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CAPITAL SECRET: Crown Office block disclosure of financial costs in FIVE YEAR probe of collapsed £400m Heather Capital hedge fund linked to Scotland’s judiciary

Crown Office Hedge Fund probe secrecy. A FIVE YEAR investigation by the Crown Office & Procurator Fiscal Service (COPFS) into charges relating to a collapsed hedge fund – remains shrouded in secrecy after the case was axed, and with a recent decision to block disclosure of costs of the probe.

The collapse of the Isle of Man based Heather Capital Hedge Fund saw four persons charged after a three year long Police investigation –  in April 2013 – in connection with events relating to the broke £400million hedge fund.

Heather Capital launched in 2005 – attracting global investors, loaning money to fund property deals.

After the collapse of the hedge fund in 2010, Paul Duffy, the liquidator of Heather Capital – claimed that about £90 million was unaccounted for.

However, in February of this year, Lord Advocate James Wolffe QC quietly axed the lengthy five year investigation of the collapsed hedge fund and solicitors Gregory King & Andrew Sobolewski , accountant Andrew Millar and property expert Scott Carmichael.

In a response to a Freedom of Information request, the Crown Office has now refused to disclose any information in relation to the costs of the five year investigation into a collapsed hedge fund which saw four persons charged by Police Scotland in 2013.

The Crown Office were asked for information contained in the costs (figures) of the investigation by the Crown Office into charges against four persons in relation to the collapsed Hedge Fund Heather Capital.

When (date) the decision was taken to drop any action against the four persons charged in connection with above.

How many independent or other counsel & crown counsel served or worked on this investigation (and other COPFS staff, or others contracted in for this investigation (and their speciality role) – and their costs.

Information contained in any overseas travel (dates & destinations, costs of) in relation to this investigation.

Responding for the Crown Office, Christine Lazzarin claimed there was no costing available for the failed five year investigation, as the Crown Office intentionally does not monitor costs in investigations.

However, legal insiders have suggested costs around the five year investigation have run into millions of pounds,and that some felt the case was flawed from the outset due to ‘a lack of additional charges.

There are also claims a number of prosecutors & counsel became inactive, leaving the probe over the span of the five years.

Responding to the Freedom of Information request, Christine Lazzarin of the Crown Office ‘Information Unit’ wrote: In relation to your request I will firstly explain that the Crown Office and Procurator Fiscal Service (COPFS) does not routinely collate the total costs associated with investigating individual cases, and having made enquiries with our Finance Division I can advise that there are no COPFS costs recorded against the case reference allocated to this investigation.

By way of explanation there was no specific team created to investigate this case and all COPFS costs associated with the investigation will be addressed within the existing budgetary framework and not recorded separately. We do not therefore hold associated staffing costs in terms of Section 17 of FOISA. Additionally I can confirm that there was no overseas travel involved in this investigation.

The investigation was handled by staff within the COPFS Serious and Organised Crime Division (SOCD) in consultation with the COPFS International Co-operation Unit. The case was then reported to Crown Counsel to take a decision on whether to prosecute.

Following full and careful consideration of the facts and circumstances of the case, including the currently available admissible evidence, Crown Counsel instructed that there should be no proceedings at this time. The Crown however reserves the right to raise proceedings should further evidence become available.

It may be helpful if I outline the COPFS policy in relation to providing case related information in relation to a Freedom of Information request. Other than confirming that we do hold information, this information will not be provided to persons unconnected to a case under a Freedom of Information Act request. Information about a case will include sensitive personal data about the accused, victims and witnesses in terms of the Data Protection Act 1998, disclosure of which could constitute a breach of that legislation. Where disclosure of personal sensitive information would contravene the Data Protection Act, we are not required to disclose it under FOISA.

Having explained our general position you have asked for the date this decision was made and I can advise that I am unable to provide you with the information you have requested for the following reasons:-

The information is exempt in terms of section 34(1)(a) of FOISA because it is held by the Crown Office and Procurator Fiscal Service for the purposes of an investigation carried out by virtue of a duty to ascertain whether a person(s) should be prosecuted for an offence(s). This is not an absolute exemption and I have therefore considered whether the public interest favours disclosure of the information, notwithstanding the exemption. Although the public interest is not defined in FOISA it has been described as “something which is of serious concern or benefit to the public”. It has also been held that the public interest does not mean “of interest to the public” but “in the interest of the public”. The decision to take no proceedings at this time is already in the public domain but I do not consider that it is in the interests of the public to know the date the decision was made. Additionally as the Crown reserves the right to raise proceedings should further evidence become available in the future it would be inappropriate to release case related details over and above those already in the public domain.

I also consider that under section 38(1)(b) of FOISA, release of the information requested would contravene section 10 of the Data Protection Act 1998 as you are requesting details of a criminal case reported to COPFS against particular individuals. This is an absolute exemption and I am not required to consider the public interest test.

I hope you find this information helpful.

If you are dissatisfied with the way in which your request has been handled, you do have the right to ask us to review it. Your request should be made within 40 working days of receipt of this letter and we will reply within 20 working days of receipt. If you require a review of our decision to be carried out, please e-mail foi@copfs.gsi.gov.uk.

The review will be undertaken by staff not involved in the original decision making process.

If our decision is unchanged following a review and you remain dissatisfied with this, please note that although generally under section 47(1) of FOISA there is a right of appeal to the Scottish Information Commissioner, where the information requested is held by the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland, under section 48(c) no application can be made as respects a request for review made to the Lord Advocate. The information you have requested appears to fall into that category, although ultimately it would be for the Commissioner to decide whether that was the case should you refer the matter to him.

In circumstances where section 48(c) does not apply and the Commissioner accepts an appeal, should you subsequently wish to appeal against that decision, there is a right of appeal to the Court of Session on a point of law only.

While an investigation will be sought from the Scottish Information Commissioner’s office, previous attempts to have the SIC look at Crown Office blocking of Freedom of Information requests have fallen by the wayside – even when a request was made to investigate the Lord Advocate’s secrecy block on publication of the COPFS register of interests, more on which can be viewed here: DECLARE THE CROWN: Secrecy block on Crown Office Register of Interests – after fears info will reveal crooked staff, dodgy business dealings, prosecutors links to judiciary, criminals, drugs dealers and dodgy law firms

Although the Crown Office have refused to answer any questions on the status or costs associated with their five year investigation of the Heather Capital collapse, legal insiders have pointed to previous COPFS investigations and recent trials of financial frauds, where costs to the taxpayer have ran up to nearly ten million pounds.

One such case was the Mclaren property fraud case – which the Crown Office did everything in their power to avoid categorising as a “mortgage fraud” prosecution – after claims emerged the fraud duo once worked for, and had dealings with among others – a senior legal figure linked to one of the current top legal officers in the Crown Office.

