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LOOK AFTER THE LAWYERS: Law Society proposals to pro-lawyer legal review seek to reclaim control of regulation & complaints, appoint ‘window dressing’ ombudsman & criminalise ‘misuse’ of the word “lawyer”

Law Society proposal retakes control of regulating lawyers. AMID a series of failures by the Scottish Legal Complaints Commission (SLCC) to clean up poor standards of legal services and deal with complaints against solicitors, the Law Society of Scotland are proposing the return of control of regulation to the legal profession.

Earlier this week, and with sights set firmly on retaking control of the floundering SLCC,- the Law Society of Scotland submitted a series of proposals for ‘reforming regulation’ to the ‘independent’ review of legal services regulation – set up by the Scottish Government last year.

The move by the Law Society of Scotland comes amid a string of court setbacks for the SLCC involving Law Society backed challenges to the single regulator’s authority to hold solicitors to account for dishonesty, poor standards of legal service, overcharging & asset stripping of clients on an industrial scale.

However, the Scottish Government backed legal review group now hearing the Law Society’s proposals – was actually created in consultation with the Law Society itself, and is comprised of pro-lawyer decision makers from the world of ‘public appointments’ along with lawyers & advocates from the Law Society of Scotland, Faculty of Advocates & Crown Office.

The ‘independent’ review panel – complete with an ‘independent’ chair are:  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.

There is one sole ‘consumer representative’ on the review panel, listed as – Trisha McAuley OBE – independent consumer expert

Now, eager to wrestle power back from the SLCC on dealing with client complaints & consistent media coverage of woefully poor regulation of lawyers, the Law Society of Scotland has told the Scottish Government’s lawyer dominated review group that the current regulatory framework is “in drastic need of modernisation” and is “no longer fit for purpose”.

One of the key proposals from the Law Society, calls for the creation of yet another ‘independent legal role’ which would have oversight of the Scottish Legal Complaints Commission.

The SLCC was created by the Scotitsh Government in 2008, with this year marking it’s tenth year in the role of single regulator of the legal profession.

However, the single regulation model has cost the Scots public dear – with the legal regulator burning through £30 million in complaints levies from solicitors – which are recovered from huge hikes in legal fees to clients.

The newly proposed role of Ombudsman – harking back to the vile days of the “Scottish Legal Services Ombudsman” would in practice – have to be filled by a person who is approved by the Law Society of Scotland and other vested legal interests.

The comparison with the former SLSO – which lacked any real powers and frequently backed away from holding the Law Society to account for mistakes, would render the newly proposed Ombudsman position of little real use to consumers, and more of a rubber stamp to lawyers eager to look after their colleagues in the face of complaints investigations.

The Law Society is also calling for the term “lawyer” to be protected in law –  in the same way the title “solicitor” is – where currently, it is a criminal offence for anybody to pretend to be a solicitor.

The move comes in the face of increased competition in business from companies & individuals who can call themselves a “lawyer” but are not qualified to the point of being a solicitor.

However, there are a number of cases were suspended or struck off solicitors have, or currently are still using the term “solicitor” to con unsuspecting members of the public out of tens of thousands of pounds of legal fees – including legal aid – yet the Law Society and SLCC have taken no action against these “solicitors” who still claim to be on the solicitors roll.

A press release from the Law Society of Scotland claims the wide-ranging reforms it has submitted, on behalf of it’s own members, will allow it to keep pace with global developments within the sector and improve consumer protection.

However, over the ten years since the Scottish Legal Complaints Commission came into being, at a cost of around £30 million pounds in complaints levies recouped from hikes in legal fees to clients, the SLCC, Law Society and the Scottish Solicitors Discipline Tribunal have all miserably failed to protect consumers from rogues in the legal profession who are the cause of over 1000 complaints every year to legal regulators.

The latest proposals from the Law Society – which in actuality seek to retake control of regulation – set out a series of recommendations in its submission to an independent review of legal services regulation which lawyers claim include expanding consumer protections to currently unregulated areas of legal services, regulating firms operating beyond Scotland and overhauling the legal complaints system, which it says is overly complex, expensive and lacks proper oversight.

The recommendations by the Law Society to the legal review panel whose members were approved by the Law Society, include:

  • expanding consumer protections to currently unregulated areas of legal services
  • better regulation of legal firms as entities in addition to the regulation of individual solicitors to better protect consumers
  • new powers to suspend solicitors suspected of serious wrongdoing
  • widening the Law Society’s membership to improve standards amongst other legal professionals
  • protection of the term ‘lawyer’ to mean those who are legally trained and are regulated

Graham Matthews, President of the Law Society of Scotland, said: “The Scottish legal sector is highly successful. It provides for over 20,000 high quality jobs and generates over £1.2 billion for the Scottish economy annually. However we have long argued for the need for reform to the current patchwork of regulation that governs legal services in Scotland.

“There has been enormous change within the sector in recent years and the current system – some of which is almost 40 years old – is struggling to meet the demands of today’s fast-changing legal market. That’s why we have called for completely new, flexible legislation which will allow much needed reforms and ensure we have a regulatory framework that is fit for purpose, addresses the challenges of modern legal practice – from cross-border working to technological advances enabling AI legal advice – and which puts protecting consumers at its core over the long term.

“We believe the scale of the changes needed justifies a new, single piece of enabling and permissible legislation that can adapt to changes within the sector over the next four decades and beyond. Any new prescriptive legislation, or simply making further amendments to existing legislation will quickly be outdated.”

The Law Society is seeking the ability to regulate law firms operating beyond Scotland and to strengthen its regulation of firms as entities, as well as its individual solicitor members.

Mr Matthews said: “There is a strong economic case for the Law Society being able to seek to become a regulator of legal services beyond Scotland, as having a single regulatory model for cross-border firms could make Scotland a more attractive jurisdiction for a firm to base its operations. Additionally, as firms must meet robust financial compliance and new anti-money laundering requirements are due to come into effect in June, it makes sense to extend the regulatory regime on a firm-wide basis to help improve consumer protection.”

Mr Matthews added that new legislation should encompass the unregulated legal advice sector.

He said: “No one knows the full scale of the unregulated legal sector, but many consumers who believe that they have obtained advice from a qualified, regulated legal professional only find out they have no recourse to redress when things go wrong. As we look to the future, there is no doubt that technological advances will mean increasing use of artificial intelligence in delivering legal services around the globe and it’s our view that any new regulatory framework must be flexible enough to make provision for this.”

In its submission, the Law Society has criticised the current legal complaints system as being complex and confusing and has called for the creation of an independent legal ombuds which would have oversight of the Scottish Legal Complaints Commission (SLCC). Unlike the Law Society and the Faculty of Advocates, the professional bodies for Scottish solicitors and advocates, which are overseen by the SLCC, there is nothing in law to stipulate oversight of the SLCC itself.

Mr Matthews said: “We want to streamline the complaints system, which for many is slow and overly bureaucratic, and have recommended that while the SLCC would continue to handle service complaints and the Law Society would continue to deal with all matters of professional discipline of Scottish solicitors, a key difference would be to allow either organisation to receive complaints and pass on those relevant to the other body to create a simpler, speedier and more cost effective process.

“Another critical improvement would be to introduce proper oversight of the SLCC. While the SLCC must submit its draft budget to the Scottish Parliament each year and ministers can make recommendations, they do not actually have the power to interfere with its budget or operation. This has led to significant, above-inflation hikes in the annual levy on Scottish solicitors for the past two years. Having an independent ombudsman would also simplify the appeals process and make it much less costly than the current process of taking appeals to the Court of Session.”

