Protocol on domestic violence has played an important role in that process. The Committee notes the differing views it has received during this inquiry as to the COPFS’s application of the protocol, notes the Lord Advocate’s response to it, and asks the COPFS and the Scottish Government to reflect further on the views that the Committee heard.

The Committee calls on the COPFS and Scottish Government to note evidence as to the quality and consistency of prosecution of those summary cases in relation to which special considerations do not apply by way of Lord Advocate’s guidelines to prosecutors or in the Joint Protocol on domestic abuse. Such cases include instances of antisocial behaviour, crimes of dishonesty or less serious violent crimes. The evidence suggests that these are sometimes under-prioritised.

The Committee acknowledges the COPFS’s evidence that it intends to build stronger relationships with third sector stakeholders in the prosecution of wildlife or environmental crime. The Committee asks the COPFS to respond to views heard in evidence that recommendations in the Scottish Government’s 2008 report Natural Justice, particularly in relation to post-prosecution debriefings, have not been fully implemented, and to set out its plans to address this.

The Committee is concerned by evidence of very low prosecution rates for failure to hold employer’s liability insurance, noting that the consequences of failing to be properly insured can be devastating for individuals and families. The Committee welcomes the COPFS’s commitment to explore the reasons behind the low number of referrals with relevant reporting agencies and requests an update from the COPFS.

The Committee seeks the COPFS’s view on whether there is merit in recruiting locum prosecutors to prosecute High Court cases turning on complex and specialist aspects of criminal law such as corporate fraud or health and safety breaches and, if so, whether this is part of its current practice.

The Committee is concerned by evidence that the courts are sometimes being asked to take decisions on bail without access to the full range of relevant information. This may lead to decisions being made that are not necessarily in the public interest, for instance to refuse bail on the basis of the accused’s homelessness. Whilst the safety of the public and the integrity of the prosecution process must be the paramount considerations, the public interest is not served by individuals being remanded when more suitable alternatives may be available. The Committee asks the COPFS and Scottish Government, on behalf of the Scottish Prison Service, to respond to this evidence.

The Committee notes the COPFS’s view that a drive towards increased centralisation and specialisation is likely to have helped it become a more efficient and professional organisation. The setting up of specialist prosecution units (for instance in relation to sexual offences) has been broadly welcomed. However, evidence has made clear that some trade-offs have been involved. It has been concerning to note evidence that local fiscals may sometimes find themselves running cases against their own professional judgment. The Committee also notes views that increased centralisation may have had an effect on morale and job satisfaction in local offices.

The Committee seeks clarification from the COPFS that consideration of the autonomy and decision-making capacity of local fiscals is being taken forward in its current “Fair Futures” programme being developed in consultation with its staff.

The Committee notes views that the centralisation of case marking has led to an erosion of knowledge as to the availability of local schemes and programmes where case markers are considering alternatives to prosecution. The Committee asks the Scottish Government to consider whether, if these perceptions are valid, Community Justice Scotland could be invited to address them in its ongoing work to develop a new model for community justice delivery.

More generally, the Committee asks the COPFS and Scottish Government as to what monitoring there is of the effectiveness of diversion from prosecution and whether and how the results of that monitoring are fed back to the COPFS for continuous improvement purposes.

Victims and witnesses and the COPFS

The Committee supports the principle that the COPFS prosecutes in the public interest and not directly in the interests of individual victims of crime: it is not “the victim’s lawyer”. The Committee understands that this may sometimes lead to difficult decisions being made that victims find painful. However, the Committee considers that the principle is key to protecting the independence and integrity of the prosecution service.

The Committee considers that there is no inherent contradiction between putting the public interest first during the prosecution process and putting victim care at the heart of criminal justice system, In particular, victims have a right to be listened to and to be treated with respect and sensitivity. Their views matter and they should be consulted, whenever possible, at appropriate points in the prosecution process.

The Committee considers that an effective, efficient and fair COPFS in everyone’s interests; accused, victims and witnesses alike. The Committee is therefore concerned by evidence that a lack of preparation time means that time limits in solemn trials are being “routinely” exceeded and seeks the COPFS’s response.

The Committee also asks the COPFS to respond to evidence that its general policy is not to seek the withdrawal of warrants for arrest of an accused for non-attendance, even where there may be exculpatory or mitigating factors. The Committee accepts that non-appearance for a court hearing is a serious matter but asks the COPFS to respond to concerns that, if this is its policy, it may impact disproportionately on vulnerable people.

The Committee asks the COPFS and Scottish Government to clarify what information (if any) public agencies must provide to families and dependents of accused people and what measures are in place to ensure that the information is provided. The Committee seeks clarification from the COPFS and Scottish Government as to what measures are in place to ensure that family members or vulnerable adults accused or convicted of a crime are contacted and notified.

The Committee considers that the safety and mental welfare of victims, balanced against the accused’s right to a fair trial, should be at the forefront of consideration during the prosecution process. The Committee asks the COPFS and Scottish Government to confirm whether it is their understanding that Victims and Witnesses (Scotland) Act 2014 imposes legal duties on the COPFS, and other agencies, in relation to the hostile cross-examination of witnesses during a criminal trial and, if so, to clarify what practices and policies are in place to ensure that relevant legal requirements are met.

The Committee welcomes the Victims’ Code for Scotland and considers that the pamphlet should be available to all victims at their first point of contact with the criminal justice system. The Committee seeks clarification from the COPFS and Scottish Government as to current practices in relation to making the Code available.

