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JUDICIAL REGISTER: ‘Judges should register their interests’ says former Judicial Investigator – as Holyrood Justice Committee set to consider SIX YEARS of work, evidence and backing from MSPs & Public Petitions Committee

Scottish Parliament probe judicial interests & register proposal. A SIX YEAR Scottish Parliament probe into Petition PE1458: Register of Interests for members of Scotland’s judiciary which generated over sixty two submissions of evidence, twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate – is set to be looked at by Holyrood’s Justice Committee, tomorrow – Tuesday 25 September.

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

The move to create a register of judicial interests enjoys cross party support from a full debate at Holryood in October 2014.

Now, members of the Scottish Parliament’s Justice Committee are set to look at the proposals, already backed by many MSPs and the Public Petitions Committee.

Recommendations for action by Justice Committee members – listed in papers for Tuesday’s meeting include the following options:

5. Once a petition has been referred to a subject Committee it is for the Committee to decide how, or if, it wishes to take the petition forward. Among options open to the Committee are to: Keep the petition open and write to the Scottish Government or other stakeholders seeking their views on what the petition is calling for, or views on further information to have emerged over the course of considering the petition; Keep the petition open and take oral evidence from the petitioner, from relevant stakeholders or from the Scottish Government; Keep the petition open and await the outcome of a specific piece of work, such as a consultation or piece of legislation before deciding what to do next; Close the petition on the grounds that the Scottish Government has made its position clear, or that the Scottish Government has made some or all of the changes requested by the petition, or that the Committee, after due consideration, has decided it does not support the petition;

The Committee may wish to consider what action, if any, it would like to take in  relation to the petition. Possible options are set out at paragraph 5 above. If this is an issue that the Committee would like to explore further, it may wish to consider writing to those listed at paragraph 9 to ask whether they had anything to add to their earlier contributions. It could also seek more information on the Norwegian model, and then obtain an updated briefing from SPICe.

Included also in the Committee papers are submissions from the Petitioner, and Moi Ali – Scotland’s first Judicial Complaints Reviewer – who gave evidence to the Public Petitions Committee in September 2013, supporting the petition’s calls for the creation of a register of judicial interests.

The submission from Moi Ali reads as follows:

This brief submission to the Justice Committee relates to its consideration of a proposal to implement a register of interests for the judiciary. I am writing as an ordinary citizen, but my submission is informed by my experience as Scotland’s first Judicial Complaints Reviewer (JCR).

In that previous role I gave evidence to the Petitions Committee in support of a register of interests.

Although now writing in a private capacity, I have served on public boards for nearly two decades and as a Board Member I have (rightly) been required to complete a register of interests for each role, to provide assurance to the public that my dealings are not motivated by money, family connections or friendships.

The Justice Committee members who will take the decision on a register of interests, as MSPs must publish their interests too.

It is time that the judiciary joined the rest of those in public life in taking this small, simple step to improve transparency and accountability, thereby enhancing their own reputation in the process.

I have long campaigned for greater transparency in public life, yet in my role as JCR I occasionally found the judiciary to be needlessly secretive.

I am not suggesting that there was anything to hide, but a failure to be transparent inevitably left the public with whom I dealt feeling suspicious.

I will not rehearse the arguments in favour of a register of interests: they are well known.

However, I would emphasise that although opposed by the judiciary, it is in their own interests as well as the public interest that there be a register of interests.

I would like to conclude by reiterating my respect for the judiciary and the essential work that they undertake. Judicial independence is vital to a democracy, but with independence goes accountability. A register of interests is a mechanism for enhancing accountability. Ms Moi Ali 18 September 2018

In March of this year, after lengthy deliberations & evidence,  the Scottish Parliament’s Public Petitions Committee backed the petition calling for the creation of a register of interests, and concluded the proposal to increase judicial transparency – should become law.

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

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

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

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

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

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

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

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

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

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

When responses are received, MSPs will consider further action.

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

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

Judiciary (Register of Interests) (PE1458):

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

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

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

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

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

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

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

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

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

Members indicated agreement.

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

The judicial interests petition – filed at Holyrood in October 2012 and first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

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

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

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

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

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

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

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

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

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

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

Dear Lord Carloway,

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

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

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

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

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

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

Register of recusals

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

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

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

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

Register of financial interests

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

These arguments have included—

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

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

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

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

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

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

Yours sincerely: Johann Lamont MSP Convener

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

Judges register backed by MSPs to become law

Martin Hannan Journalist 23 March 2018

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

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

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

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

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

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

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

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

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

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

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

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

BATTLE TO BRING IN JUDGES’ REGISTER

Sunday Mail 25 March 2018

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

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

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

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

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

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

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

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

JUDGE LIST IS BACKED

Scottish Sun 23 March 2018

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

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

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

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

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

A further report in The National newspaper:

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

Martin Hannan Journalist 22 March 2018

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

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

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

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

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

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

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

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

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

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

The video timeline of debate at the Scottish Parliament’s Public Petitions Committee from 2012 to 2018 on Petition PE1458:

Petition PE1458 Register of Interests for Scottish Judiciary Scottish Parliament 8 January 2013

The Committee decided to call for submissions on the petition from the Lord President, the Law Society of Scotland, Faculty of Advocates and Crown Office.

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament

Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to legislate to create a Register of Interests for Scotland’s judiciary was heard today 5 March 2013. The Committee decided to call for further evidence and also to invite the Lord President Lord Gill and others along to speak to MSPs and be questioned on the matter.

Petition 1458 Register of Interests for Scotland’s Judiciary Scottish Parliament 16 April 2013

 

A petition calling for a register of interests for Scotland’s judiciary has again been debated at the Scottish Parliament, where upon the Lord President Lord Gill’s refusal to attend the Petitions Committee to give evidence, the Petitions Committee decided to repeat its invitation to Lord Gill to attend, and also agreed to seek the views of the Judicial Appointments Board and the Judicial Complaints Reviewer.

Petition 1458 Register of Interests for Scottish Judiciary 25 June 2013 Scottish Parliament

Members of the PPC decided to invite Moi Ali, the Judicial Complaints Reviewer to give evidence and also to contact Dr Kennedy Graham MP of the New Zealand Parliament. Dr Graham currently has a bill before MPs in New Zealand calling for a Register of Pecuniary Interests of Judges. During the debate it was noted Lord Gill has refused to attend the Scottish Parliament to discuss the petition and judge’s interests, but has attended the Justice Committee to discuss court closures in Scotland.

Evidence from Judicial Complaints Reviewer Moi Ali on Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament

Moi Ali, Scotland’s Judicial Complaints Reviewer gives evidence to MSPs at the Scottish Parliament regarding Public Petition PE1458 calling for a Register of Interests for Scotland’s Judiciary.

Petition 1458 Register of Judicial Interests Public Petitions Committee 28th January 2014

Following a private meeting between Scotland’s top judge, the Lord President Lord Brian Gill, and the Convener & Deputy Convener of the Public Petitions Committee of the Scottish Parliament,the Committee agreed today, 28 January 2014 to defer consideration of Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to create a register of judicial interests, pending receipt of a letter from the Lord President.

The Convener, David Stewart MSP and Deputy Convener, Chic Brodie MSP reported back to members on what had been said at the private meeting with Scotland’s top judge who refused to attend the Scottish Parliament to be questioned on his deep seated opposition to the proposal to requie Scottish judges to declare all their interests, hidden wealth, family & business links and other matters which may impact on cases being heard before judges in Scottish courts.

Committee Member John Wilson MSP requested details of the private meeting with the judge be put on the official record of the Committee, and Jackson Carlaw MSP drew attention to the fact had it not been for the Petitions Committee asking tough questions there would not even be any letters forthcoming from Lord Gill.

The petition will be heard once a letter has been received from Scotland’s top judge, who appears to be set against any attendance to face questions on why judges should not be required to register their interests, unlike all other public officials, politicians, Government Ministers and others.

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

The Committee agreed to seek time in the chamber for a debate on the petition. The Committee also agreed to write to the Lord President and the Scottish Government.

Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament Public Petitions Committee

The Committee agreed to continue the petition, and is seeking a debate in the main chamber of the Scottish Parliament. The Committee also agreed to write to the Lord President and the Scottish Government for more detailed responses.

The next fifteen video clips are from the debate held at the Scottish Parliament on Thursday 09 October 2014, in which MSPs, Scottish Government ministers and members of the Public Petitions Committee spoke in the debate. The full text of the speeches of each MSP can be found here: DEBATING THE JUDGES: Cross party support for proposal seeking a register of interests for members of Scotland’s Judiciary as Scottish Parliament holds first ever debate on judicial accountability & transparency

David Stewart MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

David Stewart: The committee’s motivation in giving consideration to the issue and in seeking time in the chamber to debate it is a point of principle and comes from the starting point of there being an assumption of openness and transparency in all areas of public life in order to shine a light, if you like, into every corner of Scottish society.

Roseanna Cunningham MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Roseanna Cunningham: The setting up of a register of judicial interests would be a matter for the Lord President, as head of the judiciary in Scotland. The Lord President takes the view that a register of pecuniary interests for the judiciary is not needed. Furthermore, a judge has a greater duty of disclosure than a register of financial interests could address.

Graeme Pearson MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Graeme Pearson: Until the petition was discussed, there was no knowledge of recusals in the public domain. I welcome the fact that, as of April this year, the Lord President has introduced a register of recusals. It is fair to say that without the petition and the work of the Public Petitions Committee, such a register would probably not have been considered.

Jackson Carlaw MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Jackson Carlaw: It is perhaps difficult to take on the judiciary, because judicial independence is always mentioned. As I said, that is a cornerstone of democracy, but because there has been no separation of accountability and independence, it is easy for the judiciary to say, ‘We are independent, so don’t interfere in that.’ Unless independence and accountability are separated, legislation will continue to include no requirement for more openness and transparency.”

Angus MacDonald MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Angus MacDonald: If we as elected members have to register and declare our interests, I see no reason why members of Scotland’s judiciary should not be subject to a full and publicly available register of judicial interests.

Anne McTaggart MSP Register of Judicial Interests debate – Petition PE1458 Scottish Parliament 9 Oct 2014

Anne McTaggart: In Scotland, claims continue to emerge of trials that have been unfair as a result of religious, ethnic or national bias. As long as those claims continue to exist, it is the Parliament’s job to promote fair government. In conclusion, I declare my support for the petition and encourage support from all the other MSPs.

David Torrance MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct

David Torrance: Although I understand that conflicts of interest are on occasion declared in open court prior to taking on a case, the introduction of a register of interests would provide a more consistent and sound basis on which to move forward.

Neil Findlay MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Neil Findlay: We need to do much more to make our society less secretive and less closed, and I think that the register that we are discussing is just one step towards that end. I, for one, give it my full support and urge other MSPs to do the same.

Joan McAlpine MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct 2014

Joan McAlpine: I gently suggest to the Lord President, in whose gift it is to set up a register, as we cannot legislate for it in the Parliament, that he should be mindful of the need for the judiciary to move with the times, along with every other public institution, in order to retain the confidence of the public.

John Wilson MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

John Wilson: A register of interests for judges is an area in which we could move forward and build more confidence in the system that we have in place.

Stewart Stevenson MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Stewart Stevenson: I encourage Lord Gill and his successors to think about recalibrating their relationship with Parliament.

Jackson Carlaw MSP closing speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Jackson Carlaw: Mind you, I would point out that we, too, swear an oath, but we nonetheless still subscribe to a register.

Elaine Murray MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Elaine Murray: “Given the position of power held by the judiciary, it is essential not only that they have absolute integrity–but crucially, that they are seen to have absolute integrity.” Therefore, the issue is not that anyone doubts the judiciary’s integrity, but that the public need to see that integrity.

Roseanna Cunningham MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Roseanna Cunningham: A number of members referred to the register of interests of MSPs. However, the situation is different, because we are directly accountable to the electorate.

Chic Brodie MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Chic Brodie: There is concern that a register would have unintended consequences—a phrase that has been used often in the debate—for the judiciary’s freedom and privacy and its freedom from harassment from the media or dissatisfied litigants. Those are concerns, but they are no less so for others in public life, including MPs and MSPs, who may be attacked publicly for non-declaration of interests. Although it is argued that the establishment of a register may have the unintended consequence of eroding public confidence in the judiciary, it might equally be argued that its absence might have the same effect.

The debate at the Scottish Parliament now returns to deliberations of the Public Petitions Committee on Petition PE1458 – A Register of Interests for members of Scotland’s Judiciary:

Register of interests for judiciary Petition PE1458 Scottish Parliament 28 October 2014

Paul Wheelhouse Register of Judicial Interests Petitions Committee Scottish Parliament 9 Dec2014

Minister for Community Safety Paul Wheelhouse gives evidence to the Public Petitions Committee on their investigation of proposals to create a register of judicial interests as called for in Petition PE1458. Mr Wheelhouse on behalf of the Scottish Government opposes the creation of a register which will inform the public about what judges have, their interests, links to big business, banks, shares in corporations and tax avoidance scams.

Petition 1458 Register of interests for Scotland’s Judiciary Scottish Parliament 12th May 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 12 May 2015. The Committee agreed to call Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer to give evidence on the creation of a register of judicial interests.

Evidence of Gillian Thompson Judicial Complaints Reviewer Register of Interests for Judges Petition PE1458 Scottish Parliament 23 June 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 23 June 2015. The Committee took evidence from Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer who gave evidence in support of the creation of a register of judicial interests.

Lord Brian Gill evidence to Public Petitions Committee Scottish Parliament 10 Nov 2015

Lord Brian Gill, former Lord President and Lord Justice General of Scotland gives evidence to the Scottish Parliament’s Public Petitions Committee on Petition PE1458 calling for a register of interests for judges.Gill refused two earlier invitations to appear before the Public Petitions Committee in 2013 and was dubbed “Lord No No.”. Several times during the debate the 73 year old ‘retired’ Lord Gill called on the panel of MSPs to show faith in the UK judiciary and scrap the petition along with calls for greater transparency of judges interests.

