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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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LORD TO PARLY: Top judge Lord Carloway to face Parliament probe on register of judges’ interests, former Cabinet Minister Alex Neil MSP also to be heard on judicial transparency proposals

Lord Carloway – offer to give evidence accepted by MSPs. SCOTLAND’S top judge is set to appear before the Scottish Parliament’s Public Petitions Committee after MSPs accepted an offer he made to give evidence in connection with calls to create a register of judicial interests contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Lord President Lord Carloway – who earns £220,655 a year and counts among his titles that of “Lord Justice General”  as head of Scotland’s judiciary – made the offer in a detailed letter offering some concessions to MSPs which has now been published by the Scottish Parliament.

In his letter to MSPs, Lord Carloway said: “I indicated in previous correspondence that I felt I could add little more to the views previously expressed. That remains my view. However, if the Committee wishes me to provide this evidence orally, I will do so.”

However, while Lord Carloway (real name Colin Sutherland) gave concessions to calls for expanding an existing “register of recusals” in which judges are now required to publish details of cases in which they step aside, the top judge maintained his grim opposition to judicial transparency and the creation of a register of judges’ interests for members of Scotland’s elite, wealthy judiciary.

Lord Carloway’s offer to attend the Petitions Committee was welcomed by the petitioner, reported earlier here: TO PARLY, M’LORD: Scotland’s top judge Lord Carloway finally offers to give evidence to Scottish Parliament probe on register of judges’ interests.

Carloway’s offer to give evidence was further welcomed by Angus MacDonald MSP (SNP, Falkirk East) – who proposed taking up Lord Carloway’s offer to give evidence to the long running, and widely supported proposal to create a register of judicial interests.

Mr MacDonald said: “I have followed this petition from day 1 – I think that it was lodged in December 2012 – and have deliberated on it for more than four years. It is encouraging and refreshing to note that the Lord President has offered to provide oral evidence to the committee, given the difficulties that we had with arranging for the previous Lord President to give evidence to us. We should take up Lord Carloway’s offer.”

Members of the Committee  unanimously backed Mr MacDonald’s proposal to call in the top judge.

The Public Petitions Committee has since indicated an invitation will be issued to Lord Carloway to attend a future hearing to give evidence.

At the same meeting, the Committee Convener Johann Lamont MSP (Scottish Labour, Glasgow)  informed members the Committee had received a request from former Cabinet Secretary Alex Neil MSP (SNP, Airdrie & Shotts) to appear before the Committee.

Ms Lamont and members of the Committee backed the request from Alex Neil, who will join the hearing when Lord Carloway attends the Petitions Committee at a date to be decided.

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

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

The meeting of the Scottish Parliament’s Public Petitions Committee is reported, with video footage here:

Register of Judicial Interests PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

 Judiciary (Register of Interests) (PE1458)

The Convener: The next petition is PE1458, by Peter Cherbi, which calls for the introduction of a register of interests for members of Scotland’s judiciary. When we last considered the petition, we agreed to seek further information from the Lord President and the Judicial Complaints Reviewer. Responses have been received from both and we also have submissions from the petitioner and a member of the public, Melanie Collins.

Members will recall that, when we wrote to the Lord President, we repeated our invitation to him to provide oral evidence, which he has now indicated that he would be willing to do. We express our gratitude for that.

Do members have any comments on further action to take on the petition?

Brian Whittle: I am glad that the Lord President has agreed to give evidence. That seems like what we should do next.

Angus MacDonald: I have followed this petition from day 1—I think that it was lodged in December 2012—and have deliberated on it for more than four years. It is encouraging and refreshing to note that the Lord President has offered to provide oral evidence to the committee, given the difficulties that we had with arranging for the previous Lord President to give evidence to us. We should take up Lord Carloway’s offer.

The Convener: We should also note that Alex Neil MSP has expressed an interest in speaking to this petition but is unable to be here today. It might be that he could attend the meeting with the Lord President. Angus MacDonald is right that this is a step forward.

Do we agree to invite the Lord President to give evidence at a future meeting, and see what comes out of that?

Members indicated agreement.

Lord Carloway’s impending attendance at the Public Petitions Committee was featured in “The National” newspaper.

The report also carried concerns from members of the legal profession they may be next in having to fill out registers of interest for clients to inspect.

 Judiciary chief to face MSPs over register of interests

Martin Hannan, Journalist

SCOTLAND’S most senior judge Lord Carloway, the Lord President of the Court of Session and Lord Justice General, is to be quizzed in public by MSPs for the first time on the issue of a register of interests for judges.

The head of the Scottish judiciary will appear at a future meeting of the Public Petitions Committee which has been investigating the matter since December 2012 after legal campaigner Peter Cherbi called for a public register of judges’ interests.

Also appearing before the committee will be Alex Neil MSP, the former Scottish Government minister who recently told The National: “I don’t see why judges should be operating to a standard that’s inferior to that which MSPs have to follow.”

Previous Lord President Lord Gill refused to appear in public before the committee, but did give evidence later, arguing against a register.

At the latest committee meeting, deputy convener Angus MacDonald, SNP MSP for Falkirk East, said: “Having followed this petition from day one and having deliberated on it for over four years, it’s encouraging and refreshing to know that the Lord President has offered to provide oral evidence to the committee, given the difficulties that we had with the previous Lord President.”

The National understands the main fear among senior legal figures is that the register would eventually be extended to advocates and possibly even solicitors, and that judges would also have to declare their shareholdings in companies, thereby indicating their personal wealth.

In a letter to the committee, Lord Carloway stated: “One possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these if that requires the disclosure of financial interests.

“In the same way, a register of judicial interests may have a damaging effect on judicial recruitment. You may be aware that, partly because of major changes to pension arrangements, difficulties have arisen in the recruitment of the senior judiciary. Revealing personal financial information is likely to act as a further powerful disincentive.”

He added: “I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that.”

However, the official Judicial Complaints Reviewer, Gillian Thompson, wrote to the committee saying: “I recognise that every judicial decision leaves a party that is dissatisfied and that a complainant may feel he or she did not get a fair hearing because the decision went against them.

“Although I have no evidence to support my view I do believe that if court users felt that judges were transparent in their publication of interests there might be a drop in such complaints.”

Petitioner Peter Cherbi said: “I am delighted MSPs have taken up Lord Carloway’s offer to give evidence on the widely supported proposal to create a register of judicial interests.

“As the Petitions Committee have also decided to invite Alex Neil MSP to the same meeting, I am hopeful of significant lines of questions being put to the Lord President on failures within the judiciary to recuse themselves and declare interests when it counts in court.

“Perhaps, if Lord Carloway realised the extent of support for the register, and the public’s expectation of transparency within the judiciary as well as all other branches of government, he will do the right thing and create the register of interests using his power as Lord President, giving Scotland a chance to teach the rest of the UK a thing or two in judicial transparency and declarations of interest.”

The Sunday Herald reports:

 Top judge to reform judicial conflict of interest rules after Holyrood scrutiny

Paul Hutcheon, Investigations Editor

SCOTLAND’s top judge has said he will strengthen the rules on judicial ethics amid concerns over the system for declaring conflicts of interest.

Lord Carloway has agreed that publishing details of when judges and sheriffs have declined to “recuse” themselves [stand down] from cases may provide “additional transparency”.

However, he has stopped short of supporting a full register of interest on the grounds that criminals could use the information to target his colleagues.

Holyrood’s Public Petitions Committee has for four years been considering whether judicial office holders should be compelled to publish details of their outside interests.

Under the plan, judges would be required to declare details of shareholdings, directorships and membership of bodies.

The previous Lord President, Lord Gill, was against the proposals as he feared judges’ privacy could be compromised by “aggressive media or hostile individuals including dissatisfied litigants”.

He also initially refused to give oral evidence in front of MSPs – citing a legal exemption – before eventually appearing after he left office.

However, on Gill’s watch, the Judicial Office for Scotland (JOFS) introduced a register of recusals which reveals when judges and sheriffs came off a case due to a potential conflict of interest.

Since 2014, there have been over 70 instances declared on the JOFS website, but campaigners believe the disclosure requirements do not go far enough and want a mandatory register of interest.

In a letter to the Public Petitions committee, Carloway has signalled he will beef up the register: “I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.”

He has also agreed to provide oral evidence to MSPs, if they still feel it is necessary, but he stepped up his criticism of a register of interest.

He wrote: “All senators and all sheriffs exercise a civil and criminal jurisdiction. I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that.”

He added: “One possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these, if that requires the disclosure of financial interests. In the same way, a register of judicial interests may have a damaging effect on judicial recruitment.”

Peter Cherbi, the campaigner who introduced the petition to Holyrood, said: “I welcome Lord Carloway’s agreement to my earlier suggestions to MSPs to include further details on recusals and whether a judge recuses themselves or not.”

However, he added: “A register of interest for Scotland’s judges would be a significant step forward in helping court users and legal teams ensure fair hearings of cases in our justice system. Lord Carloway could take the next step and authorise the creation of such a register.”

Tory MSP Jackson Carlaw said: “It seems that the judiciary may now be ready to respond to the calls made for some time and come into line with other elements of public life when it comes to declaring interests. It’s a move that’s been resisted for too long, and people are growing impatient about the ongoing prevarication.

“We want Scotland to be as transparent a place as possible and, while progress has been made in areas like politics, it’s essential that is matched elsewhere.”

A spokesperson for the Judicial Office for Scotland said: “The Lord President intends to amend the register of recusals to include details of cases where a judge has declined to recuse, and this change will be implemented as soon as the necessary guidance is drafted and issued”.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Herald and Sunday Mail newspapers, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

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CASHBACK, QC: 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

John Campbell QC – Faculty rules breached by payments from clients. A MEDIA investigation has revealed a senior Scots Queen’s Counsel who claims to be at the top of his field in Planning law – demanded and collected cash stuffed envelopes from clients involved in a Court of Session case now linked to serious failures of the judiciary to declare conflicts of interest.

An investigation by the Sunday Mail newspaper has revealed John Campbell QC (67) of Hastie Stable & Trinity Chambers – sent emails to his clients demanding the cash be handed over “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 QC then collected the cash stuffed envelopes from clients in locations such as restaurants, a garage specialising in servicing Bentley cars, and on a site at Branchal in Wishaw.

