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EDINBURGH LAW: Law firms who targeted residents over property repairs scandal among list of lawyers paid £15m public cash by Edinburgh Council in 3 years – as Council fights disclosure of extra payments to ex Lord Advocate Elish Angiolini

Edinburgh Council paid lawyers over £15m in 3 years. THE CITY of Edinburgh Council has been forced to reveal a list of law firms and advocates involved in a staggering Council public cash spend of £15 million on lawyers – in only three years.

However, the Council only revealed the list – after initially refusing a request to disclose the identities of lawyers receiving millions in public cash for work which in some cases  insiders allege is being used to keep law firms afloat in ‘difficult times’.

Among the list now disclosed via Freedom of Information legislation are law firms used by Edinburgh Council – who allegedly harassed & intimidated city residents for recovery of fees for dodgy construction work carried out on orders of the Council while staff from the Property Conservation Department took bribes from contractors & construction firms.

Edinburgh City Council was flooded with nearly 1,000 complaints about statutory repairs worth £30bn – yet despite a report saying lessons had been learned, law firms have continued to target residents over dodgy work orders.

The scandal prompted a Police Scotland fraud probe amid claims of bribery and billing for work not done. It was also discovered gifts & hospitality for staff in departments of the council was widespread.

However, Edinburgh Council has bitterly fought any moves to release exact figures for payments to individual law firms, and is now fighting a further Freedom of Information probe on legal fees and other expenses paid to a former Lord Advocate – Elish Angiolini – who was accused of undermining the judiciary by former Lord President Lord Hamilton.

The figures for Edinburgh Council’s spend on lawyers from 2014 to 2017, obtained via Freedom of Information legislation – reveal the Councils’ staggering £5 million a year spend on in-house, external lawyers and Advocates.

From January 2014 to  31 May 2017, the figure revealed by Edinburgh Council  details some £15,265,175 spent on lawyers.

During the five months from 1 January to 31 May 2014, Edinburgh Council spending on lawyers alone was £1,016,252

The totals for each year since reveal: 2014-2015: £4,812,170, from 2015-2016: £4,104,736, from 2016-2017: £4,649,121 and in only two months from 1.4.17 to 31.5.17 a further £682,896.

In the same period Edinburgh Council also paid the sum of £229,107 to the Scottish Courts and Tribunals Service (SCTS).

Initially, Edinburgh Council attempted to argue that the commercial interests of the Council, the solicitors, advocates and QC listed in the disclosure would be harmed by the disclosure of the withheld information.

However the identities of law firms involved in the payments, but not the exact payments to the actual law firms themselves were eventually disclosed.

The full list of law firms on the payroll of Edinburgh Council includes law firms which have also been subject to PoliceScotland investigations, firms subject to multiple complaints by clients accusing partners of fraud and dishonesty, and a law firm where a stolen £38m Leonardo da vinci painting was ‘found’ in a safe during a Police raid:

Law Firms and Solicitors:

Adams Whyte Solicitors, Aikman Russell Dunlop WS, Aitkens The Family Law Solicitors, Allan McDougall & Co SSC, Allingham & Co (Solicitors) Ltd , Anderson Strathern LLP, Arbuthnott McClanachan, Ashurst LLP, Balfour & Manson, BCKM Solicitors, Berwin Leighton Paisner LLP, Beveridge & Kellas SSC, Brechin Tindal Oatts, Brodies LLP, Burness Paull LLP, Campbell Smith WS, Clan Childlaw, Clyde & Co (Scotland) LLP, CMS Cameron McKenna LLP, Community Law Advice Network, Crown Office & Procurator Fiscal Service LINETS, Digby Brown Solicitors, Drummond Miller LLP, Duncan and Wallace SSC, Dundas & Wilson CS LLP, Edinburgh Law Seminars Limited, Edinburgh Law Solicitors and Notaries, Ennova Law, Eskhill and Company, F M McConnell SsC, Frances McChlery Consulting, Fraser Shepherd, FT & DC Wallace, Garden Stirling Burnet, Gibson Kerr Law and Property, Harper MacLeod LLP, Hay Cassels, HBJ Gateley Wareing Scotland LLP, Hughes Walker Solicitors, Iain Smith & Partners, Innes & Mackay Limited, J K Cameron, Jones Whyte, K W Law, Ledingham Chalmers LLP, Legal Services Agency Ltd, Lindsays W S Solicitor,s MacLay Murray & Spens Solicitors, LLP MacRoberts LLP, McCartney Stewart Limited, McKenzies Solicitors, McMillan Williams Solicitors, McNeill & Cadzow, Millar & Bryce Ltd, Morisons Solicitors, Morton Fraser Solicitors, Odonnells Solicitors Limited, Pinsent Masons LLP, Quinn Garland Associates Ltd, R.A Low & Company, RSC Solicitors, Scottish Child Law Centre, Scottish Public Services Ombudsman, Scutt Beaumont Solicitors Ltd, Sheehan Kelsey Oswald, Shepherd & Wedderburn LLP, Simpson & Marwick WS, Sinclair Court Solicitors, Somerville & Russell , T C Young, Thorley Stephenson SSC, Thorntons WS Solicitors, Tods Murray LLP in Administration, Trinity Chambers, Warners Solicitors LLP, William Hodge Shorthand Writers Ltd, Wilson Terris & Co SSC,

Advocates and QC’s:

Rt Hon Dame Elish Angiolini DBE QC, Ruth Innes, David Jack, Morag Jack.

The Scottish Information Commissioner has now been approached to investigate the case and seek disclosure of the amounts of secret legal fees paid to former Lord Advocate Elish Angiolini – after Edinburgh Council claimed the payments of substantial sums of public cash amounted to ‘personal data’.

A separate approach to the SIC is to be made over exact payments to law firms, given the sheer size of payments of public cash – which some legal insiders contend are an indication of law firms generating work for themselves to keep them afloat.

Do you have an experience with Edinburgh Council and any of the law firms listed in the Freedom of Information disclosure? If so, DOI would like to hear from you by contacting us at scottishlawreporters@gmailcom

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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

Ministers, lawyers & legal regulator seek Holyrood probe delay. A PROPOSAL before the Scottish Parliament calling for views on scrapping self regulation of the legal profession in Scotland – has 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.

A letter from the SLCC states: “The SLCC is certainly confident that the independent review of legal regulation will actively consider the issues we have been raising over the last 18 months, and which the petitions support from a public perspective, and look forward to the final report on these complex issues currently expected in July 2018.”

However, in reality the issues raised by the SLCC in a report titled “Reimagine Regulation” do little for consumer protection, leaving complaints and investigations firmly in the hands of lawyers, as was reported last year, here: ROGUES REIMAGINED: Scottish Legal Complaints Commission calls on Scottish Government to reform “complex and legalistic” solicitors’ self regulation & complaints system

Meanwhile, representations from the Scottish Government, and an unsigned letter from the Chair of a lawyer dominated review panel – are careful not to demand outright, but infer MSPs halt their consideration of calls to scrap the historically biased system of self regulation of lawyers in Scotland.

The latest submissions from the three pro-lawyer groups come in the wake of a call for evidence by the Scottish Parliament’s Petitions Committee on two public petitions seeking to replace self regulation of the legal profession in Scotland with fully independent regulation of legal services – as occurs in England & Wales.

In September, MSPs called for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.

Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.

Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.

Earlier this year, 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.

In another development, Alex Neil recently branded the Scottish Legal Complaints Commission (SLCC)  “a toothless waste of time” – after the legal services regulator failed to act in a high profile case involving a senior QC – 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.

During the debate on the two petitions – on 21 September – members of the Public Petitions Committee agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors’ Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.

It is also open for anyone else to put their views to the Petitions Committee on these petitions, or for constituents to request their MSPs submit material on their constituents behalf.

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

Legal Profession (Regulation) (PE1660 & PE1661)

The Convener: The next two new petitions are PE1660 by Bill Tait and PE1661 by Melanie Collins, both of which raise similar issues in relation to the current system for complaints about legal services in Scotland. Members have a copy of the petitions and the respective SPICe briefings.

PE1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission to make the process of legal complaints more transparent and independent. PE1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, the Legal Ombudsman, the Bar Standards Board and the Solicitors Disciplinary Tribunal, all of which serve consumers and clients of legal service providers in England and Wales.

Do members have any comments or suggestions for action on the petition?

Michelle Ballantyne: First of all, I note that there is a review under way. However, although it was launched in April, it is not due to report until the end of next year, which seems an awfully long time.

I am concerned about a turkeys voting for Christmas arrangement with regard to oversight of this matter. There needs to be some clear water between lawyers and those who review them, and this feels a bit close for comfort. We should check where the review is going and what it is looking at, because if it has been launched, the question is whether we need to be doing something parallel alongside it.

Angus MacDonald: Both petitions are extremely timely. Bill Tait and Melanie Collins have highlighted serious issues with regard to the legal profession and the way in which the SLCC operates in respect of complaints. I agree with Melanie Collins that there is a strong argument in favour of creating a new independent regulator of legal services, and I agree with Bill Tait’s call to make the process of legal complaints more transparent and independent.