In the McLaren case, Edwin McLaren, from Quarriers Village in Renfrewshire, was found guilty of property fraud totalling about £1.6m, convicted on 29 charges, and his wife Lorraine – on two charges.

The trial at the High Court in Glasgow began in September 2015 and heard evidence for 320 days.

Reports in the media quoted costs of around £7.5m, with more than £2.4m in legal aid paid for defence lawyers.

However, legal insiders claim the investigation by COPFS prior to the trial of the McLarens also ran into millions of pounds.

Similarly, with the complexity of the Heather Capital collapse – at £400million – the trail of money and international capital transfers – the costs of the Crown Office five year Heather Capital probe are likely to be at least equal to, or significantly higher than the investigation into the McLaren property fraud prior to that case going to trial.

HEATHER CAPITAL £28M CIVIL CLAIM ENDS:

Solicitor Peter Black Watson, formerly of Glasgow law firm Levy & Mcrae –  was linked to the collapsed hedge fund in a now abandoned £28million civil claim.

However, it has been previously reported part time Sheriff Peter Watson was suspended in February 2015 by Scotland’s top judge – Lord Brian Gill “to maintain public confidence in the judiciary”

A statement from the Judicial Office for Scotland issued after a newspaper asked for a comment, stated: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

Peter Watson now has his own law business, PBW Law – also based in Glasgow.

Watson, and his former law firm named in the Heather Capital writ – Levy and Mcrae –  also currently represent the Scottish Police Federation – who in turn represent all Police Officers in Police Scotland.

Investigations by the media also show that suspended Sheriff Peter Watson represented, among others – Lord Advocate Elish Angiolini – during her term as Lord Advocate.

Watson’s other clients included Alex Salmond, Stephen Purcell, Yorkhill Hospital Board – which has now changed it’s name to Glasgow Children’s Hospital Charity – of which Watson is chair, of the board and Rangers Chiefs.

In Court documents published online by the Scottish Court Service, it is noteworthy that during the tenure of Lord Advocate Elish Angiolini – who was Lord Advocate from 12 October 2006 – 30 April 2011, significant transfers of capital from Peter Watson’s law firm – Levy & Mcrae – took place to Panamanian and Gibraltar registered companies.

Records from the Court of Session reported:

On 4 January 2007, HC transferred £19 million to its client account with Levy and Mcrae.

On 24 January 2007, HC transferred £9.412 million to its client account with Levy and Mcrae.

On 9 January 2007, Levy and Mcrae transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security.

On 29 March 2007, Levy and Mcrae transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security.

A full report on the now abandoned £28million civil claim case against Peter Watson & Levy & Mcrae, and Lord Carloway’s consideration of Watson’s continuing suspension from the judicial bench can be found here: CAPITAL NUDGE: Scotland’s top judge Lord Carloway to consider status of de-benched Sheriff Peter Watson – suspended for a record THREE YEARS over £28million writ linked to collapsed £400m hedge fund Heather Capital

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CAPITAL NUDGE: Scotland’s top judge Lord Carloway to consider status of de-benched Sheriff Peter Watson – suspended for a record THREE YEARS over £28million writ linked to collapsed £400m hedge fund Heather Capital

Lord Carloway considering status of suspended Sheriff linked to collapsed Hedge Fund. A JUDGE who has been suspended from the Judiciary of Scotland for a record THREE YEARS – after being named in a £28million writ linked to the collapse of a £400m Hedge fund – remains suspended despite the closure of the civil claim.

Now, Lord Carloway (Colin Sutherland) – Scotland’s most senior judge – is now said to be considering the position of part time Sheriff Peter Black Watson (64) – after the liquidator of Heather Capital Paul Duffy of EY – mysteriously abandoned the £28m action against Glasgow law firm Levy and McRae solicitors – in which Peter Watson was once a partner.

Peter Watson was suspended from the Judiciary of Scotland more than three years ago on February 16, 2015 – after the then Lord President, Lord Brian Gill, was informed by a journalist of the claims in the case against Levy and McRae, and specifically against Watson, over Heather Capital’s collapse in 2010.

The move came after allegations surfaced in a £28million writ naming part time Sheriff Peter Black Watson – and his former law firm Levy and Mcrae, and a number of individuals under investigation in connection with the £400million collapse of Heather Capital.

In response to queries from the media in February 2015 on the contents of the writ – the Judicial Office subsequently issued a statement confirming Lord Brian Gill  had suspended Sheriff Peter Black Watson (61) on 16 February 2015.

The suspension came after Gill demanded sight of the writ.

Responding to the Lord President’s request, Watson then offered to step aside temporarily – while the litigation concluded – however a Judicial Office spokesperson said “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”

A statement from the Judicial Office for Scotland read as follows: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

Watson’s former law firm –  Levy & McRae, was one of several companies being sued by Heather’s liquidator, Ernst & Young, after the fund’s collapse in 2010.

Watson was also a director of a company called Mathon Ltd – a key part of the Heather empire.

The collapsed hedge fund Heather Capital – run by lawyer Gregory King was the subject of a Police Scotland investigation and a FIVE YEAR probe by the Crown Office.

However, in early February, the Crown Office coincidently confirmed there would be no prosecutions in the cases of the four individuals  – lawyers Gregory King & Andrew Sobolewski, accountant Andrew Millar and property expert Scott Carmichael – who were charged by Police Scotland in connection with a Police investigation of events relating to the collapse of Heather Capital.

Peter Watson now has his own law business, PBW Law.

Watson, and his former law firm named in the Heather Capital writ – Levy and Mcrae –  also represent the Scottish Police Federation.

Responding to queries from reporters, a  spokesperson for the Judicial Office said: “The action, in which suspended part time Sheriff Peter Watson was among the defenders, has settled.  An interlocutor to that effect has been issued.  The Lord President will consider what, if any, steps now require to be taken‎.”