Summary of recommendations

  • The repeal of the Solicitors (Scotland) Act 1980 and those parts of the Legal Profession and Legal Aid (Scotland) Act 2007 which relate to the regulation of legal services and for the introduction of new enabling and permissible legislation for the regulation of legal services in Scotland and the Scottish solicitor profession, with the flexibility to move with the times and which allows for proactive regulation to ensure consumer protections remain robust.
  • Amending those sections of the Legal Services (Scotland) Act 2010 which relate to the regulation of legal services and the Scottish solicitor profession to address the difficulties in interpretation and application.
  • A new regulatory framework allowing for the flexibility for the Society to seek approval from the Legal Services Board to be an authorised regulator for those multi-national practices operating in Scotland. 
  • That any new regulatory framework makes provision for the regulation of legal services provided remotely by artificial intelligence.
  • Retaining an independent professional body for the regulation and professional support of the Scottish solicitor profession.
  • Retaining a separate and independent discipline tribunal for decisions in serious cases of professional misconduct.
  • That all legal service providers providing services direct to the consumer be regulated, strengthening consumer protections and enhancing consumer confidence in the Scottish legal sector.
  • That the term ‘lawyer’ be a protected term, in the same way as solicitor, and only those able to demonstrate recognised legal qualifications, and who are regulated, are permitted to use the term.
  • That primary legislation provides the permissible powers for the Law Society of Scotland to extend entity regulation to those firms wholly owned by solicitors.
  • That a new system for dealing with complaints about legal services and solicitors is introduced, recognising the paramount aim to protect consumers whilst allowing the Society to continue to deal with the professional discipline of its members, and adopting relevant processes to make the system speedy, effective and efficient whilst recognising the differences between consumer redress and professional discipline.
  • That primary legislation provides for the permissible power for the Law Society of Scotland to open up membership to non-solicitors.

In the Law Society of Scotland’s Public Relations  strategy to retake control of complaints – Leading Legal Excellence, the legal profession sets out their ambition to secure what they call a modern, flexible and enabling legislative framework.

The Law Society Press Release also states: “Most of the legislation covering the operation and regulation of the legal market is over 35 years old. It’s increasingly out of date and unfit for purpose.  Whilst some reforms were brought in 2007 and 2010, the whole framework can be confusing and, in some cases, contradictory.

“That is why we believe new legislation is needed to better protect consumers and allow the Scottish legal services market to thrive.”

REGULATION REVIEW:

An independent review of the regulation of legal services was announced by the Minister of Community Safety and Legal Affairs, Annabelle Ewing on 25 April 2017.

The purpose of the review will be to make independent recommendations to reform and modernise the framework for the regulation of legal services and complaints handling.  The review is intended to ensure a proportionate approach to regulation that supports growth in the legal services sector.  It should also place consumer interests firmly at the heart of any system of regulation, including the competitive provision of legal services.  The review will focus on the current regulatory framework, the complaints and redress process for providers of legal services including solicitors and advocates, and ongoing market issues such as investigating the benefits of regulating firms as well as individual solicitors.

A full report on the Scottish Government’s review of legal services – unmasked as a lawyer dominated pro-self regulation panel – can be found here: 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’

The panel members who make up the so-called ‘independent’ review of legal services include:

*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.

More recently, MSPs who sit on the Scottish Parliament’s Public Petitions Committee were subject to calls to delay their investigation of petitions calling for fully independent regulation of the legal profession in Scotland.

Proposals before the Scottish Parliament calling for views on scrapping self regulation of the legal profession in Scotland received representations from Scottish Ministers , the Chair of a pro-lawyer review panel and a Law Society-backed legal regulator – calling for MSPs to back off from investigating regulation of legal services.

Unsigned letters from the Scottish Government, the Chair of an ‘independent’ review group dominated by lawyers, and the pro-lawyer Scottish Legal Complaints Commission (SLCC) – call on members of the Scottish Parliament’s Public Petitions Committee to wait until the end of a two year review – conducted by lawyers – before MSPs conduct any independent investigation of lawyers investigating themselves.

However, when the Scottish Government created the ‘independent’ review last April, 2017, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the ‘independent’ review created by the Scottish Government, 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.

And, in a case related to significant failures of legal regulation, Alex Neil  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 – John Campbell – who is caught up in a cash payments scandal – which has since led to information provided to journalists on other Advocates & QCs who have demanded & pocketed substantial and apparently undeclared cash sums from clients.

Video footage of the Petitions Committee’s deliberations on proposals submitted by the public to reform regulation of legal services in Scotland, can be viewed here:

Regulation of legal profession reform – Public Petitions Committee 21 September 2017

A full report on recent submissions to the Public Petitions Committee can be found here: LOOKING OUT FOR LAWYERS: Scottish Ministers unite with lawyer dominated review panel & pro-lawyer legal regulator – to urge Holyrood MSPs delay probe on proposals for independent regulation of legal services

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TRIBUNAL INTERESTS: As MSPs consider way forward for Judicial Interests Register, calls grow to include wealthy, well connected Tribunal members as Lord Carloway appoints 28 Tribunal judges

Tribunals – dominated by wealthy, powerful individuals & professional groups. AMID recent moves in a Scottish Parliament investigation considering a way forward for judges to register their interests, an ongoing media probe of individuals and professional groups who dominate tribunals has revealed ties between tribunal judges and solicitors found guilty of professional misconduct.

In one case, an employment tribunal judge who has featured in several controversial tribunal decisions has been found to have links to a lawyer found guilty of  professional misconduct by the Scottish Solicitors Discipline Tribunal (SSDT).

The lawyer, who escaped penalty was found guilty by the SSDT in respect of misleading the Royal Bank of Scotland as to the purpose of obtaining loan funds from the Bank on the basis that they were required to purchase a property in Scotland when the truth was that they were required to purchase a property in an EU country.

The solicitor involved in the deception case , and now linked to the Employment tribunal judge – advertises himself as an “employment law specialist”.

In a further case currently being probed by the media, a second tribunal judge has been found to have links to an Edinburgh law firm accused of embezzling tens of thousands of pounds from client accounts, in a complaint which is currently under investigation by legal regulators.

The two cases of potential conflicts of interest for Tribunal judges, and emerging cases of other conflicts of interest at tribunals come as the Judicial Office announced in January the appointment of twenty eight Tribunal judges – without any declarations of interest or background.

Earlier this month, the Judicial Office announced the appointment of fourteen new Employment Judges to the panel of judges of Employment Tribunals (Scotland).

By virtue of the power conferred upon the Lord President by regulation 8 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Lord Carloway appointed Claire Marie McManus, Muriel Robison and Mark David Whitcombe as salaried Employment Judges.

Ms McManus and Ms Robison were appointed with effect from 1 January 2018, while Mr Whitcombe’s appointment will take effect from 5 March 2018.

The Lord President has also appointed the following 11 persons as Employment Judges on a fee-paid basis, for the five-year period from 15 January 2018 until 15 January 2023: Neil Antony Buzzard, Sally Emma Cowen, David William Hoey, Amanda Crawford Jones, Paul Dominic McMahon, Roderick Murdoch McPherson, Declan John O’Dempsey, Peter George O’Donnell, Melanie Jane Sangster, Michelle Diane Sutherland, Giles Ian Woolfson

A further round of appointments of Pensions Tribunal judges was made earlier today, revealing another fourteen new members have been appointed by Lord Carloway to the Pensions Appeal Tribunal for Scotland.

The Lord President appointed David McNaughtan, advocate; Robert Milligan QC; David Short, solicitor; and Nick Gardiner, advocate, as Legal Members.

Lord Carloway has also appointed the following persons to the tribunal: Service Members: Col. Stuart Campbell, Lt. Col. William Lindsay, Col. Pat Wellington, Ft.-Lt. Lee Bryden

Medical Members: General Medical: Dr. James O’Neill, Dr. Richard Hardie, Dr. Taru Patel

Psychiatric: Dr. Tim Dalkin, Dr. Paul Cavanagh, Dr. Ross Hamilton

The appointments came into effect on 11 January 2018 under the powers conferred upon the Lord President by paragraph 2 of the Schedule to the Pensions Appeal Tribunals Act 1943.