In recent years, we have seen a degree of conflict between the SLCC and the Law Society of Scotland over the operation of the complaints system. I am sure that I was not the only MSP to receive representations from the Law Society earlier this year, stating frustration and disappointment at the increase in the SLCC levy to be paid by solicitors. It also stated that the complaints system was slow, complex, cumbersome and expensive. There is no doubt in my mind that this is the right time to look at this issue.

As Michelle Ballantyne has mentioned, the Scottish Government has acknowledged that the current process for people wishing to make complaints about their solicitor is too slow and complex, so I was certainly pleased to see the Scottish Government launch its independent review of the regulation. However, I take on board Michelle Ballantyne’s point about the review not being due to report back until the end of 2018; the period seems quite lengthy, but clearly, we can contact the Government for clarification. Given the similarity of the two petitions, there is a strong argument for joining them together to help move them forward.

The Convener: First of all, does the committee agree to join the petitions together? It seems to me that they deal with the same issues.

Members indicated agreement.

Brian Whittle: Am I correct in thinking that the Law Society called for a change and was rebuffed?

Angus MacDonald: I am not entirely sure—it certainly was not happy.

Rona Mackay: It was about the levy. It was not happy with some of the SLCC’s operation, but, as far as I am aware, it has not formally called for a change.

Brian Whittle: I thought that it was investigating this very point and was rebuffed. I might be wrong.

The Convener: It would be worth getting it clear in our own heads where all of this stands. We can obviously ask for that information.

The suggestion is that we write to the Scottish Government about the review’s timescale and remit, and I think that we should write to the relevant stakeholder bodies to ask about what issues they have. It does not feel that long since the legislation was passed, so it would be a natural time to look at and reflect on whether it has been effective and what the alternatives might be. My sense is that, when the legislation went through Parliament, we wrestled with the options—it did not go through without debate. Perhaps we should look at whether this is a bedding-in issue or an actual structural problem and whether, as the petitioner suggests, the issue needs to be revisited and a different kind of regulatory body put in place.

I think that we have agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland and the Faculty of Advocates. Citizens Advice Scotland was mentioned, as was the Scottish Solicitors Discipline Tribunal. Are there any others?

Angus MacDonald: Would it be worth contacting the Judicial Complaints Reviewer? Although it deals with judicial complaints, as per the title, it would be good to get its view, if it has one. Of course, it is not compelled to reply.

The Convener: Do we agree to deal with both petitions in that way?

Members indicated agreement.

The latest submissions from the Scottish Government, the Chair of the Independent Review of the Regulation of Legal Services and the Scottish Legal Complaints Commission, are reprinted below:

PE1660/E & PE1661/E Scottish Government submission of 6 November 2017

I refer to your letter dated 28 September 2017 seeking the Scottish Government’s views on petition PE1660 by Bill Tait with regards to the operation of the Scottish Legal Complaints Commission, and petition PE1661 by Melanie Collins regarding amending the regulation of the complaints about the legal profession.

The independent review of the regulation of legal services, announced in April 2017, has been set up to look into these matters and that we understand that the chair, Esther Roberton, will be responding to the committee separately.

The chair is due to report to Ministers by the end of July 2018 and will include the review findings around the complaints handling system.

PE1660/D & PE1661/D Chair of the Independent Review of the Regulation of Legal Services submission of 23 October 2017

I refer to your letter dated 28 September 2017 seeking the Scottish Government’s views on the calls from Bill Tait to review the operation of the Scottish Legal Complaints Commission, and from Melanie Collins to reform and amend the regulation of complaints about the legal profession in Scotland.

The 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. I chair the review and my deadline to report to Ministers is by the end of July 2018.

As described in the remit for the review, which is broad, its purpose is to make independent recommendations to reform and modernise the statutory framework for the regulation of legal services and complaints handling. We are committed to ensuring that our recommendations focus on consumers, providers of legal services and the market place for legal services in Scotland. The time is right to appraise the regulatory system, which last saw substantial changes as a consequence of the 2010 Act, and which the current regulators and others agree is ready for review.

The panel, made up of individuals with experience in legal services, consumer interests, regulatory systems, and complaints systems have met five times to date.

Gathering evidence from a full range of stakeholders with an interest in our work is crucial to help inform our findings. This includes professional bodies, regulators, consumer bodies, a wide range of providers of legal services, business organisations and others. Stakeholder events will take place in November-December, with a formal call for evidence launching at the turn of the year.

The review is also considering relevant information such as regulation in other sectors and in legal services regulatory systems from other parts of the world, and has commissioned a specific study into unregulated legal services.

I have copied this letter to the Justice Committee and am happy to provide further updates if either committee wishes those in due course.

PE1660/C & PE1661/C Submission from Scottish Legal Complaints Commission of 31 October 2017

Thank you for your letter of 26 September about the Petitions Committee on 21 September about petitions PE1660 (Bill Tait) and PE1661 (Melanie Collins) relating to regulation and complaints in legal services.

We spoke on 27 October. For some reason, which neither of us could identify, we had not received the original letter, although had been expecting it and indeed had emailed on 10 October to ask if we were to receive such a letter. We’re very grateful, therefore, that you allowed us a short extension to respond.

We agree there is a strong case for reform in some areas, we have actively lobbied for this, and we’re confident the current Independent review of the regulation of legal services will address matters.

In this letter the SLCC sets out our general position on reform first, which significantly pre-dates the petitions, and then addresses some specific issues raised in the petitions.

THE SCOTTISH LEGAL COMPLAINTS COMMISSION

The Scottish Legal Complaints Commission (SLCC) is the independent gateway for all complaints about solicitors, advocates and commercial attorneys. We have experience of handling over 10,000 complaints, and last year alone awarded consumer redress over £324,000. An independent Consumer Panel also helps guide our work.

For a two-page summary of our work, and its impact on consumers see: https://www.scottishlegalcomplaints.org.uk/media/69464/annual review.pdf

OUR PROPOSALS FOR REFORM

The SLCC has actively called for radical change to the regulation of the sector. In July 2016 we published our paper #ReimagineRegulation, which is available on our website: https://www.scottishlegalcomplaints.org.uk/reimagine-regulation.aspx. A detailed set of supporting appendices provide, among other things, a history of the Scottish Parliament’s involvement in these issues since the parliament’s creation.

We hope this is of assistance to the Committee.

The SLCC robustly highlighted key areas for change which we believe could deliver better results for the sector and for the consumer:

1. Unravelling the current complex complaints maze

Up to four statutory bodies can be involved in a single case, causing duplication and delay. We provide a visual representation of the ‘customer journey’ to highlight the current problems.

2. Reducing statutory detail that focuses on processes, not outcomes for people

Complex and inflexible processes have lost sight of the principles of better regulation and distracted from a focus on the outcomes for the public and sector.

3. Ensuring that when redress is awarded the client receives it

In too many cases redress is awarded but failings in the current system mean the complainer does not receive it, undermining confidence in the system.

4. Targeting risk, and not seeing all legal services as the same

For example, conveyancing is a major driver of all regulatory costs across more than one statutory body – how do we either better support, or more proportionately regulate, in that area to reduce this consumer detriment?

5. Embedding the consumer principles

Professional voices in debates in regulation are always informed, strong, and well resourced. We need to understand consumer’s need, and hear their voice, if regulation is to be credible.

6. Learning from complaints and data to improve future outcomes

Modern regulation is about identifying and targeting risk, and creating proportionate and agile structures to tackle issues in fast moving markets. 10 years after our establishment we too often find it is the same basic issues causing problems with consumers, with little done (it being outwith the SLCC’s remit) to tackle the root cause.

SPECIFIC ISSUES RAISED IN THE PETITIONS

A key question is raised about a single regulator, or at least complaints body, and the SLCC believe this merits serious consideration. The cost and confusion caused by four different bodies, for a sector of only 11,000 professionals, is an issue in its own right.

Even if a single body is not eventually possible, debating that model will more sharply focus the discussion on the core purpose and aims of regulation in the sector, and the key mechanism to reduce risk and support a sustainable market, rather than starting discussion from the perspective of the current fragmented roles and responsibilities.

The SLCC also agrees oversight issues need considered. At the moment there is a fractured framework. For example, whilst the SLCC is overseen by an independent Board of Commissioners appointed by government, is subject to Freedom of Information, and comes within the remit of Audit Scotland, not every organisation involved in regulation is currently so transparent, nor under such financial scrutiny. At the moment no bodies, including the SLCC, come under the best practice promoted by the Regulatory Reform (Scotland) Act 2014. As we continue the journey of the modernisation of legal regulation a single approach to oversight, with consistent minimum legislative requirements, would be a positive outcome.

Several statutory levies are payable by lawyers, and the value of the fees, and the balance of spending between regulatory and representative functions, should be considered in the round. None of the bodies currently involved have their budgets approved by parliament. In all governance matters legislation is balancing the need for regulation independent from government with what are appropriate governance structures. As with many issues raised, this may be best looked at in the round, as from the lawyer and consumer perspective it is the total cost of regulation which is key.

The SLCC had already raised concern at the only route of appeal being to the Court of Session. This point was made in our paper last year about reform, and we believe the legislation should be amended to allow a more proportionate mechanism. This is part of reducing the current complaints maze, so there is a single investigation, and single set of decisions, and a single appeal.