Petition PE1458 Register of Interests for Judges Public Petitions Committee Holyrood 1 Dec 2015

Petitions Committee member Kenny MacAskill MSP calls for the committee to invite the new Lord President upon their appointment to appear to give evidence. Convener Michael McMahon MSP agrees to write to the new Lord President.

Petition PE1458 Register of judicial interests Scottish Parliament 23rd February 2016

The Committee decided Lord Carloway is to be called to give evidence, MSPs will also contact Professor Alan Paterson of the University of Strathclyde for evidence.

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

The Petitions Committee decided to call Lord President Lord Carloway to give evidence, and also hear from Professor Alan Paterson of the University of Strathclyde.

Petition PE1458 Register of Interests for judges Public Petitions Committee 22 Dec 2016

MSP Angus MacDonald (SNP) moves to call Professor Alan Paterson to give evidence to the committee and for msps to consider evidence from the Professor then to contact the Lord President, Lord Carloway.

Professor Alan Paterson Petitions Committee PE1458 19th Jan 2017

Professor Alan Paterson evidence to Public Petitions Committee on creating a register of interests for members of Scotland’s judiciary.

PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

Members of the Scottish Parliament’s Public Petitions Committee decide to invite Lord President Lord Carloway to provide evidence before the Committee at a future date, and to invite Alex Neil MSP to appear before the Committee at the same meeting. The decision was taken after Lord Carloway offered concessions on the recusal register of Scotland’s judiciary – created as a result of this petition.

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

Lord Carloway gives evidence to the Public Petitions Committee on a proposal to create a register of judicial interests for members of Scotland’s judiciary. The proposal has been investigated by the Scottish Parliament for five years, there is wide support for the register, from cross party msps to the media to both Judicial Complaints Reviewers.

The Petition will next be heard on Thursday 7 December 2017 where the Public Petitions Committee will be asked to consider taking evidence from Baroness Hale, President of the UK Supreme Court, and to seek further evidence on the operation of Norway’s Register of Judicial Interests.

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

 

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JUDGE SCANDAL: Dark side of Scotland’s judiciary reveals how judges & courts covered up scandal hit judges – from fraud, tax avoidance, alcohol related violence to the wife-beating Sheriff – who all avoided action from Crown Office & Police

Judiciary, Police & prosecutors failed to act on retired scandal Sheriff. THE WAY in which the Judiciary of Scotland deal with allegations against their own members, was never more evident, and in remiss than when the wife of a now deceased Sheriff tried in vain to report her judge husband to Police and prosecutors.

The late Sheriff Lothian, who it turns out – was well known to judicial figures and even Scottish Court Service staff – for his visits to sauna parlours, rumours of mistreatment of his family and use of prostitutes – is one of the dark, yet not so far away chapters of Scotland’s legal circuit.

Yet to this day, snippets of similar behaviour by sheriffs & senior legal figures from unpublished court documents, hearings in chambers,quietly arranged divorces and even missing Police reports – is as shielded from the public today, as it was during Lothian’s reign in the Sheriff courts.

Far from the image of judicial figures cosying up to First Ministers, Lord Advocates and the reluctant ex top judges lecturing politicians and the public on morality, transparency and accountability – members of the judiciary have recently been caught up in all kinds of seedy accusations, ranging from mega millions in hedge fund linked financial impropriety, to carefully concealed court cases and even divorce, where allegations against judges range from wife battering to drunken rages and smashing objects.

Yet, the public learn very little, if usually nothing of these events – and mysteriously, the courts, prosecutors, even Police, all comply with a very judicial silence.

The “me too” #metoo movement – a campaign to denounce sexual assault and harassment – which has somehow mysteriously skipped Scotland under First Minister Nicola Sturgeon – certainly stands no chance against angry, embittered & wife beating members of the judiciary.

Nor does “me too” stand a chance against shady senior figures in Police Scotland– who support each other when reports of sexual assault or harassment end up buried with a ‘no action’ ticket at the Policeman’s ball.

The history of the demise of Sheriff Lothian – who died in 2016 – is well known.

However, the cover up by colleagues on the bench, who knew of Lothian (and other judicial figures) associations with prostitutes, sauna bars, and the attempts by Lothian’s wife to report her husband to the Police & Crown Office – stands to this day as an example of the dark side of Scotland’s judiciary.

A carefully crafted system of cover up, denial and protection of a 500 year old white male dominated judiciary – which runs from the lowly Justices of the Peace who have criminal records for shop lifting & assault, to the most senior levels of the bench where tax avoidance, failures to declare interests, wife beating & carefully denied allegations of sexual misconduct in the workplace never see the inside of a court, the pages of a recusal register or the ink of a charge sheet.

It is also worth noting, many of Scotland’s current senior judges were on the judicial bench during Sheriff Lothian (among others) penchant for boozing, sexual assault, use of prostitutes & reign of terror at home. Yet, to this day, not one judge ever spoke out.

Sheriff Lothian quietly retired on a pension of £7,000 a month.

A Freedom of Information disclosure from the Scottish Government to DOI Journalists also revealed Sheriff Lothian received substantial payments from the Scottish Government & service awards.

Documents within the FOI disclosure reveal that under the Judicial Pensions Act 1981, Sheriff Lothian was entitled to a pension of £63,200.00 per annum and a lump sum of £84,547.00 and in addition Lothian would receive a service award of £50,560.00, based on a salary of £126,400.

Additionally, under the Judicial Pensions and Retirement Act 1993, Sheriff Lothian was entitled to a pension of £62,627.00 per annum, and a lump sum of £84,547.00 together with a net service award of £52,920.00 – based on his pensionable pay of £125,253.33.

Exchanges within the documents disclosed by the Scottish Government also reveal the then Justice Secretary – Kenny MacAskill – was not informed of Sheriff Lothian’s sudden decision to quit the bench, and further emails between heads of the justice department show concern at enquiries from newspapers as to the conduct & status of Sheriff Lothian.

In relation to the allegations against Sheriff Lothian of wife beating and other reports to Police – no action was ever taken against him by the Crown Office or Lothian & Borders Police.

A report on the allegations against Sheriff Lothian and the suffering of his wife, which exposed brutality at a judicial level, featured in the former News of the World newspaper.

It may be a grim read for some, but a necessary read for all – and much further afield than Scotland:

SICK SECRETS OF SAUNA SHERIFF

Ex-missus claims Lothian’s obsession with vice girls and booze destroyed their marriage  Downed sprits daily  Begged for 3-way sex  Hit wife at Christmas

By MARCELLO MEGA News of the World 15 March 2009

SLEAZY sheriff Andrew Lothian is a wife-beating drunk who’s obsessed with prostitutes, his ex-wife reveals today.

The shamed 66-year-old was forced to quit the bench after claims he paid for spanking and whipping sessions with an Edinburgh hooker.

But today the News of the World can expose the SHOCKING secrets of his sordid private life.

According to long-suffering ex-wife Harriet Lothian, the twisted beak TRIED to make her have sex with strangers while he watched

ADMITTED using prostitutes during their marriage

DOWNED at least a bottle of spirits every day, and BATTERED her while their unsuspecting kids slept upstairs.

Speaking at length for the first time since her ex-husband’s sauna shame, disgusted Harriet, 57, said: “I’m surprised it took so long for his activities to be exposed.

“I tried repeatedly to alert the police and the Crown to his unsuitability for office because of his behaviour, but to no avail.

“I suffered greatly at his hands, both during our marriage and for many years after I divorced him.”

We told last November how Lothian quit his £125,000-a-year job after Crown Office bosses confronted him about allegations over his private life.

But, according to Harriet his obsession with sordid sex had been going on for YEARS.

Lothian’s wife of 19 years said: “Sexually, there were problems from an early stage in the marriage.

“I found it so unsettling that I sought advice from my father, who was a doctor, and who I could talk to about anything.

“Andrew was into kinky but fairly inadequate sex. He also had fantasies about introducing third parties, men or women, into the bedroom.

“I had no interest, but he kept asking me to do it to please him.

Repugnant

“I refused because I found the idea repulsive. He said he could pay people to make his fantasies come true.” Harriet suspected her hubby was using hookers DURING their marriage.

And she told how her elderly father was forced to confront Lothian about the sleazy claims.

Harriet said: “He confessed without any shame. He told me he had lost his virginity at 16 to a prostitute, and that he’d always been turned on by them.

“I was devastated. I told him I’d never have unprotected sex with him again but he was totally unrepentant.

“Once his obsession was out in the open, he became more demanding. If he was out at a dinner, he would bring men home and want me to have sex with them while he watched.

“I would have to throw them out, which was embarrassing. I found the idea repugnant. Apart from anything else, I had children in the house.

“My father was 68, but was very close to me and he had no hesitation in speaking to Andrew and telling him to shape up.”

The couple had married on December 28, 1983, after a whirlwind romance.

Lothian already had a son, also Andrew, from the first of two previous marriages, and Harriet had a young son, James, from a previous relationship.

Two years after their wedding, Harriet gave birth to their son Robert, but already the foundations of the marriage were beginning to crumble.

She says: “By the time Robert came along, I had serious concerns about his father’s alcoholism and how terribly ill it was making him.

“He was drinking at least a bottle of spirits a day, and that was just what I was witnessing. He was in a mess.

“I went home with Robert on New Year’s Day 1986 and Andrew was in such a terrible state that he became abusive. I threw a milk bottle at him and hit him on the side of the head.

“The next day, I insisted he saw a doctor, and he agreed because his mother was in the house.

Harriet tried to alert senior legal officals to her husband’s alcohol abuse but was snubbed at every turn.

Things spiralled further out of control and by Christmas 1996 Harriet demanded Lothian move out.

She said: “His language became more abusive. There were implied threats of violence and the odd punch to the side of the head where no visible marks were left, but I was still shocked by what happened then.”

Harriet told how their sons, James, now 27, and Robert, now 23, were in their bedrooms when a huge row erupted on Christmas Eve that year.

She claims Lothian slapped her hard in the face, before punching her full on the nose.

As their shocked mother took refuge in the bathroom, where she tried to stem the flow of blood, both sons plucked up the courage to leave their rooms and go to her aid.

Charade

With her face badly marked and her eyes beginning to blacken, the family went through the motions the next day, exchanging presents and eating dinner — but the mood was understandably bleak.

Harriet said: “Until that point, I’d been trying to hold things together for my sons, but I couldn’t go on with the charade.

No child should have to see their mother pouring with blood from a blow their father has struck.

It was a total nightmare.” Robert said: “I remember clearly what happened that night and it sickens me the way he behaved. It is more than ten years since I have spoken to him.

“When I was 12 I wrote him a letter telling him I wanted nothing to do with him.” Following the attack Harriet demanded that Lothian move out of the family home in Lauder, Berwickshire.

She wept: “I feared for the safety of our sons. I had no choice.”

But in SLEAZE: summer 2001 Lothian — then living in Edinburgh — launched a court bid to SELL the house.

She said: “The move was especially hurtful as Robert was about to start his Higher courses.

“It was also difficult to understand as Andrew had inherited a six-figure sum the previous year when his mother died.”

Lothian’s partner at that time, Eleanor Burns, daughter of Sir John and Lady Eleanor Burns, had also inherited a substantial sum on the death of her mother, just a week before Catriona Lothian’s death.

By 2002, when they finally divorced, Harriet claims exclusive that Lothian enjoyed a six-figure salary whilst Harriet took care of their children and could only work part-time as a rape crisis counsellor.

In the end she had to pay Lothian £28,000 to buy him out of the family home and finish the marriage.

Assault

Lothian and his brother Murdoch were subject to an Inland Revenue investigation in 2000 after claiming the contents of their late mother’s Stirling home were worth a mere £5,000.

This included antique furniture, jewellery, silver, paintings and pottery.

It’s understood the Inland Revenue later valued the list at £300,000.

But Harriet still wishes justice had been done for the assault she endured in 1996. She said: “Successive governments on both sides of the border have claimed to wage war on domestic violence.

“There was an opportunity for the Scottish establishment to show there was substance behind the platitudes by taking action against a senior lawyer. But typically, they covered his back.” Now self-employed in horticulture, Harriet added: “I have to work extremely hard to make a living.

Andrew’s disgrace has not made life any easier, but I feel vindicated.”

Lothian served on the Glasgow bench from 1979 to 1992 before moving to Edinburgh. He’s expected to keep his £7,000-a-month pension.

He was unavailable to comment on the allegations.

Read more articles about the Judiciary of Scotland here : Judiciary of Scotland – Previous articles

 

 

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TOP OF THE COPS: Police Scotland media team in row over “wrong” word in transcript of top cop explaining away suspension, demotion & reinstatement after male-led cop tribunal cleared him from FIVE allegations of serious sexual assault

Scotland’s new Top Cop once faced serious sexual assault probe. THE “WRONG” word in a newspaper’s transcribed version of an interview with the officer who is now Scotland’s new Chief Constable – Iain Livingstone – became the subject of bitter exchanges between media officers of Police Scotland and a national newspaper.

Reports from inside the media have revealed the matter became the subject of protracted requests to the Daily Mail newspaper from Police Scotland’s media unit – which includes a Communications officer identified as Chris Starr.

The dispute arose after a mistake was identified in the paper’s published transcript of a television interview asking Iain Livingstone about how he dealt with five allegations of serious sexual assault from a female colleague.

The mistake amounted to one word – “all” .. which should have read from interview as “wrong”.

However, questions have arisen as to why Police Scotland’s media unit hare being used to target the media over the wording of a transcript – a task which should have been allocated to a law firm.