The selection process for both round of appointments followed a closed-doors recruitment exercise calling for applications from suitably qualified individuals who wished to be considered for appointment.

Currently, not one member of any tribunal is required to declare their interests in a published register of interests – despite their position as a judge, deciding on cases before them where they could have a vested interest in the outcome.

a call has been made for all tribunal members to declare and register their interests.

The manner in which tribunals are created and governed in Scotland, is a familiar model of professionals within the same groups and spheres of influence – awarding jobs to colleagues, the favoured, and vested interests.

A no expenses spared approach for tribunal members who tow the line is often the case, enhanced with office accommodation such as the new tribunals centre being created in Glasgow at 3 Atlantic Quay, a high-quality office development close to the River Clyde in the centre of the city.

In October 2017, the Scottish Courts & Tribunals Service (SCTS) confirmed they and Her Majesty’s Courts and Tribunals Service (HMCTS) have decided to rationalise their accommodation and move jointly into the new centre – which is being rented out at nearly £2million a year from the Moorfield Group and partners Resonance Capital.

The moves planned to start next year will also mean that accommodation is ready for the tribunals that are going to be devolved to the SCTS.

Members of tribunals are recruited by the Judicial Appointments Board (JAB) during appointments rounds regularly held to fill vacancies in the murky world of the Scottish Courts and Tribunals Service and Judiciary of Scotland.

Applicants face interviews from their peers across the legal, professional, charitable and public service world & industries awash with public cash, junkets, charity interests, coaching, arbitration & consultancy profits.

Successful candidates are subsequently appointed by Scottish Ministers.

An example of a recent appointments round run by the Judicial Appointments Board saw 30 new Legal Members and 19 Ordinary Members appointed by the Scottish Ministers to the First-tier Tribunal for Scotland and assigned to the Housing and Property Chamber by the President of Scottish Tribunals, Lady Smith.

A full report on the earlier appointments round can be found here: TRIBUNAL REGISTER: Calls for transparency as legal & wealthy, well connected interests dominate Tribunals system membership – Register of Recusals & Interests should be extended to cover all Tribunals in Scotland.

Coverage of recent calls to create a full register of interests for all tribunal members can be found in an earlier report here: TRIBUNAL INTERESTS: Calls for wealthy, well connected interests & professions who dominate tribunals & appeals system to be brought into line with transparency & declarations in published register of interests

The National reported on the issue of creating a register of interests for tribunal members in October 2017:

Call for change to tribunals – Legal campaigner says recusal register myst be extended

Martin Hannan Journalist 14 October 2017 The National

THE man who is leading the transparency campaign for Scotland’s judges to register their interests now says the idea should be extended to everyone who sits on a public tribunal.

Peter Cherbi will shortly pass the five-year mark in his campaign via the Scottish Parliament’s Petitions Committee for there to be a judicial register of interests, similar to those registers already in existence to which all elected politicians and police officers must conform.

The register proposal has been strongly resisted by senior judges and other top lawyers, but is supported by politicians from all parties – the Petitions Committee has taken considerable amounts of evidence and is due to debate the plan again shortly.

Now Cherbi, who is well-known in Scottish legal circles for his blogging and campaigning for reform of the Scots law system, says that tribunal members should also have to declare their interests.

Under the present system of appointments to tribunals it is up to members themselves to declare an interest if, for example, they have personal relationships with those appearing before them, and step aside from a case – known as recusal.

There has been considerable re-organisation of the tribunal system in Scotland since the Tribunals (Scotland) Act 2014 simplified the statutory framework.

The First-tier Tribunal is organised into a series of chambers. From December 1, 2016, the Housing and Property Chamber was established and took on the functions of the former Home Owner and Housing Panel and the Private Rented Housing Panel.

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

The Upper Tribunal hears appeals from the First-tier Tribunals and the head of the whole system is Scotland’s most senior judge, the Lord President, Lord Carloway, with the Rt Hon Lady Smith as president of the Scottish Tribunals.

Others tribunals include the Mental Health Tribunal, the Additional Support Needs Tribunal, the Council Tax Reduction Review Panel and the Lands Tribunal. More tribunals will come with greater devolved powers but employment tribunals are still under the control of the Westminster Government.

Cherbi says all such public tribunals should be open and transparent about their members’ interests and points out that there is no register of recusals for any of the tribunals.

He said: “As should the judiciary now declare their interests in a publicly available register, members of tribunals who are engaged in the business of judging others should declare their full interests and any instances of recusals in a publicly available register.

“The business of judging others – for it surely has become a business over the years – must now be subject to the same public expectation of transparency and accountability as tribunals apply to those appearing before them.

“The public, the media and our democratically elected politicians in our Parliament, as well as those who are judged, have the right to view, be informed about, and inspect those who judge society with unchallenged power in equal light.

“And this is not just about Scottish Tribunals. Take for instance DLA appeals and PIP appeals. The tribunal structure which covers those are riven with huge, wealthy interests, yet there is no register and no ability for those appearing before them to inspect those who sit in judgement upon their claims.

“I looked at a Department of Work and Pensions Tribunal comprising a surgeon, a lawyer and a ‘disabled’ tribunal member – accumulated wealth between the three, their partners and businesses and properties totalled well into the millions, yet claimants, some with no limbs who are struggling to claim an extra £30 a month, get knocked back while tribunal members are paid expenses and remuneration and we know nothing of it.”

A Scottish Government spokesman said: “We consider that a specific register of interests is not needed. Existing safeguards, including the Judicial Oath, the Statement of Principles of Judicial Interests and the system of complaints against the judiciary, are sufficient to ensure the impartiality of the judiciary in Scotland.”

YOUR TRIBUNAL: A publicly funded adversarial environment full of vested interests:

Next year, tribunals will move to an expensive new home in the centre of Glasgow.

The Scottish Courts and Tribunals Service (SCTS) and Her Majesty’s Courts and Tribunals Service (HMCTS) are to rationalise accommodation in Glasgow and the new Tribunals Centre will be located at 3 Atlantic Quay.

The SCTS claim the 34 hearing rooms for cases to be heard, the design of the centre will provide excellent facilities for all tribunal users, and specific  support for young users with additional support needs.  Additionally, the centre will provide facilities for vulnerable witnesses to give evidence to both Glasgow Sheriff Court and the High Court.

During 2018, the SCTS-supported Housing and Property and Health and Education Tribunal Chambers will move into the new Centre. The HMCTS-operated social security tribunal will move at a similar time with other tribunals HMCTS services to follow at a later date.

The SCTS provides support to many of Scotland’s devolved tribunals and is making preparations for the future transfer of the UK reserved tribunals operations in Scotland, currently provided by HMCTS.

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

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

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

 

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REGISTER, THE SIXTH: Holyrood probe on calls for a register of judges’ interests will enter SIXTH YEAR with 23rd Petitions Committee hearing to decide on way forward for publicly available judicial transparency register in Scotland

Holyrood probe on judicial interests enters sixth year. A FIVE YEAR Scottish Parliament investigation of Petition PE1458: Register of Interests for members of Scotland’s judiciary – will now enter an unprecedented SIXTH YEAR – after a private meeting decided to carry forward  proposals for judicial transparency into 2018.

At a meeting of Holyrood’s Public Petitions Committee on Thursday 21 December 2017, the judicial transparency petition was scheduled as the last item – to be debated in private  – as MSPs looked for a way forward on the cross party supported proposals.