Despite EY’s withdrawal of the £28million claim against Levy and Mcrae & Peter Watson, detailed claims in the Court of Session revealed the following:

[21]      In the Levy Mcrae case:

  • On 4 January 2007, HC transferred £19 million to its client account with LM (Lord Doherty paragraph [5]).
  • On 24 January 2007, HC transferred £9.412 million to its client account with LM (Lord Doherty paragraph [5]).
  • The money was intended to be loaned to a first level SPV Westernbrook Properties Ltd (WBP) for onward lending to second level SPVs (Lord Doherty paragraph [5]).
  • On 9 January 2007, LM transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).
  • By a memorandum dated 17 March 2007, HC’s auditors KPMG “identified a number of concerns relating to the documentation provided in respect of these loans”.Further work and information was required (Condescendence 5, page 13 of LM reclaiming print).
  • On 29 March 2007, LM transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).
  • In April to June 2007, amounts equivalent to the loans thought to have been made to WBP (including accrued interest) were “repaid” to HC via Cannons, solicitors, Glasgow.The directors were unable to ascertain the source of these repayments (Lord Doherty paragraph [7]).
  • Approaches made by HC to Mr Volpe and Triay & Triay, a firm of solicitors in Gibraltar, were met with a total lack of co-operation (Lord Doherty paragraph [8]).
  • At a board meeting on 6 September 2007, “KPMG could not approve HC’s accounts … Santo Volpe had executed certain loans to SPV companies where non‑standard procedures had been followed which meant that inadequate security had been given for some loans … Gregory King stated that the loans to the SPVs had been repaid in full in May 2007” (Condescendence 5, page 13 of LM reclaiming print).
  • By email to a non‑executive director of HC (Mr Bourbon) dated 7 September 2007, Mr McGarry of KPMG referred to the previous day’s board meeting, and expressed concerns about the situation.He asked for further information, namely “all possible evidence regarding the movement of monies out of Heather Capital into these SPVs and onwards to whatever purpose the funds were applied – ie, sight of bank statements, payment/remittance instructions, certified extracts from solicitors clients’ money accounts etc”.(It should be noted that, contrary to HC’s averment in Condescendence 5 at page 13C‑D of LM reclaiming print, the email did not restrict the inquiries requested to “explaining what information was required from Santo Volpe”:the request was much broader.)
  • In October 2007 the non‑executive directors of HC met with the Isle of Man Financial Services Commission (FSC) to discuss “the issues” (Lord Doherty paragraph [8]).A director also disclosed the suspicious activity and Mr Volpe’s obstruction to the Isle of Man Financial Crime Unit (FCU), who said they would investigate (Condescendence 5 page 14 of LM reclaiming print).The auditors KPMG carried out an additional full scope audit.
  • By letter dated 18 October 2007, FSC wrote to the directors of HC setting out further information which they required.
  • By letter dated 26 November 2007 Mr King advised the HC board that “some sort of fraud had been deliberately introduced with invalid land registry details on a number of the loans”.He stated that he had applied pressure to Mr Volpe and Mr Cannon, whereupon there had been “full repayment of the loans with relevant interest” which meant that “investors were secure”.
  • On 17 December 2007, KPMG signed the accounts and added a completion note using language such as “The risk of fraud increased to high as a result of the documentation issues surrounding the SPVs, where some form of fraud appeared to have been attempted”.In their audit report opinion, they stated “We have been unable to verify where funds advanced to the SPVs were invested.In addition, we were supplied with false documentation in relation to the SPVs which appears to have been a deliberate attempt to mislead us.Given these loans were repaid in the period, we consider that the effect of this is not so material and pervasive that we are unable to form an opinion on the financial statements [opting instead for express qualifications that loan and security documentation could not be validated] … There is uncertainty as to where the monies lent to the [SPVs] were then subsequently invested … Investigations continue to determine what party (or parties) were involved in and were accountable for these events, and whether any action should be taken against them …” (Lord Doherty paragraph [9]).
  • By letter to HC dated 4 January 2008, KPMG gave serious warnings about their inability to validate loan and security documentation, and lack of evidence as to the purpose for which the money advanced to SPVs was applied.In their words:

“ … Our report is designed to … avoid weaknesses that could lead to material loss or misstatement.  However, it is your obligation to take the actions needed to remedy those weaknesses and should you fail to do so we shall not be held responsible if loss or misstatement occurs as a result … [Having explained the disappearance of the funds and the apparent repayments, on which legal advice had been received, KPMG warned] … these matters are extremely serious … an attempted fraud appears to have been perpetrated … We would recommend that the Board continue their investigation into this matter and formally document their decision as to whether or not to inform the criminal justice authorities …”

A full copy of a court opinion detailing these and other claims with regards to a further case against Burness Paull LLB  – which coincidently also collapsed earlier last year – can be viewed here: Court of Session allows proof against Levy & Mcrae and Burness Paull LLP in Heather Capital case as liquidators attempt to recover cash from collapsed £280m hedge fund.

In the motion of abandonment filed by EY & Heather Capital, heard in the Court of Session on 28 February before Lord Glennie, Lady Paton & Lady Clark of Calton, Lord Glennie’s opinion sums up matters in relation to issues in the Heather Capital case, which linked claims of financial wrongdoing directly to Scotland’s judiciary – who, ultimately heard and ruled on the case.

Lord Glennie stated in his opinion:

[97]      I have had the advantage of reading in draft the opinions to be given by Lady Paton and Lady Clark of Calton.  I agree with them and, for the reasons they give, I too would allow parties a Proof Before Answer of all their averments on record preserving all pleas. 

[98]      I would wish to add two comments of my own. 

[99]      The main focus of the debate in each case was whether the pursuer, HC, had made sufficient and relevant averments of “reasonable diligence” for the purposes of section 11(3) and the proviso to section 6(4) of the 1973 Act.  In both cases the Lord Ordinary held that HC had not said enough and in sufficient detail to justify sending the matter to a Proof Before Answer.  The matter could be determined on the pleadings.  Lady Paton has explained why we take a different view.  But I have a more general concern about this approach. 