The Committee welcomes ongoing work under the Evidence and Procedure Review to reform the way in which children give evidence during a trial but repeats its earlier concern that there is no publication date for the review’s findings.

The Committee notes that the aspiration is to make taking evidence from children in a courtroom setting the exception rather than the norm. Any reforms must continue to allow the defence to challenge and test the evidence. The Committee looks forwards to considering detailed proposals as they emerge.

The Committee welcomes the additional funding that the Cabinet Secretary provided for the victim fund, which assists families of murder victims, in the 2016-17 financial year. The Committee asks the Scottish Government to keep the fund under review to ensure that it is adequate.

The Committee considers that the evidence taken from victims of crime set out serious failings by the criminal justice system, of which the COPFS is a key component, to provide the confidence necessary for these victims to participate in court proceedings. These failings including a lack of communications, misinformation, delays and adjournments, have resulted in some of these victims concluding that they would never have reported the crime in the first place. The Committee considers that this is unacceptable and must be addressed as a priority, and repeats its view that it is imperative that the COPFS finds more effective methods for passing on accurate up-to-date information about trials in real time to all stakeholders, victims especially. The Committee acknowledges that the reasons for adjournments in criminal trials are complex and that the COPFS bears only partial responsibility for them.

The Committee asks the COPFS to clarify the extent to which it takes into account the vulnerability of victims and witnesses, and the risk to them of a prolonged or delayed prosecution process, in determining the prioritisation of cases, in the light of evidence that delays in hearing cases can disproportionately damage the mental welfare of vulnerable adults.

The Committee recognises the valuable role played by the Victim Information and Advice Service, and that there has been praise for the contribution of VIA staff members in evidence. The Committee recognises that the COPFS’s resources are finite and limited and prevent it providing as much assistance as it would like. At the same time, there are lessons for the COPFS as a whole to learn as to the way it sometimes communicates with victims of crime and with other prosecution witnesses.

Reforms under the Victims and Witnesses (Scotland) Act 2014 have significantly widened the duties owed to victims and witnesses and have been widely welcomed. The COPFS, in common with other public agencies, is still adjusting to these changes. The Committee is concerned by evidence appearing to indicate that some of the key rights secured by that legislation are not yet a reality for victims and witnesses in their journey through the criminal justice system. The Committee asks the COPFS and Scottish Government to respond to this evidence, and to evidence that victims and witnesses are not always aware of their rights.

The Committee welcomes the Lord Advocate’s acknowledgement that the COPFS might benefit from examining the process of giving evidence from the victim’s perspective in order to see whether it could be improved.

The Committee is concerned by evidence that vulnerable witnesses did not always obtain the special measures that they had requested and that where some special measures (for instance, screens) were provided, they were not always adequate. Evidence that victims and witnesses did not always feel secure outwith the courtroom setting during the trial process is also concerning. The Committee notes that, as well as potentially affecting victims’ and witnesses’ mental welfare, this might affect the evidence they give, or in extreme cases lead them not to give evidence at all.

The Committee recommends that the COPFS carry out an audit of victims and witnesses entitled to special measures in order to determine (a) whether they are aware of their rights to ask for special measures, (b) whether reasonable requests for non-standard special measures are being met, and (c) the extent to which the provision of special measures actually assisted the individual in providing evidence and, if not, what lessons could be learned from this.

Under the Victims and Witnesses (Scotland) Act 2014, the COPFS is required to take reasonable steps to enable victims and their families to avoid the accused during a trial. The Committee seeks clarification from the COPFS as to how it exercises that duty in practice and whether it makes victims and their families aware of its existence.

The Committee was concerned by evidence as to the lack of contact between victims and prosecutors during trial preparation, leading in some cases to a perception from victims that the Crown was not well prepared when it came to the trial. The Committee notes the explanation provided by the COPFS as to why, in the vast majority of cases, it is no longer considered appropriate to precognose victims and witnesses. However, the Committee also notes evidence that precognition by the Crown, amongst other things, may help evidence be agreed earlier, and thus help cases resolve more quickly, which is one of the main aims of the Evidence and Procedure Review. The Committee asks the COPFS to respond to this evidence.

Evidence received over the course of this inquiry shows a divergence between the intentions of the COPFS and the experience of many victims. Victims can be re-traumatised by what can come across as a mechanistic process that does not always appear to have their interests at heart. Victims and witnesses are sometimes made to feel like an afterthought. This is a system-wide problem but the COPFS, as the key organisation within the prosecution process, bears its share of responsibility. Any comprehensive solution must also be system-wide.

The Committee notes Dr Lesley Thomson’s Review of Victim Care in the Justice Sector in Scotland. Whilst welcoming the Review as a valuable contribution to the current debate as to how best to cater for victims within the prosecution process, the Committee considers that many of its conclusions have been voiced before but not acted upon.

The Committee requests a detailed response from the COPFS and the Scottish Government as to the main conclusions in the Review, including which recommendations they propose to accept, and what legislative reforms may be necessary in the light of this. The Committee further requests from the COPFS and Scottish Government a timetable for implementing recommendations in the Review. The Committee also seeks their views on the Review’s proposal that victims should have access to a single point of contact providing advice and support during their journey through the criminal justice process.

The Committee notes that the number of referrals to the VIA service has risen sharply (by around 45% in seven years) and that the Thomson Review estimates an additional 4000 referrals per annum in future thanks to recent legislative reforms. The Committee considers that without additional resource for VIA, there will almost certainly be adverse consequences for its ability to work effectively.