And, while cops have taken issue with reporting of the sexual assault allegations against Scotland’s new Chief Constable, Police Scotland and the Scottish Police Authority continue to resist full disclosure and publication of the full details of the FIVE allegations of sexual assault made against Iain Livingstone by a female officer who has since left the force.

Livingstone was recently confirmed as Scotland’s new Chief Constable after a gruesome sequence of suspensions of colleagues, a damning report on how Scots Police spied on journalists and whistle-blowers, and the Ministerial backed ousting of former Chief Constable Phil Gormley.

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

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

I fell asleep in the wrong place and that was “wrong” and I shouldn’t have done that, and clearly I accept that.

I was suspended, I spent time off work. There was a hearing convened where I did accept I fell asleep.

I was cleared of any sexual impropriety.

I was cleared of any level of sexual intent and at that hearing, initially, I was then demoted from superintendent to constable.

I immediately appealed against that and I was reinstated.

I came back to work, I accepted that I made a mistake, I accepted I had learned from it and since that time I have continued to conduct my duties with absolute rigour and professionalism.”

Asked whether he could be the ‘strong professional leader with integrity’ that the public want as chief constable, Iain Livingstone said: “I think I could discharge the responsibilities of the job. ‘One of my main strengths, I think, is the ability to work collectively and to work in a collegiate manner.”

“I do think I could do the job, I just need to be quite clear in my own mind that that’s what I want to do for the next three to five years.”

Mr Livingstone was suspended in 2003 after a female officer said she was sexually assaulted at Tulliallan, Scotland’s police training college.

At the time he was 36, a father of three, and held a post in Her Majesty’s Inspectorate of Constabulary, which used to oversee regional police forces.

There were no legal proceedings – although Mr Livingstone was demoted from superintendent to constable in 2004 following a disciplinary hearing.

Five allegations of serious sexual assault were dismissed but, at an internal misconduct hearing, he admitted being in the woman’s room overnight after falling asleep.

The hearing, chaired by the then assistant chief constable of Strathclyde Police, found there had been no sexual impropriety or intent.

The woman, who had been on the accelerated promotion scheme for graduates, was reported to have left the scheme, which guarantees fast-track promotion.

A statement to the Press issued by a Police Scotland media representative in May on the subject of the BBC Scotland interview stated: “This matter was subject to due process by Lothian and Borders Police and was formally concluded under police regulations 14 years ago.”

“A hearing concluded that there was no sexual impropriety or intent on Mr Livingstone’s part and he has nothing further to add.”

TIMELINE OF SEXUAL ASSAULT ALLEGATIONS AGAINST TOP COP:

FEBRUARY 2003: Iain Livingstone, then 36, is suspended amid sexual assault claims and admits he is ‘shattered’.

AUGUST 2003: Prosecutors drop proceedings against Mr Livingstone – but he faces internal disciplinary proceedings.

JUNE 2004: Mr Livingstone is demoted from the rank of superintendent to constable, which means a loss of more than £1million in salary and pension payments.

AUGUST 2004: Tayside’s Chief Constable John Vine upholds Mr Livingstone’s appeal and reinstates him, agreeing that the original decision was ‘harsh’.

OCTOBER 2015: Now Deputy Chief Constable of Police Scotland, Mr Livingstone emerges as a candidate for the top job after Sir Stephen House quits.

DECEMBER 2015: Former Norfolk Constabulary Chief Constable Phil Gormley is named as the new boss of Police Scotland.

JULY 2017: Mr Livingstone announces his retirement, saying it was a ‘privilege to serve the people of Scotland’.

SEPTEMBER 2017: Amid the bullying row engulfing Mr Gormley, Mr Livingstone cancels his retirement plan and takes charge of the single force.

APRIL 2018: Front runner to become the new full time chief, Mr Livingstone is confronted about his conduct in a BBC Scotland TV documentary.

Journalist Sam Poling questioned Iain Livingstone during the BBC Scotland documentary, A Force in Crisis, which aired on Monday 30 April 2018.

The transcript of the interview between Sam Poling & then Deputy Chief Constable Iain Livingstone (now promoted to Chief Constable) reads as follows:

SAM POLING: What about your background?

DCC IAIN LIVINGSTONE: My background as a police officer?

SAM POLING: The allegations of sexual assault. You ended up admitting misconduct, staying in the room of a junior officer.

You were bumped down from superintendent to constable and suspended. Am I right?

DCC IAIN LIVINGSTONE: No, not on that, no you’re not right.

SAM POLING: You weren’t taken down from superintendent to constable?

DCC IAIN LIVINGSTONE: No, I wasn’t taken down from superintendent to constable and then suspended.

There was a set of circumstances in 2000 whereby at a social event at Tulliallan, at a training event, I had too much to drink.

I fell asleep in the wrong place and that was wrong and I shouldn’t have done that, and clearly I accept that.

I was suspended, I spent time off work. There was a hearing convened, where I did accept I fell asleep.

I was cleared of any sexual impropriety. I was cleared of any level of sexual intent and at that hearing, initially, I was then demoted from superintendent to constable.

I immediately appealed against that and I was reinstated.

I came back to work, I accepted that I made a mistake, I accepted I had learned from it and since that time I have continued to conduct my duties with absolute rigour and professionalism.

SAM POLING: The public want a strong professional leader with integrity in their chief constable. Is that you?

DCC IAIN LIVINGSTONE: I think I could discharge the responsibilities of the job. One of my main strengths, I think, is the ability to work collectively and to work in a collegiate manner.

I do think I could do the job, I just need to be quite clear in my own mind that that’s what I want to do for the next three to five years.

SEXUAL ASSAULT ALLEGATIONS AGAINST TOP COP TO REMAIN SECRET:

A statement from Police Scotland in response to the Freedom of Information request refused any form of disclosure or acknowledgement of the status of any files held by Scotland’s single national Police service read as follows:

“Police Scotland endeavours to provide information whenever possible. However, under section 18(1) of the Act, a public authority may refuse a request where:

• if the information existed and was held by the authority, it would be exempt from release under any of Sections 28 to 35, 38, 39(1) or 41 of the Act; and

• the authority considers that to reveal whether the information exists, or is held by it, would be contrary to the public interest.

In this instance, it is considered that to reveal whether the information you have requested exists, or is held by Police Scotland, would be both exempt from release under the Act and contrary to the public interest. There is a strong public interest in protecting individuals’ privacy, and personal information is exempt from release into the public domain under section 38 of the Act if it would be unfair, unlawful or otherwise breach the Data Protection Act.

For these reasons, Police Scotland must refuse your request under section 18(1) of the Act.

This notice should not be taken as conclusive evidence that the information you have requested exists or is held.”

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

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

The Scottish Police Authority were asked to provide details of :

  • The numbers of complaints, subject of complaints, and identities (not name, but by rank, status as Police Officer, civilian employee, member of the public or other)

  • Who have made complaints (and the numbers of complaints) against current DCC Iain Livingstone from 1 April 2013 to the date of this FOI request

  • The status, and outcomes of these complaints.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It should be noted that during the time of the investigation & tribunal, handled by Police, the Lord Advocate was Colin Boyd, Baron Boyd of Duncansby – now a judge in the Court of Session, and the Solicitor General was Elish Angiolini – recently appointed by Nicola Sturgeon a Scottish Minister to investigate how complaints are handled against Police in Scotland – reported here: PROBE CONFLICT: £604K public cash inquiry magnate Ex Lord Advocate appointed to investigate Police complaints – linked to lawyers representing cops facing complaints

A full report on Police Scotland’s refusal to release the details of allegations against Iain Livingstone can be found in an earlier article here: TOP COP SECRETS: Transparency lacking at Police Scotland as spy scandal cops refuse to disclose files on complaints & historical sexual assault case details involving Deputy Chief Constable Iain Livingstone

A report on the Scottish Police Authority’s refusal to release information in connection with the allegations of sexual assault against Iain Livingstone can be found here: THE COP FACTOR: Scottish Police Authority refuse to release documents on sex assault case top cop who wants to be Chief Constable – now, new info said to contain more complaints & references to ‘interaction with another officer’

 

 

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IMMUNITY LORD: Conflict judge who failed to declare interest in case linked to his son – upholds Lord Advocate immunity from common law claims in £9M Rangers Admin action – which was initially to be heard by the Lord Advocate’s judge wife

Lord Malcolm rules Lord Advocate immune from parts of Rangers admin claim. A SENIOR Court of Session judge who failed to disclose he heard a case on eight occasions involving his own son – has now ruled the Lord Advocate has absolute immunity from being sued in connection with common law claims in relation to a £9million damages claim brought by former administrators for Rangers Football Club.

Lord Malcolm – real name Colin Campbell QC – made the ruling in an opinion published on Thursday in the case of “David John Whitehouse against Phil Gormley QPC & others”

The case – initially heard in the Court of Session in November 2017- was originally set to be decided by Lord Advocate James Wolffe’s own wife – Court of Session judge Lady Sarah Wolffe.

However, Lady Wolffe was switched at the last minute after questions were raised when her marital status and conflict of interest became apparent – reported here: CRY WOLFFE: Judicial Office hit with new conflict of interest claims as Court of Session papers reveal £9 million damages claim against Chief Constable & Lord Advocate James Wolffe QC was set to be heard by the Lord Advocate’s wife – Judge Lady Wolffe

In last week’s lengthy 107 page ruling by the Court of Session Judge & Privy Councillor – Lord Malcolm ruled in 2018 where Lady Wolffe could not in 2017 – and upheld the absolute immunity of Lord Advocate James Wolffe QC – in respect of the common law claims but rejected the Lord Advocate’s submission that the article 8 claim should be dismissed in advance of proof.

Lord Malcolm’s summary and decision states: “The pursuer, and separately his former co-administrator of Rangers Football Club, are claiming damages from those said to be responsible for allegedly wrongful detentions, arrests, and prosecutions. The claims are brought at common law and in terms of articles 5 and 8 of ECHR. The Lord Advocate’s submission that the article 8 claim should be dismissed in advance of proof is rejected. However his plea of absolute immunity in respect of the common law claims is upheld. It follows that the actions against him shall proceed in respect of only the ECHR claims”

While upholding the Lord Advocate’s immunity, Judge Lord Malcolm allowed Mr Whitehouse’ claim against Police Scotland to go ahead to a proof, stating: “So far as Mr Whitehouse’s claim against the police is concerned, the court is not prepared to uphold his submission that it can be decided on the pleadings that he need not prove malicious conduct on their part. The result is that the pursuer’s claim against the chief constable, and the defences to it, shall proceed to a proof before answer (as was agreed by the respective parties in Mr Clark’s action)”

A proof will now take place at a date to be decided, regarding claims that Whitehouse’s human rights were breached by prosecutors when he was arrested.

In allowing a proof to go ahead, Lord Malcolm also ruled that the hearing should also consider whether PoliceScotland exceeded their powers and acted maliciously in their investigation into Whitehouse.

The hearing will take place alongside another set of proceedings dealing with Clark’s claims.

The £9million damages claim came about after David Whitehouse and his colleague, Paul Clark, who worked for administrators Duff & Phelps, who faced criminal proceedings following the takeover of Rangers by Craig Whyte.

However, criminal charges against both Mr Whitehouse and Mr Clark were later dismissed following a hearing at the High Court in Glasgow in June 2016 – amid a clear lack of evidence for a case to proceed, and widely shared views the charges were motivated more out of headline hunting PR by the Crown Office & Police Scotland.

Both Whitehouse and Clark claimed in the court action that the Lord Advocate’s prosecutors pursued a wrongful prosecution against them and there was no evidential basis for the charges brought against them.

Mr Whitehouse and Mr Clark also claimed that PoliceScotland acted maliciously against them and they should be entitled to damages from the Chief Constable – who was at the time – Phil Gormley.

Both of the former Rangers administrators believe detectives breached their legal powers during the investigation.

Gerry Moynihan QC – acting for Lord Advocate James Wolffe –  told the court that his client, the Lord Advocate enjoyed absolute immunity from being sued in a civil court.

The issues surrounding the Lord Advocate’s immunity were discussed earlier this year during a debate at the Court of Session – after the case had been passed around a number of judges – beginning with the Lord Advocate’s own wife – Lady Sarah Wolffe QC – who was initially scheduled to head the case and decide on it during November 2017.

Legal representatives of Mr Whitehouse claimed their client’s ECHR human rights were breached and that PoliceScotland should pay compensation to Mr Whitehouse

Rangers went into administration in February 2012, shortly after they were bought by Whyte, and Clark and Whitehouse were appointed as administrators.

Six days later Whitehouse contacted the police to raise concerns, particularly about Whyte, said Moynihan. Later that year the Crown Office announced that it had instructed Strathclyde Police to investigate. Lawyers for the two men believe that the crown was “the directing influence” in the probe.

Rangers later went into liquidation before being sold to a consortium led by Charles Green.

In 2014 Mr Whitehouse and Mr Clark were detained by PoliceScotland and held overnight, and the following year – both appeared in court on a second petition – then the case collapsed.

Craig Whyte later stood trial on criminal charges, however, he was acquitted by a jury at the High Court in Glasgow in June 2017.

In the current action, both Mr Whitehouse and Mr Clark say their arrest  and detention was wrongful, that their ECHR rights were infringed, and their professional reputations were damaged as a result of the case.

At a hearing held earlier this year, Whitehouse’s lawyers told Lord Malcolm that they didn’t believe that a hearing had to be held into whether the police breached their powers when investigating their client.

It was claimed that on the evidence made available to the court, Lord Malcolm was able to rule that PoliceScotland should be required to compensate Mr Whitehouse.

Whitehouse’s lawyer Heriot Currie QC told the court that his client’s arrest had affected his ability to make a living.