However, MSPs did not conclude on a way forward at that meeting, and decided to take forward the petition into next year for further scrutiny and consideration.

The proposal – to create a register of judicial interests for members of Scotland’s judiciary, was originally filed with the Scottish Parliament in 2012.

The  latest move by Holyrood’s Public Petitions Committee to look for a way forward – comes after the petition secured powerful backing of former Cabinet Secretary Alex Neil MSP (SNP).

In an interview with The National newspaper, and a posting on Mr Neil’s Facebook page, Alex Neil said : “It is now time for the Petitions Committee itself to look at using the powers of parliamentary committees to introduce a Bill to set up a judicial register of interests.”

Alex Neil added: ““There is no doubt in my mind at all that it is long overdue. I do not see why judges should be any different from ministers or MSPs, and they should need to declare interests as most people in public service do these days.

“A Bill of this nature is badly needed, and if it can be done on an all-party basis through the Petitions Committee, then the committee’s members should not wait and should act now to sponsor a Bill.

“I am very supportive of the Petitions Committee, which I think is a very good committee, and it is now time for them to seriously consider bringing forward their own Bill on this matter, as I have no doubt that the case for such a register has been thoroughly made out.”

The latest developments – in the 22nd hearing of Petition PE1458 on calls to create a register of judges’ interests – comes after MSPs previously heard over sixty two submissions of evidence, during twenty one Committee hearings, including a private meeting between two MSPs and a top judge, and fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2017.

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

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1450 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary

Video footage of the short hearing prior to MSPs debating the judicial interests register proposals in private, follows:

Register of Judicial Interests PE 1458 Public Petitions Committee 21 December 2017

A brief report from the Public Petitions Committee on the meeting reports the decision as follows:

Consideration of a continued petition (in private): The Committee considered a draft letter on PE1458 by Peter Cherbi on Register of interests for members of Scotland’s judiciary. The Committee agreed to consider a further draft letter at a future meeting.

Journalists involved in the petition expressed their thanks to members of the Public Petitions Committee for keeping the debate open and welcomed the continued public & parliamentary debate on the judicial register – which continues to bring in key intelligence on judicial interests & cases where serious conflicts of interest have been ignored in both criminal and civil cases in Scotland’s courts.

JUDICIAL REGISTER MUST GO FORWARD:

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

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

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

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

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

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

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

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

 

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JUDICIAL REGISTER: Calls to invite Supreme Court President Lady Hale to Holyrood for evidence on judicial interests register – as Judicial Office concede on addition of 500 Justices of the Peace to recusals register & publication of tribunal recusals

MSPs hear calls to invite UKSC President Lady Hale to Holyrood. A FIVE YEAR Scottish Parliament investigation of Petition PE1458: Register of Interests for members of Scotland’s judiciary has received further submissions – calling for MSPs to invite Baroness Hale to give evidence at Holyrood.

Calls for Lady Hale – President of the UK Supreme Court (UKSC) – to be invited to appear before the Scottish Parliament – come on the back of evidence presented to MSPs on the lack of transparency relating to recusals in UK’s top court – which also serves Scotland as the court of last resort.

While courts in Scotland now publish details of judicial recusals – where judges stand down from cases due to a conflict of interest – the UK Supreme Court has refused to take on this extra transparency measure.

Transparency campaigners cite the Supreme Court’s refusal to publish recusals as creating an imbalance in transparency with a court based in London which Scots based litigants & accused persons must still rely on for a right of appeal.

Submissions filed with the Scottish Parliaments Public Petitions Committee also urge MSPs to quiz Lady Hale on the current stance of the UK’s top court on declarations of judicial interests in a publicly available register – a move currently opposed by the Supreme Court according to policy currently posted on the UKSC’s website.

A supplementary submission lodged earlier this week also reveals major concessions from the Judicial Office for Scotland after discussions between the petitioner and the Head of Strategy and Governance at the Judicial Office.

MSPs have been made aware an agreement has been reached where up to five hundred Justices of the Peace are now to be included in the Register of Judicial Recusals – created by ex Lord President Brian Gill in February 2014 – in response to meetings with MSPs on Petition PE1458.

However, the submission asks MSPs to seek answers on why Justices of the Peace – who comprise the bulk of Scotland’s judiciary – were excluded from the recusals register when it was set up in April 2014.

An additional concession from the Judicial Office passed to MSPs also reveals that recusals which take place on the many tribunals under the wing of the Scottish Courts and Tribunals Service (SCTS). will be published at a date yet to be decided.

MSPs have also been asked to consider calling Ian Gordon – the new Judicial Complaints Reviewer (JCR), who took over from Gillian Thompson and hear his views on declarations of judicial interests.

Both previous Judicial Complaints Reviewers – including well known transparency campaigner Moi Ali – fully support the petition calling for the creation of a register of judicial interests in Scotland.

A full report on Moi Ali’s evidence to MSPs and support for proposals calling for the creation of a register of judicial interests is reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Meanwhile it can be revealed written evidence of failures to declare interests at the UK’s top court has been passed to journalists and MSPs for study.

The material, identifies a judge who took part in a case in the Court of Session on multiple occasions who then took a seat on the Supreme Court – and knocked back an appeal from the same case he had ruled on, without declaring any former interest in the case after blocking the route of appeal.

Later today, members of the Scottish Parliaments Public Petitions Committee will consider the request to call Lady Hale and obtain more answers on judicial recusals.

UK SUPREME COURT: MOST POWERFUL, NOW LEAST TRANSPARENT:

The current stance of the UK Supreme Court has previously been used by judges in Scotland to avoid creating a register of judicial interests in response to the cross party supported petition still under investigation at the Scottish Parliament.

UK Supreme Court on declarations of judicial interests statement:

Background: Prior to the creation of the Supreme Court of the United Kingdom, the highest court in the UK was the Appellate Committee of the House of Lords. The members of the Committee were Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876. Although those appointments gave them full voting and other rights in the House of Lords, the Law Lords had for some years voluntarily excluded themselves from participating in the legislative work of the House. Notwithstanding that, they were bound by the rules of the House and provided entries for the House of Lords Register of Interests.


On the creation of the Supreme Court the Lords of Appeal in Ordinary became Justices of the Supreme Court. They retain their titles as Peers of the Realm, but are excluded by statute from sitting or voting in the House, for so long as they remain in office as Justices of the Supreme Court. As such, they are treated as Peers on leave of absence; and do not have entries in the House of Lords Register of Interests. Historical information remains accessible via the House of Lords website.

Other judges in the UK, such as the judges of the Court of Appeal and the High Court in England and Wales, and in Northern Ireland, and the Court of Session in Scotland, do not have a Register of Interests. Instead they are under a duty to declare any interest where a case comes before them where this is or might be thought to be the case.

Current position:  Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound, and which is now publicly available on the UKSC website.

In addition all the Justices have taken the Judicial Oath – and they all took it again on 1 October 2009 – which obliges them to “do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill will”; and, as is already the practice with all other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves from sitting in that case – whether a substantive hearing, or an application for permission to appeal.

The latest submissions filed with the Scottish Parliament’s Public Petitions Committee in relation to Petition PE1458: Register of Interests for members of Scotland’s judiciary are reprinted below:

PE1458/IIII: Petitioner submission of 4 September 2017

I would like to draw to the attention of members the appointment of Baroness Hale as President of the UK Supreme Court, which also serves as the most senior court in the UK for appeals from Scotland.

Noting Baroness Hale’s recent comments in relation to the appointment of judges (Let ministers pick judges, says Supreme Court chief Baroness Hale, The Times, 23 August 2017) and other matters, I request Baroness Hale be invited to give evidence before the Petitions Committee.