The SLCC supports the emphasis placed on independent regulation. We believe expert input into regulation is absolutely essential, and that a regulator must be credible to the profession as well as the public. However, the best model for delivering this has been contentious in previous parliamentary debates. The overwhelming trend in UK terms for regulation has been around an ongoing journey from self-regulation to independent regulation (for example, only today, joint work has been published by the four UK health departments on the evolution of governance in the regulation of health professionals:

https://www.gov.uk/government/consultations/promoting-professionalism-reforming- regulation para 4.18 onwards). These petitions highlight that this is likely to be the expectation of the public.

In all of this public and consumer voices are vital. There is a deeply worrying lack of independent research into consumer needs and detriments in Scotland in the legal sector. The SLCC’s Consumer Panel has been instrumental in flagging this in recent years. However, the government’s own previous review of legal regulation in 2006 had raised this as a concern, and the situation has, if anything, deteriorated further since then (for example with Consumer Focus Scotland no longer in existence and doing work in this field). A top priority should be the creation of a better evidence base from those who use services, alongside the professional voices.

Ignoring those consumer voices has consequences, and this is relevant to one specific issue raised in this petition. In debating the legislation that led to the creation of the SLCC consumer groups valued transparency, and that the SLCC should be able to publish decisions about complaints. However, after extensive lobbying by other interests a decision was made that not only would the outcome of complaints not be published, but that a new criminal offence would be created for any divulgence of information, an offence so wide that it covers even confirming if a complaint has been received. This is out of step with other professions and sectors, and other jurisdictions, where there is more discretion to publish when there is public interest. The SLCC understands the frustration of complainers, but must abide by the current legislative framework. As with most issues covered in the petition, we had raised this ourselves last year in our paper on reform.

LEVY

We noted in the discussion within the committee mention of our consultation on the levy for solicitors last year (the fees all solicitors, advocates and commercial attorneys need to pay each year, set to cover the cost of processing complaints).

Although in past years the SLCC had managed to reduce the levy, a significant increase was proposed last year. This was driven by a number of factors, the two biggest of which were a rise in complaints and a judicial review, and 17 appeals to the Court of Session, launched by the Law Society of Scotland.

The rise in complaints had been steep, with a 12% increase in complaints against solicitors within 12 months. This has now been followed in the subsequent year by a further 2% rise, and current predictions are that complaint numbers are continuing to increase. We recognise paying the cost of complaints is not popular with any sector, and as a member led organisation the Law Society would always challenge costs, but a more positive debate would have focussed on how to tackle the common cause of complaints and reduce harm to the public.

In terms of the number of litigations by the professional body, we were pleased to win the ‘test case’, and to have the court confirm SLCC had been acting in a way consistent with ‘good public administration’. We had publicly warned these litigations would cause cost, delay and worry to complainers and practitioners, and were unnecessary, as proved to be the case. We were disappointed that in their lobbying against the levy the Law Society did not mention its own actions were one of the big drivers of cost.

CONCLUSION

I hope our #ReimagineRegulation paper displays a body which is not only ‘up for’ change, but actively trying to stimulate a debate about how parliament, government, consumers and the profession can work together to create a better system in Scotland.

The SLCC is certainly confident that the independent review of legal regulation will actively consider the issues we have been raising over the last 18 months, and which the petitions support from a public perspective, and look forward to the final report on these complex issues currently expected in July 2018.

Reimagine Regulation – SLCC priorities for a consultation on legal services regulation

Reimagine Regulation – SLCC appendices to our main paper

SLCC Annual Review 2017

LAWYERS REVIEW THEIR OWN REGULATION: Third attempt by SCottish Government at reforming biased system of solicitors self regulation.

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

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

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

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

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

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

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

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

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

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

The review panel have confirmed their participation as follows:

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

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’

 

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LOOK AFTER LAWYERS: Law Society wants to keep 70 year ‘successful’ system of lawyers investigating themselves – in response to Scottish Parliament petitions calling for UK style independent regulation of legal services in Scotland

Law Society says lawyers should investigate themselves. A PROPOSAL before the Scottish Parliament calling for views on scrapping self regulation of the legal profession in Scotland – has heard claims lawyers have successfully investigated themselves for seventy years – and that this ‘arrangement’ should continue.

Members of the Scottish Parliament’s Public Petitions Committee have now received the views of the Law Society of Scotland , and Scottish Solicitors Discipline Tribunal  (SSDT) – who both want to continue the current system where lawyers maintain their own ‘standards’, write their own rules, and investigate complaints against themselves.

The Law Society of Scotland stated in a letter to MSPs – PE1660B and PE1661B: Law Society of Scotland“the dual role of regulation and professional support has been successfully carried out for almost 70 years”

The Law Society goes on to claim “This issue was considered in depth by the Scottish Government ahead of the 2010 Legal Services Act with a clear conclusion that the model of having a single professional body was right for Scotland.”

However, thousands of complaints a year made against solicitors in Scotland by clients who end up considerably worse off financially after bruising encounters with lawyers even on the most common legal services show the profession’s self regulation model as predominantly dishonest.

The Scottish Solicitors Discipline Tribunal – who were exposed in a BBC Scotland documentary for shying away from striking off serially dishonest solicitors – ‘suggested’ in their own letter to MSPs – PE1660 A and PE1661: Scottish Solicitors Discipline Tribunal – that the Scottish Parliament wait until a two year review is complete before considering the petitions.

The Disciplinary Tribunal said in it’s letter to the Committee: “The Tribunal considers that the issues raised in Petitions PE1660 and PE1661 are being considered in the current Review which includes an examination of the legal complaints system in Scotland and an analysis of legal complaint handling in other jurisdictions. Perhaps it would be appropriate to await the recommendations of the current Review before there is detailed consideration of the issues raised in these Petitions”.

However, the Scottish Government review referred to by the Disciplinary Tribunal –  has already come in for stinging criticism due to it’s dominant complement of vested interests from the legal profession who lobby against any change to the current system of regulation where lawyers investigating themselves.

The letters come in response to petitions being considered by the Public Petitions Committee calling for a radical overhaul of the way complaints against the legal profession are handled in-house by the Law Society and ‘independent’ Scottish Legal Complaints Commission (SLCC).

In September, MSPs called for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.

Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.

Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.

The move by Holyrood to look at the issue of self regulation of lawyers – comes after the Scottish Government announced a ‘review’ of legal services regulation in Scotland, back in April 2017.

However, the Scottish Government ‘review’ – will not report back until the end of 2018 and with non binding recommendations – and has come in for significant criticism after it was found there was only one consumer related interest among the legal related membership.

When the review was announced earlier this year, former Cabinet Minister & SNP MSP Alex Neil said the review remit should also include judges.

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

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

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

A full report on the Scottish Government’s review of legal services 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’

During the last debate on the two petitions, members of the Public Petitions  Committee also agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors’ Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.

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

If proposals within the petitions go ahead, this would bring regulation of legal services in Scotland into line with independent regulation as practiced in England & Wales.

The full letter from the Law Society of Scotland to the Public Petitions Committee:

PE1660/B PE1661/B Law Society of Scotland submission of 16 October 2017 REGULATION OF THE SCOTTISH LEGAL PROFESSION

Thank you for your letter of 29 September. We are grateful for this opportunity to feed into the Committee’s consideration of petitions PE1660 and PE1661.

As the professional body for Scottish solicitors, we share the petitioners’ desire to improve the regulation of legal services. The Scottish legal sector has evolved considerably since the introduction of the Solicitors (Scotland) Act 1980, which is the main legislative framework governing the regulation of legal services. We are clear that reform is needed, both to protect clients’ interests and to ensure the legal sector, which contributes so significantly to the Scottish economy, can be competitive and continue to thrive.

We approach these issues with almost 70 years’ experience of delivering robust regulation of the legal profession. As the principal regulator of Scottish solicitors, we take our duty to protect the public interest extremely seriously, a fact demonstrated through the range of activity which we carry out.

First and foremost, we set high professional standards which all solicitors must meet, including a robust route to qualification along with practice rules and guidance which is regularly reviewed. Our highly trained financial compliance team inspect around 370 law firms each year to ensure compliance with our strict accounts rules. In 2015/16 and as a result of these inspections, we raised 17 complaints of our own to the Scottish Legal Complaints Commission (SLCC). Additionally we intervene quickly in firms when things go wrong, ensuring clients know who to contact, where their files are and offering the assurances they need. Even when clients choose to no longer pursue an initial complaint against their solicitor, we will raise our own complaint if it is in the public interest and in order to maintain standards. In total we raise around 30 complaints a year against solicitors to the SLCC.

By setting, maintaining and vigorously enforcing standards, we strive to ensure that consumer interests remain the central focus of our regulatory work and that consumer confidence in the Scottish solicitor sector remains high. A poll of the Scottish public in

2016 indicated that 90% of those surveyed are satisfied with the services provided by their solicitor and 82% would recommend their solicitor to others. That poll also demonstrated high levels of trust in the legal profession as a whole.