The Branchal site became the subject of a court case against Advance Construction Ltd – who later admitted in court they dumped highly contaminated material at the North Lanarkshire site.

John Campbell QC emailed his demands for cash. “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?”

The reference to the “legal team” within Campbell’s email confirms other legal figures who were part of the same team received payments from the cash collected directly by Campbell.

One member of that team is ad-hoc Advocate Craig Murray – of Compass Chambers. Murray has previously refused to answer any questions on his role, or disclose how much cash he received from John Campbell.

Another email from Campbell QC to his clients, seeking another £5K – reads: “Tomorrow, I am looking forward to a serious talk with you and John, but I need to collect £5000 from you, in any form (except beads!)”

However, the demands for cash payments by the QC are a direct breach of rules of the Faculty of Advocates who forbid their members from demanding cash and bungs for legal services – even though the practice is well known to occur in both criminal and civil cases.

Section 9.9 of the Faculty of Advocate’s Code of Conduct states: “Counsel should not under any circumstances whatever discuss or negotiate fees with or receive fees directly from the lay client.”

Further rules from the Code of Conduct state clearly that fees to QCs and Advocates acting as counsel can only be collected by solicitors, and then paid over to clerks and Faculty Services.

“Normally Counsel’s fees are negotiated between the clerk and the solicitor. All fees should be paid to Counsel’s clerk.”

Additional guidance designed to cover over any direct payments ‘collected’ by Advocates states: “If any fee happens to be paid direct to Counsel, Counsel must account for it forthwith to his or her clerk.”

However, an ongoing investigation into a series of invoices issued by the Faculty of Advocates has since revealed at least one of the invoices – which had no date – was sent to the client’s solicitor.

The move by the Faculty to issue an undated invoice is now subject to allegations this is an attempt to cover up the dates of a cash collections by John Campbell.

It can also be revealed some of the payments to Campbell in cheque form were made out to to Oracle – a firm founded and co-owned by John Campbell QC and John Carruthers.

Mr Campbell and solicitor advocate John Carruthers set up Oracle Chambers in the mid 2000’s in order to create – as they claimed at the time – “a more modern, commercially responsive organisation” than they felt was provided by Faculty Services Ltd, the service company of the Faculty of Advocates.

Former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) – who is backing his constituents in their quest to obtain justice, has now called for a full probe into the allegations against Campbell.

The Sunday Mail Investigation report on John Campbell QC:

 ‘We gave top QC £5000 cash in an envelope four times’ Couple claim law expert broke guidelines as MSP calls for probe

By Craig McDonald Sunday Mail 2 APR 2017

A couple claim one of Scotland’s leading QCs breached strict guidelines and asked for legal fees to be paid direct to him in cash.

Melanie Collins and partner Donal Nolan said they made the unusual payment after John Campbell told them he needed “£5000 from you in any form”.

Melanie said she and a friend met Campbell, who once represented Donald Trump’s Scottish business, in a restaurant in Dalkeith where she handed over the sum in banknotes.

She said she paid the QC – one of Scotland’s top planning law experts – three further sums of £5000 in cash at other meetings.

The method of payment is a breach of strict guidelines issued by the Faculty of Advocates – the ­professional body all advocates and QCs belong to.

The couple’s MSP last week called for a probe into the payments.

Campbell wrote in an email to Melanie on October 10, 2012: “Tomorrow, I am looking forward to a serious talk with you and John but I need to collect £5000 from you in any form.”

The man referred to is solicitor advocate John Carruthers, who assisted in the case.

Four days later, Melanie received another email from Campbell which said: “I’m writing to confirm that we agreed at our meeting on Friday that we will meet at Dalkeith on Tuesday morning when you will give me £5000 towards the fees of your legal team.”

Melanie, 62, a former land developer, of Bonkle, Lanarkshire, said: “I and a friend met with Mr Campbell at a restaurant in Dalkeith where I gave him an envelope containing £5000.

“There were three other ­occasions when I paid him £5000 cash in envelopes.

“One was at the Dakota hotel in Lanarkshire, one was at my home in Bonkle and one was a site in Cambusnethan in Wishaw relating to the court case. Looking back it might seem odd – but I had never had any dealings with a QC before and just assumed this was the way they worked.

“I paid two further cheques, one to Mr Campbell and one to a law firm, of £5000 and £4000. The total was £29,000.”

The payments related to a civil case Donal initially planned against a construction firm in 2011. The case was heard at the Court of Session in 2013.

Melanie said: “We won the case but were awarded £20,000. Our total legal fees were in the hundreds of thousands.”

She reported the cash payments claims to the Scottish Legal Complaints Commission in 2014.

The SLCC said at the time: “The complaint has been considered carefully by the SLCC. It has been decided … will not be investigated as it has not been made within time limits, for the reasons set out in the attached determination.”

The couple’s MSP, Alex Neil, the SNP member for Airdrie and Shotts, said: “All these allegations have to be investigated.

“If there has been malpractice at any stage this has to be dealt with by the appropriate ­authorities. Donal and Melanie’s problem up until now is that they’ve not been listened to when they have made the complaints.”

The SLCC could not be contacted for comment.

The Faculty of Advocates’ guide to conduct states: “Counsel should not under any circumstances whatever 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.

The Faculty of Advocates refused to comment last week.

Campbell, 67, said: “I have no comment to make.”

FEATURE:

John Campbell QC:

The case in which Campbell represented Mr Nolan is that of Nolan v Advance Construction Ltd, a high value damages claim in the Court of Session.

A media investigation recently revealed Inner House judge Lord Malcolm (Colin Malcolm Campbell) sat on the case no less than eight times while his son held an interest and represented the defenders – Advance Construction Ltd.

There is no recorded recusal by Lord Malcolm in the case, even though he stood aside during 2012 after he ‘realised’ his son may have been a ‘potential witness’.

Court papers obtained by journalists have since revealed alarming inconsistencies in hearings which cast doubt on the conduct of legal figures in the case – spanning eight Court of Session judges – one (Lord Malcolm) a member of the privy Council, several Sheriffs, high profile QCs and 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.

At the time the case began, during late 2011, Advance Construction Ltd were represented by a judge – the now suspended Sheriff Peter Black Watson, and the son of a judge – Ewen Campbell – who both worked for Levy & Mcrae.

It was only discovered well into hearings in the case that Ewen Campbell was the son of the judge Lord Malcolm, who sat on the case a total of eight times, and unprecedently returned to the case after stepping aside, to hand over £5K lodged by a third party for an appeal.

And, it can be revealed a recent key ruling in the Court of Session delivered by the same Lord Malcolm – scrapped a 30 year policy of regulating service & conduct complaints against members of the legal profession by the Law Society of Scotland & post 2008 – the Scottish Legal Complaints Commission (SLCC).

The 2016 ruling by Lord Malcolm, reported here: CSIH 71 XA16/15 – appeal against a decision of the Scottish Legal Complaints Commission conveniently allowed the Scottish Legal Complaints Commission to scrap 700 complaints against lawyers, advocates and QCs, and shattering the hopes of clients poorly served by their legal representatives.

Among the complaints to be taken advantage of by Lord Malcolm’s ruling and subsequently closed by the SLCC was the complaint against John Campbell QC – which included evidence presented to investigators in relation to Campbell’s demands for cash payments.

The complaint against Campbell also included allegations and evidence in relation the QC’s conduct and service in the proof heard by Commercial judge Lord Woolman.

During the second last day of the proof, Lord Woolman stated the pursuer – Mr Nolan – had a claim as the he had lost the use of his gallop and grazing.

Campbell then acted on his own – and significantly altered Mr Nolan’s claim in the Court of Session – removing Mr Nolan’s £4m head of claim. Unusually, John Campbell also removed a claim for legal and professional expenses.

There is no trace of any legal instruction from Mr Nolan to undertake this course of action in court, nor was there any consultation with Mr Nolan’s solicitor – who would have to had provided Mr Nolan with legal advice in relation to any proposed alteration of the claim by John Campbell QC. Similarly there is no trail of any communications between Mr Nolan’s solicitor, the Edinburgh Agents and Mr Campbell.

When a complaint against John Campbell QC was lodged with the Scottish Legal Complaints Commission, enquiries established the legal regulator heavily relied on a letter from Craig Murray to exonerate the aging QC.

However, enquiries by journalists have established two versions of Craig Murray’s letter now exist. Both versions of the same letter were used by legal regulators to exonerate Mr Campbell from investigations by the Scottish Legal Complaints Commission and the Faculty of Advocates.

Refusals by Murray to clarify the two separate versions of his letter have raised questions and concerns over his status as a prosecutor working for the Crown Office & Procurator Fiscal Service (COPFS), amid claims he enjoys success prosecuting criminal trials in the High Court of Justiciary.

Lord Advocate James Wolffe has yet to act on the allegations involving Campbell and Murray.

James Wolffe is now caught in a conflict of interest situation given  his role in the matter of the Faculty of Advocate’s investigation of Campbell and their failure to act after evidence of the cash demands were presented during Wolffe’s time as Dean of the Faculty of Advocates.

Investigations into the case are set to continue amid growing calls for a full probe of Mr Campbell’s activities, and demands for Lord Carloway to act to preserve public confidence in the judicial and legal system in relation to decisions taken by members of the judiciary and certain events which took place in the Court of Session.

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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BRIBES’HEAD REVISITED: 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

Craig Murray – undated letter removed reference to bribe. DOCUMENTS obtained by the media have revealed two legal regulators acted on significantly different versions of a letter bearing the name of an Advocate who also works as a Prosecutor for the Crown Office & Procurator Fiscal Service (COPFS).

Listed in the Legal 500 Advocate Craig Murray of Compass Chambers– states on his website he represents clients in civil claims. Murray also states he works as an ad hoc Advocate Depute, prosecuting criminal trials for the Crown Office in the High Court of Justiciary.

However, an ongoing media investigation has established Advocate Craig Murray is the author of a letter to the Scottish Legal Complaints Commission (SLCC) – a letter of which two distinct versions now exist and were considered separately by legal regulators.

The investigation focuses on Murray’s role as Junior Counsel in Nolan v Advance Construction Ltd, and the conduct of legal figures in the case – spanning eight Court of Session judges – one a member of the privy Council, several Sheriffs, high profile QCs and Levy & Mcrae  – the law firm identified in the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

The letter was sent by Mr Murray to the Scottish Legal Complaints Commission in relation to a complaint against senior QC, John Campbell – who claims to specialise in Planning law.