He added: “For 18 months the pursuer was subject to very serious, we say wholly unfounded allegations with a significant adverse effect on him, his family and his professional career.”

Gerry Moynihan QC, acting for the Lord Advocate, argued that the law stated that the Lord Advocate enjoyed immunity and that Lord Malcolm was bound to follow this.

However, Lord Malcolm refused the motion, concluding he couldn’t issue a ruling ordering PoliceScotland to hand over compensation to Whitehouse.

Lord Malcolm said the matter could only be decided following another hearing in the Court of Session.

Further hearings and a proof will take place at a date yet to be decided.

The circumstances and the parties’ contentions in the action are set out in the pleadings – which also mention the episode of the “Charlotte Fakes” emails, and reference to Craig Whyte – who initially faced charges – which were later dropped by the Lord Advocate.

PURSUERS PLEADINGS from the full Court of Session opinion by Lord Malcolm:

[1] At the outset it is necessary to describe the background to and the circumstances of the present action. The pleadings extend to over 250 pages, therefore what follows should be understood as a summary of what is a detailed and complicated picture. In late 2010 a Scottish businessman, Craig Whyte, expressed interest in acquiring Rangers Football Club.

In March 2011 he engaged David Grier of MCR, a corporate restructuring advisory firm of which the pursuer was a partner (prior to MCR’s acquisition by Duff & Phelps in October 2011), to assist in negotiations with the club’s lenders, Lloyds Banking Group. In May 2011 Craig Whyte, through an acquisition vehicle, Wavetower Limited, entered into an agreement for the purchase of a controlling shareholding in the club and was appointed as a director. The club struggled to meet its liabilities. In February 2012 it entered administration. The pursuer and his colleague were appointed joint administrators. Later that month the pursuer met with senior officers from Strathclyde Police and informed them that preliminary investigations suggested that the acquisition of the club by Wavetower may have involved illegal financial assistance. The administrators initiated proceedings at the Royal Courts of Justice in London seeking payment of sums due to the club held by Collyer Bristow, a firm of solicitors acting for Wavetower. Subsequently the administrators raised proceedings for payment claiming an unlawful means conspiracy, on the basis that Craig

Whyte and Gary Withey (Mr Whyte’s legal advisor and a partner at Collyer Bristow) had made false representations to the previous owners as to the availability of funds to finance the acquisition, and had acquired the controlling shareholding by fraud. The police were notified of these allegations.

[2] On 25 June 2012 the Crown Office issued a press statement in the following terms:

“The Crown Office has today instructed Strathclyde Police to conduct a criminal investigation into the acquisition of Rangers Football Club in May 2011 and the subsequent financial management of the Club. The investigation into alleged criminality follows a preliminary police examination of information passed to them in February this year by the Club administrators. The Procurator Fiscal for the west of Scotland will now work with Strathclyde Police to fully investigate the acquisition and financial management of Rangers Football Club and any related reports of alleged criminality during that process.”

At the hearing it was confirmed that the press release was issued on the instructions of and with the authority of the then Lord Advocate.

[3] The club was marketed for sale by the administrators. In May 2012 a consortium led by Charles Green entered into an agreement with the administrators. It obliged him to pursue a company voluntary arrangement, with funding of £8.5 million, which failing to purchase the business and assets of the club for £5.5 million. In June 2012 the creditors rejected the CVA proposal. Mr Green’s acquisition vehicle, Sevco (Scotland) Limited, acquired the business and assets of the club and paid £5.5 million to the administrators. In October 2012 Jane Stephen and Malcolm Cohen of BDO were appointed joint liquidators, with the pursuer and his colleague vacating office.

[4] During the police inquiry officers recovered materials by executing search warrants at a range of locations, including the premises of banks and professional advisors involved in the transaction. It is averred that the second defender, through his deputes, and the Lord Advocate at all times directed the police investigation. They were made aware of all evidence recovered and approved all lines of inquiry. In August 2013 officers from Police Scotland attended at the London and Manchester premises of Duff & Phelps, the pursuer’s employers, and executed search warrants previously granted by a sheriff at Glasgow Sheriff Court. Many documents were seized, including material over which privilege was claimed, and material which was said to be beyond the scope of the warrant. Duff & Phelps instructed their solicitors to liaise with the police in relation to this matter. It is averred that in February 2014 the Crown assured Duff & Phelps that the police had not reviewed or intromitted with material subject to the privilege claim, however officers had carried out a preliminary sift of all such material. The fact of that sift was not revealed at the time. In November 2014 Duff & Phelps’ solicitor attended a meeting at Crown Office in Edinburgh with a procurator fiscal depute and James Keegan QC, the allocated depute of the Lord Advocate. The solicitor was informed that his clients were to be treated as suspects and would be detained. It is averred that the advocate depute asked him whether that would change his position on privilege. It is stated that it was erroneously believed that the privilege dispute would be resolved by the appearance of the pursuer and his colleague on petition.

[5] At dawn on Friday 14 November 2014 the pursuer was detained at his home in Cheshire by officers from Police Scotland. This was said to be in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). The pursuer was informed that the basis for his detention was “fraudulent scheme and attempt to pervert the course of justice”. He was taken to Helen Street Police Office in Glasgow where he was interviewed, arrested and charged. He was held in police custody until Monday 17 November 2014 when he appeared in Glasgow Sheriff Court. Requests for him to be released or liberated on an undertaking were declined, the police citing direction by the Crown. On 17 November he was committed for further examination and admitted to bail. It is averred that there were no reasonable grounds to suspect that the pursuer had committed an offence. In any event the detention was unnecessary.

[6] The pleadings set out lengthy averments and counter-averments in connection with the proposition that there was no reasonable foundation for what occurred. For example, averments are made as to the basis upon which the reporting officer, DCI Robertson, was of the opinion that there was a sufficiency of evidence available to give rise to a reasonable suspicion that Mr Whyte’s allegedly fraudulent transaction could not have been completed without the involvement, knowledge or advice of the pursuer and his colleagues, and that the pursuer had misled the police about his knowledge of and advice as to the financing of the transaction (sometimes referred to as the “Ticketus deal”). It is stated that DCI Robertson suspected that crimes of fraud and attempting to pervert the course of justice had been committed by the pursuer. He provided a briefing to the detaining, interviewing and arresting officers prior to the executive action being taken, which included reference to the matters which informed his suspicion. It is averred on behalf of the chief constable that the totality of material available was sufficient to give rise to a reasonable suspicion such as to justify interviewing the pursuer and others under caution and in detention. It was not appropriate to seek to make arrangements for voluntary attendance at a police station by multiple accused in which the offences suspected included an attempt to pervert the course of justice. It should be understood that the intention was to detain the pursuer, Mr Clark, and others as part of executive action to detain a number of suspects at the same time.

[7] At 7.15 pm on 14 November 2014 the pursuer was informed by the arresting officer that he was charged with a fraudulent scheme and an attempt to pervert the course of justice. The fraudulent scheme arose because of the false pretence which had been proffered, namely that Craig Whyte was a wealthy man who was investing his own capital in the acquisition of the club, when in fact he was using funds advanced by Ticketus. The practical result of the fraudulent pretence was that Mr Whyte was able to gain control of the club, and then force an administration, to the financial benefit of the pursuer whose firm was appointed administrators. Without the false pretence, Sir David Murray, the controlling shareholder of the club, would not have been willing to sell his shares to Mr Whyte. It was suspected that the pursuer had known of the criminal nature of this enterprise and had actively joined in it. It was further suspected that he had attempted to pervert the course of justice in providing statements to police in which he had deliberately omitted key information which he knew to be relevant to their inquiry. The arresting officer was satisfied that there were reasonable grounds for this course of action and sufficient evidence to charge the pursuer on the basis of information provided to her in the interview pack prepared by the reporting officer, the detailed briefing from him, and the interview of the pursuer and his responses.

[8] The decision for the pursuer to remain in custody pending court appearance on the next court day was taken by the custody sergeant in the police station whose function it was to make such decisions in respect of all arrestees at that station at that time. She had regard to the Lord Advocate’s guidelines, the Crown Office decision that he would be appearing on petition, and the nature and gravity of the offences with which the pursuer was charged. It is averred that the police officers acted in good faith. While the pursuer no doubt disagreed and disagrees with the decisions taken, that does not render them unlawful or unreasonable or actionable. Reliance is placed upon the terms of section 22 of the 1995 Act.

[9] These averments are answered in detail by the pursuer in support of the proposition that there was no basis for any suspicion that he had engaged in criminal activity. For example, it is averred that Ticketus were known to be an existing provider of working capital to Rangers. The existing owners of the club had suggested that the purchaser should continue to use Ticketus. A key issue for the club’s board was that there should be sufficient working capital to finance the club’s operations post-acquisition. An email exchange relied upon by the first defender did not suggest knowledge of the actual arrangement entered into between the club (under the control of Whyte/Wavetower) and Ticketus. This gives a flavour of the issues which would be addressed in any evidential hearing. In general it is the pursuer’s position that he had no knowledge of any intention on Mr Whyte’s part to use Ticketus funds in the purchase of the club or to misrepresent the true position as to the funding of the acquisition.

[10] In the course of the hearing it was explained that the critical part of the alleged fraud was not the use of the Ticketus funds, but the misrepresentation as to the financing of the acquisition. The pursuer avers that if Craig Whyte claimed that “Duff & Phelps knew everything”, which is denied, that claim provided no basis for suspicion or arrest of the pursuer as an individual. In any event such a claim was wholly at odds with the available documentary evidence which clearly demonstrated deliberate concealment of information from MCR. When in November 2014 the pursuer appeared on petition in respect of charges of fraud (relating to the acquisition and subsequent management of the club) and attempting to pervert the course of justice, he was served with a summary of evidence by the Crown, which it is said made no reference to any evidence supporting his involvement in fraud. It is claimed that there was insufficient evidence to support the decision to place the pursuer on petition.

[11] In June 2015 the Crown informed the defence that the focus of the inquiry had changed, and that any subsequent indictment was likely to include charges relating to the administration and disposal of the assets of the club. On 12 August 2015 DCI Robertson delivered a letter to the pursuer’s solicitor indicating, amongst other things, that the inquiry concerning the administration period and sale to Mr Green was a live police investigation. On 26 August 2015 the Crown applied to the sheriff at Glasgow for an extension of the time limit set out in section 65 of the 1995 Act.

[12] At dawn on Tuesday 1 September 2015 the pursuer was again detained at his home in Cheshire by officers of Police Scotland. He was conveyed to Helen Street Police Office in Glasgow where he was interviewed, arrested and charged. He was told that he would be held pending a court appearance the following day. It is averred that the Crown directed the police to keep the pursuer in custody. He appeared on petition at Glasgow Sheriff Court on 2 September when he was committed for further examination and admitted to bail. It is stated that at no point were there any reasonable grounds to suspect that the pursuer had committed an offence and that his detention was in any event unnecessary. There was insufficient evidence to justify a charge. Other suspects, specifically Craig Whyte and Charles Green, were permitted to attend police stations by arrangement.

[13] On behalf of the chief constable it is averred that there was an investigation into the acquisition of the club by Charles Green and the possible involvement of Craig Whyte in that transaction. Police inquiries established a reasonable suspicion that the pursuer, along with Mr Clark, Mr Whyte, Mr Green and a Mr Ahmad, had formed a fraudulent scheme or conspired to enable Mr Whyte to acquire the club from the administrators. The pleadings set out the alleged circumstances relied upon, for example it is said that when

DCI Robertson asked the pursuer about his knowledge of Charles Green and any links he had to Craig Whyte, the officer formed the view that the pursuer was evasive. The fee for the exclusivity agreement with Sevco 5088 Limited signed by the administrators was partly funded by Mr Whyte. In April 2013 Mr Whyte was quoted in a newspaper saying, amongst other things, that Mr Green acted as a “frontman” for him in connection with the purchase of the club. It is averred that Mr Whyte had introduced Mr Green to the administrators. These are but examples of the various factors said to have been relied upon at this time. The pursuer was charged with involvement in a fraudulent scheme in terms of which the club had been acquired by Craig Whyte at an undervalue as a result of a false pretence, namely the concealment of the connection between Mr Whyte and Mr Green. Again reference is made to section 22 of the 1995 Act and to the decision of the custody sergeant on duty.

[15] In answer, amongst other things, the pursuer avers that in respect of the offer from Sevco 5088 Limited, there was nothing to suggest any involvement of Craig Whyte. The pursuer provided three witness statements to the police, all in 2012. He was not asked about Charles Green, other than in relation to proof of funds checks carried out by the administrators, nor about any links Green may have had to Whyte. The subject report submitted by DCI Robertson to the Crown in on or about 20 August 2015 made no reference to him having formed the view that the pursuer had been evasive in interview or that he had regarded the pursuer’s responses as suspicious. Again these are but examples of the counter-averments made on behalf of the pursuer, all of which will form the context of any evidential hearing. It is said that the totality of the evidence ingathered by the police prior to the second detention clearly demonstrated that Whyte’s claim to ownership of Sevco 5088 Limited was false. In any event, there was no evidence to suggest that the pursuer was aware of any involvement by Whyte in the Green bid; rather the evidence available to the police suggested the reverse. In any event there was no evidence that the true market value of the club at the point of the sale of the business and assets to Green was greater than had been represented.