The Committee calls for the COPFS to audit the work VIA currently undertakes in order to come to a view on where the main demands on its services come from and whether there are areas of unmet need.

The Committee makes these recommendations in the context of what it recognises as an ongoing debate as to the future role of the VIA service. The Committee considers that obtaining more information on VIA’s current workload and on unmet need may help clarify next steps in relation to that debate.

The Inspectorate of Prosecutions

The Inspectorate of Prosecutions in Scotland has an important role to play in ensuring the effectiveness and efficiency of the prosecution system and the Committee supports its work. The inquiry has laid bare the Inspectorate’s very low public profile, even amongst criminal justice stakeholders. Whilst the Inspectorate is not a public-facing complaints-handling organisation or an advocacy body, it requires the input of informed experts and stakeholders to add value to its scrutiny work.

The Committee is therefore concerned at the lack of stakeholder awareness of the Inspectorate’s output, given that its reports have touched on matters of genuine public interest.

The Committee notes the Inspectorate’s assurances that it recognises its low profile as a concern and proposes to address it. The Committee requests an update from the Inspectorate as to what work is planned and would welcome the Scottish Government’s view on what the Inspectorate proposes.

The Committee notes that it helps the Inspectorate to have ex-COPFS staff working on its investigations. They bring with them a wealth of knowledge about how the service works that is likely to add to the quality of its output. However, the Committee considers that the Inspectorate has not currently got the balance quite right. This applies particularly to the practice of recruiting most assistant inspectors from the COPFS on secondment.

The Committee notes the Inspector’s assurances that she has never been influenced to change a recommendation in her reports. However, perceptions matter, and current arrangements contribute to a perception that the Inspectorate may not be as independent from the COPFS as it was intended to be. The Committee requests the Scottish Government to reflect on these views and to respond to them.

Finally, the Committee asks the Inspector to take into account conclusions and recommendations about the COPFS made elsewhere in this report when considering her next programme of inspections.

LET’S DO JUSTICE DIFFERENTLY – JAMES WOLFFE QC

At a meeting on 17 January 2017, MSPs on the Scottish Parliament’s Justice Committee took evidence from Lord Advocate James Wolffe QC – who told MSPs ongoing reviews suggested a “need to do criminal justice in really quite a different way”.

In the months since James Wolffe made this statement to MSPs, Wolffe has embarked on a public relations offensive in order to bring the thorny question of the removal of corroboration – a safeguard against miscarriage of justice – from Scotland’s criminal justice system – in order to secure what COPFS agents believe would be a vastly higher conviction rate – if the requirement of two independent sources of verification for evidence was dropped.

Appearing in sympathetic press, Wolffe has made known he now sides with the abolishment of corroboration and a wholesale change of the way criminal prosecutions are handled in Scotland.

However, critics say the Crown Office cannot be trusted with such radical alterations to Scots Criminal law – pointing to high levels of corruption at the Crown Office including staff who themselves hold criminal records for serious offences, and the widely known fact COPFS is heavily compromised by criminal informants, as well as legal staff who have tipped off other crooks including lawyers & financiers linked to major criminal investigations.

And – moves to drop corroboration in the past have been condemned as little more than a policy move to allow Prosecutors to make up evidence as they go along in Criminal Trials.

Legal figures from across Scotland have indicated it is their view that if  corroboration were removed from the Criminal justice system, trials would be likely to see an increase in all kinds of dodgy statements & evidence used by desperate prosecutors out for a conviction at any cost.

Evidence from Police Officers too has been widely criticised by several members of the judiciary who contend officers have knowingly given false, and at times corrupt evidence in  Scotland’s Sheriff and High Courts of Justiciary.

Legal insiders have since tipped off the media the Crown Office has conducted an internal consultation on how to ‘reinvigorate’ moves to abolish corroboration and return the issue to the Scottish Parliament’s Justice Committee – where MSPS previously concluded only two years ago that corroboration must remain as part of Scotland’s justice system.

The Justice Committee’s decision came from an impassioned address by Lord Brian Gill, who rightly supported the retention of corroboration as a safeguard to ensure the right to a fair trial across the spectrum of Scotland’s criminal justice system.

The Justice Committee – then under the chair of MSP Christine Grahame MSP, had previously heard from anti-corroboration protagonists Lord Carloway – who is now Scotland’s top judge, and the then Lord Advocate Frank Mulholland – who Carloway has since appointed to a £180k judicial post at the Court of Session.

The Justice Committee remained unconvinced of the merits of abolishing corroboration after hearing from Carloway, Mulholland and a plethora of other groups & vested interests.

Lord Advocate James Wolffe is also facing serious questions to answer over his role in a growing scandal around cash bungs and payments to members of the Faculty of Advocates – while Wolffe was Dean of Faculty.

An ongoing media investigation into a case in which a judge & privy councillor failed to declare links to his son – who was at the time representing a construction company which admitted an incident of unlawfully dumping contaminated waste – has established a QC representing the pursuer was paid large sums of cash after he demanded the payments “in any form except beads”.

An investigation into the payments – which breach Faculty rules -, and evidence of alleged malpractice by the QC was covered up while Wolffe was Dean of Faculty.

Now, the case has re-entered the headlines as calls grow for a full investigation into legal regulators including Wolffe’s Faculty of Advocates – who dismissed the complaint without even looking at it.