Crucially, however, a significantly altered version of the letter – still bearing the name of Advocate Craig Murray as the author – removes references to ‘offers of a bribe’ to elected councillors at a Scottish local authority, and detailed references to evidence in a high value civil damages claim in the Court of Session.

Enquiries have now established the version of Murray’s letter to the Scottish Legal Complaints Commission, on the subject of  found its way to the Faculty of Advocates via the law firm Clyde & Co (formerly, Simpson & Marwick) – who are known to represent members of the legal profession who are subject to complaints, allegations of dishonesty, corruption and negligence claims.

The complaint against John Campbell QC arises from his provision of legal services and representation to former National Hunt jockey & trainer Donal Nolan, who was the pursuer in – Nolan v Advance Construction Ltd – a case which is now likely to be heading to the UK Supreme Court for an appeal.

Questions have now arisen regarding extensive differences between the two versions of the letter, addressed to the Scottish Legal Complaints Commission. Both versions of the same letter bear Craig Murray’s name as author.

Significantly, certain references to allegations of bribery involving employees of a construction company and elected councillors, have been altered in a second version of Mr Murray’s letter – which bears no date.

Advocate Craig Murray’s letter to SLCC (Text marked in pink shows extent of deletions in Faculty’s version). In a letter dated 22 July 2014 to the SLCC, Craig Murray writes: “The most accurate account of Councillor Taggart’s position will be in that statement. My recollection of Ms Moore’s summary is that a person, whose identity was unknown to Mr Taggart, telephoned him about this case and offered a bribe. There was nothing to identify that person or connect that person to the defenders.”

However, the second version of the letter, has the references to bribery removed from the end of the sentence.

The undated letter still bearing Craig Murray’s name and Advocates address, then reads: The most accurate account of Councillor Taggart’s position will be in that statement. My recollection of Ms Moore’s summary is that a person, whose identity was unknown to Mr Taggart, telephoned him about this case. There was nothing to connect that person to the defenders.”

Then, both versions of the letter from Craig Murray to the SLCC continue: “An allegation that the defenders had been involved in bribing an elected public official to commit perjury in court would have been extremely serious. There was no basis upon which an allegation of that sort could have been made by a responsible solicitor or advocate. There could also be no further investigation (particularly in the midst of the proof diet) as it was not known who made the telephone call.”

Councillor John Taggart – who is referred to by Murray, was interviewed late last week.

Councillor Taggart’s role in discovering the dumping of contaminated waste by Advance Construction Ltd, and his further efforts to assist Mr Nolan, and constituents affected by events, was crucial in bringing the case to court and into the public eye.

In discussions with a journalist, Councillor Taggart made clear in his own view, the evidence in relation to the offer of an inducement related to an event occurred at the opening of Calderbridge Primary School (former site of Coltness Primary School), and NOT in a telephone conversation as Mr Murray claimed in his letter to the SLCC.

Further, Councillor Taggart indicated the “person, whose identity was unknown to Mr Taggart” – according to Craig Murray’s statement, had in fact handed his business card to the Councillor during the school opening event.

The Councillor further alluded to the identity of the person as an employee of a main contractor for North Lanarkshire Council.

It has since been established both Advocate Craig Murray, and Fiona Moore of Drummond Miller were present with the Councillor when his precognition of evidence was taken.

Further enquiries by journalists have now revealed the person who allegedly offered the inducement is an employee of a major construction contractor on North Lanarkshire Council’s list of approved contractors.

When it became known the incident involving the inducement was to be used in evidence, the person who approached the councillor left Scotland for Ireland and did not return for a number of months – despite being cited as a witness to attend court to give evidence in the Nolan v Advance Construction Ltd case.

The record later shows – John Campbell QC – failed to call the witness even though the individual alleged to have offered the inducement to the councillor appears on the final witness list for the proof hearing before Lord Woolman in 2014..

If the evidence of bribery had emerged during lines of questioning at the Court of Session, the testimony may well have had a significant impact on the case, and most probably initiated a Police Scotland investigation into the companies involved, and North Lanarkshire Council.

However, Senior Counsel for Mr Nolan – John Campbell QC – chose not to introduce the conversation about the allegations of bribery in court.

Undated & altered version of Advocate Craig Murray’s letter to SLCC. The removal of references to a bribe, and swathes of material removed from the second, ‘undated’ version of Craig Murray’s letter to the SLCC – raises further questions over the written testimony offered by the Advocate & some time Prosecutor to the Scottish Legal Complaints Commission.

Curiously, the undated version of Murray’s letter then surfaces at the Faculty of Advocates – who chose to rely on this heavily altered version of Murray’s original letter – in relation to an investigation which ultimately dismissed the complaint against John Campbell QC.

In a letter dated 7 October 2015 from the Faculty of Advocates to Melanie Collins, Iain WF Fergusson QC confirmed the Faculty of Advocates preferred the lesser content of the undated letter to be used in the complaint against the QC.

Fergusson wrote: ”The earlier of your two e-mails refers to two versions of a letter by Mr Craig Murray, Advocate to the SLCC. The committee relied on the undated version of the letter as support for Mr John Campbell QC’s version of events. This has brought to light an administrative error – the version of the letter dated 22 July 2015 was not before the committee when it considered and determined your complaint”

In a letter of 2 May 2016 to the Scottish Legal Complaints Commission, law firm Clyde & Co – acting as legal agent for John Campbell QC against the complaint attempted to explain the discrepancy between the two versions of Craig Murray’s letter and how the undated version ended up at the Faculty of Advocates.

Anne Kentish, of Clyde & Co wrote: “We have reviewed our files and have ascertained the sequence of events surrounding the letter. When the complaint was originally made against Mr Campbell, we were provided with a copy of the undated version of the letter from Craig Murray to the SLCC. It was provided to us on the basis that it set out the background to the complaint and Mr Murray’s recollection of events.. We did not, at that time appreciate that the letter was in draft. It resembled a file copy letter.”

“When senior counsel for Mr Campbell, Alistair Duncan QC prepared the response to the complaint on behalf of Mr Campbell, he indicated that Mr Murray’s letter to the SLCC should be included in the appendix to the response. When we prepared the appendix, we used the version of the letter that we had within our files which was the undated version. We did not at that time appreciate that the final, dated version, existed.”

“Later that day, Mr Duncan forwarded to us some emails which happened to have the dated version of the letter attached. We understand that Mr Duncan had been provided with the final version of the letter by Mr Murray. Neither we nor Mr Duncan realised that we were working from slightly different versions of the same letter (one being a draft and one being a final version)”

“As soon as we realised a final dated version of the letter existed (the day after the response was submitted to the Faculty) we provided Faculty with the final dated version of the letter and asked it to replace the undated version.”

“Mr Murray has confirmed that the undated version is a draft version of the final version dated 22 July 2014.”

However, the lengthy and laboured explanation from Clyde & Co to the Scottish Legal Complaints Commission, and the email from Iain Fergusson QC are completely at odds with a written explanation provided by Advocate Craig Murray to Mr Nolan’s partner, Ms Collins.

Seeking to explain the situation regarding his letter, an email dated 23 June 2015 from Craig Murray to Mr Nolan’s partner, Melanie Collins, stated the following: “I finished writing this letter on 22 July 2014. I signed it and sent it to the SLCC that day. Copies were also sent to you and to John Campbell QC. I did not submit one to the Faculty of Advocates, nor did any Office-bearer or member of Faculty staff see the letter before it was sent (or for that matter have I passed a copy to any Office-bearer or member of Faculty staff since). I do not know how the Faculty of Advocates came to have a copy of the letter. Could you possibly provide me with a copy of the letter or email from the Faculty of Advocates, enclosing my copy letter?”

“I note that you have provided two copies of the letter. One is dated 22 July 2014 and has page numbers and footnotes. That is the letter I submitted to the SLCC and copied to you. The letter you have labelled 5B has no date, no page numbers and no footnotes. This letter is not in a form which I saved on my computer or sent to anyone else. It appears to have the same content, font and (roughly) layout as the dated version, but I have not checked on a line-by-line basis.”

It is unusual for such material to be made public as papers submitted to the SLCC remain unreleased due to confidentiality rules.

However, the papers have been made available to journalists who are investigating the litigation process of Nolan v Advance Construction Ltd – after the case was brought to the attention of MSPs at the Scottish Parliament.

And, given the author of the letter – Craig Murray also works as an ad hoc Advocate Depute prosecutor in Scotland’s courts, there are now concerns over the implications of a Prosecutor being identified in various versions of the same letter, one version of which contains alterations to witness testimony in relation to criminal acts, and references to evidence in what has now become a key case of judicial failures to recuse, and accusations of bias in the courts.

Late last week, the Crown Office was asked for comment on the matter and the impact on Murray’s role as a prosecutor.

Initially, the Crown Office refused to comment, and demanded any request for media reaction be put in the form of a Freedom of Information request.

Pressed on the matter, a spokesperson for the Crown Office then suggested: “..as Mr Murray is not a COPFS employee any request for formal comment in relation to his professional conduct as an Advocate should be submitted to Mr Murray himself, the Dean of the Faculty of Advocates or the SLCC. Any allegations of criminal conduct should be raised with Police Service of Scotland.”

However, there are clearly public interest questions in relation to a prosecutor named as the author of a letter where one version, used by a law firm with direct connections to the judiciary – removed evidence in relation to criminal acts and bribery.

The Crown Office was then asked if the Lord Advocate intends to act to protect public confidence in the Crown Office and Procurator Fiscal Service by ordering an investigation into the use of altered versions of Mr Murray’s letter to the SLCC, and act on the status of Mr Murray as an Advocate Depute.

No reply was received.

However, it has since been established, the Dean of the Faculty of Advocates during the sequence of events which saw the Faculty investigation into John Campbell – is the current Lord Advocate James Wolffe QC.

As part of his current role as Lord Advocate – James Wolffe QC now oversees cases Craig Murray prosecutes while acting as an ad hoc Advocate Depute.