[100]    In his note of argument in the LM case, under reference to cases such as John Doyle Construction Ltd v Laing Management (Scotland) Ltd 2004 SC 713 at pages 722 – 723 and Watson v Greater Glasgow Health Board [2016] CSOH 93 at paragraphs 22-23, Lord Davidson QC was at pains to remind us that the purpose of pleading is to give fair notice of the assertions of fact sought to be established in the evidence as well as to identify the essential propositions of law on which a party founds.  Elaborate pleading is unnecessary in any action, not just in a commercial action.  The purpose of the pleadings is to give notice of the essential elements of the case.  The pleadings should set out the bare bones of the case.  They are not the place to set out in full the evidence intended to be adduced.  In the present cases that appears to have been overlooked.  To that extent I have some sympathy with Lord Davidson’s submission.  The Closed Record in the BP action, as it appears in the Reclaiming Print, runs to some 59 pages, while that in the LM action extends to 93 pages.  This has happened, so it seems to me, because in their pleadings parties have indulged in a process akin to trial by pleading.  The defenders have made averments of fact intended to undermine the pursuer’s case on reasonable diligence; the pursuer has responded by making further averments addressed to those points;  this in turn has caused the defenders to make further averments or raise further questions;  the pursuer has tried to answer by making yet further averments;  and this is constantly repeated until parties are finally exhausted.  The process resembles one of cross examination and response, a process for which pleadings are quite unfitted.  I do not seek to apportion blame.  In a case such as this, the temptation to pile pressure on to the pursuer by pleading a wealth of detail is difficult to resist;  and a pursuer who does not respond in kind runs the risk of being thought to have no answer to the points which have been raised.  Difficulty arises when the matter comes to debate on the question of whether, for example, the pursuer has made sufficiently relevant and specific averments that it “could not with reasonable diligence have been aware” that loss had occurred (section 11(3)) and that it could not “with reasonable diligence have discovered” the fraud or error induced by the debtor which induced it to refrain from making a relevant claim at an earlier stage (section 6(4), proviso).  Points are made in argument about the failure to take certain steps or to follow up on the particular line of enquiry;  and the Lord Ordinary is invited to form a view that what was done was insufficient or that the reasons given for not doing it are inadequate.  Such an invitation should, in my view, be resisted save in the most obvious case.  The judgments which the court is being asked to make are essentially value judgments, assessments of the reasonableness or otherwise of a party’s conduct.  Such judgments should seldom if ever be made on the basis of the pleadings without hearing evidence.  It may seem obvious, on paper, that something ought to have been done or that a line of enquiry ought to have been pursued; but when evidence is led it might seem less obvious, or there might be good reasons for not taking that course.  It is not the function of pleadings to set out every reason why each relevant individual took or did not take any particular step.  In many cases issues of credibility and reliability might arise, the evidence may be far more nuanced than it is possible to convey on paper, explanations may be given more fully and persuasively than can come over in the pleadings, and some of the criticisms may, in light of all the evidence, be seen to be informed by hindsight.  I should emphasise that I make these observations without reference to any of the particular points decided in the particular cases with which we are here concerned.  But it does seem to me that the cases with which we are concerned illustrate the danger of the court being drawn into deciding cases on detailed averments of fact when it would be more appropriate that all the evidence be heard before any decision is made. 

[101]    The other comment I would wish to make concerns the question of whether the claims advanced in both actions on the basis of the existence of a trust are subject to the 5‑year prescriptive period in section 6 of the 1973 Act or are subject to the 20-year long negative prescription in section 7.  This matter was discussed by Lord Doherty in the LM action at paragraphs [25]-[31].  He concluded that the obligation of a trustee to produce trust accounts is an imprescriptible obligation;  that the liability to make payment of the sum found due in an accounting for trust funds is subject only to the long negative prescription;  and that the obligation of a trustee to restore the value of trust property paid away in breach of trust is also subject only to the long negative prescription.  The matter was not discussed by Lord Tyre in the BP case for reasons which are slightly unclear – matters appear to have proceeded in that debate on the basis that all obligations were subject to the 5-year prescriptive period and that the only issues in that respect concerned the pursuer’s case on sections 6(4) and 11(3) – but it was not suggested before us that the point is not live in that action too.  Detailed submissions on the point were made by Mr Duncan QC on behalf of LM and adopted by Mr Dunlop QC on behalf of BP.  Lord Davidson QC responded on behalf of HC.  I, for one, was grateful for their submissions.  It emerged in the course of those submissions, as it had to some extent at the debate in the LM case, that not only was there a dispute as to the law to be applied in a case of accounting and/or breach of trust but there was also a dispute as to whether the circumstances of the present cases gave rise to a relationship of trust at all or, alternatively, a trust of a kind intended to be excluded from the 5-year short negative prescription.  In light of this, it seems to me that it would be desirable that all of the relevant facts be determined before the issues are decided.  For that reason, and for the reasons given by Lady Paton in paragraph [80] of her opinion, I am persuaded that it would be premature to attempt to decide these points at this stage.

COLLAPSE OF FIVE YEAR CROWN OFFICE PROBE:

In a further twist to the Heather Capital saga, a FIVE YEAR probe by the Crown Office & Procurator Fiscal Service (COPFS) collapsed just a few days before the collapse of the £28million writ against Levy and Mcrae, & Peter Watson.

A report by journalist Russell Findlay revealed: CROWN prosecutors will take no action against four men following a fraud probe into a collapsed £400 million finance firm.

Lawyer Gregory King, 49, and three others were reported to the Crown by detectives who investigated his hedge fund Heather Capital which was based in the Isle of Man.

Heather, launched by King in 2005, attracted investors from around the world and loaned money to fund property deals.

Following its 2010 collapse, Heather’s liquidator Paul Duffy claimed that around £90million was unaccounted for and a police fraud probe resulted in the four men being reported to the Crown Office in April 2013.

An Isle of Man court judgement likened Heather to a ‘Ponzi’ scheme, made famous by US financier Bernie Madoff who was jailed for 150 years in 2009.

The other three reported by police were lawyer Andrew Sobolewski, of Bridge of Weir, Renfrewshire, Andrew Millar, of ­Cambuslang, near Glasgow, and Scott ­Carmichael, of Thorntonhall, near Glasgow.

Last year there was criticism of the Crown for taking so long to consider the case but after almost five years it has now dropped the case.

A Crown Office spokesman said: “Following full and careful consideration of the facts and circumstances of the case, including the currently available admissible evidence, Crown Counsel instructed  that there should be no proceedings at this time.

“The Crown reserves the right to raise proceedings should further evidence become available.”

The Scottish Sun reported on the serving of the £28million civil writ which named lawyer Peter Black Watson – back in February 2015, here:

The Scottish Sun reports:

WRIT HITS THE FAN

FIRM FIRM SLAPPED WITH COURT SUMMONS – Top legal outfit in megabucks lawsuit

Practice is linked to bust hedge fund – Briefs with ties to big business and high-profile clients

By RUSSELL FINDLAY Scottish Sun 15 February 2015

A TOP law firm has been hit with a multi-million pound writ linked to a finance company at the centre of a fraud investigation.

Legal practice Levy & McRae — which acts for footballers, politicians, cops and newspapers — faces the claim over its role in connection with £400million investment scheme Heather Capital.

It’s claimed millions of pounds went missing following the collapse of the hedge fund. And The Scottish Sun told last week how four men — including tycoon Gregory King — have been reported to prosecutors probing the allegations.

King, 46, ran Heather subsidiary Mathon, where Sheriff Peter Watson — a former senior partner at Levy & McRae — was also briefly a director.

The Court of Session summons was served on the firm six months after he left the legal firm.

Watson is one of the country’s most high-profile lawyers and spent 33 years with Levy & McRae before quitting to set up his own business.

The visiting Strathclyde University professor sat on an expert panel created by former First Minister Alex Salmond to look into media regulation in Scotland.

Watson also acted for former Lord Advocate Elish Angiolini after she was harassed by a campaigner who was later jailed.

‘Their clients are a who’s who of Scotland’ And he includes ex-Glasgow City Council chief Steven Purcell among his list of clients, as well as senior police and prison officers.