Video footage of two appearances by Crown Office agents including the Lord Advocate – James Wolffe QC, follow:

Scottish Parliament Justice Committee 17 January 2017 – COPFS Inquiry & other business

Committee convener Margaret Mitchell said the probe had “unearthed some serious concerns”.

She said: “From the amount of time wasted through trials not proceeding on schedule, to the workload of prosecutors and the support offered to the victims and witnesses who appear at court. “The justice committee will publish its conclusions in due course, but we hope that the Lord Advocate will have listened to the legitimate concerns raised so far.”

Conservative justice spokesman Douglas Ross pressed the Lord Advocate on whether there would be “an overhaul of the justice system” in light of concerns raised.

Mr Wolffe said he acknowledged the challenges COPFS faces, saying “significant reform” was ongoing, with a process review suggesting “the need to do criminal justice in really quite a different way”.

Crown Agent David Harvie, the professional head of the service, said there was a “very strong argument for system change” within the justice system, and “a need and an opportunity for transformational change”.

Staff surveys have noted that 40% of Crown Office staff don’t wish to stay in the service in the long term – although Mr Wolffe argued that this is “considerably higher” than the average in the civil service, saying things were moving in the right direction. He also argued that there should be no lack of confidence in the fundamental work of COPFS, with a conviction rate of 80% in cases prosecuted.

Mr Harvie said the “vast majority” of individuals were provided with a good service, although he said he “accepts and regrets” that some had been failed.

In response to further questions about staff issues, Mr Wolffe said “we are not complacent about it”, but added that “there is encouragement to be taken” from staff surveys. He said the service had “come a remarkable distance” in his lifetime, from a position where the criminal justice system paid no regard to the needs of witnesses.

The Lord Advocate highlighted communication and support for victims and vulnerable witnesses as a particular area of focus for ongoing improvements, with ambition to deal with evidence from children and vulnerable people in a different way.

Ms Mitchell said there was a “fundamental problem” over communications with victims of sexual assault in particular, with Mr Harvie agreeing this was an issue worthy of “significant reflection” and further work.

Under the current budget draft, the Crown Office budget is maintained in cash terms, which equates to a real-terms cut.

Mr Harvie told members that £1.5m of savings had been targeted, with half of the sum coming from staff costs.

He said “probably around 30” jobs would be cut, by not replacing staff who leave or retire. The other half of the savings will come from areas like expert witness costs and pathology, although Mr Harvie conceded there was a “risk” that some could also come from staffing – albeit “not a significant risk”.

Mr Wolffe previously appeared at Holyrood to give evidence about the draft budget, at which point he argued the Crown Office had adequate resources to fulfil its role.

Scottish Parliament Justice Committee 20 December 2016 COPFS Inquiry & other business

Concluding MSPs probe of the Crown Office, Justice Committee convener Margaret Mitchell said: “An effective Crown Office is fundamental to an effective criminal justice system in Scotland.The committee heard many concerns during our inquiry. Across the board, witnesses identified possible improvements which could be made to how COPFS works – and better-serve justice and the public. These findings must be taken into account by COPFS management and the Scottish government.”

Lord Advocate James Wolffe QC said: “It is gratifying that the committee has concluded that COPFS is an effective, rigorous, fair and independent public prosecutor.It states that, in general, the public in Scotland is fundamentally well-served by the COPFS in that core role. That is, in large part, a tribute to the professionalism and commitment of the staff of the service. The committee has made a number of recommendations and I will wish to take time to reflect on all of those recommendations.”

For a more substantive reporting on the Crown Office, read previously articles here: Scotland’s Crown Office & Procurator Fiscal Service – previous reports and on the office of Lord Advocate here: Scotland’s Lord Advocate – Top crime officer leaves much doubt on justice.

Have a problem with the Crown Office & Procurator Fiscal Service? Tips to tell on cases, prosecutions or presentation of dodgy evidence? Tell us more about it in confidence, by email to scottishlawreporters@gmail.com

 

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REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

Review panel to consider self-regulation of lawyers. THE Scottish Government has announced an ‘independent’ review into how lawyers regulate their own colleagues – with a remit to report back by the end of 2018.

The move by Scottish Minsters, coming after discussions with the Law Society of Scotland – is intended to answer concerns  amid rising numbers of complaints about poor legal services and the diminishing status of Scotland’s legal services sector,

However, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the review should include judges and the membership of the review team should be expanded to balance up the panel’s current top heavy legal interests membership.

Mr Neil recently branded the Scottish Legal Complaints Commission (SLCC)  “a toothless waste of time” – 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 review, led by NHS 24 chair Esther Roberton, is intended to make recommendations to modernise laws underpinning the legal profession’s current regulatory system including how complaints are handled.

This follows concerns that the current legislative framework is not fit for purpose and has not kept up with developments in the legal services market. There are also worries that the current processes for people wishing to make complaints about their solicitor are too slow and too complex.

However, doubts about the impartiality of the panel have been raised after the announcement by Legal Affairs Minister Annabelle Ewing revealed a top-heavy compliment of figures from the legal establishment who are keen on protecting solicitors’ self regulation against any move to increase consumer protection by way of independent regulation.

The list of panel members includes:

*Two former Presidents of the Law Society of Scotland;

* The current Chief Executive of the pro-lawyer Scottish Legal Complaints Commission;

* An outgoing Scottish Public Services Ombudsman widely criticised for ineptitude;

* The current chair of the Scottish Solicitors Discipline Tribunal (SSDT) – who struck off only six solicitors last year;

* The chair of a law firm whose partners have regularly appeared before the SSDT;

* A QC from an advocates stable where colleagues have been linked to a cash payments scandal;

* A former Crown Office Prosecutor & QC linked to events in the David Goodwillie rape case – where the victim was forced to sue her assailant through the civil courts after the Lord Advocate refused to prosecute the footballer.