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

Members may also wish to raise questions to Baroness Hale on the disparity of judicial transparency between Scotland and UKSC on judicial recusals, where as members are aware, the Judiciary of Scotland now list details of recusals, compared to the UKSC in London – where this information has not yet been made available to all UK users of the Supreme Court.

The position of the UKSC on the current lack of a register of judicial interests has entered Committee discussions on numerous occasions, and in evidence. Lady Hale’s appointment as President would be a significant opportunity for this Committee to hear from the top UKSC judge on a court which also serves the interests of Scotland.

Lord Carloway evidence to Petitions Committee 29 June 2017: In response to evidence given by Lord Carloway to members I note Lord Carloway claims the creation of a register of interests would deter recruitment of candidates to become judges.

In no other walk of life including politics – does the existence of a register of interests deter recruitment of individuals to a profession or industry. A register of interests is designed to promote accountability and transparency. If someone were to be deterred from a job due to the existence of a register of interests there would quite properly be questions on why transparency would hinder someone from applying for a position of such authority, power – and – responsibility to serve the community.

Lord Carloway stated the critical distinction for judges in this case is that the judiciary require to be independent of any form of government – a point no one or this petition is questioning.

However, and to quote Scotland’s first JCR Moi Ali in a letter to the Petitions Committee of 23 April 2014 “The position of the judiciary is incredibly powerful. They have the power to take away people’s assets, to separate families, to lock people away for years. Some of these people will not have committed a crime.”

To add to Ms Ali’s comments, members will be aware a decision by the judiciary can effectively revoke an item of legislation created by the Scottish Parliament, or the House of Commons if a legal challenge in court to a law is successful. Examples of such cases – including HMA V Cadder – have occurred over recent years, requiring emergency legislation to address issues of successful judicial challenges.

One branch of the Executive which can overturn legislation from another branch, or our elected Parliaments, clearly requires the same implementation of transparency as the other.

In light of the judiciary’s position as the most powerful branch of the Executive – and their considerable effect on public life, policy and legislation, an equivalent, or even greater level of transparency is required to be applied to the judiciary by way of creating a register of judicial interests.

In his evidence, Lord Carloway goes on to claim a register of judicial interests should only be created if the judiciary detect corruption within it’s own ranks.

This is not a credible position in terms of public expectation of transparency in 2017.

Registers of interest exist to ensure transparency and accountability in public life and there is now clearly a requirement for members of the judiciary to declare their interests as practiced by all others in public life.

In conclusion of Lord Carloway’s evidence, I note the Lord President was unable to provide a single legitimate example of harm caused to the judiciary by the creation of a register of interests, nor one single reason why the judiciary should be exempt from the same levels of public transparency which rightly apply to everyone else.

There is cross party backing for the creation of a register of judicial interests, as has already been demonstrated at Holyrood during the motion debate of October 2014, and widespread support in the media and public, and from both Judicial Complaints Reviewers for judges to be required to declare their interests.

Creating a register of interests for members of Scotland’s judiciary is the right thing to do.

Members will also be aware of the appointment of a new Judicial Complaints Reviewer – Mr Ian Gordon, formerly the Convener of the Standards Commission for Scotland.

Mr Gordon’s appointment, along with concerns from the outgoing JCR Gillian Thompson, and calls for a review of the role and powers of the JCR – were reported in the Sunday Herald (Calls for more funding as new judicial watchdog appointed, Sunday Herald, 15 August 2017).

As Mr Gordon is well versed in standards, and public expectation of transparency, I ask the Committee call Mr Gordon to give evidence on his experience in relation to standards in public life, and any thoughts he may have as the new Judicial Complaints Reviewer – with regards to the creation of a register of judicial interests.

Members may also wish to note the retiring JCR – Gillian Thompson who gave evidence to the Committee in July 2015 has published information in her 2014/15 annual report in relation to her continued support for this petition, which available on the JCR’s website here: Judicial Complaints Reviewer Annual Report 2014-2015

All annual reports from the Judicial Complaints Reviewer including those from Moi Ali, are available here: Judicial Complaints Reviewer – Annual Reports

In light of the progress on this petition, public interest, and public debate, I would like to encourage this Committee to begin discussions with other Committees to determine which is the best way to advance this petition forward.

There is now five years of work, from MSPs, Public Petitions Committee members past & present, PPC clerks, two Judicial Complaints Reviewers, Parliamentarians from other iurisdictions, legal academics, submissions from members of the public, wide support in the media and across the spectrum of politics & public for the implementation of a register of judicial interests.

This team effort should rightly culminate in what will be a significant gain for the justice system, judiciary and courts – in terms of transparency and accountability, and a gain for this Parliament in creating the legislation to bring about such judicial transparency, and increase public confidence in our courts.

Finally, as Lord Carloway raised the subject of problems in judicial recruitment if a register is created, I urge the Committee write to the Sheriff’s Association, the Scottish Justices Association, the Law Society of Scotland and the Faculty of Advocates on this particular subject, seeking their views in writing, so these issues can become a matter of public record in this debate.

PE1458/JJJ: Submission from the Petitioner, 29 November 2017

A further development of interest to members with regards to the Register of Judicial Recusals – created by former Lord President Lord Brian Gill as a result of this petition in April 2014.

During the creation of the Register of Judicial Recusals in 2014, some 400 plus members of the judiciary – Justices of the Peace – were excluded from the register for no apparent reason.

Recent communications with the Judicial Office and further media interest in the petition[has prompted the Judicial Office to finally include Justices of the Peace in the Register of Judicial Recusals – with a start date of January 2018.

This follows an earlier development after Lord Carloway gave his evidence to the Committee, where the Judicial Office agreed to publish a wider range of details regarding judicial recusals, A copy of the revised recusal form for members of the Judiciary has been provided by the Judicial Office and is submitted for members interest.

Additional enquiries with the Judicial Office and further media interest on the issue of Tribunals which come under the Scottish Courts & Tribunals Service (SCTS) and Judicial Office jurisdiction has produced a further result in the Judicial Office agreeing to publish a register of Tribunal recusals.

I urge members to seek clarification from the Judicial Office and Lord President on why Justices of the Peace, who now comprise around 500 members of the judiciary in Scotland, were excluded from the recusals register until now – as their omission from the recusals register has left a distorted picture of judicial recusals in Scotland.

Since my earlier submission of 4 September, the Scottish Courts & Tribunals Service has published their Annual Report, which contains a Register of Interests for SCTS Board members, including several members of the judiciary, available here: Scottish Courts & Tribunals Service Annual Report 2016-2017

While the register exists for a handful of judges who sit on the SCTS Board – including Lord Carloway, and does include further detail on some financial holdings of the judiciary, as provided by the Judicial Office SCTS Board shareholdings register – there is clearly a format by which this same register, with enhanced requirements of disclosure as appear in other jurisdictions, could be applied to all members of Scotland’s judiciary.

Finally, I wish to draw attention to members of the status of the Norwegian Register of Judicial Interests, which is a very comprehensive register, and could well be used as a template for a similar register of judicial interests in Scotland.

The Norwegian register of judicial interests is available here: Norway – Register of Judicial Interests. I urge members to contact Norway’s judiciary to seek comments on their register of judicial interests, and if necessary invite evidence on Norway’s implementation of such a register and how it impacts on judicial transparency.

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

 

 

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CRY WOLFFE: Judicial Office hit with new conflict of interest claims as Court of Session papers reveal £9 million damages claim against Chief Constable & Lord Advocate James Wolffe QC was set to be heard by the Lord Advocate’s wife – Judge Lady Wolffe

Court details reveal judge scheduled to hear case against her own husband. SCOTLAND’S judiciary are facing fresh allegations of conflict of interest after it emerged a multi million pound damages claim against the Lord Advocate and Scotland’s Chief Constable for wrongful arrest and financial damages – was set to be heard by a judge who is the wife of the Lord Advocate.