Earlier this month, DOI revealed a judge took part in a case on no less than eight occasions, where his son acted as a solicitor for the defenders. No recusal was ever recorded in this case by the judge – Lord Malcolm, who’s son Ewen Campbell had acted for the defenders – Advance Construction Ltd. The article featured here: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders

Additionally “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.

Papers now under consideration by journalists for upcoming publication, are set to reveal allegations a legal team – of which Mr Murray was a member – received disbursements from a senior QC from funds the QC obtained after demanding and personally collecting substantial cash sums of thousands of pounds from clients.

The payments – outwith the normal procedure of paying advocate’s fees via a solicitor and to faculty services – are under investigation by journalists due to concerns in relation to irregularities and potential tax avoidance issues.

Craig Murray was contacted for his comments on material handed to the press.

Craig Murray was asked why there were significant differences between two versions of his letter to the Scottish Legal Complaints Commission, one dated, the other undated.

Craig Murray refused to comment.

Craig Murray was asked to confirm if his letter was altered by someone other than himself.

Craig Murray refused to comment

Craig Murray was asked if he was aware of Lord Malcolm’s true identity (Colin Malcolm Campbell) and his relationship to solicitor Ewen Campbell, one of the legal agents working for the defenders.

Craig Murray refused to comment.

Lastly, Craig Murray was asked to comment on both versions of the letter he sent to the Scottish Legal Complaints Commission. He was asked which one he wrote and if he was aware anyone altered the second undated version of his letter.

Craig Murray refused to give any comment.

A billing document from Craig Murray’s Compass Chambers to the client, reveals he was to be paid £800 +VAT per day for proof preparation and £1,250 + VAT per day for Court, which ran to 8 days. A bill was subsequently received from Mr Murray’s stables for around £39,000.

It has since been established, the SLCC relied on the dated version of Murray’s letter, while the Faculty of Advocates relied on the heavily altered undated version of Murray’s letter regarding their consideration of a complaint against John Campbell QC.

Papers obtained from case files and published in this investigation confirm the undated version of Craig Murray’s letter appears to have originated from the Edinburgh law firm – Clyde & Co (formerly Simpson & Marwick).

The letter from Clyde & Co also confirms the undated version of Murray’s letter was sent to the Faculty of Advocates, on the instructions of Alistair Duncan QC.

Duncan was tasked with defending John Campbell QC in relation to the complaint being considered the Scottish Legal Complaints Commission.

However, Court papers record the same Alistair Duncan QC – who was now defending John Campbell QC, once appeared for the defenders against Mr Nolan – in the Nolan v Advance Construction case – on 9 November 2011.

Late yesterday, the Scottish Legal Complaints Commission was provided with the two versions of Craig Murray’s letter, and a copy of a letter from Clyde & Co, admitting their role in providing the second, undated version with alterations to the Faculty of Advocates.

The Scottish Legal Complaints Commission was asked for a statement on the existence of the two versions of Craig Murray’s letter and what action the regulator intends to take.

The SLCC refused to comment.

However, the SLCC confirmed a meeting had taken place between their Chief Executive – Neil Stevenson – and former Cabinet Minister Alex Neil MSP – who has provided powerful backing for his constituent – Donal Nolan.

A spokesperson for the SLCC said: “I can confirm that a meeting between our CEO and Alex Neil MSP took place.   The meeting was to discuss the SLCC’s process: what powers we have; actions we can take; and what we can’t do.”

The case has now been brought to the attention of the Scottish Parliament’s Public Petitions Committee – who are probing judicial interests, failures of judges to recuse over conflicts of interest, and opposition of Scotland’s current Lord President – Lord Carloway – to calls for the creation of a register of judicial interests.

Had a comprehensive and publicly available register of judicial interests existed at the time of the Nolan v Advance Construction Ltd case, details of judicial links in the register could have prevented injustice in the Nolan case – and many others in the courts – from the very outset.

PROFILE: Craig Murray – Personal Injury specialist & Ad hoc Advocate Depute, of two letters:

Craig Murray – Year called: 2008

Qualifications: LLM in Commercial Law (Distinction),University of Edinburgh Member, Chartered Institute of Arbitrators Faculty Scholar, Faculty of Advocates LLM in Human Rights Law, University of Strathclyde, Dip Forensic Medical Sciences, Society of Apothecaries, Dip Legal Practice, University of Edinburgh LLB (Hons), University of Edinburgh.

Craig has a busy defender personal injury practice in the Court of Session, representing insurers and local authorities. A substantial practice part of his practice is in defending fraudulent claims at all levels, in particular employers’ liability cases and road traffic claims.Craig also represents claimants in medical and dental negligence claims.

Craig has been instructed in a number of complex product liability cases, including pharmaceutical cases (Vioxx and Celebrex) and medical products (mesh surgical implants and PIP silicone implants).

Craig has substantial experience in property damage claims and other aspects of reparation.Craig occasionally acts in public law and human rights cases, including judicial review, mental health appeals and immigration.Craig has previously been a tutor on the Diploma in Regulatory Occupational Health & Safety at the University of Warwick and on the Civil Court Practice course at the University of Edinburgh.

Craig was appointed as an Advocate Depute ad hoc in July 2015. He is a member of the Children’s Panel for the Scottish Borders.

Among references to recent cases listed on Craig Murray’s profile is Nolan v. Advance Construction [2014] CSOH 4, a land contamination case in the Commercial Court, with senior counsel.

 

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TO PARLY, M’LORD: Scotland’s top judge Lord Carloway finally offers to give evidence to Scottish Parliament probe on register of judges’ interests – amid growing calls for full judicial transparency

Lord Carloway to face Holyrood on judicial transparency. SCOTLAND’S top judge has made an offer to appear before the Scottish Parliament’s Public Petitions Committee who are conducting a FIVE YEAR probe on proposals to create a register of judges’ interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary

Lord President Lord Carloway made the offer in a detailed letter offering some concessions to MSPs – which has now been published by the Scottish Parliament.

In his letter to MSPs, Lord Carloway said: “I indicated in previous correspondence that I felt I could add little more to the views previously expressed. That remains my view. However, if the Committee wishes me to provide this evidence orally, I will do so.”

Lord Carloway (real name Colin Sutherland) also claimed in his letter to MSPs – that the subject of “online fraud” should also be considered as a reason to keep judges links to big business and significant wealth away from public gaze.

However, MSPs have been reminded the subject of online fraud has proved no obstruction to the thousands of registers of interest already in operation across the public sector – from local councillors and workers on local government right up to the Prime Minister, politicians and even members of the security services.

And, while Lord Carloway remains bitterly opposed to full judicial transparency – which would see the creation of a register of judicial interests to match all other branches of Government and those in public life including MSPs – the top judge has given a further concession to the petition in a decision to expand the current “recusals register” – where judges step aside from cases due to a conflict of interest.

Writing to the Petitions Committee, Lord Carloway said: “I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.”

The concession from the Lord President comes after growing calls from those who support the judicial transparency proposals to give full information to the public on why judges are asked to recuse themselves in cases where conflicts of interest arise in court.

Since 2014 – when the then Lord President Lord Brian Gill created the register of recusals in an attempt to head off demands by MSPs and the public to bring in the register of interests for judges, there have been over 70 recusals from members of Scotland’s judiciary in cases throughout Scotland.

The recusals have occurred on issues where conflicts of interest have arisen – such as membership of charities, relationships between judges and those appearing before them in court, and other ‘conflicts of interest’.

In one case during 2014, Lord President Lord Gill was forced to step aside from a court hearing after he realised his son – Advocate Brian Gill, represented one of the parties in a court action which the Judicial Office have refused to give any further detail on since the recusal took place in late June 2014.

However, a recent investigation by the media has revealed judges are refusing to recuse themselves in high profile cases in the Court of Session – where inks to the judiciary permeate right across the court room.

An investigation published by Diary of Injustice earlier this month revealed Court of Session judge Lord Malcolm heard a case eight times, where his own son Ewen Campbell had an interest as a representative and adviser to the defenders – construction company Advance Construction Ltd.

Investigations by journalists has revealed there is no written record of any recusal by Lord Malcolm (real name Colin Malcolm Campbell) – who only stood aside from considering the action well into the hearings after he ‘realised’ the involvement of his son in the case.

Lord Malcolm then handed the case over to Lord Woolman – who heard the proof in the case – which has now become the subject of increasing questions after material was handed to the media suggesting key parts of the evidence founded upon by Lord Woolman have no evidential basis.

In an unprecedented move, Lord Malcolm then returned to the case for an eighth hearing to hand over money which had been lodged by a third party as caution for an appeal.

It is thought this is the first incidence of a judge returning to a case he previously stood aside from, yet there are no details contained in the current register of recusals, even though the pursuer lodged an appeal against Lord Malcolm’s reappearance in the damages claim.

The move has been frowned upon by legal observers – many of whom agree a judge should not be allowed to sit on a case they have previously recused themselves from, and calls are now being made to the Lord President to establish such a rule in the code of Judicial ethics and conduct, ensuring similar events do not take place in the future.

And, in relation to media enquiries seeking an explanation for Lord Malcolm’s decision to return to the case, the Judicial Office have refused to give any details on why Lord Malcolm refused to consider his position as a recusal matter.

The high value civil damages claim – Donal Nolan v Advance Construction Ltd – initially heard in Hamilton Sheriff Court and then transferred to the Court of Session for a ‘speedy’ resolution – involved the dumping of 16,500 tons of contaminated waste by the defenders from a North Lanarkshire Council PPI project on the land of Donal Nolan – the well known & respected former National Hunt jockey & trainer.

At the time, the defenders solicitor – Ewen Campbell – worked for Glasgow based Levy & Mcrae – a  law firm linked to Scotland’s judiciary and more recently named in a writ in relation to the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

Papers now lodged at Holyrood reveal Ewen Campbell reported back to former Levy & Mcrae senior partner and suspended Sheriff Peter Watson on the day to day running of the case for Advance Construction Ltd.

Details of the shocking case – which has seen no less than seven additional judges hear motions and interlocutors, has now been made to MSPs studying the plans to create the register of interests – which would also require members of the judiciary to disclose their links to others in the legal profession, links to business and other information.

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

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

Lord Carloway’s letter to the Public Petitions Committee is now published in full, here: Letter from Lord Carloway to Public Petitions Committee re Petition PE1458

PE1458: REGISTER OF INTERESTS FOR MEMBERS OF SCOTLAND’S JUDICIARY

I refer to your letter of 23 January. I have taken some time to review the evidence provided to the Committee by Professor Alan Paterson and to reconsider the position.

