RSS

Category Archives: self regulation

REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

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

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

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

The protests from Scotland’s current top judge are in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

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

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

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

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

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

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

Scottish Parliament’s Public Petitions Committee’s deliberations on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Tags: , , , , , , , , , , ,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Digital strategy

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

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

fully digitised justice systems;

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

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

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

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

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

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

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

and on

Evidence and Procedure Review

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

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

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

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

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

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

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

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

Specialist prosecutions

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

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

Centralised policy-making and local autonomy

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

Specialisation and central case-marking

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

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

Other types of specialisation

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

Views from COPFS representatives

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

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

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

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

Diversions and local knowledge

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

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

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

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

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

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

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

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

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

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

Recommendations: Resources and funding of the COPFS

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

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

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

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

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

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

Efficiency of the prosecution service

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Effectiveness of the prosecution service

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

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

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

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

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

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

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

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

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

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

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

Victims and witnesses and the COPFS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Inspectorate of Prosecutions

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

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

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

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

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

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

LET’S DO JUSTICE DIFFERENTLY – JAMES WOLFFE QC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Tags: , , , , , , , , , ,

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

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

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

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

Mr Neil recently branded the Scottish Legal Complaints Commission (SLCC)  “a toothless waste of time” – after the legal services regulator failed to act in a high profile case involving a senior QC caught up in a cash payments scandal.

The review, led by NHS 24 chair Esther Roberton, is intended to make recommendations to modernise laws underpinning the legal profession’s current regulatory system including how complaints are handled.

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

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

The list of panel members includes:

*Two former Presidents of the Law Society of Scotland;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VESTED INTERESTS – Legal Profession welcome their own review:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Review should include judiciary:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The review panel have confirmed their participation as follows:

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

 

Tags: , , , , , , , , , , , , ,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Faculty of Advocates were asked the following questions:

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

The Faculty did not issue a response to this question.

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

Again, the Faculty did not respond.

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

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

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

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

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

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

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

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

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

John Campbell QC did not reply to requests for comment.

The Sunday Mail reports:

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

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

By Craig McDonald 9 APR 2017 Sunday Mail

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“He clearly broke their rules.”

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

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

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

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

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

CASHING IN – John Campbell QC, Profile:

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

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

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

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

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

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

 

Tags: , , , , , , , , , , ,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

——————————

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Tags: , , , , , , , , , , , , ,

LEGAL COSTS: Ask your solicitor ten questions about costs before your legal expenses run up thousands in unnecessary work & bills – or result in your lawyer taking your home & savings to pay for it

Questions to ask your solicitor – walk if you don’t like the replies. IN SCOTLAND, there are few, if any non lawyer controlled sources of advice to legal services consumers on how to manage client relationships with solicitors, how to control legal costs, and what to do when something goes wrong and your lawyer rips you off.

Client protection – is a myth. Given three decades of evidence that thousands of clients have been ripped off every year by their once trusted solicitors, the only people who believe a complaints system run by lawyers, managed by lawyers and protected by lawyers –  are fantasists, and the Law Society of Scotland.

There are no background record checks available on Scottish solicitors, and the only ‘help’ on offer to clients when their relationship with their solicitor breaks down – is provided by the pro-lawyer Scottish Legal Complaints Commission (SLCC), a regulator backed by the Law Society of Scotland, staffed by members of the Law Society of Scotland. You get the picture.

However, in England & Wales, the landscape is a little more consumer friendly, with the Legal Ombudsman (LeO) and Solicitors Regulation Authority (SRA) providing a more independent form of advice and help to consumers.

The Solicitors Regulation Authority also publish complaints and regulatory data on solicitors and law firms – a must have service for anyone considering using a solicitor which does not currently exist in Scotland.

As things currently stand in Scotland – if you are unable to check up on your solicitor’s regulatory history via an independent source, the best advice is to walk away – or what happens next is your own fault.

Self regulation by lawyers, pleas to the Scottish Government and Scottish Parliament for help will not put right your legal problems or what your solicitor did to you.

A handy guide published by the Legal Ombudsman, reprinted by DOI in this article, gives a list of ten questions consumers and clients of solicitors should ask their legal representatives before taking on representation and expensive legal services.

There are further tips in the full LeO leaflet, so please download it and read thoroughly before engaging legal representation.