[16] On Wednesday 2 September 2015 the pursuer appeared on a petition at Glasgow Sheriff Court containing charges of conspiracy to defraud and a contravention of section 28 of the 2010 Act. The procurator fiscal’s motion for committal was opposed on the basis that the charges did not represent new allegations, but were reformulations of those which had appeared in the November 2014 petition. The procurator fiscal insisted that the charges were distinct and had arisen from a separate police investigation. In the result the sheriff granted the Crown motion, and admitted the pursuer to bail. It is stated that there was insufficient evidence to place the pursuer on petition. On behalf of the second and third defenders it is averred that the service of the second petition was a considered and appropriate response to the further information being uncovered in relation to the acquisition of the club, its management, the conduct of its administration, and the disposal to Charles Green. Its service at this point avoided the risk of having two trials on related issues involving the same parties. The decision to include the pursuer was taken by experienced fiscals in good faith and in light of the evidence available against him. They had a reasonable suspicion that the pursuer had participated in the alleged crimes.

[17] The above summarises the first 100 pages of the pleadings. The next chapter concentrates, in the main, on the conduct of the second and third defenders. From time to time these defenders are referred to in a composite manner as “the Crown”. It is averred that on 3 September 2015 the court considered a Crown application for an extension of statutory time limits in which it was asserted that Duff & Phelps had recently produced a large quantity of material to the police which ought to have been made available during the August 2013 searches. At a continued hearing the advocate depute intimated that, having checked matters, there had been no such late production of material by Duff & Phelps. Instead it was asserted that Clyde & Co, a firm of solicitors who had acted for Collyer

Bristow, had recently produced 39 boxes of material that ought to have been produced in response to a warrant executed in August 2013. The sheriff granted the Crown’s application, but restricted the extension to a period of three months. The defence then sought further information about the 39 boxes, the existence of which had not previously been disclosed. In answer it is averred that the reference to the 39 boxes was made in error on the basis of internal misunderstandings within Crown Office and in communications with the police. The court was advised of this at the preliminary hearing on 16 October 2015 and an apology was tendered. At an appeal against the extension the appeal court was provided with a full explanation as to the mistaken reference to 39 boxes. Relying upon other factors the appeal court considered that the extension was justified. In response the pursuer avers that it is believed that the second petition was brought in order to influence the outcome of the contested section 65 application.

[18] On 16 September 2015, within the original time limits, the Crown issued an indictment (the first indictment) charging the pursuer with conspiracy to defraud and attempting to pervert the course of justice, and citing him to appear at a preliminary hearing on 16 October 2015. Several of the charges related to the matters dealt with in the second petition. The pursuer lodged a range of preliminary minutes, including an objection to the relevancy and competency of the charges, and a plea in bar of trial on the grounds of oppression and abuse of process. The judge continued the preliminary hearing to 11 January 2016 and fixed a debate on the preliminary minutes for the week commencing 7 December 2015. On behalf of the Lord Advocate it is averred that the decision to serve the first indictment was made because it was reasonably anticipated that the pursuer, Mr Clark, or both, might appeal the grant of the section 65 extension and, if the appeal was successful, there would be a real risk that the matters covered in the first petition would have become time barred. The Crown had recovered relevant evidence in relation to the period of administration. The indictment was drafted on the basis of this and other relevant evidence by experienced indicters acting in good faith. The pursuer avers that until the preliminary hearing the Crown adhered to the representations as to the 39 boxes.

[19] On 2 December 2015, which was the day before the appeal hearing in respect of the extension of time limits, the Crown served another indictment. At the hearing the advocate depute explained that it was to supersede the first indictment. He submitted that if the appeal was allowed, it would cause the new indictment to fall, meaning that the new charges would no longer be before the court. It is averred that no prior notice of this indictment was given. It replicated the charges on the first indictment and included additional charges. The pursuer faced a total of seven charges. The Crown states that including all charges on the second indictment was designed to ensure that the accused faced only one trial.

[20] At a preliminary hearing on 5 January 2016 the court assigned a debate on all preliminary pleas for the week commencing 1 February. After submissions were made on the pursuer’s behalf the Crown sought leave to make substantial amendments to the indictment. It was accepted that the first charge did not clearly set out the alleged criminality. In the result five of the seven charges directed against the pursuer were deleted, including all of those derived from the November 2014 petition. The advocate depute unequivocally renounced the Crown’s right to prosecute the pursuer on those charges, and the remaining charges were the subject of further debate. On 22 February the court upheld the pursuer’s plea to the relevancy and dismissed the remaining charges against him. The advocate depute informed the court that the Crown would consider whether to bring a further indictment against the pursuer. Later that day Crown Office issued a press statement, carried in the national and business press, that further proceedings would be brought against the pursuer. On 3 June 2016 the Crown confirmed that all proceedings against the pursuer were at an end. It is averred that at no point was there any justification for the detention, committal, prosecution or indictment of the pursuer. The second and third defenders never had a sufficient evidential basis for any of the charges directed against him. The Crown avers that the press statement was corrected the day after its publication to reflect the terms of the advocate depute’s advice to the court.

[21] The pursuer pleads that throughout the course of the prosecution, the conduct of the second defender’s deputes and of the third defender was marked by a disregard for their obligations. This is denied and it is explained that at all times the third defender’s predecessor in office, his deputes and procurators fiscal were aware of their obligations and sought to discharge them in good faith. In response to certain averments concerning the Crown’s disclosure obligations it is stated that the prosecution of the pursuer and his co-accused was an exceptional case involving quantities of documents and issues of legal and practical complexity not encountered in an ordinary case. The pursuer complains that disclosure was limited and sporadic. By the end of May 2015 only a third of all available productions had been disclosed to the defence. By the time of the debate in February 2016 approximately 1,000 Crown productions remained undisclosed. Certain undertakings were given in this regard on 19 April 2016, however by the time of the conclusion of the criminal proceedings several key witness statements and labels remained undisclosed, including recordings of police interviews of Charles Green, emails and other documents relating to the actions of Mr Whyte’s associate Aidan Earley, and statements of solicitors involved in the sale of the clubs assets out of administration, all of which, it is said, the pursuer reasonably anticipated would be supportive of his defence. The defence was never made aware of the total number of productions held by the Crown; such disclosure schedules as were provided were incomplete. The Crown contends that at all times it endeavoured to meet its disclosure obligations. At no point was any material wrongfully withheld. Various issues with the disclosure process made it unusually lengthy and complex, including competing claims of legal professional privilege and existing and anticipated civil actions in England. The number of documents involved necessitated the purchase of industrial scanners and the employment of additional staff members.

[22] The next chapter concerns non-disclosure of what are described as the “Charlotte Fakes” recordings. They are said to be part of a wider group of recordings made by Craig Whyte, and include conversations involving Craig Whyte and Charles Green. For the Crown it is averred that there were technical difficulties in opening and listening to the recordings which impeded assessment. Transcripts were disclosed on 29 January 2016. The pursuer avers that no audio recordings were provided nor any information as to provenance. The recordings had been in the possession of the police from at least July 2014, several months before the pursuer’s first appearance on petition. Transcripts had been available to the defenders by 2 December 2015, which was before the first preliminary hearing, and were put to Charles Green in his police interview on that date. On behalf of the first defender it is admitted that the recordings had been in the possession of the police. The Crown states that there were issues of admissibility in respect of the recordings. The pursuer avers that the recordings of conversations between alleged conspirators at the time of the alleged offences were material. They were exculpatory of the pursuer. They demonstrate that essential information, including Mr Whyte’s proposed participation in the Green bid, was withheld from the administrators; that Whyte was anxious about whether the administrators would accept the Green bid; and that third parties were to be encouraged to put financial pressure on the Club to encourage the administrators to accept the Green proposals. It is said that the recordings cannot be reconciled with the Crown’s claim that the pursuer was party to a conspiracy. The allegations in the second petition were entirely predicated upon a claim by Craig Whyte that he had acquired the business and assets of the club out of administration under the proxy of Green. It is also averred that on 4 May 2018 the pursuer’s agents recovered a series of subject sheets – communications from the police to the Crown – relating to the criminal investigation. These revealed that by June 2014 the police had recovered – as part of the Charlotte Fakes materials and from other sources – the contents of email accounts belonging to Craig Whyte. The police estimated the accounts to contain approximately 100,000 emails. On 19 June 2014 the reporting officer advised the Crown of the recovery of the emails, and as to their extent. On 4 August 2014 he advised the Crown that the emails related, inter alia, to the periods around the acquisition and administration of the Club. On 9 February 2015 the reporting officer advised the Crown as to the terms of certain emails which were assessed as being incriminatory of Craig Whyte. It is said that these emails were of central relevance to the allegations against the pursuer, and in particular his knowledge of and participation in any criminal conduct by Craig Whyte. On behalf of the Crown it is claimed that much of the Charlotte Fakes material did not impact upon the pursuer but, to the extent that it did, it included incriminating material. In response it is averred that the discussions involving the pursuer were in no way incriminatory, but were indicative of nothing more than the pursuer discharging his obligations as administrator.

[23] The pleadings continue by reference to disclosure issues surrounding a report by Pinsent Masons solicitors and the evidence of Aidan Earley, a business associate of Craig Whyte. For example it is averred that in July 2015 the defence asked the Crown for disclosure of various witness statements provided by Mr Earley. On 28 April 2016, after the dismissal of the remaining charges against the pursuer, the Crown disclosed a transcript of a series of text messages taken from Earley’s phone. These included a number of communications between himself and Craig Whyte at the time of the administration of the Club, which are said to be entirely exculpatory of the pursuer. The source material for the transcripts had been in the possession of the police since at least 13 April 2015, well before the September 2015 petition and the service of the first indictment. The text messages were put to Charles Green in his police interview on 1 September 2015, details of which were never disclosed to the pursuer.

[24] The pursuer then sets out various issues concerning what is described as the Crown’s obligation to pursue all reasonable lines of inquiry. For example, it is said that before indicting the pursuer, the Crown failed to interview staff of the pursuer and his co-administrator who had worked on the administration, the preparation of valuations, and the sale negotiations with other parties. It is averred that at no time did the Crown have an evidential basis for the claim that the assets of the club had been sold at an undervalue.

[25] The pursuer avers that the Crown failed to respond to requests for information and other correspondence from his agents. On several occasions the Crown was careless as to the accuracy of information given to the pursuer and to the court. Statements were made to the court which were misleading and lacked candour. DCI Robertson acted recklessly and without reasonable cause at various stages during the investigation and the criminal prosecution. He made unwarranted accusations to solicitors. He told Duff & Phelps that he would “shut down the Shard” (a reference to their headquarters in London) if they did not produce required material. Again by way of example of the complaints in this section of the pleadings, it is averred that the court was invited to grant a warrant on the basis of one-

sided information. The exercise of the warrant in London involved officers wearing bulletproof vests and tasers interrupting a client reception. An emergency injunction was then granted to the firm of solicitors concerned by the High Court in London. On 5 February 2016 the High Court of Justiciary granted suspension of the warrant on grounds of oppression. On 6 October 2016 the Queen’s Bench division of the High Court of Justice ordered the first and third defenders to pay the firm of solicitors’ costs on an indemnity basis, the court noting that the actions of the first and third defenders were “an abuse of state power”.

[26] It is averred that DCI Robertson sought to interfere with legitimate defence investigations. For example, it is stated that he threatened witnesses with imprisonment unless they changed their accounts. He amended draft statements provided by witnesses.

In response, amongst other things it is said that DCI Robertson did not consider that he received full cooperation from a number of witnesses. In order to progress the investigation applications were made properly by the Crown for warrants to recover documentation. The warrant relating to the solicitors’ premises had been drafted by the Crown. It was granted by a sheriff in Glasgow. Steps were taken to minimise disruption. DCI Robertson and his officers were not in uniform, and he had not requested uniform presence, but this is what was provided by the local police. At all times he acted in good faith. He was required to investigate matters robustly, probe inconsistencies, require truthful answers from witnesses, recover evidence, and be authoritative when executing court orders.

[27] It is averred that the Crown instructed forensic accountants to prepare reports in the hope that they would provide an evidential basis for the charges against the pursuer, however they were not given all of the relevant factual material, in particular material which did not support the Crown case. The experts were invited to reach conclusions on the basis of “one sided information”.

[28] In addition to the common law claim, the pursuer avers infringements of his rights under articles 5 and 8 of ECHR. So far as article 5 is concerned, it is stated that the actings of the defenders and each of them was a disproportionate interference with the pursuer’s liberty. A time bar plea is taken in respect of the events in November 2014.

[29] The pursuer’s pleadings then revert to general averments as to wrongful conduct, for example that the detentions were “outwith the competence of the officers” and accordingly unlawful; that they lacked probable cause; that the instructions from the Crown were actuated by an ulterior motive, namely the desire to allow evidence over which privilege had been asserted to be relied upon in the erroneous belief that detention would allow the criminal purpose exception to be invoked; and that the absence of reasonable grounds for suspicion demonstrated a degree of recklessness on the part of the Crown amounting to malice. It is averred that the timing of instructions was related to concerns about the whereabouts of Craig Whyte. Similar averments as to lack of probable cause and ulterior motives are made in respect of the second detention, for example a desire to maintain a purported justification for the proceedings against the pursuer. Similar averments are made in relation to the alleged wrongful prosecution in terms of petitions, committals, and the service of indictments. For example it is averred that in the first petition, the only matter directed against the pursuer on charge one, relating to fraud in respect of the acquisition and management of the club, was that he, together with two colleagues, had prepared a letter in the knowledge that it would be used to induce Ticketus to pay out a sum in excess of £18 million. However there was no evidence to show that the pursuer had been involved in the preparation of that letter, nor that it was in any way inaccurate or misleading, and nor that it had been relied upon by Ticketus. The evidence showed that Ticketus had already paid out the sum by the time the letter was issued, and that they had taken advice on all relevant matters from their solicitors. Again by way of example, charge six stated that the pursuer had made false statements in a report to the Court of Session; however the charge materially misrepresented the wording of the report. On various occasions the pursuer’s agents wrote to the Crown detailing errors in the charges, referring to the absence of supporting evidence, and pointing to exculpatory material which had been disclosed, however no substantive response was received.