I note that you request a response on three specific issues, as follows:-

• First, whether there have been any inhibitions to the administration of justice arising in relation to those members of the judiciary who have to register financial or other interests in connection with other roles.

Scotland has a relatively small judiciary and only a very small proportion of those judges and sheriffs sit on bodies which require disclosure of financial interests. For example, only four- one senator, the Chair of the Scottish Land Court, one sheriff principal and one sheriff – sit on the Judicial Appointments Board, while seven judges – three Senators including myself, a sheriff principal, two sheriffs and a JP – sit on the Board of the SCTS. I am aware that my predecessor, Lord Gill, in his letter of 5 February 2013 noted that a register of judicial interests could have other consequences. He said:

“Consideration requires to be given to judges’ -privacy and freedom from harassment by aggressive media or hostile individuals including dissatisfied litigants. It is possible that the information held on such a register could be abused.”

All senators and all sheriffs exercise a civil and criminal jurisdiction. I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that. That has not, to the best of my knowledge, happened with the small cohort of judges who have disclosed financial interests through JABS or the SCTS Board, but that sample is so small that no comfort can be derived from that. Rather, I expect that judges will become increasingly vigilant about the risks of personal information appearing in the public domain.

Accordingly, one possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these if that requires the disclosure of financial interests. In the same way, a register of judicial interests may have a damaging effect on judicial recruitment. You may be aware that, partly because of major changes to pension arrangements, difficulties have arisen in the recruitment of the senior judiciary. Revealing personal financial information is likely to act as a further powerful disincentive.

• Secondly, whether a decision on “recusal” should rest with a judge other than the individual who has been challenged or who has been identified as having a potential conflict of interests.

I assume that the proposition here is that the decision on declinature of jurisdiction should be made by someone other than the judge hearing the case, presumably another judge, or judges. At present, if a judge is asked to decline jurisdiction, and does not do so, then that decision can be reviewed, on appeal, by the appellate court. Any other system would not be an improvement. Cases are often allocated to judges, both in the Court of Session and the sheriff courts, at short notice. A party or a judge may not be aware of the circumstances in which the issue of declinature must be considered until the morning of the case. If he then requires to pass that issue to another judge, for consideration, the case is likely to be adjourned for that purpose, to the disappointment of litigants and the inefficient disposal of business in the courts.

The present system whereby a judge, having seen the papers and being aware of the precise extent of any interest financial or otherwise he may have, makes the decision on recusal, is the preferred option. Judges are invariably prudent in declining jurisdiction appropriately, but the right of appeal ensures that in, any rare case where that is not done, redress is available.

I should add that, as a generality, the problem, if there is one at all, rests with an over cautious approach to declinature: ie with judges or sheriffs declining jurisdiction and thus prompting an adjournment and causing delay when they should, in accordance with their duty, have heard and determined the cases placed before them.

• Thirdly, whether it would be in the interests of greater transparency for the “Register of Recusals” to be extended to cover instances where recusal has been considered or requested but jurisdiction has not been declined.

I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.

I hope this is of assistance to the Committee. I indicated in previous correspondence that I felt I could add little more to the views previously expressed. That remains my view. However, if the Committee wishes me to provide this evidence orally, I will do so.

Responding to the letter from Lord Carloway, the petitioner has lodged a reply with MSPs.

The petitioner endorsed Lord Carloway’s offer to give evidence before the Committee, answered Lord Carloway’s concerns in relation to online fraud.

Moves by the Lord President to expand detail in the current recusals register were also welcomed by the petitioner, who suggested Lord Carloway add the same level of detail to the register of recusals which also appears in court opinions published on the Scottish Courts and Tribunals Service website.

Writing to the Petitions Committee, the petitioner said:

Noting Lord Carloway’s offer to give evidence in public session, I urge members to invite the Lord President to an evidence session so the Committee and public can hear from the current Lord President on this petition and evidence submitted to the Committee.

Regarding Lord Carloway’s concerns about online fraud and the proposal to create a register of judicial interests, I would point out the subject of online fraud has not particularly affected or precluded other branches of public services and government, including the Scottish Parliament, from maintaining registers of interests which include financial and other details – for a considerable length of time.

Online fraud is a matter which everyone in society must deal with. Information readily published by the courts, the Crown Office and other bodies within the justice system in relation to court opinions or verdicts, contain financial, location or other personally identifiable information of significantly greater detail than is currently published about any member of Scotland’s judiciary.

With regards to concerns in relation to judges declining positions on public bodies which require the disclosure of financial details, I wish to point out judges are wealthy, well connected and influential members of the most powerful group of people in society – the judiciary. The viewpoints they hold, their status, power, and their part in decision making goes on to form public policy or law, impacting on all areas of public life.

Members of the judiciary who hold positions on public bodies, remunerated or not, should be required to declare their financial and other interests, like other members of those bodies, as there is a public expectation of transparency in all decision making and branches of Government.

Noting Lord Carloway’s comments on the current system of judges deciding whether to recuse themselves or not, this system has been proved to hold significant failures, where cases have been heard by judges who refuse to recuse themselves or, have failed to declare an interest.

The Committee has already been made aware of such cases where in one example an individual was denied their liberty, then an appeal judge who threw out the appeal, claimed in a newspaper investigation he forgot he prosecuted the same individual who was appealing his conviction.

A new system of someone else deciding if a judge should recuse themselves, along with a full and open account of the recusal decision, should be created. I do not believe such a system would pose unwarranted financial expense or considerable delays to cases.

Noting Lord Carloway’s acceptance of my previous suggestions to widen the scope of the recusals register, I support the inclusion of details where a judge is asked to recuse, considers recusing on his own, or refuses to recuse.

Further, I suggest it would be no great effort to include case reference numbers, and parties in the publication of details in the recusals register (the subjects of cases permitting), in similar form as already regularly appears in court opinions on the Scottish Courts website.

The routine publication of such detail and data should be standard practice of a transparent and accountable justice system so when a recusal request or decision occurs, court users, legal representatives ,the public and media know exactly why and for what reason a decision was taken.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Herald and Sunday Mail newspapers, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary

 

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CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders

Judicial Interests probe – Lord Malcolm heard case involving his own son. AN INVESTIGATION by MSPs into proposals to create a register of judges’ interests has received evidence which contradicts claims by top judges – that members of the judiciary recuse themselves when they have conflicts of interest in court.

Papers lodged with the Scottish Parliament’s Public Petitions Committee in relation to Petition PE1458: Register of Interests for members of Scotland’s judiciary – reveal Court of Session judge – Lord Malcolm – real name Colin Malcolm Campbell QC – took part in multiple hearings on a case which began with his son – Ewen Campbell – providing legal representation to building firm Advance Construction Ltd.

However, Lord Malcolm did not recuse himself from any of the hearings, and no one in the court made the pursuers aware of any relationship between Lord Malcolm and Ewen Campbell until years into the court case.

The high value civil damages claim, initially heard in Hamilton Sheriff Court and then transferred to the Court of Session for a ‘speedy’ resolution – involved the dumping of 16,500 tons of contaminated waste by the defenders from a North Lanarkshire Council PPI project on the land of Donal Nolan – the well known & respected former National Hunt jockey & trainer.

At the time, the defenders solicitor – Ewen Campbell – worked for Glasgow based Levy & Mcrae – a  law firm linked to Scotland’s judiciary and more recently named in a writ in relation to the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

Papers now lodged at Holyrood reveal Ewen Campbell reported back to former Levy & Mcrae senior partner and suspended Sheriff Peter Watson on the day to day running of the case for Advance Construction Ltd.

Crucially, answers lodged by the defenders in relation to an appeal by the pursuer in 2016 – finally confirmed the relationship between the judge hearing the case and the defenders solicitor, admitting Ewen Campbell was Malcolm’s son, and had been acting for the defenders in court in earlier hearings.

However, the admission of the relationship between the judge and the defenders solicitor came years into the case, and questions are now being asked as to why the judge, and no one else in court informed the pursuers of this potential conflict of interest at a much earlier stage in the action.

A quote from a motion raised by the defenders in 2016 stated: “Lord Malcolm’s son, namely Ewen Campbell, was formerly an assistant solicitor at Messrs Levy & Mcrae, Solicitors, Glasgow. That firm is the principal agent instructed by the Defender and Respondent. Ewen Campbell was formerly involved in the present cause as an assistant to the partner handling the case.”

Pleadings to the court reveal Lord Malcolm heard the case on eight separate occasions, listed as 3 May 2012, 11 May 2012, 24 July 2012, 4 October 2012, 13 March 2013, 11 April 2013, 20 May 2013 and  on 16 March 2016.

However, there is no record of any recusal by Lord Malcolm in the case.

During the 11 April 2013 hearing, a note of the decision written by clerk Kate Todd reveals Lord Malcolm appointed Lord Woolman to hear the proof.

The move to appoint another judge is now subject to debate and questions from the pursuers and legal observers, given the fact Lord Malcolm had already taken part in no less than five hearings in Mr Nolan’s case without any recusal with regard to his son’s interest as legal agent for the defenders.

According to normal procedure, the appointment of Lord Woolman to the proof should instead have been undertaken by the Office of the Keeper of the Rolls of the Court, and not by another judge.

Lord Woolman has since come in for criticism after key parts of his 2014 opinion have been subject to concerns in relation to a lack of evidence and ‘unauthorised’ actions attributable to a senior QC.

However the saga of Lord Malcolm’s appearances in the case did not end with the proof being handed over to Lord Woolman in 2013.

Lord Malcolm returned to the same case during 2016 for another hearing – in order to hear and grant a motion handing money to the defenders – which had been lodged for an appeal by a friend of Mr Nolan.

The return of a judge to a case in which MSPs have been told he should have stood aside due to a conflict of interest – has now prompted concerns over the integrity of information currently supplied by the Judicial Office since 2014 relating to judicial recusals – and previous claims by judicial figures to politicians that judges had recused themselves when required to do so prior to the creation of the recusals register in 2014.