Announcing the review, Legal Affairs Minister Annabel Ewing said: “Members of the public must be able to have confidence in the service they get from their solicitor. While this happens most of the time, I have been listening carefully to concerns that the current regulatory system in Scotland may leave consumers exposed and does not adequately address complaints.”

Speaking yesterday to journalists, former Cabinet Minister & SNP MSP Alex Neil generally welcomed the review, adding the review remit should also include judges.

Alex Neil said: I hope it produces radical and robust proposals. I also hope it covers the judiciary as well as lawyers.”

Mr Neil also called for greater fairness in the panel’s membership, to include members from outside the legal establishment.

Mr Neil added: I hope the membership of this review panel will be expanded to get a better balance between lawyers and non-lawyers”

The latest move by Scottish Ministers to reform self regulation of solicitors and advocates comes years after a move in England & Wales to more robust independent regulation of legal services – which has left Scots consumers & clients at a clear disadvantage.

And while clients in the rest of the UK have much more of a chance to obtain redress against legal professionals who consistently provide poor legal services – and see their lawyers named and shamed in public by the Solicitors Regulation Authority (SRA) and Legal Ombudsman (LeO),

At pains to point out the ‘independent’ nature of the review, the Legal Affairs Minister said: “This independent review will consider what changes may be needed to the statutory framework for the regulation of legal services to protect consumer interests and promote a flourishing legal sector. This includes ensuring that consumers properly understand the options open to them when something goes wrong and that the regulatory framework is proportionate for legal firms. I look forward to receiving its recommendations in due course.”

Chair of the review – Esther Roberton said: “I am delighted to have been asked to undertake this review. Our legal profession and legal services in Scotland are the envy of many around the world. We should be just as ambitious for our system of regulation of legal services. I would hope we can simplify the current complaints process to maximise consumers’ confidence in the system. I look forward to working with the panel members who bring a broad range of experience across a range of sectors.”

However, questions have surfaced over the actual intentions of the review after legal insiders revealed today the proposals only came about after long discussions between the Scottish Government and the Law Society of Scotland – the legal profession’s main lobby group in Scotland who enjoy the greatest benefit of self regulation.

Legal insiders have suggested the review is not widely seen as a serious move by Scottish Ministers to reform self regulation.

Rather, this third attempt at addressing failures of regulation and poor legal services provided by increasingly less qualified legal representatives is a reaction to the failure of Scotland’s legal services sector to put it’s own house in order amid diminishing business, a reduced client base, rising numbers of complaints.

The latest Government sponsored shot in the arm of lawyers – which one solicitor said this morning “may end up calling for more public cash and an increase in the legal aid budget” – comes on the back of a complete failure to attract international litigants who are wary of entering Scotland’s famously unreliable, expensive and poor legal services market.

Access to justice and legal services in Scotland are internationally well known as being hampered by slow proceedings in courts dubbed “Victorian” and “out of date” by both of Scotland’s recent top judges.

VESTED INTERESTS – Legal Profession welcome their own review:

The SLCC welcomed the announcement by the Minister for Community Safety and Legal Affairs of a review of how best to reform and modernise the statutory framework for the regulation of legal services and complaints handling in Scotland.

SLCC Chief Executive Neil Stevenson, one of the review panel members, commented “We are pleased that the Scottish Government has announced this review, in line with the manifesto commitment.  We hope our Reimagine Regulation legislative change priorities paper, which we published last year, will be one helpful contribution to the review.  In that paper we looked at some of the innovative thinking in regulation and standards coming from the health professions, so we are especially delighted to see that expertise represented in the review panel alongside huge knowledge of the legal sector.   We look forward to this range of experience and expertise being shared as part of this process, and a collaborative approach to identifying priorities and opportunities for reform.”

SLCC Chair Bill Brackenridge added, “This will be an excellent opportunity for all the key stakeholders involved to come together in supporting the review as it considers the regulatory landscape in order to support growth in the legal services sector and strengthen consumer protection.  Despite many strengths to the current system, the Board of the SLCC believe there are significant opportunities to make regulation more targeted, more effective and more efficient.”

The Law Society of Scotland has welcomed the Scottish Government’s announcement today, Tuesday, 25 April, of an independent review of legal services, saying that current legislation governing the legal sector is no longer fit for purpose.

Law Society of Scotland president, Eilidh Wiseman said: “There have been huge changes in the legal market over recent years.  Changing consumer demands and new business structures are transforming the way legal services are being provided.

“This is why we have argued so strongly for reforms to the patchwork of legislation which covers the regulation of legal services in Scotland.  The main Act of Parliament governing solicitors is more than 35 years old and simply no longer fit for purpose.  We know the processes for legal complaints are slow, cumbersome, expensive and failing to deliver for solicitors or clients.  There are gaps in consumer protection, contradictions and loop holes in the law.  This is why change is so desperately needed to allow the legal sector to thrive and ensure robust protections are in place for consumers.

“The Scottish Government’s independent review offers the chance to build a consensus on how reforms should be taken forward.  It is vital for the work of the group to move as quickly as possible so new legislation can be introduced before the Scottish Parliament.”

The Law Society has highlighted its concerns about areas of legal services which remain unregulated in Scotland.