[30] In response to the Crown’s plea of absolute privilege, the pursuer avers that if any such privilege is enjoyed (which is denied) it extends only to the actions of the third defender in prosecuting crimes on indictment and to the actions of the second defender in conducting a prosecution on indictment in the name of the third defender. Any such privilege does not extend to events prior to the service of an indictment. In any event, the second and third defenders have “surrendered” any right to claim absolute privilege by virtue of their conduct. In the event that their actings do not attract absolute immunity (which is denied) the second and third defenders plead that there can be no liability at common law unless acts were done maliciously and without probable cause. It is averred that at all times the second and third defenders, and those acting on their behalf, acted in good faith on the evidence available to them.

[31] As to the article 8 claim, the pursuer avers that his private life was interfered with by his detention and subsequent bail conditions. In the whole circumstances the interference was neither necessary nor in accordance with the law. As a result of the defenders’ actions he was unable to practice as an insolvency practitioner. He has suffered financial and reputational loss. In response it is averred that if article 8 is engaged (which is denied) any interference was necessary, in accordance with the law, and proportionate. Again a time bar plea is taken in relation to the earlier events. For present purposes it is not necessary to refer to the averments concerning the pursuer’s alleged loss, injury and damage.

PASS THE PARCEL: Court of Session judges merry go round on case involving Lord Advocate James Wolffe

In January of this year it was reported that a series of judge swaps on this case, from Lady Sarah Wolffe, to Lady Morag Wise, then Lord Paul Arthurson – led to a FOURTH judge – Lord Sidney Neil Brailsford – presiding over hearings in a case which could also decide the fate of the Lord Advocate’s immunity from legal action in cases of wrongful arrest.

The NINE million pound damages claim against Scotland’s top cop and top prosecutor was lodged in the final months of 2017 by David Whitehouse – a former administrator at Rangers FC – who is seeking financial damages from Police Scotland’s Philip Gormley and Lord Advocate James Wolffe QC.

However, it emerged at a hearing in November the Scottish Courts and Tribunals Service (SCTS) had quietly scheduled Lady Wolffe to preside over a crucial hearing in the case against her own husband – James Wolffe QC.

A copy of the Court Rolls handed to the media revealed Lady Sarah Wolffe QC – an outer house senator of the Court of Session – was scheduled to hear the case involving the claim involving the Lord Advocate – her own husband – A295/16 David Whitehouse (represented by Urquharts) v Liam Murphy &c (represented by Ledingham Chambers for SGLD – Scottish Government Legal Directorate) – on November 15 2017.

Prosecutor Liam Murphy  who is named in the action – is currently listed as a Crown Office Procurator Fiscal on “Specialist Casework”.

However, Lady Wolffe was removed from the hearing with no official comment from the Judicial Office.

Claims surfaced at the time Lady Wolffe was suddenly dropped from the case when it ‘emerged at the last minute’ her husband – Lord Advocate James Wolffe – was involved in the case.

A second Court of Session Judge – Lady Morag Wise QC – was then scheduled to hear the case.

For reasons which have not been fully explained, Lady Wise was also dropped from the hearing on Wednesday 15 November which saw the case handed to a third judge – Lord Paul Arthurson QC – who set dates for  a four day hearing of legal arguments.

However, when the £9m damages claim returned to court in mid December, yet another judge – Lord Sidney Neil Brailsford had been assigned to the case, replacing Lord Arthurson.

During a hearing at Edinburgh’s Court of Session on 14 December 2017, judge Lord Brailsford arranged for a debate on legal issues surrounding the case to take place over four days in May 2018.

Lord Brailsford said: “I acknowledge that this is a very serious litigation relating to matters of substance.”

After Lord Brailsford departed from the case, Lord Malcolm took the case.

Lord Malcolm is chiefly known for failing to reveal a conflict of interest in relation to a £6million damages claim against construction firm Advance Construction Ltd (Scotland) – who was represented by none other than the judge’s own son – Ewen Campbell, a suspended but now reinstated Sheriff – Peter Watson, and the Glasgow based law firm – Levy and Mcrae who were previously accused in connection with a £28million pound writ by the liquidators of Heather Capital.

A full report on Lord Malcolm’s conflict of interest in the claim against Advance Construction (Scotland) Ltd can be found here: 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

The trail of judge swapping – leading to at least four judges who have now heard this case in the Court of Session, and the silent replacement of Lady Wolffe with Lady Wise, and then Lord Arthurson – continues to raise serious questions as to why there are no written references to any note of recusal made by Lady Wolffe in the Register of Recusals published by the Judicial Office.

Given the fact Lady Wolffe clearly holds a conflict of interest in the case – in which one of the core participants in the action is her own husband – the Lord Advocate – the public are entitled to see a note of recusal entered into the Register of Recusals referring to a case in which she was scheduled to hear and decide on legal action against her own husband.

Both the Judicial Office and Scottish Courts and Tribunals Service did not issue any comment prior to DOI’s report on developments in the case, which can be viewed here: CRY WOLFFE: Judicial Office hit with new conflict of interest claims as Court of Session papers reveal £9 million damages claim against Chief Constable & Lord Advocate James Wolffe QC was set to be heard by the Lord Advocate’s wife – Judge Lady Wolffe

A report on Lady Sarah Wolffe’s role in the sequence of events and her initial appointment to decide on the claim against her own husband, featured in aSunday Mail newspaper investigation, here:

Lord Advocate’s judge wife was set to oversee case brought against him by former Rangers administrator

Lady Sarah Wolffe was originally scheduled to oversee a hearing in David Whitehouse’s £9m lawsuit against Lord Advocate James Wolffe.

By Craig McDonald 24 DEC 2017

A former Rangers administrator’s £9million lawsuit against Lord Advocate James Wolffe was given an emergency judge swap – after it emerged the case was originally handed to his wife.

David Whitehouse, 51, is suing Wolffe, Police Scotland chief Phil Gormley and prosecutor Liam Murphy amid claims he was “unlawfully detained” during an investigation into Craig Whyte’s doomed 2011 club takeover.

Court officials had to draft in a replacement judge when they realised Wolffe’s wife Lady Sarah Wolffe was scheduled to sit on the bench for a procedural hearing at the Court of Session in Edinburgh last month.

The late switch from Lady Wolffe was ordered after the conflict was discovered.

Lady Morag Wise was asked to take her place, although the hearing eventually went ahead in front of Lord Paul Arthurson.

Yet another judge, Lord Neil Brailsford, was on the bench when the case was called again earlier this month. It is scheduled to go ahead next year.

The removal of Lady Wolffe is not noted in the official list of judicial recusals – where a judge declines jurisdiction – as it was reallocated before it was called in court.

A Scottish courts spokesman said: “Lady Wolffe was assigned to hear procedural matters in a number of cases on November 15.

“One of those cases was listed on the court rolls as David Whitehouse v Liam Murphy and others.

“Subsequently, when the papers were checked by the Keeper’s office, it became apparent the Lord Advocate was the third defender and, accordingly, the case was reallocated to a different judge.

“The case was initially reallocated to Lady Wise but, having regard to the level of business and in order to avoid unnecessary delay to the parties, was ultimately dealt with by Lord Arthurson.”

Whitehouse and colleague Paul Clark were arrested during the Rangers probe but charges against the pair were later dropped.

They worked for Duff & Phelps, who were appointed as administrators of the club in February 2012. The business and assets of The Rangers Football Club plc, who entered liquidation later that year, were sold to a consortium led by Charles Green for £5.5million.

Police launched an investigation into the circumstances surrounding the takeover. Whyte was cleared of fraud by a jury at the High Court in Glasgow in June.

Lawyers acting for Whitehouse claimed their client was “unlawfully detained” by detectives in November 2014. They also said that, throughout the period of detention, there were no reasonable grounds to suspect he had broken the law.

Whitehouse claims police and prosecutors didn’t follow correct legal procedure and his arrest damaged his reputation and caused him significant loss of income.

The defenders in the action, including the chief constable and Lord Advocate, claim correct legal procedure was followed and want his case to be dismissed.

 

 

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JUDGE THE JUDGE: In public and on camera, Senate Judiciary confirmation hearings for US Supreme Court nominee Brett Kavanaugh demonstrate public, media & elected politicians have a right to know & question views of candidates for the judiciary

Judge Brett Kavanaugh faces Senate Committee. FOR THREE days this week, citizens in the United States of America, and anyone across the globe has been able to tune into the US Senate Committee on the Judiciary nomination hearings of Judge Brett Kavanaugh – for a position on the Supreme Court of the United States (SCOTUS)

The hearings, broadcast via C-SPAN – the Cable-Satellite Public Affairs Network – have been a regular occurrence for several years now, airing to the public hearings where elected senators of the US Senate are able to quiz nominees for judicial posts in the US – including those nominated by the sitting President for a position on America’s top court.

After the death of Justice Anthony Scalia in in 2016, and the blocking of former President Barack Obama’s nomination of Merrick Garland to join the US Supreme Court, President Trump has already succeeded in adding one Justice – Neil Gorsuch to the Supreme Court – in April 2017.

Now, President Trump’s second nomination to SCOTUS – Judge Brett Kavanaugh – who has stirred up significant controversy amid allegations of thousands of papers being withheld from scrutiny during his involvement in previous White House administrations – looks likely to be confirmed, despite concerns on Kavanaugh’s responses to significant issues of public concern raised by the minority Democratic Party Senator members of the Senate Judiciary Committee.

Without examining who did what and when – and there is a lot of this to consider – the fact these hearings take place in public, where members of the judiciary are rightly quizzed by democratically elected representatives in a national legislature as to their views on law, legal precedents, their past work, experience, and so on – is a bonus to transparency, public awareness of the law, the courts, and the role of the judiciary,

The Senate Judiciary confirmation hearings on Judge Brett Kavanaugh are available at the following links, for viewing:

Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 1)

Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 2)

Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 3)

Among several shorter clips of the hearings posted by C-Span, is the series of questions from Senator Kamala Harris to Judge Kavanaugh – which is well worth watching – here:

Exchange between Sen. Harris and Judge Kavanaugh on Mueller Investigation (C-SPAN)

For more on the hearings, events at the US Supreme Court, and campaigning groups calling for reform of accountability and transparency at the US Supreme Court, please visit the excellent website of FIX THE COURT.

Fix the Court is a national, non-partisan grassroots organization created to take the Supreme Court to task for its lack of accountability and transparency and to push Chief Justice John Roberts and the court’s eight associate justices to enact basic yet critical reforms to make the court more open and honest.

It educates the American people about the many problems plaguing the court and its justices and is building a movement of conservatives, independents and progressives demanding change with a common voice.

For more information on the reforms Fix the Court is pursuing, click here.

An interview with Fix the Court’s Executive Director – Gabe Roth – can be found online here: US Supreme Court: Is life tenure too long?

JUDICIAL SELECTION IN SCOTLAND – SECRECY RULES:

A world away from the United States & Senate Committees quizzing members of the judiciary, here in Scotland, as in the rest of the UK, judicial recruitment and appointments more or less come down to members of the judiciary appointing members of the legal profession, often personally known to them – to plush, well salaried, powerful positions within Scotland’s judiciary.

Judicial Appointments in Scotland – as demonstrated by the appointment of Lord Carloway (Colin Sutherland) to what became little more than a simple elevation of Carloway as Lord Justice Clerk to that of the grandiose title of Lord President and Lord Justice General – aka Scotland’s top judge – are a behind closed doors process which the public, media, elected representatives have absolutely no role to play, or right to see.

All that the public, Scottish Parliament MSPs and media were able to inspect of Carloway’s appointment, were disclosed in a Freedom of Information request, published by DOI in April 2016

SECRETLY SELECTING A PRESIDENT, SO SECRETLY:

How judges select Scotland’s judges – in secret The selection panel for the office of Lord President – of which Lady Dorrian was a member – considered five candidates for the position of Scotland’s top judge – according to papers released by the Scottish Government in response to a Freedom of Information request by the media.

While there was significant speculation during 2015 that a female judge would be appointed to the top judicial post of Lord President, the unpredicted shift away from a male only top judge did not happen this time around.

Responding to queries, the Scottish Government refused to disclose the genders & diversity information relating to any of the candidates for the top job, citing privacy concerns.

Written exchanges between civil servants and the selection panel reveal a short listing meeting was held on 1 September 2015. The panel considered that two applicants Lord Carloway  [Redacted] merited an interview on the basis of the quality of their applications.

The panel agreed that given the level of appointment, candidates needed to be able to demonstrate that they met the criteria to an exceptional degree [Redacted].

The content of the selection panel’s report recommending Lord Carloway for the nomination of Lord President, was completely censored by the Scottish Government.

Emails between Scottish Government show First Minister Nicola Sturgeon had decided on Lord Carloway’s nomination as Lord President around 18 November 2015. Lord Carloway’s appointment as Lord President was finally made public a month later in December 2015.

The disclosure, heavily redacted, and composed of twenty two short pages of meagre detail – are a far cry from public judicial nominations in the United States, handled by the Senate Committee on the Judiciary.

And, there is a reason for this – revealed by none other than Lord Carloway’s former boss – Lord Brian Gill – who was described by Lord Neuberger during a valedictory speech in London as an ‘iron fist in a velvet glove’ – just weeks before Gill’s secret divorce of his long time wife was revealed in the Scottish Sun newspaper.

During early November 2015, Lord Gill – who had stood down after a testy, tumultuous three year term as Lord President in which he battled overwhelming backing for a register of judicial interests – finally gave evidence to the Scottish Parliament, and on the subject of judicial recruitment, Brian Gill told MSPs of his complete disdain for the US Justice system, attacking the way in which judicial nominees had to face questions from those outside the judiciary’s carefully closeted world.