The case for change: We recognise that, despite the strong system of regulation in place, further work is needed to improve that system. This is particularly true around the area of complaints handling, where processes need to be simpler and consumer protection stronger. Given the regulatory framework and processes involved are set out within primary legislation, we are afforded little flexibility within the existing system. This is why we proactively approached the Scottish Government in 2015, submitting a detailed paper which set out the case for new legislation to better protect consumers and allow the legal services market to thrive . Our proposals include better regulation of legal firms and individual solicitors to improve standards in addition to a wider regulatory reach over other legal professionals.

This is in response to the dramatic changes we are seeing in the Scottish and UK legal services market. New expectations from clients, new business models, the growth of cross border legal firms and increased technology are all serving to reshape that market. Yet most of the legislation covering the operation and regulation of the legal market is approaching 40 years old and did not anticipate the changes we are seeing today.

Whilst taking forward reform, we also believe it vital to preserve the elements and principles of the current regulatory framework which work well – the independence of the legal profession; a single professional body; independent discipline body. These must be protected.

We were delighted that, in response to our proposals, the Scottish Government established the independent review of the regulation of legal services, now being chaired by Esther Roberton. We believe this offers a real opportunity to develop a consensus on what reforms are required and how they can be effectively delivered.

The complaints system: We note the ultimate aim of both petitions is to urge the Scottish Parliament and Scottish Government to review complaints about providers of legal services in Scotland. We share the petitioners’ concerns and frustration in relation to the complex and unwieldy complaints process that currently exists from the existing legislation.

The introduction of the Legal Profession and Legal Aid (Scotland) Act 2007 created the Scottish Legal Complaints Commission (SLCC) which opened on 1 October 2008. The SLCC is a complaints handling body which operates independently of the Law Society and Scottish Government. It has important oversight powers in relation to the handling of conduct complaints by the legal professional bodies, including the power of audit in addition to other consumer protection matters. Under the provisions of the 2007 Act, the Law Society retains the responsibility for managing and investigating complaints relating to the conduct of Scottish solicitors.

We regularly engage with the SLCC and enjoy a close working relationship of mutual respect and recognition. We discuss shared matters of concern and ideas for improving the complaints process to the benefit of complainants and the legal profession. We are frequently in discussions with the SLCC and other stakeholders with regard to the various challenges which the 2007 Act raises in relation to legal complaints, in particular the complex processes at the gateway / eligibility stage which result in unacceptable delays.

We believe the whole system for managing legal complaints needs to be changed to make the processes involved easier and quicker for the consumer. We are currently in discussions with the SLCC regarding an interim solution which could be delivered through secondary legislation. This offers the chance to improve the system by speeding up the eligibility stage of the complaints process until such time as more permanent changes can be made.

Given that there is no ability for a complainer to make a complaint on the SLCC’s handling of a service complaint, we strongly believe there should also be independent oversight of the SLCC, particularly as the SLCC perform the oversight functions of the Law Society of Scotland and Faculty of Advocates relating to conduct complaints.

We note that during the Committee’s meeting of 21 September 2017 a number of members referred to the Law Society’s campaign which resulted in many solicitors contacting their local MSPs to express concerns over the increase in the SLCC’s budget for 2017/18. During this campaign, we raised concerns that the SLCC’s budget could not be formally objected to by Ministers or by Parliament. This emphasises the challenge about the lack of effective independent oversight of the SLCC. I enclose a copy of the standard letter which formed the basis for many of the emails sent to MSPs earlier in the year. We would be happy to provide further background information or meet members of the Committee to further clarify the circumstances that led to the campaign and our position.

We have provided some further information on each petition below:

PE1660:  The petitioner argues that the existing appeals route against decisions by the SLCC, via the Court of Session, forms a barrier to those who wish to appeal.

We fully agree with this view. We recognise that the concept of pursuing legal action against a public body via the court can be a difficult and daunting process.

The requirement to obtain the leave of the Court of Session can put the appeal option out of reach for the majority of complainers, even where they may have fully justified grounds for appealing. This compares starkly to the situation regarding conduct complaints dealt with by the Law Society. Here, if a complainer is not happy with the way we have handled a complaint then they have the option of taking a ‘handling complaint’ to the SLCC. Whilst this does not amount to an appeal, the SLCC can recommend the matter be re-opened for further consideration if due process has not been followed or the decision lacks reasoning. Furthermore, a complainer can appeal a decision directly to the separate and independent Scottish Solicitors’ Discipline Tribunal (SSDT).

There is no equivalent process for those complaints dealt with by the SLCC. The only recourse is through seeking leave of the Court of Session. We believe there is a case for reviewing this and hope the work being undertaken by Esther Robertson and her review group will consider this point.

The petitioner also states that the Law Society ‘appears to desire no involvement, nor introduce quality control’ in the SLCC’s handling of complaints’. It is important to stress that the current legislative framework provides us no role of oversight of the SLCC, its processes or its decisions. Even where there may be occasions that we disagree with a service complaint decision of the SLCC, there are no special mechanisms which allow us to challenge or raise this other than the general provision which are available to the general public.

We also note that comment is made in the background notes on the process by which the SLCC lays reports before Parliament for information only. The provisions of the 2007 Act (Schedule 1 paragraph 16) provide that the SLCC must lay their annual report before Parliament at the end of each financial year. This is in addition to the laying before the Scottish Parliament of the SLCC budget by the end of April each year. These are laid for information only and Parliament has no statutory powers to comment on or amend these in any way. As I have already outlined, we do believe that greater oversight is needed of the SLCC and its performance, a fact which came into stark focus during the budget issues earlier this year.

PE1661: Central to this petition is the call for a wholly independent regulator of legal services in Scotland with no ties to the profession.

The Law Society of Scotland’s dual role of regulation and professional support has been successfully carried out for almost 70 years. This issue was considered in depth by the Scottish Government ahead of the 2010 Legal Services Act with a clear conclusion that the model of having a single professional body was right for Scotland.

At the core of any profession is a commitment to provide the best possible service to the consumer while recognising it has a responsibility to act in the public interest in all that it does. The regulation of the profession is the means by which the profession ensures these aspirations are met.

Our dual role is essential in ensuring that Scottish solicitors deliver the highest practical and ethical standards. To ensure we maintain a practical distinction between our two roles, our regulatory function is clearly separated and works independently of our professional support work. That regulatory activity is overseen by the Regulatory Committee in accordance with the provisions of the Legal Services (Scotland) Act 2010. This means it is an independent committee. The Law Society Council is not permitted to unduly interfere with the work of the Regulatory Committee, nor with the work of its sub- committees which are responsible for taking specific regulatory decisions. This is all clearly set out in legislation. To strengthen that independence, the Convener of the Regulatory Committee is chosen by the committee and must be a lay member. Our current convener Carole Ford comes from the teaching profession, bringing both an expertise in standards setting and enforcement but also a clear commitment to the public interest. The committee she chairs has an equal number of solicitor and non-­solicitor members – another element set out in legislation.

The concept of a single professional body, with both regulatory and professional support functions, is a model seen in other sectors in Scotland and also in other legal jurisdictions around the world.

Here in Scotland, we have the Institute of Chartered Accountants of Scotland (ICAS), the Royal Incorporation of Architects in Scotland (RIAS) and the Royal Institution of Chartered Surveyors (RICS). The teaching profession in Scotland recently moved from separate bodies into the single professional body that is the General Teaching Council. There is clear recognition across a number of professions that having a single professional body is the right approach, particularly given the size of Scotland.

Further afield, Law Societies and Bar Associations around the world have dual responsibility for regulation and professional support. These include the Law Society of Ireland, Law Societies in the provinces of Canada and states of Australia as well as bar associations in US states such as California, Florida and Texas. It provides a cost effective, practical, and coordinated professional approach which works in the interests of the consumer.

Nevertheless, we recognise the specific areas of concern which the petitioner highlights. The petitioner’s background information notes how the Law Society of Scotland cannot become involved in the decisions of the independent complaints handling body, the SLCC. If there is concern over the accountability of the existing independent complaints body, we do not agree that the way to correct this is to create a new regulatory body. Rather it would be better to create the kind of effective oversight of the SLCC which I have described earlier, the kind of oversight which the Law Society faces from our own Regulatory Committee, the SLCC, the SSDT and the Courts.

The background notes also assert that over 600 complaints were dismissed as a result of the court ruling in Anderson Strathern vs. SLCC (CSIH 71XA16/15). As a result of the ruling, which affected around 250 complaints already in the system, the Court of Session has now made a further judgment on the way these cases should be dealt with . We are working with the SLCC to implement the judgment which centres on the way the SLCC have categorised complaints.

We have worked constructively and collaboratively with the Parliament and other organisations throughout the passage of the Acts of the Scottish Parliament referred to in the petition background notes. As a professional body which has a statutory duty to protect and further the interests of the public and consumers, we have put forward proposals which demonstrate our commitment to these values.

As I have noted, the Scottish Government appointed an independent group to review the provision and regulation of legal services in Scotland, chaired by Esther Roberton. The Committee may wish to consider contacting the review group regarding opportunities for the public, including the petitioners, to present their views on the complaints process for consideration.

Thank you again for the opportunity to respond to these petitions. If we can provide any further points of clarification or aid the Committee’s consideration of these petitions further, please contact our Legislative Change Executive.