The legal expert, 61 — chairman of Yorkhill Sick Kids’ Hospital charity — has also acted for former Rangers owner Sir David Murray.

And a Gers supporters’ group closed down its website following legal threats from Watson, who was working for under-fire directors Sandy and James Easdale.

A source said: “Watson and Levy & McRae are very well known and their clients are a who’s who of Scotland.”

Investors from around the world sunk their cash into Gibraltar-based fund Heather Capital, which launched in 2004.

Some of the cash was loaned to Mathon to bankroll developments across Scotland. But many of the Mathon-funded plans did not happen — and some of the cash was not repaid.

Liquidator Paul Duffy of Ernst & Young has been battling to recover investors’ cash since 2010 and is suing Heather’s auditors KPMG for negligence over their role. Isle of Man court documents — acquired by The Scottish Sun — claim Heather was operating a “Ponzi” scheme to dupe investors.

They alleged that as early as December 2006, senior KPMG staff feared that Heather Capital “may have been perpetrating a fraud”.

And in August 2007, KPMG employee Raymond Gawne told a colleague that he was “very uncomfortable” acting for the fund which “may have acted in a criminal manner”.

The claim also alleges that millions of pounds of loans passed through the client account of Glasgow lawyer Frank Cannon who acted for Heather. KPMG senior executive David McGarry sent an email to Gregory King stating: “Frank Cannon has been uncooperative, either in providing some form of explanation for all of the security documentation prepared by his firm, or in agreeing to facilitate access to Cannon’s clients’ money account”. McGarry added he did not accept “that this is due” to Cannon.

Watson declined to comment on the writ and Levy & McRae and Cannon did not respond to our requests for comment.

The Police Scotland report naming Mr King and his associates Andrew Sobolewski, Andrew Millar and Scott Carmichael is now being considered by the Crown Office.

A spokesman for Ernst & Young confirmed: “Heather Capital, via Ernst & Young, has made a claim against Levy & McRae.” And a KPMG spokesman said: “The passages in the plaintiff’s summons provide a selective and misleading picture and are drawn out simply to seek to make what is a wholly unsubstantiated case.

“The allegations are completely unfounded and are being fully contested by KPMG.”

GREGORY KING MARBELLA-based former Glasgow Academy pupil, 46, was a lawyer and taxi firm boss before launching Heather Capital in 2004. Family business dynasty includes nightclub boss cousin Stefan King.

PETER WATSON GREENOCK-born solicitor advocate, 61, carved out a fearsome reputation as a media lawyer during 33 years at Levy & McRae. He also dishes out justice as a part-time sheriff across Scotland.

KING’S £400million hedge fund Heather Capital loaned millions of pounds to Glasgow-based Mathon, of which Watson was briefly a director.

TOP lawyer and part-time sheriff Watson has acted for a string of high profile celebrity, political, sport and media clients in a glittering legal career:

Watson’s clients included Alex Salmond, Stephen Purcell, Elish Angiolini, Yorkhill Hospital Board, Rangers Chiefs.

and a further development reported by the Scottish Sun on the suspension of Sheriff Peter Watson:

Bench ban for sheriff linked to fraud probe

Lawman, 61, suspended

By RUSSELL FINDLAY 25th February 2015, Scottish Sun

A SHERIFF was suspended after he was linked to a collapsed finance firm at the centre of a massive fraud probe.

Peter Watson, 61, was barred from the bench by judges’ boss Lord President Lord Gill following an inquiry by The Scottish Sun.

Watson, whose past clients include ex-First Minister Alex Salmond, was briefly a director of Mathon, a company run by Glasgow bookie’s son Gregory King, 46.

It received millions in loans from King’s hedge fund Heather Capital which crashed owing a seven-figure sum.

Watson’s suspension came 24 hours after we revealed Heather liquidators Ernst & Young filed a multi-million court demand against his former law firm Levy & McRae.

Lord Gill, 73, can suspend sheriffs and judges if it’s “necessary for the purpose of maintaining public confidence”.

Watson forged a fearsome reputation as a media lawyer over 33 years with Levy & McRae before he left the firm six months ago.

King is one of four men named in a police report which is being considered by the Crown Office.

The Judicial Office for Scotland said last night: “Sheriff Peter Watson was suspended from the office of part-time sheriff on February 16.”

The National also recently reported on the continuing suspension of Peter Watson from the judicial bench, here:

Lawyer Peter Watson still suspended despite case ending

Martin Hannan Journalist

Peter Watson was suspended from the bench more than three years ago

LAWYER Peter Watson remains suspended from his position as a part-time sheriff despite a £28 million court action in which he was being sued having been brought to an end.

Lord Carloway, the Lord President and Scotland’s senior judge, is said by legal sources to be considering the position of Watson after Paul Duffy, the liquidator of Heather Capital, abandoned the £28m action against Levy and McRae solicitors in which Watson was a former partner.

Watson was suspended from the bench more than three years ago on February 16, 2015, after the then Lord President, Lord Gill, was informed of the claims in the case against Levy and McRae, and specifically against Watson, over Heather Capital’s collapse in 2010.

It was Watson himself who e-mailed the summons material to the Lord President’s office himself and volunteered “not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings,” as the Judicial Office stated at the time.

The statement added that Lord Gill had “concluded that … suspension was necessary in order to maintain public confidence in the judiciary.”

Watson now has his own law business, PBW Law.

He told reporters: “I am very pleased that this action has been abandoned and I am looking forward to serving my clients now it is clear that there was no valid basis for this claim.”

A spokesperson for the Judicial Office said: “The action, in which suspended part time Sheriff Peter Watson was among the defenders, has settled.

“The Lord President will consider what, if any, steps now require to be taken?,” the spokesperson added.

 

 

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WOLFFE COURT: Lord Advocate James Wolffe and his judge wife at centre of £9million damages claim – Questions remain why Lady Wolffe avoided recusal during emergency judge swap on court case against her own husband

Lady Wolffe was set to hear court case against her own husband. SCOTLAND’S judiciary continue to face fresh allegations of concealing conflicts of interest after it emerged a multi million pound damages claim against the Lord Advocate and Scotland’s Chief Constable for wrongful arrest and financial damages – was set to be heard by the Lord Advocate’s wife – who is a judge in the Court of Session.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two days later, a spokesperson for the SCTS then said: “I can confirm that Lady Wolffe was assigned to hear procedural matters in a number of cases on Wednesday 15 November 2017. One of those cases was listed on the rolls as David Whitehouse v Liam Murphy and others. Subsequently, when the papers were checked for consideration, it became apparent that the Lord Advocate was the third defender and accordingly the case was reallocated to a different judge.”