A full report on Gill’s ‘brass neck’ attack on how US Justices are nominated, was published in 2016 here: OPENNESS? LORD, NO: The day Scotland’s former top judge lashed out at America’s justice system, accusing US judges of financial ties to corporations & vested interests

Gill went a step further, slating the US Justice system itself in his response to MSP Angus MacDonald – in video footage available here:

Lord Brian Gill slams US judges – Top Scots judge claims US judiciary elected by vested interests

Official Record: Petitions Committee 10 November 2015

Angus MacDonald: Thank you. It was important to get that fundamental view on the record.

What is your view of the fact that the United States of America has successfully introduced a register of judicial interests? Has the system in the States increased public confidence in the judiciary?

Lord Gill: I do not know that we would want to have a judiciary here that is like the one in the United States. It depends on your personal point of view. I do not give you my view, but I am sure that you can guess what it is.

Angus MacDonald: I will not pick up on that particular point.

Has there been any evidence on the impact that the US system has had on the independence of judges or the way in which the media treats judges in the USA?

Lord Gill: I would be very sorry to see a judiciary in which candidates ran for election and in which candidates’ election campaigns were based on fundraising from companies and corporations that might be litigants in their courts. I would also be very sorry if the day ever came where, before appointment, judges had to come before a committee of this honourable legislature for confirmation and for examination of their political, ethical and social views.

The full evidence session held at the Scottish Parliament with Lord Gill on 7 November 2015 can be viewed here: Evidence of Lord Gill before the Scottish Parliament 10 November 2015 with a full report and transcript of the meeting here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests.

In between refusing to give evidence to the Scottish Parliament, Lord Brian Gill spent his time on international travel, and giving a lecture on judicial ethics while on a taxpayer funded state visit to Qatar – a country not known as a haven of transparency or human rights.

Lord Gill’s Qatar expedition funded by public cash is reported in further detail here: LORD JET SET: Scotland’s top judge Lord Gill takes 5 day STATE VISIT to Qatar as investigation reveals judiciary’s international travel junkets spree.

A year on from the confrontation between Lord Gill and the Scottish Parliament – only after two refusals to give evidence – MSPs await to hear from Scotland’s current top judge Lord Carloway – who, like his predecessor, given an equally hostile opinion on the very notion of judicial transparency and requirements of judges to declare their interests.

A recent report on Lord Carloway’s opposition to judicial transparency can be found here: Top judge Lord Carloway hits out at judicial interests register proposal.

The proposals before the Scottish Parliament received cross party backing from MSPs during a full debate at Holyrood during October 2014 – Debating the Judges – call for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

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

 

 

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

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

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

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

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

The Scottish Police Authority were asked to provide details of :

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Quotes from DCC Livingstone’s responses when questioned about the allegations of sexual assault reveal the following remarks by the Police Officer:

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

“I fell asleep in the wrong place and that was wrong and I shouldn’t have done that, and clearly I accept that.”

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

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

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

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

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

Following criticisms by former Assistant Chief Constable Angela Wilson – of Iain Livingstone’s bid to become Chief Constable, Calum Steele – General Secretary of the Scottish Police Federation (SPF) launched a highly personalised attack on his female former colleague – on the twitter social media platform.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And, it emerged in February of this year that during evidence given by Deputy Chief Constable Iain Livingstone to the Scottish Parliament’s Justice Committee, neither Livingstone or the Justice Sub Committee Convener John Finnie declared any previous links to each other while Livingstone testified before MSPs.

A report in the Sunday Mail newspaper in February revealed Mr Finnie – previously a serving Police Officer and representative for the Scottish Police Federation (SPF) – had represented Mr Livingstone when he was cleared of the sexual misconduct claims in 2003.

The issue was reported by the Sunday Mail newspaper here:

Green MSP under fire after failing to reveal sex case link to top cop Iain Livingstone

John Finnie failed to tell MSPs he represented the acting chief constable when he was cleared of sexual misconduct.

By Mark Aitken 18 FEB 2018

John Finnie failed to tell MSPs he represented Iain Livingstone

A Green MSP is facing questions over his connection with Scotland’s acting chief constable.

Former police officer John Finnie failed to tell fellow MSPs he had represented Iain Livingstone when he was cleared of sexual misconduct.

He failed to declare the link at a meeting of Holyrood’s justice committee when Livingstone was being questioned.

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

Livingstone, the frontrunner to replace Phil Gormley as Scotland’s chief constable, was acccused in 2004 of sexually assaulting a female police officer.

Livingstone admitted falling asleep in the woman’s room at the Scottish Police College in Tulliallan, Fife, after a drunken party in 2000.

Iain Livingstone was accused of sexually assaulting a female police officer in 2004

At an internal hearing, more serious allegations were dropped.

Livingstone, who was then a superintendent, was demoted to constable but won his job back on appeal. Livingstone’s appeal was backed by the SPF.

Finnie said at the time that the case had highlighted “the ease with which the system can be abused and the punitive consequences which affect not only the officer but their family”.

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

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

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

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

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

Finnie began his career with Lothian and Borders Police in 1976 and moved to Northern Constabulary three years later.

He served as a full-time officer with the SPF from 1992 to 2006.

Finnie was elected as an SNP MSP in 2011 but quit the party the following year in protest at the decision to end their long-standing opposition to Nato membership.

Finnie and the Greens failed to respond to the Sunday Mail’s calls.

SCOTLAND’S NEXT TOP COP:

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

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

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

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

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

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

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

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

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

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

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

 

 

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PROBE CONFLICT: £604K public cash inquiry magnate Ex Lord Advocate appointed to investigate Police complaints – linked to lawyers who represent cops facing complaints

Ex Lord Advocate conflict of interest in inquiry role. A FORMER Lord Advocate who has links to lawyers and a suspended judge who represent the Scottish Police Federation (SPF) and cops facing complaints – has been appointed to review how complaints are handled against cops.

However, details released of the review fail to mention that Dame Elish Angiolini (nee McPhilomy) – hired Levy and Mcrae – who have been paid hundreds of thousands of pounds by Police Scotland & the Scottish Police Authority (SPA) – to get cops off the hook from complaints – including probes into deaths.

One of the lawyers linked to ex Lord Advocate Elish Angiolini – is suspended Sheriff Peter Watson.

Watson, who was suspended from the judicial bench by  Lord Brian Gill in 2015, after being named in a £28m writ linked to bust hedge fund Heather Capital – represents Police officers facing complaints and investigations by the Police Investigations and Review Commissioner.

Links between Angiolini and Watson are revealed in documents obtained from an investigation by Audit Scotland into payments of public cash by the Crown Office to Levy and McRae and Peter Watson.

Meanwhile Watson and his now former law firm Levy and Mcrae – also scoop up public cash for representing cops who are being investigated over complaints.

A recent report in the Scottish Sun found Police paid £187,000 to Peter Watson’s law firm PBW law for legal fees for representing cop clients facing complaints and other ‘issues’.

The newspaper also reported Police Scotland also paid £364,830 in charges over three years to Watson’s former law firm Levy & McRae – who are also linked to Angiolini.

Records also show Peter Watson represents Police Officers on behalf of the Scottish Police Federation – who assign Watson to officers facing difficult complaints investigations.

One of the high profile cases where Watson represents cops being investigated over complaints – includes  the three year investigation of Police Officers involved in the death of Sheku Bayoh.

Sheku, 31, died after being restrained by nine officers responding to reports of a man carrying the knife in the street in Kirkcaldy. Officers used CS spray, pepper spray and batons, after it was claimed Sheku struck Short. Dad-of-two Sheku lost consciousness and died in hospital shortly afterwards.

The Daily Record reported that Days after Sheku’s death in Police custody, the very same lawyer linked to Angiolini –  Peter Watson – who now has his own law firm PBW Law – issued a statement on behalf of the Scottish Police Federation and the officers involved.

He claimed Sheku “punched, kicked and stamped on” a female officer. However, none of this has been proved and a probe into the death is still underway.

The paper also reported Watson threatened the family of the deceased Mr Bayoh, in relation to a facebook posting, claiming the contents were a ‘breach of criminal law’.

A recent report in the Sunday Mail newspaper revealed PC Alan Paton, 44, has been paid about £75,000 to remain at home while the inquiry into the death of Mr Bayoh in Police custody, continues – three years after the events occurred.

A second officer involved in the investigation, PC Nicole Short, is also being paid similar amounts while off duty since Sheku’s death in 2015.

Now, an investigation by journalists into Elish Angiolini’s lucrative inquiry jobbing has revealed the former Lord Advocate has scooped well over half a million pounds of public cash – writing reports on policy areas which in reality have seen little change over the years, and are mainly used by ministers for PR purposes.

Details of large amounts of public cash payments to Elish Angiolini obtained by journalists using Freedom of Information legislation reveal Angiolini has received at least £603,985.41 for a handful of reports.

Payments of public cash from the City of Edinburgh Council to Elish Angiolini reveal the former Lord Advocate received large payments of public cash totalling £123,450 broken down to £40,350.00 in 2013-2014 and £83,100.00 in 2014-2015 – for the Mortonhall Crematorium Investigation and report.

However, the City of Edinburgh Council bitterly resisted releasing details of the payments, and the figures were only eventually disclosed after the intervention of the Scottish Information Commissioner.

Details obtained from the Scottish Government – who also resisted initial disclosure of what are listed as separate payments to Angiolini for a report into National Investigation into Infant Cremation Practices reveal Angiolini received even larger sums of public cash from the Scottish Government totalling at least £240,000 – broken down to £60,000 in 2014/15, £120,000 in 2015/16, and £60,000 in 2016/17

Expenses paid to Angiolini for the exact same report – which were claimed to involve meals for ‘other team members’ totalled £437.13 in 2014/2015, £621.18 in 2015/2016, and £292.05 2016/2017

A response from the UK Home Office disclosed the total amount paid to Dame Elish for work done on the review of Independent Review of Serious Incidents and Deaths in Police Custody was £116,667.

The Metropolitan Police, who paid Angiolini for a Report of the Independent Review into The Investigation and Prosecution of Rape in London – initially refused to release details of their huge payments to Angiolini,.

It then took over five months before the figures were released, and only after the matter had been reported to the Information Commissioner who began an investigation into the Metropolitan Police handling of the FOI request.

The response from the Metropolitan Police, received earlier this week stated: I can confirm the amount paid to Dame Elish Angiolini was £122,518.05 – £120,715.30 for the review and report; and £1802.75 for travel and hotel expenses.

Angiolini, who was Lord Advocate from 2006 to 2011, was appointed ten days ago by the now ousted Justice Secretary Michael Matheson – to look at how complaints are handled against the very same cops her own former lawyer now represents.

However, Angiolini had a chequered career as Lord Advocate, and was once accused of deliberately undermining the judiciary by Scotland’s top judge, the well respected Lord Hamilton.

In a letter released to the media, Lord Hamilton hit out at Elish Angiolini’s use of her Ministerial rank to tell a story of different sorts to the Scottish Parliament, for the collapse of the World’s End murder trial in 2007.

In her address to MSPs in 2007, Lord Advocate Angiolini attempted to blame the court for failures in the collapse of the high profile murder trial, failures which were clearly of her own Crown Office.

Taking issue with Angiolini’s statement in Holyrood’s main chamber, Lord Hamilton said in his letter to Angiolini at the time: I am of the clear opinion that the evidence that was made available to the court was sufficient to put before the jury to allow it the opportunity to decide on the case against Angus Sinclair. Let me set out the Crown case presented to the court.”

You then set out, in a detailed and carefully crafted narrative, the evidence apparently adduced by the Crown and conclude at column 1769 –

“It was the Crown’s position that the evidence in this case allowed … an inference [of guilt] to be drawn.”

It is clear that you were, as Lord Advocate, stating to the Parliament that in your “clear” opinion there was sufficient evidence to go to the jury. The plain implication from that statement was that you were publicly asserting that the decision of the trial judge was wrong.

Although I have read the whole of your statement to Parliament and the statement which the trial judge issued giving detailed reasons for his decision, I have formed no view as to whether or not that decision was sound in law. I am, however, concerned that you have thought it appropriate to challenge, in a public and political forum and in the way which you have, a final decision of the court (whether that decision be right or wrong).

Section 1(1) of the Judiciary (Scotland) Bill provides that certain office holders, including the Lord Advocate, must uphold the continued independence of the judiciary. That section, I believe, reflects an existing recognition that the Lord Advocate, among others, has such a duty. The independence of the judiciary depends, in my view, not only on freedom of individual judges from prior interference with decisions they have to take but a preparedness by the Lord Advocate and others to recognise, in all public pronouncements, that final decisions made by judges, whether on points of law or on applications of the law to particular facts or to particular evidence, reflect the law as it stands and must be respected as such. If such respect is not afforded, the independence of the judiciary as the final arbiter of legal issues is put at risk. An open challenge to the correctness of a final decision does not afford the requisite respect. Rather, it tends to undermine for the future the confidence which judges, faced with difficult decisions in controversial cases, can reasonably expect to have that their decisions will not be openly criticised by other organs of government.

The public prosecutor may of course entertain private views as to the soundness of legal decisions. In the light of experience steps may be taken to amend the law or in a legal forum to challenge the soundness of an earlier decision. But public criticism in a political forum of particular decisions, especially in controversial and sensitive areas, is in my view inappropriate.

My concern is not restricted to this case. The same situation might well arise in any case in which a trial judge sustained a submission under section 97. It might also arise where, on an appeal against conviction, the court held that there had been insufficient evidence in law to warrant it. While such events commonly occur without public interest, they may well occur in controversial cases. It would be most unfortunate were the Lord Advocate to adopt a practice of publicly criticising such decisions.