The letter from the Scottish Solicitors Disciplinary Tribunal (SSDT) to the Public Petitions Committee:

PE1660/A PE1661/A  Scottish Solicitors’ Discipline Tribunal submission of 13 October 2017

Introduction: The Public Petitions Committee met on 21 September 2017 to discuss petitions PE1660 and PE1661. In short, these conjoined petitions call on Parliament to urge the Government to review and reform the system of legal complaints in Scotland by comparing it to the system in operation in England and Wales. The Committee determined to seek the views of various stakeholders including the Scottish Solicitors ’ Discipline Tribunal.

Current system: It may assist the Public Petitions Committee to understand the place of the Tribunal in the system of legal complaints. Complaints against solicitors in Scotland are channelled first through the Scottish Legal Complaints Commission (SLCC). The SLCC deals with matters of inadequate professional services itself. It refers conduct matters to the Law Society. The Law Society has powers to deal with unsatisfactory professional conduct itself. The Law Society may appoint a Fiscal to prosecute the most serious cases before the Scottish Solicitors’ Discipline Tribunal as professional misconduct. Individuals cannot make complaints direct to the Tribunal.

The Scottish Solicitors’ Discipline Tribunal: The Tribunal is an independent formal judicial body constituted under statute and subject to the appellate jurisdiction of the Court of Session. The Tribunal deals with complaints of professional misconduct, complaints that a solicitor has been convicted of an offence involving dishonesty or any other more serious criminal offence, appeals stemming from the Law Society’s determinations regarding unsatisfactory professional conduct, and applications for restoration to the roll of solicitors in Scotland. The Tribunal is made up of 12 solicitor and 12 non-solicitor members. At each hearing the Tribunal comprises two solicitor and two non-solicitor members. Hearings are generally held in public.

The sanctions which the Tribunal can impose are censure, fines of up to £10,000, restriction of a solicitor’s practising certificate, suspension, strike off or prohibition on restoration to the roll, and compensation of up to £5,000 for loss, inconvenience or distress if a Secondary Complainer has been directly affected by the misconduct. Every decision of the Tribunal is published in full subject to the terms of paragraph 14A of Schedule 4 to the Solicitors (Scotland) Act 1980. Occasionally publicity is deferred, for example, pending the conclusion of criminal proceedings.

The Tribunal’s mission statement is to ensure so far as possible that all cases brought before the Tribunal are dealt with in accordance with the legislative framework and the principles of natural justice, bearing in mind the importance of protecting the public from harm and maintaining public confidence in the legal profession. The Tribunal endeavours to deal with cases efficiently and expeditiously. The Tribunal has a duty to be independent, impartial and transparent.

The Tribunal is responsible for the most serious cases of misconduct relating to Scottish Solicitors. Consequently, it deals with far fewer cases than either the Law Society or the SLCC. In the year 1 November 2015 to 31 October 2016, the Tribunal met on 45 days to hear Complaints. 32 new Complaints were received during that year. The Tribunal made 22 findings of professional misconduct and one under section 53(1)(b). The Tribunal made four findings of not guilty and two were remitted to the Law Society to consider as unsatisfactory professional conduct.

PE1660 and PE1661: The Tribunal considers that the system of legal complaints in Scotland can be complicated, lengthy and expensive. To a limited extent, the procedure has been simplified following the Court of Session judgements in Anderson Strathern v SLCC [2016] CSIH 71 and Law Society v SLCC [2017] CSIH 36. However, there are still areas for improvement.

The Tribunal is currently participating in the Review of Regulation of Legal Services; its Chairman is a member of the Review. The remit of the Review is to make independent recommendations to reform and modernise the framework for the regulation of legal services and complaints handling. The Tribunal hopes that this would modernise and streamline complaints handling. The Review’s remit is to focus on the current regulatory framework and the complaints process. Its aims therefore directly cover Petition PE1660 which calls for a review of the operation of the SLCC with a view to making the process of legal complaints more transparent and independent. .

The Review also overlaps Petition PE1661 which calls for reform of the regulation of legal complaints. However, the author of PE1661 calls for this to be done by creating a new independent regulator of legal services with similar powers those held by the SRA, Legal Ombudsman, BSB and SDT in England and Wales. The Tribunal observes that the Scottish Solicitors Discipline Tribunal is the direct counterpart of the SDT in England and Wales. Similarly, the SLCC performs a broadly similar though not identical role to the Legal Ombudsman. The Law Society of Scotland’s Regulation Department performs comparable functions to the SRA. The Faculty of Advocates Disciplinary Tribunal and the Bar Standards Board also have related responsibilities. The role of these bodies in the complaints system is included in the current Review and the Review may make recommendations for changes in this.

Therefore, the Tribunal considers that the issues raised in Petitions PE1660 and PE1661 are being considered in the current Review which includes an examination of the legal complaints system in Scotland and an analysis of legal complaint handling in other jurisdictions. Perhaps it would be appropriate to await the recommendations of the current Review before there is detailed consideration of the issues raised in these Petitions.

LAWYERS REVIEW THEIR OWN REGULATION: Third attempt by SCottish Government at reforming biased system of solicitors self regulation.

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

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

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

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

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

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

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

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

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

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

The review panel have confirmed their participation as follows:

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

 

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KEEN TO TALK: Advocate General with criminal conviction for firearms offence promotes ‘UK Legal Services are best’ campaign in Singapore – in effort to attract Asian customers to Brexit-hit UK legal market

Lord Keen of Elie in Singapore. A GOVERNMENT minister with a conviction for a firearms offence is currently in Singapore on a taxpayer funded bash – promoting a UK Legal Services are great campaign in the hope of attracting Asian customers to the UK’s dwindling legal services sector and courts.

Lord Keen – real name Richard Sanderson Keen – who joined the Lords on 8 June 2015 and was appointed Advocate General for Scotland – has flown to Singapore to promote the UK legal industry in a social media & twitter #LegalServicesAreGREAT campaign to promote the UK as a hub of legal excellence.

However, the same Lord Keen was convicted of a firearms related offence in March 2017.

The campaign, hosted at the UK High Commission and other venues in Singapore – brings together lobby groups such as the Law Society of England & Wales, the Law Society of Scotland, a host of legal firms, and so-called ‘independent’ legal regulators – the Legal Ombudsman, Bar Council and others.

Asian customers attending the Singapore conference are invited to “Discover what makes UK legal services great – The UK’s legal system has inspired and influenced similar legal systems worldwide. Every year, we attract many international businesses who want to take advantage of the UK’s globally respected legal services.”

Attendees to the conference have listened to Lord Keen promoting UK legal services and the so-called world respected UK legal profession & industry.

However, in March 2017, Lord Keen – who also once held the post of Dean of the Faculty of Advocates – was fined £1,000 after admitting a firearms offence at Edinburgh Sheriff Court.

Earlier this year, Advocate General for Scotland Richard Keen QC pleaded guilty – by letter – to breaching section two of the Firearms Act 1968 by ‘failing to secure a shotgun’.

Police investigating a ‘break-in’ at one of Mr Keen’s properties – a house in Edinburgh – found that the weapon had been left outside a secure cabinet.

The weapon, a Stephen Grant 12 Gauge shotgun – was outside its required storage area and was in a position to have been made use of, should the need have arisen – observed one firearms expert.

The incident & related court hearings,-  which sources claim contained “incredulous assertions” prompted a media investigation revealing the extent of firearms ownership by top lawyers & judges, reported here:  SILENCERS IN COURT: ‘Guns & Ammo’ rife in Scotland’s legal elite – Police Scotland disclose firearms ownership of judges, sheriffs, lawyers, advocates, QCs & Crown Office prosecutors

The new Legal Services Are Great campaign, staged by the UK Government and funded by taxpayers cash – in which Lord Keen plays a role – comes amid fears Brexit could turn to Lexit – where legal firms & litigants may chose to conduct arbitration & court business in other jurisdictions.

A post by the Ministry of Justice on Medium.com titled “Why UK legal services are GREAT”  claims: The UK is home to the best legal services in the world. That is the message of our new global campaign to promote the UK’s legal services.
With over 200 international law firms, the UK is a global hub of legal expertise

From nearly four decades in the legal profession and as a UK Government minister and Advocate General for Scotland, I have seen first-hand the exceptional talent and expertise within our legal services sector across the whole of the UK.

In a global and competitive marketplace, we know what international clients want when they’re looking for legal services.

Clients want to choose a law to govern their contracts that gives them the flexibility, confidence and certainty they need. They want legal firms that have a track record in and reputation for providing expert advice. They want judges that are not only experts but also incorruptible and fair when it comes to settling disputes. They want courts that are expeditious and that harness the latest technology. These qualities are all woven into the fabric of the UK’s legal services.

The Ministry of Justice campaign goes onto claim:

Experienced judges: Our judges are renowned for their independence, rigour and commercial expertise in all aspects of the law. As a result, UK court judgments carry a guarantee of excellence which is respected internationally.

Professional expertise: The UK’s regulated barristers and solicitors represent clients worldwide. From helping you close cross-border business deals and manage financial transactions to resolving international disputes, our lawyers have the global expertise to help you build your business.

Robust contract law: English law is the most popular choice of law for commercial contracts. Valued for its clarity, it’s the world’s most enduring common law system and can provide certainty and security for your business deals.