This guide was written for the English legal services market, and you may be an English reader, so go right ahead and ask you solicitor these ten basic questions on costs.

However, the same questions apply as much in Scotland as anywhere else –  and anyone using a Scottish solicitor should consider asking these same questions.

If you don’t like the answers you receive, or don’t get any answers at all – then the best consumer advice possible is to protect yourself and walk away.

At the very least, you will have saved yourself hundreds, or thousands or tens of thousands of pounds for something involving a lawyer which may well have ended up going wrong anyway.

Why put yourselves through a five year heartache losing your savings to a lawyer, when ten little questions and answers may save you a whole lot of trouble.

The introduction to the leaflet from the Legal Ombudsman states: “If you use a lawyer, he or she should talk to you about the cost of their services. But you should also understand their charges. We have come up with ten questions to ask your lawyer about the cost of your service. We’ve also included some top tips and explained the terms used to help you get the most from conversations with lawyers about costs.

As a consumer, you have the right to expect your lawyer to be clear about how much they are likely to charge you, and for the final bill to be clearly explained and in the range you expected.

Legal services can be complex and the final cost can depend on things such as the type of service, individual details of the case, and how events develop. The expertise and experience of the lawyer may affect things too. However, most services are straightforward and your lawyer should give you a clear idea of what you will be charged from the start. Even if things do get complicated, your lawyer should warn you when this happens, so there shouldn’t be any surprises in your final bill.

A lawyer who values good service will happily answer your cost-related questions. Lawyers also have a duty to provide you with a client care letter when you appoint them. This letter should clearly explain the costs for the service and any terms and conditions that may affect the final price.”

Question 1  Will I be charged for a consultation?

Finding the lawyer who is right for you and the service you need is important. A consultation by phone, face-to-face, letter or online can help you make your decision. A lawyer can charge you for a consultation but they should tell you before you book and explain any conditions. For example, they may offer the first 30 minutes free but charge for time above that.

A lawyer should speak to you about costs and provide the best possible information so you can make an informed choice.

If you have a consultation, make the most of the opportunity. Do your research to find the right lawyer – you can check online, talk to friends and family, or speak to consumer organisations to help you make your choice.

Question 2  “How do you cost your service?”

This question can help you shop around to get best value for money. Two lawyers may provide very different estimates for the same service. Understanding why the quotes differ can help you make the right decision. For example, one lawyer may be more experienced or an expert in the area of law your case involves. If you have a complex case, you might think it’s better to pay more as it may improve the outcome and cost you less in the long run. With a fairly simple case you might decide you don’t need that level of expertise, so it may be better value to go with the cheaper estimate.

Experience and skill are just two reasons why costs may differ. There are now more ways than ever to provide a legal service which can have an impact on what you pay. For example, you can now buy services that are phone or web based rather than face-to-face. Providers who offer this type of service may save on rent and backroom costs and might therefore offer a cheaper price to customers. Understanding if this type of service works for you will help you decide if it is, or isn’t, value for money.

Estimates may vary for a whole host of reasons. Ask questions until you understand enough about the services on offer so you can pick one that suits you.

Question 3 “Can you tell me more about the way you charge?”

Lawyers have different ways of charging and their charging method may also vary according to the service. For example, they may offer a fixed fee for writing a will, but an hourly rate for a probate service (the administration of a will when someone has died). Find out what charging method the lawyer will use and ask them to explain it to you in detail. Questions 4 and 5 help with understanding fixed fee and hourly rate charges.

Conditional fee arrangements (CFAs) are also known as ‘no win, no fee’ arrangements. If you lose, you won’t, in general, have to pay your lawyer’s fees, but may need to pay some out of pocket expenses such as barrister’s fees or court fees. You may also be liable to pay some of the other side’s costs but it is possible to get insurance to protect against this. If you win, you will have to pay your lawyer’s fees and in addition there is usually a success fee which is intended to cover the risk that the firm are entering into with this type of agreement. You should in most cases, however, be able to recover your fees (including any success fee) from the other side. If you are thinking about entering into one of these arrangements, make sure you ask detailed questions so that you fully understand the terms and conditions.

Contingency fee agreements are also a type of ‘no win no fee’ agreement. If your lawyer agrees to represent you under a contingency fee agreement — which should not be confused with a conditional fee arrangement – they will be able to claim a percentage of any money they win on your behalf plus expenses. If you lose the case, you won’t be charged a fee, but you might still have to pay other costs (which could include the other side’s legal costs too).