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

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

Liam Murphy is currently listed as a Crown Office Procurator Fiscal on “Specialist Casework”.

However, Lady Wolffe appears to have been removed from the hearing, with no official comment from the Judicial Office or Scottish Courts and Tribunals Service (SCTS).

Claims have since been made Lady Wolffe was suddenly dropped from the hearing when it ‘emerged at the last minute’ her husband – Lord Advocate James Wolffe – was involved in the case.

A report from a source claims a second Court of Session Judge – Lady Wise QC – was then scheduled to hear the case.

However, the silent replacement of Lady Wolffe with Lady Wise – has now raised serious questions as to why there are no references to any note of recusal made by Lady Wolffe – who clearly had a conflict of interest in the case given one of the core participants in the action is her own husband – the Lord Advocate.

The case then takes another turn after media reports of the hearing on Wednesday 15 November reveal a third judge – Lord Arthurson QC – eventually heard the case, and has since arranged for a four day hearing for legal arguments.

The background to the civil damages claim stems from when David Whitehouse and Paul Clark were appointed to the former Rangers Football Club PLC in 2012 after owner Craig Whyte declared the business insolvent.

The Duff and Phelps administrators faced a failed prosecution bid by the Crown Office in relation to the collapse of the Ibrox oldco, while Mr Whyte was found not guilty of fraudulently acquiring the club during a trial in June.

The charges against David Whitehouse and his colleague Paul Clark were later dropped.

Both PoliceScotland Chief Constable Phil Gormley and Lord Advocate James Wolffe claim police and prosecutors acted in accordance with correct legal procedure.

Yet questions remain on how the Crown Office acted in this case, and many others where prosecutions which ultimately collapse, appear to be based on flimsy or even non-existent or unprovable evidence.

Police arrested and charged Mr Whitehouse and Mr Clark during the investigation into businessman Craig Whyte’s takeover of the club in 2011. Charges were dropped following a court hearing before judge Lord Bannatyne in June 2016.

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

Mr Whitehouse also claimed that police obtained evidence without following proper legal procedure. An indictment against Mr Whitehouse was issued without any “evidential basis”, his lawyers said.

It is also claimed the actions of police and prosecutors are said to have damaged Mr Whitehouse’ reputation of being a first-class financial professional and led to a £1.75m loss in earnings.

A legal document states: “He lost income, in particular his entitlement to bonus payments and future earnings. His reputation was severely damaged.”

At the hearing on Wednesday 15 November  – originally scheduled to be heard by Lady Wolffe –  lawyers acting for Mr Whitehouse appeared during a short procedural hearing where it also emerged Mr Whitehouse’s colleague Mr Clark is also suing the chief constable and Lord Advocate.

At the hearing, Court of Session outer house Judge Lord Arthurson arranged for a four-day hearing into the legal issues surrounding the case to take place at a later date.

Given the similarities of the two claims, lawyers are now examining whether the two actions should be rolled into a single case.

The case has emerged from the circumstances surrounding Mr Whyte’s takeover of Rangers in 2011. Mr Whitehouse and Mr Clark worked for Duff & Phelps and were appointed as administrators of the club in February 2012. Four months later, the company’s business and assets were sold to a consortium led by Charles Green for £5.5m.

Mr Whitehouse believes that his human rights were breached as a consequence of the actions of the police and prosecutors.

The chief constable and the Lord Advocate claim that police and prosecutors acted in accordance with correct legal procedure.

Lawyers acting for the top cop & Lord Advocate claim that Mr Whitehouse’s human rights were not breached and that he did not suffer any loss or injury as a consequence of the actions taken by the police and prosecutors.

Lawyers acting for the Chief Constable & Lord Advocate also claim should be dismissed because the Lord Advocate is exempt from civil action from people who were the subject of a legal investigation.

However, the use of the Lord Advocate’s immunity from civil action – in times where the Crown Office have often been found to have got things wrong in court, or have acted improperly during investigations and the application of criminal charges, should now come under increased external scrutiny and ultimately be withdrawn from legislation.

The Judicial Office, and the Scottish Courts and Tribunals Service have both refused to issue any further comment or statement on this case, despite the Judicial Office informing journalists a statement would be issued, over two weeks ago.

However, questions remain as to why no recusal has been posted by the Judicial Office with regards to Lady Wolffe stepping aside from the case.

Clearly, had a register of judicial interests existed in a form currently being studied by MSPs of the Scottish Parliament’s Public Petitions Committee, incidences such as these could be avoided.

Lady Wolffe Biography:

The Hon Lady Wolffe was appointed a Judge of the Supreme Courts in March 2014.

Lady Wolffe qualified as a solicitor in 1992 and worked at the Bank of Scotland legal department from 1992 to 1993. She called to the bar in 1994 and until 2008 practised as a junior counsel, mainly in commercial and public law. From 1996 until 2008 she was also standing junior counsel to the Department of Trade and Industry and its successor departments. Since 2007 she has been an ad hoc advocate depute. She was appointed QC in 2008. As senior counsel she has practised mainly in commercial and public law. She was a member of the Disciplinary Tribunal of the Faculty of Advocates 2005-2008 and has been a member of the Police Appeals Tribunal since 2013. Mrs Wolffe emigrated to the United Kingdom in 1987.

Crown Office Specialist Casework Function:

The Crown Office Specialist Casework Function – currently led by Deputy Crown Agent: Lindsey Miller – comprises a number of specialist units involved in the delivery of case preparation and the provision of  other legal services in support of COPFS core functions where the nature, size and/or complexity of the case or subject matter means that it is most effectively dealt with within Specialist Casework. This Function is managed nationally by Liam Murphy, Procurator Fiscal Specialist Casework, but delivered from various locations throughout Scotland.

The Specialist Casework units are:

  • Appeals
  • Criminal Allegations against the Police
  • Health and Safety Crime (including the Helicopter Incident Investigation Team)
  • International Co-operation Unit
  • Proceeds of Crime Unit
  • Scottish Fatalities Investigation Unit   (including Road Traffic Fatalities Unit)
  • Serious and Organised Crime  (including Counter-Terrorism and Economic Crime)
  • Wildlife and Environmental Crime Unit

The Civil Recovery Unit also sits within Specialist Casework.

The Specialist Casework and the High Court Functions together are known as Serious Casework.

 

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ALL THE LORD PRESIDENT’S INTERESTS: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary

Scottish Parliament probe judicial interests & register proposal. A FIVE YEAR Scottish Parliament probe into Petition PE1458: Register of Interests for members of Scotland’s judiciary has generated over sixty two submissions of evidence, twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate.

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

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

The petition has also secured the support of Scotland’s Judicial Complaints Reviewers Moi Ali, and Gillian Thompson.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013.

At the hearing, Ms Ali supported the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

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

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

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

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

The timeline of debates at the Scottish Parliament’s Public Petitions Committee on Petition PE1458:

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

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

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament

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

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

 

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

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

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

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

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

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

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

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

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

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

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

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

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

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

Professor Alan Paterson Petitions Committee PE1458 19th Jan 2017

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

PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

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

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

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

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

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

 

 

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END OF CLAIMS: Rogue lawyer who claimed £600K in two years abandons £100K case against Scottish Legal Aid Board – over release of damning report revealing ‘unnecessary, deliberate and excessive’ legal aid claims

Lawyer abandons claim against legal aid board for £100K. AN INVESTIGATION has revealed a rogue lawyer – previously accused of making “unnecessary and excessive” claims for more than £600K Legal Aid in two years – attempted to sue the Scottish Legal Aid Board (SLAB) for £100,000 over release of a report detailing legal aid claims.