And, it has been pointed out – Lord Malcolm’s position on such an obvious conflict of interest contrasts starkly with action taken by former Lord President Brian Gill – who avoided the same situation when forced to step down from a case in June 2014 when Lord Gill’s son – Advocate Brian Gill – appeared in the same court acting for a party in a hearing.

With increasing calls for transparency on judges’ declarations and interests, questions are also being asked why a judge was allowed to sit unchecked so many times on a case in which his own son provided legal representation for the defenders.

The case involving Lord Malcolm – has now been brought to the attention of members of the Scottish Parliament’s Public Petitions Committee – who are involved in a five year probe on the judiciary and proposals put forward to require judges to register their interests.

Writing in a submission to MSPs, Mr Nolan’s partner – Melanie Collins – said had a register of interests for judges existed in Scotland, the existence of such a register would have resulted in Lord Malcolm recusing himself from hearing the case.

Ms Collins also highlighted links between the same judge – Lord Malcolm – and a ruling affecting hundreds of solicitors and members of the public which toppled over 700 investigations by the Scottish Legal Complaints Commission against solicitors and law firms accused of wrongdoing.

Ms Collins informed MSPs the SLCC were at the time investigating a complaint in relation to issues surrounding Mr Nolan’s case.

However, the ruling by Lord Malcolm ‘coincidentally’ closed down the legal regulator’s investigation into solicitors involved in the case, and hundreds of other cases after the judge struck down a 30 year policy where the Law Society of Scotland and SLCC investigated “hybrid complaints’ comprising of conduct and service issues against solicitors since before 1980.

Now, Ms Collins and her partner Mr Nolan both have the support of their constituency MSP Alex Neil and backing to bring their experiences to the Scottish Parliament.

The full submission from Melanie Collins: PE1458/CCC: SUBMISSION FROM MELANIE COLLINS

I would like to make the following submission in relation to the current system of judicial recusals.

In my view the system is not transparent about the circumstances in which judges should recuse themselves, such as circumstances in which a judge could be perceived as having a potential bias, or the instances in which a judge may be asked to consider recusing themselves but decide not to do so. My experience demonstrates that the recusal register is not working and that a register of interests being put in place is both necessary and correct to allow the public to have faith in the judiciary and transparency of the judicial system.

My views arise from a case raised on my partner’s behalf and in which a senior judge did not recuse himself, in circumstances in which the existence of a register of interests may have resulted in him having done so.

The matter, which I note has already been mentioned in a submission by the petitioner and has been aired by Committee members, has relevance to a recent ruling in the Court of Session a recent ruling in the Court of Session carried out by the Scottish Legal Complaints Commission .

In a civil case raised in the Court of Session, on behalf of my partner, Mr Donal Nolan, Lord Malcolm (Colin Campbell QC) heard and ruled on evidence in the case.

His son, Ewen Campbell, who at the time was with Levy & McRae, was an assistant solicitor involved in the day-to-day running of the case, providing the defenders with advice and representation in court. Ewen Campbell reported back to Peter Watson, formerly a senior partner of Levy & Mcrae, and (at the date of this submission) currently suspended as a temporary sheriff.

In the case raised on behalf of my partner Mr Nolan, had a register of interests for members of the judiciary existed prior to the case coming to court, this may in my view have resulted in Lord Malcolm having recused himself.

In relation to the impact of this on the ruling in the case involving the Scottish Legal Complaints Commission, the SLCC were investigating matters in relation to this case which the ruling by Lord Malcolm had the effect of changing the hybrid complaints process which resulted in numerous cases not being concluded.

There are examples in the judicial recusals register of judges recusing themselves, particularly the instance where former Lord President, Lord Brian Gill, recused himself on 26 June 2014, after his son appeared in the same court acting for a respondent.

It is not clear to me how this instance differed from my case where Lord Malcolm did not recuse himself and on which Lord Brodie’s opinion concluded that the circumstances did not satisfy the test for apparent bias or that there was a question of interest on the part of Lord Malcolm. This lack of clarity about when recusal is appropriate does not help in assuring public faith in the judiciary and transparency of the judicial system .

Members may also wish to note I have written to the current Lord President Lord

Carloway, to make him aware of concerns in relation to my own experience before the Court of Session.

No action has been taken by Lord Carloway to address the matter, which in my view is of significant concern where there is a potential conflict of interest, and where the transparency of the judicial system could be improved. In a response from the Lord President’s Office, information about the complaints mechanism for judges was not provided.

As members of the Committee have previously been made aware of certain details of this case, I would very much welcome the opportunity to give evidence in a public session, and also that my MSP, Alex Neil whose assistance has been invaluable in advancing matters, be invited to give evidence before the Committee.

——————————

THE UNRECUSED: The judge, his son, conflicts of interest and failure to recuse – undermines public confidence in Court of Session:

An ongoing investigation into a case in which a judge did not recuse himself from seven hearings on a case where his own son represented the defenders, and returned for a eighth hearing in 2016 to hand over sums lodged as cation for an appeal – is eroding confidence in Scotland’s top court –  the Court of Session.

Journalists examining papers relating to Lord Malcolm’s eighth appearance to the case of Nolan v Advance Construction Ltd – have revealed a motion lodged by pursuer Mr Nolan for permission to appeal the decision by Lord Malcolm to hand over the £5,000 lodged as caution for expenses was blocked by Lord Brodie – but only after the judge appeared to be talked out of considering the pleadings by the defender’s QC.

The appeal raised by Mr Nolan against Lord Malcolm’s decision to hand over the cation – raised a conflict of interest and human rights, stating “grounds of justice and all persons who have an interest in the case should have been declared”.

This appeal was lodged during 2016 – only after the pursuer had been alerted to the fact a solicitor – Ewen Campbell – who acted for the defenders was actually the son of the judge – Lord Malcolm – who had presided over the case on seven previous hearings.

During hearings in relation to the initial lodging of the £5K cation by a friend of Mr Nolan – the QC, Roddy Dunlop acting for defenders Advance Construction Lrd asked Lord Menzies to increase the amount of the cation to around £35K.

However, Lord Menzies denied the defenders their motion to increase, and thought £5K was sufficient for to advance the appeal.

Then, in a later hearing, Lord Brodie said the money for the appeal should have been left in situ after the pursuer entered pleadings – requesting the cation be returned to the third party.

However Balfour & Manson – acting on behalf of Levy & Mcrae – for Advance Construction Ltd – presented a motion requesting the money be handed over to the defenders.

It was at this hearing, Lord Malcolm returned for the eighth occasion after earlier recusing himself from the case – to hand over the cash to the defenders.

The pursuer – Mr Nolan – then sought a written opinion from Lord Malcolm for his decision on 16 March 2016 to hand over the cation – however none was forthcoming from the judge or his clerks.

An opinion by Lord Brodie from the Court of Session – dated 20 May 2016 which the Scottish Courts Service has refused to publish – reveals Lord Brodie – who previously ruled on parts of the case, returned to hear Mr Nolan’s motion requesting for leave to appeal Lord Malcolm’s decision to the UK Supreme Court.

In the difficult to obtain opinion, Lord Brodie appeared to be going for the pursuer’s pleadings in that the test was met for a fair minded observer to conclude a conflict of interest existed on the part of Lord Malcolm.

However, as Lord Brodie’s opinion continues, the judge is then persuaded against granting the pursuer’s request for leave to appeal by the defender’s QC – Roddy Dunlop.

Commenting on the developments at the Scottish Parliament, the petitioner suggested the rules around judicial recusals should be improved to ensure a judge who has already recused themselves from a case should not be allowed to return to the same case at any later date.

The petitioner further stated: ”It appears Mr Nolan had no chance of obtaining justice at the Court of Session in a situation where the father of the defender’s legal agent was the presiding judge, the law firm acting for the defenders had senior partners who were judicial office holders and therefore colleagues of the presiding judge, and a QC who was representing the defenders has family links to the judiciary.”

“Had a register of judicial interests already existed, most or all of these relationships should have been caught and properly dealt with if public scrutiny and the test of fair mindedness of external observers were able to be applied to events in this case.”

As investigations into the case continue, papers currently being studied by journalists are set to reveal further issues:

* a senior QC sent emails to the pursuer and his partner demanding cash payments outside of the process where Advocate’s fees are normally paid through solicitors to Faculty Services. At the time of these demands for cash payments, the current Lord Advocate – James Wolffe QC – was the Dean of the Faculty of Advocates and fully aware of the QC’s irregular requests for cash.

* a set of desperate emails from a senior QC demanding possession of a recorded consultation during which, among other issues the pursuer’s legal team seem aloof of developments in major contamination & planning related cases.

* Evidence of Advocates’ demands for cash payments and falsified documents handed to James Wolffe QC – the then Dean of the Faculty of Advocates and now Scotland’s top prosecutor – the Lord Advocate – were not acted upon or properly investigated.

* North Lanarkshire Council paid out £2 million pounds of public cash which ended up with the defenders after they were paid in a subcontract agreement – yet the contaminated material dumped by the defenders on Mr Nolan’s land is still there and no action has been taken to remove it while the Scottish Environmental Protection Agency (SEPA) ‘looked the other way’.

* Mr Nolan had obtained a Soul & Conscience letter from his doctor due to ill health, lodged as document 148 of the process. The existence of the Soul and Conscience letter meant Mr Nolan should never have been put a position to address a court under the circumstances but was forced to do so.

* the blocking of an appeal to the UK Supreme Court by Lord Hodge – who failed to declare he previously sat on the Nolan v Advance Construction Ltd case at least eighteen times while he served as a judge in the Court of Session.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Herald and Sunday Mail newspapers, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary

 

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“Transparency is part of accountability” says Law Professor to MSPs – as General Pinochet case, failures to recuse and a judge presiding over cases defended by his own son in the Court of Session – add to calls register of judges’ interests

MSPs hear top judges need register of interests. A SENIOR Scots Law Academic – Professor Alan Paterson – has told the Scottish Parliament there is an expectation accountability applies to the judiciary as a branch of the state, and there is a need for judges in the highest courts to declare their interests.

In evidence to the Scottish Parliament’s Public Petitions Committee during the latest hearing of Petition PE1458: Register of Interests for members of Scotland’s judiciary Professor Alan Paterson of the University of Strathclyde told MSPs “..the question of a register of interests comes back to the role of the judiciary in a democracy. It is a branch of government or the state and, in a democracy, we expect the wielders of state power to have a form of accountability.”