When challenged for further comment and an explanation for the judge swapping which led to a third judge hearing the case, a second spokesperson for the SCTS claimed: “Hearings and callings of cases which are primarily procedural of nature are allocated to Judges depending on what other business they are dealing with. It is common for such allocations to be altered on the day by the Keeper’s Office on behalf of the Keeper of the Rolls to ensure the efficient handling of business.”

“As confirmed previously, Lady Wolffe was assigned to hear procedural matters in a number of cases on Wednesday 15 November 2017. One of those cases was listed on the rolls as David Whitehouse v Liam Murphy and others. Subsequently, when the papers were checked by the Keeper’s Office, it became apparent that the Lord Advocate was the third defender and accordingly steps were taken by the Keeper’s Office to reallocate the case to a different judge. The case was initially reallocated to Lady Wise but, having regard to the level of business and to ensure that all cases were dealt with on the day, was subsequently dealt with by Lord Arthurson.”

Pressed for an explanation on why no note of a recusal should be entered in the Register of Recusals, a THIRD spokesperson for the SCTS claimed: “In this instance no note in the register of recusals is required as the case was administratively reallocated prior the case calling in court, in order to avoid unnecessary delay to the parties. Notes in the register of recusals relate only to formal motions for recusals – where an issue arises on which the judge requires to consider whether to decline jurisdiction, and the decision being formally recorded.”

Since the last hearing in the case on 15 December 2017, legal insiders have poured scorn on explanations offered by the Scottish Courts over decisions taken which would have seen the Lord Advocate’s own wife hear and rule on the court case involving her own husband.

Sources have since claimed there was ‘no mistake’ involved in the selection of Lady Wolffe for the hearing in November.

A legal insider said: “Everyone knows who Lady Wolffe is and everyone knows James Wolffe is the Lord Advocate.”

“It is therefore ridiculous for anyone to claim the Keeper’s Office or anyone else within the Judicial Office or courts is unaware of Lady Wolffe’s status as the wife of Lord Advocate James Wolffe”.

The Sunday Mail reports:

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

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

ByCraig McDonald 24 DEC 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lady Wolffe Biography:

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

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

Crown Office Specialist Casework Function:

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

The Specialist Casework units are:

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

The Civil Recovery Unit also sits within Specialist Casework.

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

 

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CRIME ON,CROWN: Historical Abuse probe dropped as Crown Office forced to pay £10K to law firm Clyde & Co – after judge suspends Police search warrant to obtain evidence relating to accusations against ‘influential’ clients

Crown Office paid £10K to law firm subject of Police raid. SCOTLAND’S Crown Office & Procurator Fiscal Service (COPFS) has been forced to pay £10K public cash in legal and ‘other fees’ to a law firm representing a ‘important client’ in relation to a botched search blocked by a judge.

The payment of £10,021.38 to Edinburgh law firm Clyde & Co (formerly Simpson & Marwick) was revealed by prosecutors in response to a Freedom of Information request amid ongoing media enquiries which have now established any possible criminal prosecution in connection with the allegations of abuse is “dead in the water”.

The events surrounding the search warrant occurred last summer, in which Police Officers obtained a search warrant to raid the premises of Edinburgh law firm Clyde & Co, in relation to material officers believed the firm held relating to evidence of historical sexual abuse of minors.

A search warrant issued by a Sheriff upon an application from the Crown Office to raid the law firm, resulting in two police officers attending the offices of Clyde & Co at 58 Albany Street, Edinburgh, at 10am on 22 July 2016 with a search warrant to obtain the evidence.

However, a stand off ensued while Clyde & Co applied to the court for a judge to revoke the search warrant.

The search warrant was subsequently revoked blocked by senior judge Lord Brodie after counsel for Clyde & Co claimed legal professional privilege was attached to the alleged evidence of abuse.

While the Crown Office have now admitted they were required to pay legal & other fees to Clyde & Co, prosecutors refused to divulge any further information on the case, citing the information was held as part of a criminal investigation – which has now been dropped.

Christine Lazzarin for the Crown Office stated in the FOI response: “Firstly I should clarify that a Bill of Suspension hearing emanates from criminal proceedings and any correspondence held between COPFS, the Scottish Courts and Tribunal Service (SCTS), Police Scotland and Clyde & Co in relation to this hearing is exempt.”

“By way of explanation, this correspondence is held by a Scottish Public Authority, namely the Procurator Fiscal, for the purposes of an investigation which the Procurator Fiscal had a duty to conduct to ascertain whether a person should be prosecuted for an offence and it is therefore exempt from release in terms of Section 34(1)(a)(i) of FOISA.”

“This is not an absolute exemption and I have therefore considered whether the public interest favours disclosure of the information, notwithstanding the exemption.”

“Whilst I appreciate that there is a great deal of information in relation to the hearing publically accessible on the SCTS web-site, I consider that there is a strong public interest in maintaining the confidentiality of correspondence in connection with allegations of criminality and consequently the Bill of Suspension hearing.”

“The confidentiality of such information ensures that the agencies involved in the criminal justice process can report to the Procurator Fiscal in a manner which is free and frank and for this reason I consider that the public interest favours upholding the exemption.”

“You have also asked for information about fees, costs, legal expenses or other funds paid by COPFS to SCTS and Clyde & Co. I can advise that COPFS paid a total of £10,021.38 in fees, and other legal costs to Clyde & Co after the hearing.”

Further enquiries into the case by the media have now established the investigation into the case of alleged abuse has now been dropped – with legal insiders at the Crown Office blaming the Crown Office handling of the search warrant, and the effect of Lord Brodie’s order cancelling the search warrant.

Legal sources have also speculated Police Scotland may have been forced to pay the same law firm – Clyde & Co – for their actions in seeking to serve the warrant and obtain the alleged evidence of abuse.

During the Financial year 2016 to 2017, a mysteriously large sum of public cash – £213,933.24 was paid to Clyde & Co by Police Scotland according to figures obtained in a recent media investigation into Police payments to law firms, reported in more detail here: Concerns on Public Bodies Legal Fees spending as figures reveal Scottish Police Authority fork out over £1m in legal fees, Police Scotland spend at least £1.3 million on external lawyers

However, faced with further searching enquiries, Police Scotland have point blank refused to disclose any further information about their payments to Clyde & Co and other law firms.