The three year court case – registered in the courts by Kilmarnock based solicitor Niels S Lockhart during December 2013 – finally came to an end in 2016 – with legal aid chiefs absolved of any blame for the release of a damning report which raised serious concerns over Lockhart’s multiple claims for legal aid public cash.

The size of the legal aid claims put Lockhart’s one man law firm higher up the scale of legal aid payments than many law firms with multiple partners, and advocates.

Last week, Legal Aid Chiefs finally admitted in a Freedom of Information disclosure to journalists“the case A665/13 Niels Lockhart v The Scottish Legal Aid Board was a court action raised by Mr Lockhart at the Court of Session in which he sought payment of damages of £100,000 from SLAB. The court action has since been concluded.”

The response to the journalist continued: “You will recall that in early 2010 you submitted an FOI request to us, and that on 16 March 2010 we responded to your request by forwarding to you a report in relation to Mr Lockhart. This release of information to you was alleged by Mr Lockhart to be a breach of confidentiality by SLAB. SLAB defended the action.”

SLAB was represented in the action by in-house solicitors, and instructed counsel, John MacGregor, advocate.

The costs incurred by SLAB were: Counsels fees £2,100.00; Court dues £202.00; Printing cost of court documents; £92.07 Total; £2,394.07

The statement in the FOI response issued by SLAB concluded: “The court action was terminated in 2016 by agreement. Decree of absolvitor was granted in favour of SLAB together with an order of expenses in favour of SLAB in the sum of £1,750. No monies were found payable, or paid, to Mr Lockhart by SLAB.”

However, similar enquiries to the Scottish Courts and Tribunals Service (SCTS) – revealed court staff had been ordered to refuse to disclose details relating to Lockhart’s attempt to sue the Scottish Legal Aid Board.

A spokesperson for the SCTS initially said: “I’m told that typically we can’t reveal very much as you were not a party to the action. I’m told that we can say that the case concluded on 28 June 2016 and that it was a Joint minute and the defender was absolved.”

When pressed for further details, the spokesperson added: “I am afraid I cannot say what the case was about or about any amounts of money. I can say that the case was registered on 19/12/13, it was called on 24/1/14,  it did not call in court, it was sisted until early 2016 then concluded on 28 June 2016.”

Kilmarnock based solicitor Niels S Lockhart was subject of a lengthy investigation by the Scottish Legal Aid Board from 2005 to late 2010 over vastly inflated claims for Civil Advice & Assistance Legal Aid.

Legal Aid chiefs then send their report to the Law Society of Scotland, who carried out an investigation into Lockhart and the detailed SLAB report.

However, sources at the Legal Aid Board revealed a string of delays during the Law Society investigation, including a series of ‘complaints reporters’ who were tasked to study the SLAB report and recommend what action if any should be taken against Lockhart.

After several Law Society investigators had either refused to look at Lockhart’s legal aid claims, or finalise a report, a version was sent to the Scottish Legal Aid Board – which legal aid chiefs claimed they could not release because they had no permission from the Law Society of Scotland.

A timeline of events established that on 5 June 2005 the Scottish Legal Aid Board sent a report to the Law Society of Scotland in terms of S32 of the Legal Aid (Scotland) Act 1986 against the sole practitioner firm of Niels S Lockhart, 71 King Street, Kilmarnock. The secret report, obtained under Freedom of Information laws, can be downloaded here: SCOTTISH LEGAL AID BOARD S31 COMPLAINT REPORT TO THE LAW SOCIETY OF SCOTLAND : NIELS S LOCKHART(pdf)

The Legal Aid Board report outlined a number of issues that had been identified during the review of case files & accounts which raised concern about Mr Lockhart’s conduct and which fell to be considered as a breach of either Regulation 31 (3) (a) & (b), relating to his conduct when acting or selected to act for persons to whom legal aid or advice and assistance is made available, and his professional conduct generally. These issues illustrated the repetitious nature of Mr Lockhart’s failure to charge fees “actually, necessarily and reasonable incurred, due regard being bad to economy”

The heads of complaint submitted by the Scottish Legal Aid Board to the Law Society of Scotland were : (1) Excessive attendances, (2) Lack of Progress, (3) Splitting/Repeating Subject Matters, (4) Inappropriate Requests for Increases in Authorised Expenditure, (5) Matters resubmitted under a different guise, (6) Standard Attendance Times, (7) Attendances for Matters Not Related to the Subject Matter of the Case, (8) Unreasonable Charges, (9) Double Charging for Correspondence, (10) Account entries not supported by Client Files, (11) Attempt to Circumvent Statutory Payment Procedure for Property Recovered or Preserved, (12) Continued Failure to act with Due Regard to Economy.

The report by the Scottish Legal Aid Board revealed that, of all firms in Scotland, the sole practitioner firm of NS Lockhart, 71 King Street, Kilmarnock, granted the highest number of advice and assistance applications for “interdict” (392) for the period January-October 2004.The next ranked firm granted 146, while the next ranked Kilmarnock firm granted only 30.

The report stated : “While conducting a selective analysis of Niels S Lockhart’s Advice and Assistance accounts, it was clear from the outset that much of his business comes from “repeat clients” and/or members of the same household/family, whom he has frequently admitted to Advice and Assistance. The analysis revealed persistent patterns of excessive client attendances, the vast majority of which are irrelevant, unnecessary and conducted without due regard to economy.”

“It was also clear that Niels S Lockhart makes grants for a number of interlinked matters, where there is clearly a “cross-over” of advice. Consecutive grants are also often made as a continuation of the same matter shortly after authorised expenditure has expired on the previous grant.”

“This appears to the Board to be a deliberate scheme by Niels S. Lockhart to make consecutive grants of Advice and Assistance on behalf of the same client for the same matter, for personal gain. By so doing, he has succeeded in obtaining additional funds by utilising new initial levels of authorised expenditure for matters where, had further requests for increases in authorised expenditure under the initial grant been made to the Board, they would with every likelihood have been refused by Board staff.”

“Closer scrutiny of Niels S Lockhart’s accounts and some client files has given rise to a number of other serious concerns, e.g. numerous meetings, standard of file notes, encouraging clients to advance matters while demonstrating a lack of progress.”

“After a meeting between SLAB officials & Mr Lockhart on 14 April 2005, Mr Lockhart was advised that SLAB’s Executive Team had approved of his firm’s accounts being removed from the guarantee of 30-day turnaround for payment of accounts, and that henceforth, to allow the Board the opportunity to satisfy itself that all fees and outlays had been properly incurred and charged by the firm, he would be required to submit additional supporting documentation and information with his accounts (including client files).”

The report continued : “Over the next few months, Mr Lockhart telephoned Accounts staff many times, often on a daily basis, repeatedly asking questions about the type of charge they considered acceptable or unacceptable in a variety of situations. Staff reported that, despite their having given Mr Lockhart the same answers time and again (both via correspondence and over the telephone),he continued to submit accounts with unacceptable charges. In a final effort to counter these continuing problems and to emphasis the Board’s stance in relation to the various issues of concern, our Accounts Department sent him a letter on 23 December 2005.”

“Mr Lockhart did not provide a written response to this correspondence. He did however contact Mr McCann of the Legal Defence Union, who wrote to the Board seeking a meeting with Board officials to try to resolve the payments issue. Our view however was that this would not advance matters as Mr Lockhart had been given a clear steer both after the April 2005 meeting and in the December when Accounts wrote to him on a number of matters.”

However, a key error was made by the Legal Aid Board, who stunningly failed to interview any of Mr Lockhart’s clients despite SLAB’s claims of excessive legal aid claims.