Professor Patterson later added: “To me, transparency is part of accountability. The prime things that we require for accountability, generally speaking, are that judges give reasons for their decisions and that they identify who is making the decisions. That is part of transparency, and the question of a register of interests is part of the issue of transparency.”

MSPs also heard from the legal academic on one of the “shakiest moments” of judicial interests and recusals – in relation to the General Pinochet case – now the standard example of what went wrong when a judge in the House of Lords – Lord Hoffman – failed to declare an interest.

In responses to questions, Professor Paterson said he thought if a register of judicial interests had existed, it would have caught Lord Hoffman’s chairmanship of the Amnesty International Committee – the undeclared interest which sparked an appeal by General Pinochet’s lawyers against extradition to Spain in 1998.

Significant concerns were raised by the Committee in relation to the ‘Recusals Register’ created by former Lord President Lord Gill in the spring of 2014 – a move at the time Gill had hoped would closed down calls for judges to declare their vast interests and wealth in a publicly available register of interests.

In a key moment during the meeting, Deputy Convener Angus Macdonald MSP (SNP) raised a hypothetical scenario of a judge in the Court of Session failing to recuse himself after discovering his own son was acting as a litigation solicitor for one of the parties.

Quizzing the Law Professor, Angus Macdonald enquired: “On the issue of recusals, let me throw a hypothetical example at you. The son of a judge is the litigation solicitor for a defendant in, for example, the Court of Session, but the judge fails to recuse himself and to highlight the family connection to all interested parties. Clearly such a situation could be avoided were the decision on recusal not to be taken by the judge presiding over the hearing himself. We would look to avoid such a situation, and the register would help.”

An awkward response from Professor Paterson suggested this scenario had occurred “in the past” and that “As long as everybody knows about it and it is declared, it should not mean an automatic disqualification.” In such situations, all the parties usually know and no objection will be made.”

However, it has since emerged new evidence from the Court of Session is set to reveal more judges have failed to recuse themselves on numerous occasions where direct family members appeared in cases heard by their own parents.

In one key case which may significantly impact on calls to create a register of judicial interests, several MSPs are now believed to be aware of a series of failures by a judge to recuse himself in a case where a solicitor – acting on behalf of a law firm linked to the multi million pound collapse of a Gibraltar based Hedge Fund – appeared in front of a judge who turned out to be his own father – on multiple occasions.

The case – details of which are to be made public – has the potential to blow apart the integrity of Lord Gill’s ‘Recusals Register’ due to the sheer number of appearances by the same judge in the Court of Session – while his own son was the acting solicitor for the defenders.

Documents from the case now being studied also reveal a shocking fact – it has now been established millions of pounds of public money was paid out by a Scottish local authority to the defender’s main contractor after a ruling by Lord Woolman in January 2014.

The public cash was then to be paid to the defenders under a sub-contract agreement in an issue relating to why the case was brought to court in the first place.

However, the pursuer received not a penny despite the defenders admitting in court papers to illegal dumping of contaminated waste on someone else’s land.

Construction firms who hold contracts with numerous local authorities, and Scottish Government agencies including the Scottish Environmental Protection Agency (SEPA) are known to be heavily involved in events which led to the case ending up in the Court of Session – yet for some reason, opinions by several judges involved in hearings have not been published and are “difficult to obtain” from the Scottish Courts Service.

Tackling the issue of costs, over the issue of ensuring a fair hearing – MSP Maurice Corry (West Scotland) Scottish Conservative) asked Professor Paterson if he thought developing the recusal system in a way which required someone other than the judge hearing the case to decide on a recusal would add extra costs and delays to cases being heard in the courts.

Responding to Mr Corry, Professor Paterson said it could, but pointed out the failings of the current recusal register where little information is given away on the actual recusal and whether a judge refused to recuse himself in a case.

Professor Paterson told Mr Corry: “We have a register of how often judges recuse themselves but, as I have pointed out, we do not know how often they do not recuse themselves, so we cannot form a view on whether they have always got it right or whether there are situations in which they did not get it right.”

Mr Corry – who had earlier moved the petition be closed down at the meeting of the Petitions Committee on 29 September 2016 – also asked Professor Paterson for examples where a case may have been caught by a register of interests.

Professor Paterson replied stating “The Hoffmann case is the standard example of something going wrong.”

At the conclusion of the most recent evidence heard in relation to Petition PE1458, the Public Petitions Committee agreed to write to the Lord President Lord Carloway and the Judicial Complaints Reviewer – Gillian Thompson OBE.

Video footage and full transcript of Petition PE1458 – Scottish Parliament 17 January 2017

Judiciary (Register of Interests) (PE1458)

The Convener: Agenda item 2 is consideration of continued petitions. First, we will take evidence from Professor Alan Paterson on petition PE1458, on a register of interests for Scotland’s judiciary. As members will recall, the petitioner suggested that the committee might wish to invite oral evidence from Professor Paterson, and he has agreed to appear this morning.

Welcome to the meeting, Professor Paterson—we appreciate your attendance. If you wish to make some opening comments, you may do so for up to five minutes. After that, we will take questions from members.

Professor Alan Paterson: Thank you, convener. I am happy to answer any questions that the committee might have on this topic.

I see a register of interests for the judiciary in Scotland as an important issue but, as I have said in my written evidence, it is an issue on which I have not reached a concluded opinion. I have expressed an opinion in relation to the Supreme Court, where the balance probably tips towards the need for a register of interests. I have explained why I think that both in my written evidence and in the Hamlyn lecture.

For me, the question of a register of interests comes back to the role of the judiciary in a democracy. It is a branch of government or the state and, in a democracy, we expect the wielders of state power to have a form of accountability. It is also very important that, in a democracy, the judiciary is independent; judicial independence is a vital part of any democracy. We must therefore balance those issues of judicial independence and accountability. Indeed, issues such as recusal, criticism of judges, discipline of judges, complaints against judges and a register of interests are all areas where we try to strike that balance between accountability and independence.

The Convener: Thank you. Do you think that there is a third factor—simple transparency? That is not in conflict with independence; it is just about basic standards and reasonable expectations of openness.

Professor Paterson: To me, transparency is part of accountability. The prime things that we require for accountability, generally speaking, are that judges give reasons for their decisions and that they identify who is making the decisions. That is part of transparency, and the question of a register of interests is part of the issue of transparency.

The Convener: Do you have a view on what types of information should be included in a register of pecuniary or other interests?

Professor Paterson: As I have said, I do not have a concluded view on whether we should have a register of interests for the Scottish courts but, as far as the Supreme Court is concerned, there is the example of the American Supreme Court. Some might say that that is a slightly more political court than our courts but, nonetheless, its judges have to register their interests. They have to declare their financial interests, their shareholdings, their hospitality, what gifts they receive and what tickets to American football matches they get. All sorts of things have to be declared including membership of golf clubs and so on. At the start of their Supreme Court career, they also have to provide a detailed account of the clubs they are members of, their trusteeships, whether they are masons and all those issues. From time to time, the system throws up issues, but it works.

The House of Lords was the precursor to the Supreme Court, which started in 2009. Before that, the judges in the House of Lords formed a supreme court, and they had a register of interests. The judges who were members of the House of Lords then became Supreme Court judges. For example, we had Lord Hope of Craighead, who has since gone back to the House of Lords and is now on that register of interests. People can look up the register on the website and see what his interests are, but they could not do that when he was in the Supreme Court.

The Supreme Court has been very good at transparency, and rightly so; in general, it has been much better at transparency than the House of Lords was. It is much more open. Moreover, the proceedings are televised; when the Brexit judgment comes down on Tuesday, we will be able to see it. We will be able to watch everything happening. It just does not have a register of interests, even though the judges had one before—and will have it again if they go back to the House of Lords.

The Convener: That is interesting. Thank you.

Maurice Corry (West Scotland) (Con): Good morning, Professor Paterson. An issue that has been raised in evidence is whether a register would capture circumstances in which a conflict would make it inappropriate for a judge to hear a case. However, a judge might become aware of a conflict only when they saw a witness list and were able to identify a social relationship with a witness. Do you have any views on that?

Professor Paterson: The judicial oath and the judicial code of conduct, which are very important in Scotland, mean that a judge who knows that they have an interest—for example, a relative who is a party in a case is going to appear before them—will be expected to stand down. At its best, a register of interests would identify some conflicts and either remind the judge or alert others to the fact that they potentially have an interest, although not necessarily in the case of relatives.

One of the curiosities of the American Supreme Court is that, once or twice a year, the justices, including the chief justice, overlook a shareholding that they have. A corporation in which the shares are held comes up in litigation; they get involved in the litigation, only for somebody to suddenly remember that they have shareholdings in the corporation. That is not venal or deliberate and there is no attempt at bias; instead, someone has made a mistake and overlooked something. The strength of a judicial register is that it allows fair-minded, independent and external observers to say, “Haven’t you got a potential interest here?” and the matter can be aired before the case starts. If you do not have a judicial register of interests, everything is left to the judge and the judge’s memory. Even at the level of the American Supreme Court, the judicial memory occasionally fails—although not very often.

Maurice Corry: Thank you.

Rona Mackay (Strathkelvin and Bearsden) (SNP): Good morning. Can you expand a wee bit on examples of judicial office-holders registering their interests in connection with other roles? The petitioner has noted that in connection with the board of the Scottish Courts and Tribunals Service and you have mentioned the Supreme Court. Are you aware of any issues that have arisen for those judicial office-holders in being able to hear cases in connection with registered interests? What precedents are there that you know of in that field?

Professor Paterson: I am not sure that I have an answer to that question. Do you know what the petitioner was getting at and can you elaborate a little more on what was troubling him? Nothing springs to mind.

Rona Mackay: I think that he raised the whole subject in connection with the board of the Scottish Courts and Tribunals Service. You mentioned the similarity between those on the Supreme Court and the former law lords, so I wanted to tease out your opinion on what issues could arise from that.

Professor Paterson: I apologise for being unhelpful, but nothing on that immediately springs to mind.

Rona Mackay: That is fine.

Brian Whittle (South Scotland) (Con): Good morning. The former judicial complaints reviewer commented on the possible implications of the publication of recusal information in respect of possible conflicts of interests only becoming apparent after a case has been heard. Her view was that a register of interests could avert complaints by enabling any perceived conflicts to be addressed before or at the time when a case was heard. What are your views on that?