While the Crown Office have now dropped a prosecution in relation to the alleged abuse, the media are eager to speak to anyone involved in the investigation, or the victims themselves, who can if they wish come forward to DOI, by way of contacting the blog at scottishlawreporters@gmail.com

This latest floundered investigation into what is alleged to be an influential figure in relation to historical abuse crimes – is another blow for the failing leadership of the Crown Office – under current Lord Advocate James Wolffe QC & Solicitor General Alison Di Rollo (sister of Glasgow solicitor & former Law Society of Scotland President – Austin Lafferty)

Last month, it was revealed the Crown Office has given jobs – without interview – to relatives of high ranking Crown Office staff, who then went on to be charged with drug dealing offences – information which came to light in an ongoing investigation into Prosecutors interests and a secret Crown Office register of interests, reported in more detail here: DECLARE THE CROWN: Secrecy block on Crown Office Register of Interests – after fears info will reveal crooked staff, dodgy business dealings, prosecutors links to judiciary, criminals, drugs dealers and dodgy law firms

The Sunday Mail newspaper reported the payments from the Crown Office to Clyde & Co here:

Court chiefs fork out £10k to law firm after botched raid in abuse probe

‘Standards were not met’ when cops turned up with a warrant at Clyde and Co’s Edinburgh office and tried to seize ‘privileged and confidential’ material.

By Craig McDonald Sunday Mail 8 OCT 2017

Prosecutors have paid £10,000 to a law firm after a botched raid on their offices.

Police wanted to seize files from Clyde and Co lawyers that they believed related to an abuse investigation.

But the firm objected, stating the material was “privileged and confidential”.

Despite this, two officers turned up at the firm’s Edinburgh branch with a search warrant in July last year. The warrant was eventually blocked after a court hearing.

Judge Lord Brodie later ruled “standards were not met” regarding prosecutors’ handling of the case.

The Crown Office have now paid £10,021 in legal fees and costs to Clyde and Co.

Detective Constable Nicola Gow called Clyde and Co by phone on July 7 last year to tell the firm they had information in their files that might be relevant to a criminal inquiry.

Graeme Watson, a partner, told her he would check what information he could provide but that “client files were privileged and confidential”.

Gow said she would discuss it with her superior officer but told the firm “a search warrant might be sought”.

Watson wrote to the sheriff clerk in Edinburgh stating the files were covered by the “Data Protection Act, confidentiality and agent-client privilege”.

Two police officers turned up at the firm’s building in the city’s Albany Street with a warrant at 10am on July 22.

Clyde and Co went to court to have it blocked. In his judgment, Lord Brodie found the procurator fiscal’s actions in applying for the warrant “to have been oppressive”.

He said the wording was “misleading, if not simply inaccurate” and “requisite standards were not met”.

The Crown Office said last week: “We note the terms of Lord Brodie’s decision. The Lord Advocate has taken steps to ensure there will be no repeat of this situation.”

Police Scotland said: “As this is a matter for the Crown Office, it would be inappropriate for us to comment.”

Clyde and Co declined to comment.

POLICE STAND OFF AS JUDGE BLOCKS SEARCH WARRANT:

A full report on the opinion by Lord Brodie and his revocation of the Police Scotland search warrant was published by Scottish Law Reporter here: Police raid on Edinburgh law firm halted by judge – Lord Brodie hits out at Crown search warrant tactics against Clyde & Co over historic sex crimes investigation

An excerpt from the Bill of Suspension, signed by Lord Brodie in relation to the search warrant follows:

NOTE BY LORD BRODIE in BILL OF SUSPENSION by CLYDE AND CO (SCOTLAND) LLP Complainers;

against THE PROCURATOR FISCAL, EDINBURGH Respondent:

Complainers:  Smith QC; Clyde & Co

Respondent:  No appearance (Crown Office did not appear at hearing)

22 July 2016

[1]        The complainers in this bill of suspension are a limited liability partnership, being solicitors with a place of business at Albany House, 58 Albany Street, Edinburgh. The respondent is the Procurator Fiscal, Edinburgh. The complainers seek suspension of a search warrant granted by the sheriff at Edinburgh on the application of the respondent, dated 21 July 2016 and timed at 1537 hours (“the search warrant”). The application which came before me, on 22 July 2016 not long before 1700 hours in chambers, was for interim suspension of the warrant. As at that time the bill had not been warranted for service. Having heard Mr  Smith on behalf of the complainers, I adjourned in order to allow my clerk to advise Crown Office that the application had been presented and to invite the attendance of an advocate depute to represent the respondent. That invitation was made by telephone at a little after 1700 hours. It was not taken up. Having heard Mr Smith further, I suspended the search warrant ad interim, granted warrant for service of the bill and continued the matter to a date to be fixed.

[2]        The circumstances in which that application was made, as I understood them from what appeared in the bill, in two telephone attendance notes and the explanation provided by Mr Andrew Smith QC, who was accompanied and instructed by Mr Graeme Watson, Solicitor Advocate, a partner in the complainers, are as follows.

[3]        A client of the complainers is S.  The complainers have acted for S in relation to claims for damages against it by individuals on the basis of its vicarious liability for alleged acts which occurred at a particular location, L.  These claims have been discontinued on account of an acceptance that any claims were time-barred. It is averred by the complainers that in course of taking instructions from representatives of S these representatives “disclosed certain matters and were provided with advice… which advice and information being disclosed was privileged.” As I understood matters, the complainers retain in their possession documents and files, both paper and digital, generated in the course of acting for S which include information and advice in respect of which S, whose specific instructions have been taken on the point, asserts legal privilege.

[4]        On 7 July 2016 Detective Constable Nicola Gow contacted the complainers by telephone. She spoke to Mr Watson. There were at least three telephone calls between DC Gow and Mr Watson on that day. I was shown copies of Mr Watson’s telephone attendance notes. DC Gow indicated that she was aware that the complainers held certain information in their client files for S that might be relevant to a criminal inquiry which was currently being undertaken.  She already had copies of some documents but wished to obtain originals of these (including what she described as “originals” of unsigned statements held digitally), the litigation files and such other documents which were in the possession of the complainers. Mr Watson advised that the complainers would check what information they had access to with a view to establishing its whereabouts and what might be capable of being produced. Mr Watson indicated that the client files were privileged and confidential. Mr Watson advised that in the event of him receiving instructions to do so, he was willing to excise from the file certain material in order to assist the police inquiry. DC Gow suggested that they might arrange a time to look at the files together. Mr Watson said that he would need to take instructions on that proposal but that a provisional date for such a joint consideration of the files could be arranged. DC Gow indicated that she would discuss matters with her superior officer but that a search warrant might be sought.

[5]        On 11 July 2016, in anticipation that an application for a warrant might be made, Mr Watson, on behalf of S wrote to the Sheriff Clerk in Edinburgh requesting that the Sheriff Clerk contact the complainers in the event of any application to the sheriff with a view to S being represented at any hearing before the sheriff. Mr Watson explained in that letter that the complainers and S had provided such assistance to Police Scotland as they could within the confines of the Data Protection Act 1998, confidentiality and agent-client privilege. The letter included the sentence: “In our submission it would be oppressive and prejudicial for a warrant to be granted without first hearing from [S].” No reply has been received to that letter.