UK: the cradle of the rule of law: The UK is the cradle of the rule of law. The roots of English law are deep; its adoption and influence is wide. It is the product of hundreds of years of evolution — of gradual refinement, development and extension, precedent after precedent.

As a result, English common law is clear, predictable and familiar. It underpins over a quarter of the world’s jurisdictions. It is the most popular choice of law in the world for commercial contracts and governs about 40% of all global corporate arbitrations.

UK: home to great law firms, expert judges and modern courts: But it is not just the pedigree of English law that makes the UK attractive. Our law firms, our judges and our courts that administer, interpret and arbitrate on the law are world-renowned.

Take UK law firms. With four of the top ten law firms in the world and with over 16,000 barristers, the UK has a wealth of talent and top legal expertise and advocacy.

Take UK Judges. They are respected internationally for their intellect, independence and commercial expertise, with many having specialist knowledge and practical understanding of commercial matters they are judging.

Take the UK’s judicial processes and courts. They do not just have hundreds of years of history behind them, they are among the best in the world in terms of being digitally-enabled.

The UK’s legal heritage, together with its expertise and innovation, makes it a popular choice for clients around the world. London brings access to the world’s biggest specialist legal centre for dispute resolution and commercial litigation.

However, the carefully worded claims make no mention of the fact parts of the UK judiciary has been engaged in a five year fight against proposals to require the judiciary to declare their vast wealth, and business interests – which have resulted in countless conflicts of interest in case after case.

And, more recently it has been uncovered the Ministry of Justice has been concealing statistics on judicial recusals in England & Wales – despite the same information being published in Scotland as paret of the Register of Judicial Recusals – now made available after the work of journalists, Judicial Complaints Reviewer Moi Ali, and members of the Scottish Parliament’s Public Petitions Committee.

The battle between members of the Judiciary of Scotland and the Scottish Parliament over a petition calling on judges to declare their interests has sparked ire among judges, amid concerns the judiciary are deliberately concealing significant conflicts of interest which has led to injustice across the spectrum of criminal, and civil cases in Scotland’s courts.

The Register of Recusals was created by Lord Brian Gill in April 2014 as a response to a probe by the Scottish Parliament’s Public Petitions Committee’s deliberations on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

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

Of further note – all of the claims currently published by the Ministry of Justice in the #LegalServicesAreGREAT campaign – have been challenged by two successive Lord Justice Generals – the ranking top judge in Scotland –  where both Lord Presidents Lord Gill, and recently Lord Carloway – branding Scotland’s justice system as stuck in the “Victorian” era, and centuries behind the rest of the world.

Further studies by the EU have ranked Scotland’s justice system as one of the slowest, and most expensive in the world – with the most highly paid judges delivering the poorest results on civil and criminal justice – reported here: Scots Legal Aid ‘a £161Million public subsidy for legal profession’ as EU report reveals judges salaries & lawyers legal aid claims come before public’s access to justice

While keen to promote legal services to the world, the Ministry of Justice could not offer any further comment on the campaign or answer questions on how much public cash was allocated to the project.

The Ministry of Justice have refused to confirm claims attendees first, & business class flights & travel to the Singapore conference, hotel stays & hospitality have been paid by taxpayers.

 

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LEGAL REGULATION PROBE: Holyrood’s Public Petitions Committee seek views on replacing Scotland’s ‘lawyer-lawyer’ regulation – with ‘UK style’ fully independent regulation of solicitors & legal services

MSPs seek views on reform of legal regulation. TEN YEARS after the contentious passage of the Legal Profession & Legal Aid (Scotland) Act 2007 – which saw the creation of the Scottish Legal Complaints Commission (SLCC) as the lawyer-lawyer led regulator of legal services – MSPs are to seek views on creating a fully independent non-lawyer regulator of Scots legal services.

Two petitions calling for a complete reform of legal services regulation in Scotland have been debated by members of the Scottish Parliament’s Public Petitions Committee.

MSPs have now decided to call for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.

Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.

Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.

The move by MSPs comes after the Scottish Government announced a ‘review’ of legal services regulation in Scotland, back in April 2017.

However, the Scottish Government ‘review’ – will not report back until the end of 2018 and with non binding recommendations – and has come in for significant criticism after it was found there was only one consumer related interest among the legal related membership.

When the review was announced earlier this year, former Cabinet Minister & SNP MSP Alex Neil said the review remit should also include judges.

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

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

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

A full report on the Scottish Government’s review of legal services 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’

After members discussed the two petitions, the Petitions Committee agreed to join these petitions together for future consideration on the basis that they raise similar issues.

The Committee also agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors’ Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.

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

Legal Profession (Regulation) (PE1660 & PE1661)

The Convener: The next two new petitions are PE1660 by Bill Tait and PE1661 by Melanie Collins, both of which raise similar issues in relation to the current system for complaints about legal services in Scotland. Members have a copy of the petitions and the respective SPICe briefings.

PE1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission to make the process of legal complaints more transparent and independent. PE1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, the Legal Ombudsman, the Bar Standards Board and the Solicitors Disciplinary Tribunal, all of which serve consumers and clients of legal service providers in England and Wales.

Do members have any comments or suggestions for action on the petition?

Michelle Ballantyne: First of all, I note that there is a review under way. However, although it was launched in April, it is not due to report until the end of next year, which seems an awfully long time.

I am concerned about a turkeys voting for Christmas arrangement with regard to oversight of this matter. There needs to be some clear water between lawyers and those who review them, and this feels a bit close for comfort. We should check where the review is going and what it is looking at, because if it has been launched, the question is whether we need to be doing something parallel alongside it.

Angus MacDonald: Both petitions are extremely timely. Bill Tait and Melanie Collins have highlighted serious issues with regard to the legal profession and the way in which the SLCC operates in respect of complaints. I agree with Melanie Collins that there is a strong argument in favour of creating a new independent regulator of legal services, and I agree with Bill Tait’s call to make the process of legal complaints more transparent and independent.

In recent years, we have seen a degree of conflict between the SLCC and the Law Society of Scotland over the operation of the complaints system. I am sure that I was not the only MSP to receive representations from the Law Society earlier this year, stating frustration and disappointment at the increase in the SLCC levy to be paid by solicitors. It also stated that the complaints system was slow, complex, cumbersome and expensive. There is no doubt in my mind that this is the right time to look at this issue.

As Michelle Ballantyne has mentioned, the Scottish Government has acknowledged that the current process for people wishing to make complaints about their solicitor is too slow and complex, so I was certainly pleased to see the Scottish Government launch its independent review of the regulation. However, I take on board Michelle Ballantyne’s point about the review not being due to report back until the end of 2018; the period seems quite lengthy, but clearly, we can contact the Government for clarification. Given the similarity of the two petitions, there is a strong argument for joining them together to help move them forward.

The Convener: First of all, does the committee agree to join the petitions together? It seems to me that they deal with the same issues.

Members indicated agreement.

Brian Whittle: Am I correct in thinking that the Law Society called for a change and was rebuffed?

Angus MacDonald: I am not entirely sure—it certainly was not happy.

Rona Mackay: It was about the levy. It was not happy with some of the SLCC’s operation, but, as far as I am aware, it has not formally called for a change.

Brian Whittle: I thought that it was investigating this very point and was rebuffed. I might be wrong.

The Convener: It would be worth getting it clear in our own heads where all of this stands. We can obviously ask for that information.

The suggestion is that we write to the Scottish Government about the review’s timescale and remit, and I think that we should write to the relevant stakeholder bodies to ask about what issues they have. It does not feel that long since the legislation was passed, so it would be a natural time to look at and reflect on whether it has been effective and what the alternatives might be. My sense is that, when the legislation went through Parliament, we wrestled with the options—it did not go through without debate. Perhaps we should look at whether this is a bedding-in issue or an actual structural problem and whether, as the petitioner suggests, the issue needs to be revisited and a different kind of regulatory body put in place.

I think that we have agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland and the Faculty of Advocates. Citizens Advice Scotland was mentioned, as was the Scottish Solicitors Discipline Tribunal. Are there any others?

Angus MacDonald: Would it be worth contacting the Judicial Complaints Reviewer? Although it deals with judicial complaints, as per the title, it would be good to get its view, if it has one. Of course, it is not compelled to reply.

The Convener: Do we agree to deal with both petitions in that way?

Members indicated agreement.

HOLYROOD BRIEFING: MSPs hear of differences between Scotland & UK on regulation of legal services:

Background (taken from the SPICe briefing)

Scotland – complaints against lawyers

4. The SLCC was set up by the Legal Profession and Legal Aid (Scotland) Act 2007 (the Act) to deal with complaints against legal practitioners (primarily solicitors or advocates) in Scotland.

5. It is an independent body whose Board is appointed by the Scottish Ministers in consultation with the Lord President of the Court of Session. It is supported by a management team and staff who carry out investigations.

6. The SLCC is funded by a levy paid by legal practitioners and is required to consult with the relevant professional bodies when setting its annual budget. A copy of the finalised budget has to be laid before the Scottish Parliament no later than 30 April in each year (the budget is not, however, subject to parliamentary approval).