Wiseman said: “One area we will highlight to the review group is the growing level of unregulated legal services where consumers are at risk if something goes wrong. Many people are unaware that some types of legal services are not regulated – for example, receiving employment advice from a non-solicitor.  They may have little or no course of redress if something goes wrong. Consumers deserve the same level of protection whether they choose to go to a solicitor, and are therefore covered by Law Society client protections, or to use another legal services provider.”

Two former Law Society presidents, Christine McLintock and Alistair Morris, will serve on the legal services review panel.

Wiseman said: “I am particularly delighted that Christine McLintock and Alistair Morris will be part of the review group. With their considerable board-level expertise alongside their combined insight and knowledge of the legal sector, they will prove invaluable to the review process. They understand the need for reform and, having both served on regulatory sub-committees, bring a deep commitment to the public interest.”

Christine McLintock, as former general counsel for Pinsent Masons, was responsible for the firm’s in-house legal service, professional risk management and compliance. Christine joined the Law Society’s Council in 2005 and has served on the Society’s Board since its inception in 2009. Prior to that, she was a member of the Strategy and Governance Group and was Convener of the Education and Training Committee, before to serving as President in 2015-16. She is currently part of the team working on the regulation of licensed legal services providers and is Convener of the Law Society’s Public Policy Committee.

Alistair Morris was appointed CEO of Pagan Osborne in 2005, having built extensive expertise in private client work at the firm. He was elected to join the Law Society Council in 1992, becoming one of its longest serving members at 24 years. Alistair also served as a board member between 2009 and 2016, and was Convener of the Guarantee Fund Sub-committee (now Client Protection Fund Sub-committee) prior to his election as President in 2014. Alistair currently sits on the Judicial Appointments Board for Scotland.

The Dean of Faculty, Gordon Jackson, QC, has responded to an announcement by the Scottish Government of an Independent Review of the Regulation of Legal Services.

Mr Jackson said: “I welcome that this review is taking place. It is very important that the legal profession retains the confidence of the public. I know that the Faculty of Advocates has earned that confidence, and that this thorough review will demonstrate that an independent referral bar has been, and will continue to be vital in maintaining an effective and fair justice system.

“The Faculty will willingly co-operate fully with the inquiry and I am confident that the considerable experience of the Faculty’s representatives, Laura Dunlop, QC, and Derek Ogg, QC, will be of great value.”

Review should include judiciary:

Scotland’s judges have earned themselves widespread criticism and condemnation at Holyrood and from the Judicial Complaints Reviewer (JCR) – after top judges failed to address complaints and become more transparent and accountable like other branches of Government.

Ongoing efforts by the Scottish Parliament’s Public Petitions Committee to create a register of judges’ interests have been flustered by two Lord Presidents – Lord Gill & current top judge Lord Carloway.

The proposal to bring greater transparency to Scotland’s judiciary – Petition PE1458: Register of Interests for members of Scotland’s judiciary – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The current review could include the judiciary in terms of how judges regulate themselves, however the Scottish Parliament should be left to get on with the task of creating a register of judges’ interests – given the five years of work already undertaken by MSPs on the thorny question of judicial declarations.

REVIEW THE REVIEW: Third attempt at reforming biased system of solicitors self regulation.

The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.

In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.

The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.

However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.

A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.

The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.

A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.

Regulating the legal profession: Usual suspects selected by legal profession to carry out independent review on regulation of solicitors:

The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.

The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life.  She is also currently a board member of the Scottish Ambulance Service (2014-18).  She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).

The review panel have confirmed their participation as follows:

•    Christine McLintock – immediate past president Law Society of Scotland
•  Alistair Morris – chief executive of the management board, Pagan Osborne (Law Society of Scotland)
•      Laura Dunlop QC – Hastie Stables (Faculty of Advocates)
•      Derek Ogg QC – MacKinnon Advocates (Faculty of Advocates)
•   Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
•      Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
•      Ray Macfarlane –  chair of the Scottish Legal Aid Board
•      Jim Martin – outgoing Scottish Public Services Ombudsman
•      Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
•      Prof Lorne Crerar – chairman, Harper Macleod LLP
•    Prof Russel Griggs – chair of the Scottish Government’s Independent Regulatory Review Group
•     Trisha McAuley OBE – independent consumer expert

 

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CASH ADVANCE: QC says ‘Can I have £5k cash on the way to the Law Society?’ – MSP calls for reform of ‘toothless’ Scottish Legal Complaints Commission as regulator turns blind eye on Advocates cash payments scandal

Failed legal regulator in ‘QC cash scandal’ needs reform – Alex Neil. THE REGULATOR of Scotland’s legal profession has been branded a “toothless waste of time” by an MSP and former Cabinet Minister – after it emerged the pro-lawyer Scottish Legal Complaints Commission (SLCC)  refused to act against a senior QC named in emails demanding £5,000 cash payments from clients.

Alex Neil MSP (SNP Airdrie and Shotts) – has now called for major reform of the Scottish Legal Complaints Commission after a Sunday Mail investigation revealed the SLCC refused to investigate serious complaints & cash payments involving ‘top’ planning law QC John Campbell (67) of Hastie Stable & Trinity Chambers.

Speaking to the Sunday Mail, Alex Neil said: “These technicalities show the SLCC as it stands is a waste of time. It’s not up to the job and we need major change.”

Mr Neil continued: “Parliament’s justice committee should have an urgent and comprehensive look at this and rewrite the legislation so people have a reasonable time to register legitimate complaints.”