The contingency fee percentage must be agreed in advance. You should also check whether the lawyer will deduct any expenses before they take their contingency fee or after as this can make a significant difference to the amount you finally receive. If the percentage you are asked to pay is very high, you could end up with very little – even if you win.

Question 4 “What is a fixed fee and what does it cover?  Will I be charged for any other costs?

The term ‘fixed fee’ can be used in different ways. It can be easy to assume that it covers all costs for the service you need. In some cases that may be true, but it may also just refer to the lawyer’s fees. For example, a ‘fixed fee’ in a property case may, or may not, include charges related to searches. Sometimes a lawyer may offer a ‘fixed fee’ for a stage of the case, so don’t feel embarrassed about asking your lawyer exactly what they mean by ‘fixed fee’. It’s not a silly question; the term isn’t self-explanatory.

Lawyers will sometimes give you an estimate of the costs. This isn’t the same as a ‘fixed fee’, so check what your lawyer means. This can be important as sometimes a lawyer may charge a fixed fee for a particular stage but give an estimate for the next stage. If that happens, or you aren’t sure, check what your lawyer means and ask for an estimate for the total cost of the case.

Question 5  “You charge an hourly rate but I’d like an estimate for the cost of the whole service. What will my final bill look like?”

If your lawyer charges an hourly rate, they must give you an estimate of how much the overall service will be. This should compare reasonably with your final bill. If you aren’t sure, then ask your lawyer to give you an estimate for the whole service. Sometimes it can be hard to predict how much it will all cost. Ask so you know how certain the estimate is. Having a range of costs might be more helpful than a single number, which could shift up or down. The important thing is to understand how much the total bill could be.

You are entitled to ask the lawyer to set a limit on the costs. This means your lawyer has to check that you are happy to continue if the spend approaches the agreed threshold. Setting a limit can help you make sure you don’t spend more than you can afford.

Ask questions to understand exactly when the clock starts. For example, if you call your lawyer for an update on your case will you be charged for the call? Ask if, and how, your lawyer rounds up their charges. Many lawyers charge in six minute blocks – check if that’s how your lawyer works. Make sure you feel comfortable with the way they charge.

As with ‘fixed fees’, ask if there are any other costs that won’t be covered in the hourly rate.

Question 6 “Could my costs change? How will you let me know if they do?”

There may be circumstances where costs do change. This is most likely if new information or developments make a case more difficult. For example, in a divorce case much is dependent on the other person’s cooperation to resolve it quickly. Even if both people intend to behave amicably, sometimes that resolve breaks down. If your costs look like they are changing, ask your lawyer about it. In general, your lawyer should tell you as soon as they are aware of any changes, but you don’t have to wait to ask for an explanation. Another option is to ask, when you choose your lawyer, if their original estimate is likely to be breached. If you have agreed a spending limit (see question 5), then your lawyer should stop work until you confirm that you want to continue.

If a case gets complicated even a ‘fixed fee’ arrangement can change. Your lawyer should explain when this might happen and also set out the terms and conditions in your client care letter. Make sure you understand and ask if there is a ‘get out’ clause to say if additional costs can be charged.

Remember, you always have options, even in the middle of a legal transaction. If there is a big hike in the costs of using a lawyer, then your lawyer should tell you about them and let you know what your options are. You could use a different specialist who might cost less but take longer, or only use email to contact your lawyer. There might also be some stages in the process that can be missed out. Ask your lawyer how you can work with them to reduce costs.

Question 7 Are there any extra costs?

This really is a catch-all question to help you budget for your service. You are basically asking your lawyer if they have given you all the information they reasonably can to make sure there aren’t any nasty surprises in the future. Examples of the sort of information this question might raise are additional costs for things like expert reports (such as from a doctor), or photocopying. Some firms use premium rate phone numbers, which could add unexpected costs to the final amount you spend for your service. Use these examples as a prompt to discuss this issue. Your lawyer should also tell you if you are likely to incur any bank charges. For example, you might need to make a CHAPs payment (same day electronic transfer) which can cost over £20 in a property transaction.

Finally, don’t forget to check if your estimate is inclusive of VAT. Your lawyer should tell you, but check so that you don’t get a higher bill than you’re expecting.

Question 8 “Can I get help with the cost of my legal service?”