Professor Paterson: Let me go back to the House of Lords and the Supreme Court. One reason why I raise an eyebrow at the stance of the Supreme Court on this issue is that one of its shakiest moments was the General Pinochet affair. General Pinochet came to the UK for medical treatment and a Spanish judge using appropriate international processes arranged for him to be arrested for alleged crimes in the junta in Chile. His case then went up to the House of Lords. At relatively short notice, the membership of the panel that was to hear the case had to change and Lord Hoffmann was brought in as the next most senior judge. The fact that Lord Hoffmann’s wife worked for Amnesty International in some capacity was—we think—known by the senior law lord when they organised the panel. However, it was all done with some haste, and it is not at all clear that the panel was aware—they said that they were not aware—that Lord Hoffmann acted on a committee that raised funds for Amnesty International.

Amnesty International is relevant here because of its views on torture; it had asked to become an intervener in the House of Lords, and this was the very first case in which an intervener had been allowed. That meant that Amnesty International, although not technically a party to the case, was allowed to address the court on issues to do with torture and what had happened in Chile. Lord Hoffmann did not declare that he chaired a committee that raised funds for Amnesty International although his wife’s position, as someone who worked for Amnesty International, was known to the authorities.

Anyway, the case went ahead, and the vote went three to two against General Pinochet, with Lord Hoffmann in the majority. A little while later, General Pinochet’s lawyers discovered that Lord Hoffmann had that interest but had not declared it, and they asked for a rehearing. It had never happened before, but they got a rehearing, and the court very strongly made it clear that Lord Hoffmann should have declared the interest. Indeed, as I read it, even if he had declared the interest, the parties could not have waived it—it would have led to an automatic disqualification. That is the line that the court took, and another court had to be convened to rehear the whole case.

It all meant a lot of time being taken up, a lot of concern and a lot of bad publicity for Britain and for the House of Lords. Relations among the judges in the House of Lords were quite strained for a number of years thereafter. That one failure to declare an interest had a very substantial impact on a whole variety of issues, and I have never quite understood why the Supreme Court, knowing that lesson—which was hardly 10 years old by the time the court was set up—did not decide that it should have a register of interests.

We can have a debate about whether a register of interests would have caught Lord Hoffmann’s chairmanship of the committee, but I think that it would have, certainly under the rules under which the House of Lords now operates. It is not entirely appropriate, but if you want to see what a possible register of pecuniary interests might look like, you can look on the House of Lords website, where you will find a very detailed series of 12 headings under which interests can be recorded. Not all are appropriate for judges, but some of them certainly are.

The Convener: A second interesting point arising from the Lord Hoffmann case is not the judge’s own involvement but the spouse’s occupation. That would not go on a register, would it?

Professor Paterson: Possibly not, but, as I understand it, that was known about in the Hoffmann case.

The Convener: So that was not the issue.

Professor Paterson: That is my understanding of the case.

The Convener: That is very helpful. Thank you.

Angus MacDonald (Falkirk East) (SNP): Good morning, Professor Paterson. The example that you have just given backs up the suggestion in your written submission that the decision on recusals should not be taken by the judge who has been challenged. Would you expand on that?

Professor Paterson: Again, that is an area on which I do not have a fully formed mind. Like the author R Grant Hammond, who has written the standard work on judicial recusal, I take the view that, as far as appellate courts are concerned, there is an argument for saying that if one member of the court is challenged, he or she should not be the one that makes the decision. However, that might be the counsel of perfection. When it comes to a sheriff in a rural part of Scotland, it might be quite impractical to suggest that another person make that decision. As I have said, I do not have a concluded view on it.

I can see the case for such a move, and it would be easier at the appellate level. There are examples where courts have, when challenged on a particular interest, excluded that interest from the body deciding that interest. I can see the argument for that, but there are issues of practicality to be borne in mind.

Angus MacDonald: On the issue of recusals, let me throw a hypothetical example at you. The son of a judge is the litigation solicitor for a defendant in, for example, the Court of Session, but the judge fails to recuse himself and to highlight the family connection to all interested parties. Clearly such a situation could be avoided were the decision on recusal not to be taken by the judge presiding over the hearing himself. We would look to avoid such a situation, and the register would help.

Professor Paterson: It might—and if we are talking about a criminal defendant, it would be the High Court. Generally speaking, a relationship would be known to the parties. In the past, it was not unknown for an advocate who was a relative—a son or daughter—of a judge to appear before that judge. In a small country such as Scotland, saying that such a thing could not happen would make things a bit tough. It used to happen. As long as everybody knows about it and it is declared, it should not mean an automatic disqualification. In such situations, all the parties usually know and no objection will be made.

Maurice Corry: What consideration have you given to the potential for additional costs or delays to cases being heard if the recusal system were to be developed in the way that is proposed?

Professor Paterson: You are right to raise the issue—that is why I highlighted the practicality issues. Recusal is one of those areas in which it is necessary to have an appropriate balance between transparency, accountability and independence. We have a register of how often judges recuse themselves but, as I have pointed out, we do not know how often they do not recuse themselves, so we cannot form a view on whether they have always got it right or whether there are situations in which they did not get it right.

The test to be applied is whether a fair-minded, fully informed independent observer would think that there was a possibility of bias. It is a case not of whether the judge thinks that there is a possibility of bias, but of whether an independent, fair-minded, reasonable observer—probably a layperson—would think that there was a possibility of the tribunal being biased. It is therefore possible for a judge to take one view and an independent person to take a different one, which is why we must take a hard look at the issue of recusal.

Do I think that the introduction of a register of interests at appellate level would lead to a massive number of challenges and cause real problems? If a system were introduced whereby somebody else had to decide that, I think that it might. As I have said, I think that practical considerations might make my counsel of perfection, whereby in the ideal world somebody else would make the decision, unrealistic. I think that it is more possible at the appellate level.

Maurice Corry: Are you aware of any serious examples of cases in which the issue has been a significant problem, indicating that the setting up of such a register is necessary?

Professor Paterson: The Hoffmann case is the standard example of something going wrong. From time to time, challenges to the courts receive a degree of publicity, but I am not aware of any that were as significant as that one.

The Convener: There are no further questions. Thank you for your helpful and balanced evidence, which has given us an interesting insight into the issues.

Does the committee have a view on what further action we might take?

Angus MacDonald: Given the evidence that we have heard this morning, I think that we need to seek a further response from the Lord President, Lord Carloway. I, for one, would like to hear his views on today’s evidence, either by letter or in person, and I am particularly keen to find out his view on whether the recusal decision should not be taken by the judge who has the interest that has been challenged. Another suggestion has been put into the pot that would be well worth our consideration.

The Convener: We can look at the most convenient way for the Lord President to provide that response, because we do not want to cause unnecessary inconvenience.

Rona Mackay: We would not be re-asking the previous question. We would be going back to him with a new request.

The Convener: Is there anything else that we might do?

Angus MacDonald: There was also the suggestion that we ask the judicial complaints reviewer for her view on the evidence that has been given today. We should go down that route, too.

The Convener: Do members agree to take those actions?

Members indicated agreement.

The Convener: Again, I thank Professor Paterson for coming to the meeting. It has been very helpful.

I suspend the meeting for a couple of minutes. 09:25 Meeting suspended.

RECUSALS REGISTER – Scottish Judges are failing to disclose interests, and even when they do, some continue to hear cases where there are measurable conflicts of interest:

A number of additional cases documented on the petition webpage maintained by the Scottish Parliament aired in written submissions also provide evidence where litigants and defendants in Scotland’s civil and criminal courts are not being made aware of judicial relationships or conflicts of interest.

The frequency by which court users are not being made aware of such conflicts of interest within the judiciary appears to suggest such omissions are not happening by accident.

Misgivings on the attitude of members of the judiciary to reveal conflicts of interest are on the rise – particularly after one case revealed a senior judge – Lord Osborne – heard (and denied) the appeal against conviction of a man he had earlier prosecuted while working at the Crown Office.

Asked to comment on the matter, Lord Osborne claimed to a Sunday Mail investigation that he “forgot” he was the Prosecutor who put the man away for an alleged crime – which has been the subject of a long running and widely supported miscarriage of justice appeal.

Another case revealing the limitations of allowing judges to decide themselves whether to recuse from a case or not, was revealed in an investigation by the Sunday Herald newspaper after it emerged Sheriff Principal R Alistair Dunlop heard a case involving supermarket giant Tesco – while he held shares in the same company.

A a further investigation by the Scottish Sun newspaper revealed the same Sheriff Principal R Alistair Dunlop – held shares in a number of companies convicted of criminal offences at home and abroad, including Weir Group – subject of Scotland largest Proceeds of Crime cash seizure after the company was convicted of bribing their way into contracts with Saddam Hussein’s regime in Iraq.

Dunlop – who formerly sat on the Scottish Courts and Tribunals Service Board retired after the headlines, but was then brought back into service by the Lord President – to sit in the new Sheriff Appeals Court.

Recusals and the General Pinochet effect on proposals to require judges to register their interests:

In early 1999, Law Lords from the House of Lords who handled judicial functions now assigned to the UK Supreme Court – attacked their colleague Lord Hoffmann who failed to declare links with a human rights group before ruling in a key hearing on General Augusto Pinochet.

In the Law Lords written judgement on the Pinochet Appeal – Opinions of the Lords of Appeal for Judgement in the cause RE: Pinochet, they give their detailed reasoning for overturning a ruling by a previous panel of Law Lords which had denied the former Chilean dictator freedom from prosecution.

The Law Lords said the links between Lord Hoffmann – who sat on the original panel that ruled to allow General Pinochet’s extradition in November – and the human rights group Amnesty International were too close to allow the verdict to stand.

One of the lords who ruled in the appeal case, Lord Hope, said: “In view of his links with Amnesty International as the chairman and a director of Amnesty International Charity Limited he could not be seen to be impartial.”

At the conclusion of the latest consideration of Petition PE1458, MSPs who sit on the Public Petitions Committee agreed to write to the Lord President Lord Carloway and the Judicial Complaints Reviewer – Gillian Thompson OBE.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Herald and Sunday Mail newspapers, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary

 

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