“People need assurance that the legal profession isn’t just looking after itself all the time. People have no confidence in the system.”

Ongoing media scrutiny of Campbell’s demands for cash payments of up to £5,000 at a time are now leading to calls for a wider inquiry into the world of cash payments to QCs, advocates and solicitors.

And today, new material released to journalists include a further email from John Campbell to his clients – in which Campbell demands to pick up another £5,000 in cash – while he is on the way to a meeting at Airdrie Sheriff Court followed by a dinner with the Law Society of Scotland.

The email from John Campbell to his client reads as follows: “A little better information about timing. I am due in Airdrie at 4.30. The meeting is in the Sheriff Court, which closes at 6.30. The Law Society is taking me and a colleague for dinner, but I have no idera where. There isn’t a huge number of restaurants in Airdrie, but we’ll find somewhere. This means I won’t be at Bonkle Road until about 8. Is that OK?”

“I have asked JC for a breakdown of the £5000. I will explain to you how a spec case works. I have checked; both John and I are willing to take on a spec case for Donal, but only if he signs up to it. There will be two conditions; one is that you keep the Edinburgh agent fed and watered, and the second is the size of the uplift at the end of the day, as I explained to you.”

The initials “JC” in the email are thought to refer to John Carruthers – a solicitor advocate who started a company called Oracle Law with Campbell back in the mid 2000’s.

Members of the Faculty of Advocates are forbidden from collecting fees and cash directly from clients, as was reported earlier here Investigation reveals Scotland’s ‘top’ Planning QC demanded cash payments & cheques from clients in Court of Session case linked to serious judicial conflicts of interest.

Advocates who personally collect cash payments from clients are in breach of Section 9.9 of the Faculty of Advocate’s Code of Conduct which states: “Counsel should not under any circumstances whatever discuss or negotiate fees with or receive fees directly from the lay client.”

The Sunday Mail investigation revealed John Campbell sent emails to clients demanding cash “in any form except beads” to pay for legal services provided to his client – the well respected former National Hunt jockey & trainer – Donal Nolan.

Campbell then collected cash stuffed envelopes in locations such as restaurants, a garage specialising in servicing Bentley cars, and on a site at Branchal in Wishaw – which became the subject of a court case against Advance Construction Scotland Ltd – who admitted in court their role in dumping contaminated material at the North Lanarkshire site.

Emails from John Campbell QC stated: “I’m writing to confirm that we agreed at our meeting on Friday that we will meet in Dalkeith on TUESDAY morning, when you will give me £5000 towards the fees of your legal team” … “Please let me know if it’s OK to meet at the Mulsanne Garage, which is at 137 High Street, and what time would suit you?”

Campbell’s email also revealed members of the legal team – including ad-hoc Advocate Craig Murray – of Compass Chambers received payments from the cash.

The ongoing investigation into Craig Murray’s role in the legal team revealed Murray was responsible for two versions of a letter bearing his name as author – which were later used to exonerate John Campbell from investigations by the Scottish Legal Complaints Commission & Faculty of Advocates.

Craig Murray also claims to be a successful prosecutor for the Crown Office & Procurator Fiscal Service (COPFS).

Asked for comment, a legal observer said he was surprised legal figures would engage in collecting cash payments before going out to dinner with the legal profession’s main lobbying group – the Law Society of Scotland.

The little talked about, but well known world of cash & carry lawyers & QCs – where demands to clients for anything up to £100K in cash are not unheard of – is now thought to be ripe for investigation after lawyers admitted Campbell “became too bold” in looking for money.

However, in order to thwart any references to regulators being drawn into the fray over the cash payments to QC John Campbell, the Scottish Legal Complaints Commission backed away from action, citing obscure rules implying notification of the evidence to the SLCC was time-barred.

The SLCC said in it’s determination: “Having considered the complaint in accordance with the 2013 Rules as set out in the attached extract, the SLCC determines that there are no exceptional circumstances in this case which would warrant the complaint being accepted. The SLCC has therefore determined that issue 11 of the complaint be rejected under Section 4(1) of the Legal Profession and Legal Aid (Scotland) Act 2007 as the complaint is time-barred.”

The SLCC was asked for comment on why the regulator has turned a blind eye to Campbell’s cash collections –  however no response has been provided at time of publication.

The Faculty of Advocates were asked the following questions:

* Can the Faculty confirm if it is in receipt of John Campbell’s email demanding £5,000 before he attends a meeting with the Law Society, and does the Faculty have any comment on the content, particularly in the circumstances Mr Campbell is on the way to meet one of the legal profession’s main lobbying and regulatory bodies while demanding a sum of cash from his clients?

The Faculty did not issue a response to this question.

* Can the Faculty also confirm whether or not any action or investigation is being undertaken by the Faculty or SLCC in relation to John Campbell QC and allegations recently made in the press in relation to his collection of large sums of cash?

Again, the Faculty did not respond.

* Finally, can the Faculty confirm if it has reported Mr Campbell to HMRC given the size of the cash payments and clear breach of Faculty rules and obvious ramifications of the scale of such payments in cash?

Again, the Faculty did not issue a response to this question.

Instead, a spokesperson for the Faculty of Advocates said: “The Faculty must, by law, refer any complaint to the Scottish Legal Complaints Commission, who then investigate and decide if further action is to be taken, either by them or by the Faculty. In this case, the SLCC decided that no further action should be taken.”