A lawyer should always talk to you about how the service will be paid for and discuss options such as insurance or membership of a union that might help cover the costs. There can be some fine-print with different insurance options that you need to understand, so ask lots of questions to make sure you know what you are signing up to. Some insurances, like ‘after the event’ or ‘before the event’ insurance, could cover you for some things but not for others. Ask your lawyer for more information.

If you receive benefits or are on a low income you might qualify for help that may reduce or cover all of your costs. There are different programmes for different types of help but the best known is legal aid, which provides free legal advice from lawyers who are registered with the service. Even if your lawyer isn’t registered to provide legal aid they should tell you about it so you have the option of going to a lawyer who can.

Question 9 “When will I be billed and how long will I have to pay? Do you offer payment options?”

A lawyer should give you clear information on their billing process and offer reasonable time for you to make payments. They should also let you know if there are penalty charges if you don’t pay on time. You may be asked to pay some money at the start either to cover certain expenses or as an advance payment of fees. Lawyers aren’t obliged to offer you payment options, but some may be willing to negotiate. Asking the question might help you find a lawyer whose service fits your personal circumstances.

Question 10 “What happens if I disagree with the amount I’ve been charged?”

Your lawyer should tell you their approach to resolving billing disagreements. Every lawyer should have a complaints handling system in place, so find out how their system works. You should not be charged by a lawyer for looking at your complaint – it is very poor service if they do. When you appoint a lawyer they are also obliged to let you know about the Legal Ombudsman who can help you to resolve your complaint if you and your lawyer can’t reach an agreement.

Note – if you disagree with legal bills in Scotland, cases have revealed solicitors often employ threats and legal action for demands to be met within seven days. In some cases solicitors have applied to sequestrate their clients for disagreements on legal bills, and willing, compliant local sheriff courts staffed by familiar clerks and members of the judiciary often grant such orders with little regard for the facts or any representations from clients who question the integrity of legal fees.

SCOTLAND – Consumer protection against rogue solicitors and law firms does not exist.

How bad is the Law Society of Scotland when it comes to protecting consumers? The answer is  very bad. The Law Society of Scotland is a lobby group for the legal profession which puts lawyers interests first, before clients, the public, or anyone else. Do not expect client protection from a system where lawyers regulate themselves.

Read previous articles on the Law Society of Scotland here: Law Society of Scotland – A history of control of the legal profession, and no client protection.

Previous reports on the Scottish Solicitors Discipline Tribunal – The pro-lawyer tribunal which determines ‘punishments’ for solicitors after complaints have endured an eternity at the Law Society & SLCC, can be found here: Scottish Solicitors Discipline Tribunal – Pro-lawyer protection against client complaints

Previous media investigations, reports and coverage of issues relating to the pro-lawyer Scottish Legal Complaints Commission (SLCC) can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

 

Tags: , , , , , ,

NAME & SHAME: Scots consumers denied records checks on lawyers – as Solicitors Regulation Authority propose detailed public register of lawyers in England & Wales

UK Solicitors regulator plans to publish more data on lawyers. A PROPOSAL to publish more detailed information about law firms and solicitors in a public register has been launched by the Solicitors Regulation Authority (SRA) – the body charged with investigating solicitors in England & Wales.

The move to advance consumer protection south of the border by the English legal regulator could help consumers make more informed choices on the use of legal services, and result in a more competitive legal sector with higher standards of service and client care.

However, this is in stark contrast to Scotland, where DOI recently reported on the Scottish Legal Complaints Commission (SLCC) who refuse to publish any useable information to Scots consumers which could help clients steer clear from corrupt lawyers and law firms.

The report, available here: FROM ROGUES TO RICHES: SLCC refuse to identify corrupt solicitors in case findings revealed SLCC determination decisions are heavily redacted and only published after being approved by the Law Society of Scotland, leaving Scots consumers at a considerable disadvantage to consumers in England & Wales.

However, and with the advantage of not being held back in the middle ages by the Law Society of Scotland, the England based Solicitors Regulation Authority has launched a discussion paper, “Regulatory data and consumer choice in legal services” exploring what information the SRA could publish through a public register.

The proposed public register already allows consumers to check up on lawyers via the SRA’s Check your solicitor’s record service reported earlier here:  INSPECT YOUR ROGUE: Check your solicitors’ record in England.