7. The SLCC acts as the initial gateway for complaints. Unresolved complaints have to be made to it in the first instance. Complaints made directly to a professional body (e.g. the Law Society of Scotland (Law Society) or Faculty of Advocates (Faculty)) have to be forwarded by these bodies to the SLCC.

8. Once the SLCC has received a complaint, it assesses whether it is a:

1. Service complaint – i.e. related to the quality of work; or a

2. Conduct complaint –i.e. related to a legal practitioner’s fitness to carry out work and behaviour outside of business.

7. Cases often involve issues of both service and conduct, with the result that both the SLCC and professional bodies can investigate different aspects of the same complaint.

8. If the complaint, or part of the complaint, concerns inadequate professional service, the SLCC investigates following procedures laid down in its rules and the Act. The SLCC can ultimately:

• Award the complainer up to £20,000 for any loss, inconvenience or distress resulting from inadequate professional service.

• Require the relevant legal practices/practitioners to reduce fees, re-do work and rectify any mistakes at their own expense.

• Report the matter to the relevant professional body if the practitioner shows a lack of legal competence.

9. Decisions of the SLCC can be appealed to the Court of Session.

10. If the complaint, or part of the complaint, concerns the conduct of a legal practitioner, the SLCC passes it on to the relevant professional body to investigate. The SLCC is not permitted to investigate conduct complaints, but it can investigate the way these have been handled by the relevant professional organisation (known as a handling complaint).

11. The Law Society is able to impose sanctions on solicitors whose conduct has been “unsatisfactory” and can prosecute solicitors before the Scottish Solicitors Discipline Tribunal (SSDT) where behaviour amounts to professional misconduct. The maximum compensation payable to a complainer is £5,000. In the most serious cases the SSDT can suspend a solicitor’s practising certificate or strike them from the roll of solicitors.

12. The Faculty deals with conduct complaints through a Complaints Committee comprising an equal number of advocates and lay members. Its decisions can be appealed to the Faculty of Advocates Disciplinary Tribunal – chaired by a retired senior judge and whose members include advocates and lay persons. In September 2016 the SLCC published a report which audited the operation of the Facultys investigation and disciplinary processes.

13. For further details on the complaints system see:

• The SLCC’s overview of the process for dealing with service and conduct complaints.

The Law Societys overview of how it deals with conduct complaints,

The Facultys overview of how it administers conduct complaints

14. In recent years there has been a degree of conflict between the SLCC and the Law Society over the operation of the complaints system. For example, in December 2016, the Law Society announced that it had commenced legal action against the SLCC over the way in which it categorises complaints as service complaints or conduct complaints. In addition, in April 2017 the Law Society noted in a press release that it was “frustrated and disappointed” about the increase in the SLCC levy to be paid by solicitors. The press release also referred to the complaints system as being, “slow, complex, cumbersome and expensive.”

England & Wales – complaints against lawyers

15. In England & Wales complaints about poor service against legal practitioners are dealt with by the Legal Ombudsman. Issues of professional misconduct are referred to the relevant “approved regulator” – i.e. the Bar Standards Authority (for barristers) and the Solicitors Regulation Authority (for solicitors), who can take disciplinary action. For details see the House of Commons Librarys briefing on complaints against solicitors and other lawyers.

Scottish Parliament Action

16. In session 4, the SLCC submitted a letter to the Scottish Parliament’s Justice Committee in which it argued that a review of the complaints procedure was needed. In response, the Justice Committee wrote to the Cabinet Secretary for Justice and received a response dated 31 October 2012 indicating that the SLCC and Law Society were, “developing a consensual approach to reach an agreement on the key improvements required.” Regulations amending the powers and duties of the SLCC were subsequently scrutinised by the Justice Committee, which recommended their approval by the Parliament (approval was granted on 13 August 2014).

17. The adequacy of the complaints system has also been raised in the current parliamentary session (see for example Motion S5M05079 lodged by Douglas Ross MSP on 6 April 2017).

The motion lodged by Douglas Ross, who is now an MP at Westminster read:

Motion S5M-05079: Douglas Ross, Highlands and Islands, Scottish Conservative and Unionist Party, Date Lodged: 06/04/2017

SLCC’s Proposed Levy Increase of 12.5%

That the Parliament recognises the concerns of solicitors and advocates following the announcement that the annual levy on legal practitioners to the Scottish Legal Complaints Commission (SLCC) is set to rise by 12.5%; understands that the SLCC has argued that recent increases in the number of complaints received against solicitors requires a commensurate increase in its budget; believes that some solicitors and advocates consider that these costs could be absorbed by the SLCC without a rise in the levy; understands that the Law Society of Scotland submitted a paper to the SLCC in response to the plans, but that its proposals were rejected and the increase was maintained; recognises the reported concerns among legal practitioners that the levy can be adjusted by any amount without a mechanism to effectively challenge it; acknowledges what it sees as the risk that the increase in the levy could be passed on to consumers, and calls on the SLCC to carefully consider the feedback that it has received from solicitors, advocates and the Law Society of Scotland.

Supported by: Dean Lockhart, Alexander Stewart, John Lamont, Alison Harris, Peter Chapman, Liz Smith, Gordon Lindhurst R, Edward Mountain, Donald Cameron R, Liam Kerr R, Miles Briggs, Murdo Fraser R, Adam Tomkins, John Scott, Margaret Mitchell, Rachael Hamilton R, Jackson Carlaw, Annie Wells, Jeremy Balfour, Ross Thomson, Brian Whittle, Jamie Greene, Alexander Burnett, Bill Bowman, Maurice Golden

Scottish Government Action

18. On 25 April 2017, the Scottish Government announced the launch of an independent review of the regulation of legal services in Scotland including the complaints system. According to the Scottish Government, the review

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

19. The review is expected to report to Scottish Ministers by the end of 2018.

FLAWED LEGAL SERVICES REVIEW – How Scottish Government’s attempt at independent review of lawyers ended up back in the hands of … lawyers:

In April 2017, the Scottish Government announced an ‘independent’ review into how lawyers regulate their own colleagues – with a remit to report back by the end of 2018.

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

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

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

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

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

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

The list of panel members includes:

*Two former Presidents of the Law Society of Scotland;

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

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

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

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

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

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

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

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

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

Review should include judiciary:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The review panel have confirmed their participation as follows:

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

The Scottish Government’s review of legal services 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’

 

 

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SILENCERS IN COURT: ‘Guns & Ammo’ rife in Scotland’s legal elite – Police Scotland disclose firearms ownership of judges, sheriffs, lawyers, advocates, QCs & Crown Office prosecutors

Scots legal elite firearms ownership revealed. AN INVESTIGATION into firearms ownership among Scotland’s legal fraternity – has revealed widespread firearms and weapons throughout the ranks of solicitors, advocates, prosecutors and the judiciary who run Scotland’s legal system and the courts.

And, it can be revealed – 295 lawyers, advocates, judges, QCs & prosecutors collectively own more guns in their private collections than even Police Officers – as information now released by Police Scotland reveals 1,079 firearms, shotguns & air weapons in the hands of the legal fraternity – compared to 1,043 firearms and shotguns owned by 327 Police Officers.

The investigation was triggered by a recent case involving firearms offences committed by the Solicitor General For Scotland – Lord Keen of Elie (Richard Keen QC) who was convicted and find £1,000 for breaches of the Firearms Act 1968 after he pleaded guilty by letter to the charge at Edinburgh Sheriff Court on 1 March 2017.

Keen, who once headed a failed legal challenge against the Scottish Government over legislation to speed up pay-outs to asbestos sufferers –  was charged after police investigating a break-in at his Edinburgh home found that a 12-bore shotgun had been ‘left outside a secure cabinet’ while Lord Keen and his wife ‘were away on holiday’.

Lord Keen’s conviction for firearms offences, and the widespread ownership of firearms – including handguns – by members of Scotland’s legal fraternity – has drawn interest in the use of guns by Scotland’s wealthy legal establishment – who are known to favour the hunting & shooting set lifestyle with participation at shooting events at home and abroad.

And these are no ordinary weapons owned by Scotland’s legal elite.

Shotguns popular with Scotland’s legal eagles – range from the relatively inexpensive to more costly ‘over & under’ & ‘side by side’ barrelled Browning, Beretta, matched pairs of expensive Purdeys and other expensive brands such as Holland & Holland, Army & Navy, and in the case of the Solicitor General for Scotland – a Stephen Grant 12 bore shotgun – which can sell for over £6,000.

Data seen by journalists also reveal ornate ‘Damascus’ etched barrelled weapons, expensive side-lock action shotguns, semi automatic weapons, and presentation piece quality shotguns, well out of reach of most shooting enthusiasts.

In relation to firearms, the legal establishment is similarly tooled up in numbers and quality of guns – ranging from handguns – and smaller .22 and .243 calibre rifles to high calibre firearms purposely designed for deer stalking.

Among the more lethal stocks of weapons owned by the legal fraternity are – according to firearms insiders – double ‘express’ (two barrelled) rifles – primarily designed for ‘taking down’ much larger beasts such as lions, rhino and even elephants.

And, the ownership of silencers for firearms among Scotland’s legal elite – is much more widespread than originally thought.