I can readily understand that, given the issue which had arisen as to whether the Advocate depute had properly exercised his discretion as to what evidence he should lead (or not lead), you would find it appropriate publicly to support him. But such support could have been afforded without public criticism of the judge. In particular, respect for what was treated as being a final decision of the High Court of Justiciary might have been expressly afforded.

I have discussed this letter with the Lord Justice Clerk. He agrees with its terms. He also agrees with my view that the letter should be made public.

The review of PIRC News comes after the PIRC Commissioner Kate Frame spoke out on the subject of who should investigate the Police in a recent Sunday Post article, here: So who should police the police? In her first interview in four years, Police Scotland watchdog breaks her silence

In the interview, Kate Frame called on MSPs to review who probes misconduct claims against officers and said whistleblowers should be able to turn to investigators outside the force.

Ms Frame said: “There is a discussion to be had about whether the police should investigate themselves.

“I think that from the public’s position, they would feel an independent investigation which has not been undertaken by the police would be preferable.”

In an earlier article it was revealed Police Complaints watchdog Kate Frame had accused Scottish Ministers of interfering in her functions as Scotland’s independent Police watchdog, reported by the Sunday Post here: Emails reveal police commissioner accused Scottish government of interfering after Justice Secretary’s aide asks her to delay scathing report

In the article,the Sunday post reported “the Police Investigations and Review Commissioner had to warn one of Justice Secretary Michael Matheson’s senior civil servants to back off after he attempted to persuade her to delay the publication of a damning report.”

“Ms Frame responded to the civil servant’s suggestion that her report might be delayed by writing: “My perception of your remarks is governmental interference with my independence.”

In the wake of the recently announced review to be conducted by the former Lord Advocate, legal insiders view the Scottish Government inquiry run by Angiolini move as an attempt to intimidate further outspoken views against Scottish Ministers interference in the Police Investigations and Review Commissioner and Police Scotland – which has been hit by multiple scandals used by senior officers & ministers in government to set their own agenda for Scotland’s single national Police force.

Angiolini’s glowing fanpage on Wikipedia records she was also working at the Crown Office as Solicitor General during the time in which prosecutors refused to look into 5 allegations of serious sexual assault against Scotland’s now current top cop, Deputy Chief Constable Iain Livingstone.

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

Issues surrounding the allegations of sexual assault made by a female Police Officer against Iain Livingstone while he served at Lothian & Borders Police in 2003 resurfaced during recent scrutiny of Police Scotland over the past year.

Livingstone was however, cleared of the allegations by a hearing chaired by another senior Police officer – John McLean, Strathclyde assistant chief constable. The Police led hearing on allegations against Police Superintendent Livingstone established there had been no sexual impropriety or intent on Mr Livingstone’s part.

However, interest in the 2003 case and details surrounding it has resurfaced – after the single Police service – created by the Scottish Government in 2013 – was hit by several scandals including numerous suspensions of senior officers, allegations of Ministerial meddling with ultimately led to the ousting of Chief Constable Phil Gormley, and the ongoing probe into senior officers use of a surveillance unit within Police Scotland to illegally spy on journalists & cops.

At the time of the sexual assault allegations in 2003, Iain Livingstone, 37, was working as an aide to Scotland’s most senior police officer, Sir Roy Cameron, at Her Majesty’s Inspectorate of Constabulary, when he was suspended in February 2003 over the claims – which arose from a drunken party at the Scottish Police College at Tulliallan.

It was reported at the time that Iain Livingstone – previously a solicitor and member of the Law Society of Scotland – had been suspended for 17 months after the WPC claimed she had been sexually assaulted during the party.

Five allegations of serious sexual assault made by the female Police officer against Livingstone were dismissed – but, at an internal misconduct hearing, Mr Livingstone admitted less serious allegations, including being in the woman’s room overnight after falling asleep.

The Crown Office has refused to disclose any material in connection with their consideration of allegations of sexual assault again Iain Livingstone – and this would include material during the time which Elish Angiolini was Solicitor General.

Among the raft of appointments to write reports & reviews, including the position of Principal of St. Hugh’s College of the University of Oxford – where she wrote a glowing appraisal of Aung San Suu Kyi, Angiolini is also listed as an Honorary Professor of  The Chinese University of Hong Kong.

Angiolini’s biography on the Honk Kong university site claims “As Lord Advocate she is seen as a moderniser, immediately announcing plans to speed-up justice and clear court congestion, including a scheme to quickly fine minor offenders and require them to pay compensation to victims.” – but makes no mention of significant failures during her time as Lord Advocate, including the episode where she was accused of undermining Scotland’s judiciary.

Michael Matheson’s announcement of Angiolini’s appointment by the Scottish Government was made in the Scottish Parliament:

Ministerial Statement on Police Complaints and Conduct Review

The written transcript of Michael Matheson’s statement:

Cabinet Secretary for Justice – Parliamentary Statement on review of complaints handling, investigations and misconduct issues in relation to Policing.

19 JUNE 2018

Thank you Presiding Officer.   

When I addressed the Chamber in November, on the leadership and performance of policing, I set out my intention to reflect on the operation of police complaints and conduct with key partners.   As I said then, I am open to considering whether there is scope for further improvement.

It is of the utmost importance to me and the public that parliamentary confidence in the police is high – and independently justifiably so – but equally that our systems provide suitable protection for the vast majority of police officers and staff who work hard to keep us safe.

Over recent months, I have listened to a range of different perspectives from those directly involved.  It is clear to me that complex issues have emerged in relation to the existing framework, operational responsibilities and procedures that need to be looked at afresh.

Five years on from the creation of Police Scotland, the Scottish Police Authority and the Police Investigations and Review Commissioner, the time is right to look at how the structures and processes are working.

To do that effectively will require an independent and authoritative assessment and that is why I, together with the Lord Advocate, have commissioned Dame Elish Angiolini QC to take this work forward.

I am delighted that Dame Elish has agreed to lead that Review.  As members will be aware, she is exceptionally well qualified to scrutinise these issues, as a former Procurator Fiscal, Solicitor General and Lord Advocate.

Her outstanding record of public service in Scotland is well known, having chaired the Commission on Women Offenders, as well as the Mortonhall Crematorium Investigation for the City of Edinburgh Council and National Cremations Investigation for the Scottish Government.

More recently, she led the independent Review into Serious Incidents and Deaths in Police Custody in England and Wales for the UK Government.

Under Dame Elish’s leadership, the Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing will bring independent scrutiny to the framework and processes for handling complaints against the police and investigating serious incidents and alleged misconduct.

As well as assessing the current framework, the Review will report on the effectiveness of structures, operational responsibilities and processes. It will also make recommendations for improvements to ensure the system is fair, transparent, accountable and proportionate, in order to strengthen public confidence in policing in Scotland.

The Review will consist of two phases:

    The first phase will include a consideration of current procedures and guidance to identify areas for immediate improvement;
The second phase will include a wider assessment of the frameworks and practice in relation to complaints handling, investigations and misconduct issues. It will cover the work of the Police and Investigations Review Commissioner, the Scottish Police Authority and Police Scotland.

The Review will take evidence from a broad range of stakeholders, including the Scottish Police Federation, the Association of Scottish Police Superintendents, the Scottish Chief Police Officers Staff Association, Unison, Unite, as well as the PIRC, SPA, Police Scotland and the Crown Office. Dame Elish may also wish to speak with those who have had experience of the current system to hear their views and understand where further improvement could be made.

Recommendations in the final report should take into account human rights considerations, as well as seeking to identify longer term improvements.

Presiding Officer, I am aware that the Justice Committee has invited evidence as part of its post-legislative scrutiny of the Police and Fire Reform (Scotland) Act 2012.  I welcome this scrutiny of the landmark legislation that enabled the creation of single police and fire services.

I am also aware that evidence has been submitted on the provisions within the Act that underpin our current system of police conduct, complaints and investigations. Those provisions were intended to strengthen the governance, accountability and scrutiny arrangements for policing and created a clear statutory framework for independent review and investigation.

It is only right that the Committee considers this evidence as part of its broader scrutiny of the Act and I look forward to seeing the outcomes of that process.

However, as the Cabinet Secretary with responsibility for the overall framework for dealing with police complaints and conduct issues in Scotland, which includes other primary and secondary legislation, I have a duty to ensure that the whole system is working well.  And the Lord Advocate has an independent interest, as head of the system for the investigation and prosecution of crime in Scotland.

The arrangements for complaints handling, investigations and misconduct issues in relation to policing, have seen a period of intense parliamentary, media and public scrutiny.

It is a framework that must ultimately build public confidence in policing and the events of recent months have raised questions about the way the system works and whether it could be improved.

It is only right that I listen to those questions and act decisively to address them, which is why the Lord Advocate and I have commissioned this Review.

The key outcomes of the Review will be to ensure that:

    roles and responsibilities at all levels are clear;
there are agreed protocols that balance transparency with an appropriate level of confidentiality; and
the framework and processes are fair, transparent, accountable and proportionate, upholding fundamental human rights.

Fairness. Transparency.  Accountability. Proportionality. These are the guiding principles of the Review and go to the very heart of what any system, which holds public services to account, should deliver.

The commitment to upholding fundamental human rights is embedded in police training, in the oath taken by officers and is central to Police Scotland’s Professional Ethics and Values. This is to ensure that policing operations respect the human rights of all people and officers, who in turn should have their rights respected.  This must also be central to the process for handling police complaints, conduct issues and investigations.

It is vital that the police are held to account when things go wrong.  Policing by consent depends upon that accountability.  And it is essential that lessons are learned and improvements made to prevent mistakes, bad practice – and criminality – recurring in the future.

In order to do that effectively, our systems must treat all parties fairly and justly if they are to earn the trust and respect of those involved and of the wider public.

Let me also be clear about what the Review will not do.  It will not consider the role of the Lord Advocate in investigating criminal complaints against the police.  Nor will it look at the role of HMICS in scrutinising the state, effectiveness and efficiency of Police Scotland and the Scottish Police Authority.

It is also important to emphasise that the Review will not re-examine specific cases or review specific decisions, although they may provide evidence for an overall assessment of the efficacy of current systems and processes. 

There are a number of high profile criminal investigations relating to serious incidents involving the police, currently underway. Those investigations are a matter for the Lord Advocate and it would be wrong to suggest that this Review should examine those cases – or pre-empt the investigation process.

Presiding Officer, I am confident that this Review, under the authoritative leadership of Dame Elish Angiolini will bring fresh scrutiny to the framework and structures we established 5 years ago, to ensure they are robust and true to the principles that I have outlined.

It is essential that our systems for complaints handling, investigations and misconduct issues in relation to policing are fair, transparent, and accountable, respecting the rights of all those involved.  Systems that police officers, staff and the public can have confidence in.

Let me finish, by putting on record my thanks and appreciation for the work of Police Scotland, the SPA, the PIRC, HMICS and the Crown Office, commending all those who work to keep our communities safe.

The Scottish Government’s announcement of Angiolini’s appointment makes no mention of her involvement with lawyers who also represent Police Officers facing complaints – including probes into deaths in custody: Police conduct review; Former Lord Advocate to consider investigation processes.

Former Lord Advocate Rt Hon Dame Elish Angiolini QC is to review the processes for handling complaints against the police and investigating serious incidents and alleged misconduct.

The independent review, jointly commissioned by Justice Secretary Michael Matheson and Lord Advocate James Wolffe QC, will assess the current framework and report on the effectiveness of structures, operational responsibilities and processes.

It will also make recommendations for improvements to ensure the system is fair, transparent, accountable and proportionate, in order to strengthen public confidence in policing in Scotland.

Mr Matheson said: “Most of us recognise and welcome the diligent, expert and often courageous work of the many thousands of police officers and staff who help keep Scotland’s communities safe.  That public confidence is also sustained by knowing that when things go wrong, the police are held to account, lessons are learned and improvements made.

“Given some of the questions raised in recent times about the processes for police complaints-handling, investigations and misconduct issues, and whether they could be improved, the time is right for this independent review, which will be ably led by Dame Elish.

“The review will seek to ensure that roles and responsibilities are clear, agreed protocols will balance transparency with appropriate levels of confidentiality, and that the processes are fair, transparent, accountable and proportionate, upholding fundamental human rights.”

Dame Elish said: “I am pleased to be invited to undertake this important independent review.  It is vital that systems for handling complaints, investigating serious incidents and alleged misconduct in relation to the police is both robust and fair, and trusted by all those involved.

“I look forward to engaging with those with direct involvement and experience of the current system – from all perspectives – to understand how it is working in practice and to identify areas for improvement.”

Background:

The independent review will formally begin in the autumn.

The Right Honourable Dame Elish Angiolini QC served as both Solicitor General for Scotland and, in 2006 was appointed Lord Advocate, the first to serve two different Scottish Government administrations.  She was appointed Dame Commander of the British Empire in 2011 for services to the administration of Justice.  In 2012, Dame Elish was elected Principal of St Hugh’s College, Oxford, and is both visiting Professor at the University of Strathclyde and Chancellor of the University of the West of Scotland.

Dame Elish has chaired a number of ground-breaking reviews in the fields of law and criminal justice, as well as public health.  In June 2011 she was appointed as Chair of the Commission set up to examine the issue of how female offenders are dealt with in the Criminal Justice System in Scotland.  She led the Independent Review into the Investigation and Prosecution of Rape in London, which reported in 2015 and also chaired the Mortonhall Review for Edinburgh Council and the National Cremation Investigation for the Scottish Government, which reported in June 2016.  Dame Elish’s report into deaths in police custody in England and Wales, commissioned by the UK Home Secretary, was published in October 2017.

Previous article in relation to Police Scotland can be found here: Police Scotland – Previous articles

Previous articles in relation to the Crown Office & Lord Advocate can be found here: Crown Office – Previous articles & Lord Advocate – Previous articles

 

 

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