The SRA suggests that consumers could benefit from information such as a solicitor’s qualifications or practice restrictions, and complaints data and insurance claims. The SRA also considers what information law firms might want to publish voluntarily, such as quality marks and service prices.

The proposals echo recent calls by the Competition and Markets Authority’s (CMA), in its interim report on its market study, as well as from the Legal Services Consumers Panel (LSCP), to improve the level of information available for consumers. The SRA agrees that a lack of clear, targeted information means it is difficult for consumers to compare providers and make informed choices. This is dampening competition in the sector.

Better information could help tackle the problem that the legal needs of individuals and small businesses are not being met.

Only one in ten people use a solicitor when they have a legal problem. And legal problems are estimated to cause small businesses almost £10 billion of losses a year, yet 83 percent of the population see legal services as unaffordable.

Greater transparency would also bring legal services more in line with other sectors, such as financial services and energy, where regulators are already making sure consumer-focused information, such as complaints data, is available.

The SRA recognises that there needs to be careful consideration of the implications of publishing more information. Risks to consider include increased burdens on firms and a one-size-fits-all approach working well for some and not others. For example, the needs of corporate clients will be different to those of an individual consumer.

Paul Philip, SRA Chief Executive, said: “Most people and small businesses are still not accessing legal services. When they do, they are not shopping around. It is unsurprising when the information out there is so limited.

“We want to help consumers, so they are not left making blind choices. Information such as enforcement action, complaints and claims data are exactly the type of things I would want to know when choosing a solicitor.

“We know that the public look to the regulators to provide credible, authoritative, objective information.

“If we get this right, we could help create a more competitive market, where consumers can make better choices and forward-thinking firms thrive. It will also help small businesses access the legal services that could help them succeed and grow.

“Yet we need to think carefully about what we publish and how. More information will not benefit consumers if they find it confusing, hard to access, or it is unhelpful. We have also made good progress on getting rid of unnecessary burdens on firms. We will not ask firms to do more in this area, unless there is a clear benefit.

“This is just the start of a discussion, so we are keen to hear what everyone thinks.”

The SRA has already taken steps to improve the information available to consumers by publishing its law firm search in April. And it already publishes details of enforcement action. Publishing useful data in one place would not only help consumers directly, but indirectly as data re-publishers could use it to develop comparison tools that could help make the market more competitive.

The SRA plans to consult on proposals in this area next year. Its discussion paper can be found at: www.sra.org.uk/choice. Closing date for submissions to the consultation is 26 January 2017 submissions.

SRA law firm search can be found here: www.sra.org.uk/consumers/using-solicitor/law-firm-search/about-search.page

The CMA’s interim report looking at ways to improve competition in legal services by increasing information for consumers is available at: www.gov.uk/government/news/cma-seeks-views-on-ways-to-help-legal-services-customers.

The Legal Services Consumer Panel’s research, “Opening up data in legal services (PDF 36 pages, 625K)

SCOTLAND: Legal Services Consumers held back by Law Society of Scotland & self regulation.

Away from the fantastical claims of the Law Society of Scotland, the oh-so-easy free pr and spin of how the Law Society protects access to justice while offering client protection, the fact is, consumers of legal services in Scotland have no chance whatsoever of selecting a legal representative based on their regulatory history – because the Law Society of Scotland refuse to publish any detailed regulation histories of their members.

Just how bad is the Law Society of Scotland when it comes to protecting consumers? The answer is very bad. Read previous articles on the Law Society of Scotland here: Law Society of Scotland – A history of control of the legal profession, and no client protection.

A BBC Scotland investigation “Lawyers Behaving Badly” exposed further weaknesses in the Law Society of Scotland’s system of control freakery self regulation. The BBC programme lifted the lid once more on lawyers investigating their own, how dishonesty plays out at the Scottish Solicitors Discipline Tribunal, and legal aid fraud.

A recent DOI investigation into the Scottish Legal Complaints Commission revealed most of the SLCC’s key staff and investigators are in-fact families, friends & business associates of solicitors, reported here: ‘Independent’ Scots legal watchdog consists of solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers.

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

Previous reports on the Scottish Solicitors Discipline Tribunal – The pro-lawyer tribunal which determines ‘punishments’ for solicitors after complaints have endured an eternity at the Law Society & SLCC, can be found here: Scottish Solicitors Discipline Tribunal – Pro-lawyer protection against client complaints

 

Tags: , , , ,