A response from the Faculty also confirmed the appointment of Charlotte Street Partners – an expensive PR & ‘media management’ company who are now working with the Faculty of Advocates.

Charlotte Street Partners was launched in 2014 by former MSP Andrew Wilson and Malcolm Robertson.

The PR company is chaired by Sir Angus Grossart, and comprises a mixture of journalists and former political spin doctors.

Papers from Companies House on Charlotte Street Partners can be viewed here Companies House – Charlotte Street Partners filing history.

Earlier today, journalists were provided with details of discussions with the Scottish Legal Complaints Commission, which now suggest the SLCC are open to the possibility of considering new or reworded complaints regarding John Campbell QC.

Speaking to journalists this morning, Ms Collins indicated she will be submitting fresh complaints to the SLCC, along with new evidence and will be taking into account the Lord Malcolm ruling on hybrid complaints.

John Campbell QC did not reply to requests for comment.

The Sunday Mail reports:

MSP brands legal watchdog a ‘toothless waste of time’ after top QC avoids censure over cash payments

We told last week how John Campbell QC was paid four sums of £5000 in banknotes – £20,000 in total – during the build-up to a court case.

By Craig McDonald 9 APR 2017 Sunday Mail

An MSP has branded a legal watchdog a “toothless waste of time” after it emerged a leading QC will face no action over cash payments.

Campbell took the payments from client Melanie Collins at her home in Bonkle, Lanarkshire, a hotel, a restaurant and a plot of land.

Despite breaching strict rules on fees and contact with clients, Campbell will not be the subject of disciplinary action.

Melanie, 62, reported her concern over the payments to the Faculty of Advocates and the Scottish Legal Complaints Commission after the case concluded but was told her complaint was too late.

The bodies said the position would not change despite calls for an investigation.

Melanie’s MSP, Alex Neil, the SNP member for Airdrie and Shotts, said last week: “This is a good example of how the SLCC is absolutely toothless.

“The legislation is riddled with loopholes. We need a fundamental, urgent review of the powers and remit of the SLCC.

“If people feel they do not have reasonable forms of redress for what is a legitimate complaint, it brings the whole system into disrepute.

“These technicalities show the SLCC as it stands is a waste of time. It’s not up to the job and we need major change. Parliament’s justice committee should have an urgent and comprehensive look at this and rewrite the legislation so people have a reasonable time to register legitimate complaints.

“People need assurance that the legal profession isn’t just looking after itself all the time. People have no confidence in the system.”

Melanie and partner Donal Nolan said they paid cash after Campbell emailed them saying he needed “£5000 from you in any form”.

Faculty of Advocates guidelines state: “Counsel should not under any circumstances discuss or negotiate fees with or receive fees directly from the lay client.”

Their ­disciplinary tribunal can hand out fines of up to £15,000. A member can also be suspended or expelled from the faculty.

Melanie said yesterday: “I’m disappointed but not a bit surprised that no action is being taken.

“He clearly broke their rules.”

The payments related to a case involving the couple and a construction firm at the Court of Session in 2013. Judgment was made in early 2014 and Melanie and Donal registered their complaint within days.

An SLCC spokesman said last week: “We can’t disclose information directly to anyone not personally involved in a complaint.”

The Faculty of Advocates said: “We must, by law, refer any complaint to the SLCC, which then investigates and decides if further action is to be taken.

“In this case, the SLCC decided no further action should be taken.”

Campbell, 67, said he did not wish to comment.

CASHING IN – John Campbell QC, Profile:

Year of Call: 1981Year of Silk: 1998 Areas of Practice Commercial, Land & Property, Public Law & Equality

John Campbell called to the Scottish Bar in 1981 and admitted to Lincoln’s Inn in 1990. His primary practice areas are in Town and Country Planning, Energy and Land and Rural Law. He works all over the UK in Planning matters and also in ADR, particularly Arbitrations. He is extensively consulted by regulatory authorities, councils, members of the public and developers. He is very approachable, and places great emphasis on the value of team work. A specialist in inquiry work, he has conducted many types of statutory and non-statutory inquiry, and has appeared in related judicial reviews and appeals. He has acted as counsel in arbitrations, is qualified to sit as an arbitrator, and teaches and writes on planning and environmental law, and domestic and international arbitration law and practice.

He is a Member of Trinity Chambers, Newcastle, where he holds a Direct Access ticket. He is a Member of the Construction Panel of Experts for the Mersey Gateway Project, acting as a Dispute Review Board for the PPP project for a replacement 1500m six lane toll bridge across the Mersey from Runcorn to Widnes. He is an Honorary Fellow of the Royal Incorporation of Architects in Scotland, and Chairman of the SHBT, Scotland’s largest Building Preservation Trust.

John is rated in Chambers 2015, 2016 & 2017 in the field of Planning and Environment:

General Information: LL.B Edinburgh 1972; Assistant Director of Legal Aid, Hong Kong, 1978; Permanent and Juvenile Magistrate, Hong Kong 1980/1981; Advocate 1981;Barrister at Law Lincoln’s Inn 1990
Silk 1998;”Listed Buildings, Conservation Areas, etc” (Green’s Planning Encyclopaedia)

DO you have a complaint with the Scottish Legal Complaints Commission or Faculty of Advocates? What is your experiences of dealing with the SLCC or the Faculty? Has your solicitor, advocate or QC demanded cash payments from you at any stage of a civil or criminal case? Tell us more about it in confidence, by email to scottishlawreporters@gmail.com

 

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