However, it can be revealed members of the legal fraternity own only 57 silencers for their ‘registered’ firearms – compared with a staggering 216 silencers owned by Police Officers –  disclosed in part one of the firearms investigation revealing Police gun ownership.

Information obtained during the investigation has now been clarified by Police Scotland, who disclosed some details in response to a Freedom of Information request.

Police Scotland has revealed 8 Sheriffs and 8 Judges hold a selection of firearms, air weapons and shotguns.

Of the 8 certificates held by Sheriffs, 1 is for firearms, 5 are for shotguns and 2 are for air weapons are held by currently serving Sheriffs, totalling 2 firearms and 10 shotguns.

A further 8 senior ranking judges own a similar mixture of firearms, air weapons and shotguns.

In relation to the eight certificate held by judges, 1 is for firearms, 3 are for shotguns, and 3 are for air weapons, totalling 2 firearms and 5 shotguns.

Curiously – while Police Scotland readily disclosed information in relation to members of the judiciary owning firearms – the Judiciary of Scotland said in response to an FOI request that no member of the judiciary has declared any ownership of firearms or shotguns to either the Scottish Courts & Tribunals Service (SCTS) or the Judicial Office.

The Judicial Office also refused to answer questions on judges’ membership of any hunting or shooting clubs or associations, participation in hunting trips including deerstalking and other firearms related activities within the UK or overseas.

While the judiciary remained tight-lipped on their stack of firearms & shotguns, Police Scotland has also released details on the firearms ownership of Scotland’s legal profession, where paralegals, solicitors, barristers, advocates, QCs and even prosecutors own over a thousand firearms, shotguns and air weapons.

The SHOGUN firearms database used by Police Scotland revealed the following:

4 paralegal certificate holders – hold 3 shotgun certificates and 2 air weapons certificates, holding a total of 5 shotguns.

6 barrister certificate holders – hold 2 firearms certificates, 4 shotgun certificates and 2 Air weapons certificates – holding between them 9 firearms with a further 3 silencers (sound moderators) and a total of 23 shotguns.

8 QC certificate holders – hold 2 firearms certificates, 8 shotgun certificates and two air weapons certificates – holding 6 firearms along with 2 silencers, and a total of 31 shotguns.

18 Advocate certificate holders – hold 4 firearms certificates, 18 shotgun certificates and 7 air weapons certificates – holding 9 firearms along with 3 silencers, and a total of 26 shotguns.

40 lawyer certificate holders – hold 12 firearms certificates, 25 shotgun certificates and 18 air weapons certificates – holding 55 firearms with 18 silencers and a total of 96 shotguns.

199 solicitor certificate holders – hold 51 firearms certificates, 146 shotgun certificates and 60 air weapons certificates – holding 100 firearms with 31 silencers, and a total of 393 shotguns.

Two court officer certificate holders – hold one firearms certificate and one shotgun certificate. Only one single firearm held is listed in this category.

Police Scotland also disclosed two Crown Office prosecutors of Procurator Fiscal rank hold 2 shotgun certificates, holding three shotguns in total.

It was not possible for Police Scotland to disclose further details of COPFS employees firearms, shotgun or air weapons usage, however it is known COPFS employees ownership of, and involvement with firearms shotguns and other weapons does exist = and to a more significant level than quoted in the Police Scotland FOI response.

Police Scotland also disclosed firearms ownership among Scotland’s political classes at Holyrood.

3 MSP certificate holders – hold 3 firearms certificates, 2 shotgun certificates and 1 air weapon certificates – holding 9 firearms with 3 silencers, and – Police Scotland claim – a total of 24 shotguns according to the FOI disclosure.

One Scottish Government Minister holds 1 shotgun certificate – and is in possession of 3 shotguns.

A further 3 “Members of Parliament” certificate holders – hold 2 shotgun certificates and 1 air weapon certificate, holding a total of 5 shotguns.

And one “Parliamentarian” holds a single shotgun certificate, and is in possession of 8 shotguns.

Police Scotland said it could not provide details of Scottish Government employees due to deficiencies in the SHOGUN database which allows some firearms owners to dodge having their ownership of weapons included in national statistics.

Police Scotland said “SHOGUN does not hold the individual employer details related to an individual certificate holder. The application form 201 requires a work address and contact but work address details are not searchable on the SHOGUN system. Searching occupations which include the word ‘government’ includes local government employees, government inspectors, government officers and investigators. The parameters of the search therefore cannot provide the details required.”

While the figures released by Police Scotland pertain only to numbers of weapons – rather than types and their potency by way of calibre – enquiries by journalists have since established Scotland’s legal elite enjoy generous permissions to hold, and purchase – significant quantities of ammunition for firearms and shotguns – with figures of thousands of rounds kept by certain members of the legal fraternity being commonplace.

Commenting on the information released by Police Scotland, a firearms specialist who did not wish to be named said that while some of the certificate holders may be members of gun clubs and ‘shoot at paper targets’ , it was his understanding most of the weapons held by persons he knew to be members of the legal fraternity – are used for hunting purposes.

There are also claims the figures of firearms and gun ownership among Scotland’s legal establishment may be much higher than stated in the Police Scotland Freedom of Information disclosure – as various weapons such as antique powder propellant type pistols, muskets and rifles are among items thought to be owned by lawyers and others in the legal fraternity – and are often not registered despite some requirements to do so.

The sometimes murky origins of the firearms & shotguns owned by the legal fraternity in Scotland are also drawing curiosity – after a legal source gave an account to journalists in relation to how two expensive shotguns including their leather cases and a set of valuable fishing rods & equipment ended up in the hands of a solicitor after he allegedly took the items from the estate of a deceased client to be valued.

The items were never handed back to the family of the deceased nor were they included in any account of assets of the deceased’s estate.

The Law Society of Scotland, Faculty of Advocates and Crown Office & Procurator Fiscal Service (COPFS) could not be reached for a statement on their members ownership and usage of firearms and shotguns.

‘KEEN SHOT’ TOP LAW OFFICER CAUGHT WITH HIS GUNS OUT:

IN March 2017, Lord Keen of Elie – the UK government’s most senior adviser on Scots law – was fined £1,000 after admitting a firearms offence at Edinburgh Sheriff Court.

Advocate General for Scotland Richard Keen QC pleaded guilty – by letter – to breaching section two of the Firearms Act 1968 by ‘failing to secure a shotgun’.

Police investigating a ‘break-in’ at one of Mr Keen’s properties – a house in Edinburgh – found that the weapon had been left outside a secure cabinet.

Lord Keen, a former chairman of the Scottish Conservative Party, was made a life peer in 2015. He did not appear when the case called at Edinburgh Sheriff Court in March 2017, choosing to plead guilty by letter – thus avoiding a court appearance.

The presiding judge – Sheriff Frank Crowe said: “I do take into account Mr Keen’s previous good record and the fact that he admitted his guilt at the outset.

“Nevertheless to hold a firearms certificate is a privilege and there are very strict conditions which have to be adhered to to prevent such weapons falling into the wrong hands.

“There was a potential risk with the shotgun not in the secure cabinet as laid down by the regulations.”

The court heard the offence came to light when Police Officers were called to a break-in at one of Lord Keen’s properties – an address on Ann Street in Edinburgh – on Hogmanay last year. The court was told Lord Keen and his wife were away on holiday.

Officers searching the property ‘found’ a 12 bore Stephen Grant shotgun in a basement out of its secure cabinet.

Solicitor advocate Simon Catto, representing Lord Keen – told Edinburgh Sheriff Court his client had been out shooting on 27 December.

Mr Catto added on returning home his client had taken the gun to the basement intending to clean it, but had then “forgotten about it through his own carelessness” before leaving on holiday the following day.

Mr Catto said Lord Keen had contacted Police himself on Hogmanay after receiving a mobile phone alert that his alarm system had been triggered.

While the upper floors of the property had been ransacked, the burglars had not entered the basement area, he said.

Mr Catto said: “He’s a keen shot, he shoots approximately 10 times per year.

“He has been a shotgun enthusiast for around 25 years and has held a firearms certificate. He is therefore fully aware of what’s expected and required of him in terms of the certificate.

“He accepts on this occasion he fell below that.”

An investigation of gun ownership in the ranks of Police Officers can be found here: GUNS OF THE LAW: Police Scotland files release details of officers private gun ownership – shotguns, rifles & silencers, Cops also declare recovery of 30 handguns

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Digital strategy

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

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

fully digitised justice systems;

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

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

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

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

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

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

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

and on

Evidence and Procedure Review

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

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

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

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

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

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

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

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

Specialist prosecutions

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

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

Centralised policy-making and local autonomy

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

Specialisation and central case-marking

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

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

Other types of specialisation

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

Views from COPFS representatives

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

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

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

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

Diversions and local knowledge

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

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

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

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

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

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

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

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

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

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

Recommendations: Resources and funding of the COPFS

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

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

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

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

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

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

Efficiency of the prosecution service

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Effectiveness of the prosecution service

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

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

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

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

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

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

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

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

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

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

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

Victims and witnesses and the COPFS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Inspectorate of Prosecutions

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

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

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

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

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

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

LET’S DO JUSTICE DIFFERENTLY – JAMES WOLFFE QC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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