The SLAB report revealed : “Board staff have not interviewed any of Mr Lockhart’s clients as we have no reason to believe that, for example, the multitude of meetings that he held with them—sometimes more than twice daily—did not take place; our concern is that they DID take place and he has sought to claim payment for these multitudinous meetings,very few of which could be described as necessary and reasonable. We believe that such work had no regard to the principle of economy: our contention is that it is highly unlikely that any private paying client would be willing to meet the cost of the service provided by Mr Lockhart. That aside, there are cases set out in the report where it is difficult to see what advice or assistance has actually been provided. Our Accounts staff are continuing to assess a number of his accounts and examining the corresponding client files which indicate repetition of the issues that gave rise to our initial concerns.”

The report’s findings concluded : “From April 2002—March 2005, Niels S Lockhart was paid £672,585 from the Legal Aid Fund. Of this, £596,734 (89%) was in relation to Advice and Assistance cases, with £570,528 (85%) solely in relation to Civil Advice and Assistance.”

“In the Board’s view, the ranges of actions taken by Niels S. Lockhart towards achieving those payments are not those appropriate to a competent and reputable solicitor.”

“Based on the supporting evidence he arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings. In the main, these do not appear to have advantages for their further welfare or advance their case, but merely act as a mechanism for the firm to exploit the Legal Aid Fund by charging for these unnecessary and unproductive meetings.”

“The nature of subject matters is often repeated, resulting in numerous duplicate/multiple/consecutive grants submitted under various guises, thus avoiding the Board’s computerised checks on subject matter. This pattern of conduct is deliberate,recurring and persistent, serving—in the Board’s view—as a device to generate considerable additional income for the firm to the detriment of the Scottish Legal Aid Fund.”

Further documents released by the Scottish Legal Aid Board during 2015 – Extra Payments to Niels Lockhart – in response to a Freedom of Information request revealed Niels S Lockhart was paid a further £34,711 (excl VAT) of taxpayer funded legal aid by the Legal Aid Board – even though by that time he was already barred from claiming for any further legal aid work.

Historical payment accounts published by the Scottish Legal Aid Board also reveal Lockhart received a whopping £1.2million (£1,213,700) of public cash since the Legal Aid Board began publishing the names of firms and the size of payments from 2003 onwards.

From 2003 to 2013, Neils Lockhart claimed the following amounts of publicly funded legal aid: £280,200 in 2003-2004, £321,400 in 2004-2005, £95,400 in 2005-2006, £160,800 in 2006-2007, £133,300 in 2007-2008, £82,000 in 2008-2009, £65,800 in 2009-2010, £67,400 in 2010-2011, £7,200 in 2011-2012, £200 in 2012-2013

The Sunday Mail newspaper reported on the details of the now revealed court case:

Lawyer who made ‘eye-watering legal aid claims’ sued for £100,000 in compensation from taxpayer

Niels Lockhart said the Scottish Legal Aid Board (SLAB) had hurt his reputation amid the release of a damning report.

By Russell Findlay 26 November 2017 Sunday Mail

A rogue lawyer demanded £100,000 of taxpayers’ cash after legal aid chiefs revealed his history of inflated claims.

Niels Lockhart, 66, said the Scottish Legal Aid Board (SLAB) damaged his reputation by releasing a damning report which laid bare “unnecessary and excessive” payments.

He accused them of breaching his confidentiality and sued them for £100,000 – but has now dropped the claim.

The Sunday Mail obtained the report in 2011. We told how Lockhart claimed more than £600,000 of legal aid in two years and was accused of deliberately ramping up expenses.

The SLAB report stated: “He arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings.”

They said the meetings merely acted as a mechanism for the firm to exploit the legal aid fund.

Legal reform campaigner Peter Cherbi, who unearthed the SLAB report through freedom of information laws, said: “Lockhart’s history of eye-watering legal aid claims was rightly subjected to public scrutiny yet he seems to see himself as the victim.”

SLAB said: “We were right to make public our complaint report to the Law Society of Scotland which set out our concerns about Mr Lockhart’s legal aid work.

“We successfully defended that decision in the court action raised against us by Mr Lockhart in which he sought payment of damages of £100,000 from SLAB. Mr Lockhart agreed to withdraw his action and pay us expenses of £1750.”

Lockhart said the decision to sue was taken after advice given by counsel who took the case on a no-win, no-fee basis.

He added: “The sum sued for was later altered to £30,000. There was thereafter a change in legal team who were not so optimistic.”

Lockhart claimed none of the SLAB allegations were proved to be correct and that they previously said no public funds had been compromised.

The original Sunday Mail report on Niels Lockhart in 2011 – reporting on the damning investigation of Lockhart’s legal aid claims

Solicitor made “unnecessary and excessive” claims for legal aid and raked in over £600,000 of public money

EXCLUSIVE: Mar 27 2011 Russell Findlay, Sunday Mail

This lawyer pocketed £600,000 Legal Aid in two years. His claims were ‘excessive, unnecessary, inappropriate, deliberate and persistent’ but it’s all OK because watchdogs say it was never.. CRIMINAL

LEGAL AID watchdogs have accused a solicitor who took £600,000 of taxpayers’ money in two years of deliberately ramping up his claims.

Niels Lockhart, 60, who runs a one-man firm in Kilmarnock, raked in £280,200 in 2004 then £321,400 the following year.

After he ignored a warning to curb his claims, the Scottish Legal Aid Board investigated before a probe team concluded that his applications were a systematic attempt to create extra fees.

But despite deciding that he routinely made “unnecessary and excessive” claims, SLAB did not call in police. They referred Lockhart to the Law Society who also decided no fraud had taken place.

The secret SLAB dossier, obtained through freedom of information laws, said: “Lockhart routinely makes consecutive grants of advice and assistance to the same clients for what appear to be similar matters submitted under a different guise.

In the board’s view, the ranges of actions taken by Lockhart towards achieving those payments are not those appropriate to a competent and reputable solicitor.

“He arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings.

“In the main, these do not appear to have advantages for their further welfare or advance their case but merely act as a mechanism for the firm to exploit the Legal Aid fund by charging for these unnecessary and unproductive meetings.”

The audit discovered Lockhart’s firm was granted 392 “advice and assistance” applications for clients considering civil legal actions over 10 months in 2004 – more than double the number granted to the firm making the second highest number of similar applications.

The report stated: “The analysis revealed persistent patterns of excessive client attendances, the vast majority of which are irrelevant, unnecessary and conducted without due regard to economy.

“This appears to the board to be a deliberate scheme by Lockhart to make consecutive grants of advice and assistance on behalf of the same client for the same matter for personal gain.”

Slab officials warned Lockhart about his claims in April 2005 but he “continued to show contempt for the board’s serious concerns regarding his practices that were discussed at that meeting”.

That prompted SLAB to send their damning 13-page report to legal regulator the Law Society of Scotland in June 2006. Yet the Law Society did not report SLAB’s concerns to police or refer him to the Scottish Solicitors’ Discipline Tribunal. It took them another four years to even agree Lockhart should be banned from legal aid.

Last October, Lockhart’s lawyer James McCann struck a deal with SLAB which allowed Lockhart to agree to quit legal aid voluntarily. He continues to do other legal work.

A slab spokesman said: “The matter was not one of fraud and, therefore, not a criminal matter. A Law Society spokeswoman said: “Our powers in this situation relate to considering the solicitor’s conduct. It is not for the society to determine whether there has been fraud.”

Married dad-of-two Lockhart, from Ayr, said: “There was no suggestion of any dishonesty. I voluntarily removed myself. I was going to withdraw anyway. Where did you get this report?”

Diary of Injustice continued to report on allegations surrounding Mr Lockhart and the Law Society of Scotland’s efforts to avoid a prosecution. All previous reports can be viewed HERE.

If you suspect a solicitor is committing legal aid fraud, or if you feel your own solicitor is making fraudulent legal aid claims, email Diary of Injustice at scottishlawreporters@gmail.com

 

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