[6]        Subsequent to the conversations between Mr Watson and DC Gow and prior to 22 July 2016 neither the police, the respondent nor any other representative of the Crown contacted the complainers in relation to recovery of documents held by the complainers.

[7]        At about 1000 hours on 22 July 2016 two police officers attended at the offices of the complainers at 58 Albany Street, Edinburgh, claiming to be in possession of the search warrant which they proposed to execute. Initially they were reluctant to allow Mr Watson to read the search warrant and then they were reluctant to allow him to copy it. Once Mr Watson had succeeded in persuading the police officers to allow him to read and copy the search warrant he was able to ascertain that it had been granted at common law in terms of the crave of a petition at the instance of the respondent in these terms:

“to any Constable of Police Service of Scotland and/or members of staff from the Scottish Police Authority or any other Officer of Law with such assistance as they may deem necessary, to enter and search the offices, out buildings and storage facilities of Clyde & Co, Albany House, 58 Albany Street, Edinburgh and to be at liberty to secure and take possession of any papers relating to L whether in electronic or paper format, and any other evidence which may be material to the investigation into the alleged abuse at L held by said Clyde & Co, whether in a computer system or otherwise.”

Insofar as material to the issues raised in the bill, the averments in the petition were as follows:

“[S] have provided copies of documents referring to a code of conduct for staff … a punishment book, lists … statements, including what purports to be a statement taken from [a named person] and signed by her …

[S] have indicated that the originals of these documents are held by their legal representatives, Clyde & Co, Albany House, 58 Albany Street, Edinburgh. A request has been made to have these documents released to Police Scotland, however, the solicitor has refused to release these documents, citing reasons of client confidentiality.

The solicitor has indicated that they will provide the originals of the documents already provided in copy format only.

“There are reasonable grounds for believing that evidence material to the investigation … is found within the documents being withheld by the solicitor.  The solicitor has indicated to an officer of Police Scotland that there are two boxes of papers and electronic records relating to [L].”

The full note by Lord Brodie – which was published three months after the events of the search warrant took place, can be found here: COPFS Bill of Suspension – Clyde & Co – Lord Brodie

It is also worth noting the Scottish Government have recently announced the scrapping of time bar on historical sexual abuse cases, as the case referred to Lord Brodie does contain references to claims in relation to allegations of abuse becoming time barred.

The Scottish Government announcement on scrapping time bar for claims in relation to historical sexual abuse states the following:

The Limitation (Childhood Abuse) (Scotland) Act 2017 is a piece of legislation which changes the rules around the time limits within which you can make a claim for compensation in the civil courts. Usually you have to make your claim within three years of the injury, or (if it is later) three years from your sixteenth birthday.

This change will mean that there will no longer be a time bar on childhood abuse claims in the civil courts. (It applies to abuse of a person under the age of 18.) There will no longer be a requirement to make a claim within the three years or to ask the court to use its discretion to allow the case to go ahead after that period.

The law usually prevents claims being taken to court more than once. The Act makes a limited change to this for childhood abuse claims. If you took a claim to court before the Act became law, but lost because of the time bar, the Act means that you should not be prevented from taking another claim to court.

This change is in relation to the three year limitation period, which is relevant to abuse that took place on or after 26 September 1964.

The commencement of the Limitation (Childhood Abuse) (Scotland) Act 2017 means survivors of child abuse no longer face the ‘time-bar’ that requires personal injury actions for civil damages to be made within three years of the related incident.

Minister for Community Safety & Legal Affairs Annabelle Ewing, who took the legislation through Parliament, said the move was an important part of wider Scottish Government action to support survivors of childhood abuse.

Ms Ewing said: “Child abuse is the most horrific betrayal of our young people and, even where such crimes were committed decades ago, we will do all we can to help survivors get the justice they deserve. Police Scotland and the Crown continue to work tirelessly to bring perpetrators to justice through our criminal courts. And, while it may not be the right way forward for all, survivors may now be considering the option of accessing justice through the civil courts.

“This legal milestone would not have happened but for the courage of many adult survivors whose persistence and dedication have shone a light on the dark realities of child abuse. Through their brave testimonies they have made clear the great hurt and damage caused by the very individuals and institutions who should have cared for them.

“Alongside our national survivor support fund, the establishment of the independent public Inquiry into in-care childhood abuse, and the current consultation on a potential financial redress scheme, this removal of the civil time-bar underlines the Government’s commitment to ensuring Scotland is beginning to make amends for the grave failings of the past.”

Welcoming the introduction of the Act, Joanne McMeeking, Head of Improving Care Experiences at CELCIS at the University of Strathclyde, said: “The abolishment of the time bar is the result of many years of successful campaigning by survivors. It is a welcome addition to the package of effective reparation as outlined in the Action Plan on Justice for victims of Historic Abuse of Children in Care.”

For previous articles on the Crown Office, read more here: Scotland’s Crown Office – in Crown detail

 

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DECLARE THE CROWN: Secrecy block on Crown Office Register of Interests – after fears info will reveal crooked staff, dodgy business dealings, prosecutors links to judiciary, criminals, drugs dealers and dodgy law firms

COPFS secret register contains links to judges, crime & business. AN INVESTIGATION has revealed Scotland’s Crown Office & Procurator Fiscal Service (COPFS) are blocking the publication of a staff register of interests – over fears it will reveal close relationships between prosecutors & judges, suspended solicitors, staff with criminal convictions including drugs crimes, and links to organised crime and sectarian behaviour.

The secret COPFS register of interests only received public acknowledgement of its existence – after the Scottish Information Commissioner became involved over refusals by Scotland’s top law officers to publish the information similarly disclosed in other registers of interest held by public bodies – including Police.

The issue came to light when journalists examined discussions between the Crown Office and the Scottish Parliament over a call for the Lord Advocate to submit evidence on Crown Office employees register of interests.

However, the Crown Office bluntly refused to provide any evidence or testimony to the Scottish Parliament’s Public Petitions Committee – who have been investigating proposals to require Scottish judges to declare their interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Senior figures at COPFS put a secrecy block on publication of their own register of interest after journalists uncovered a host of conflicts of interest by COPFS staff, including links to disgraced solicitors and suspended judges, unrecorded meetings with Ministers and members of the judiciary, business connections and interests of COPFS staff and dumbed down criminal convictions of prosecutors still working for the Crown Office.

And the Crown Office block on publication remains in force today – after over two years of refusal to disclose the information in response to Freedom of Information requests.

When journalists approached the Scottish Information Commissioner for assistance, the SIC made enquiries of the Crown Office to be told “As you have noted, our original response indicated that in our view no application could be made to the Commissioner. COPFS considered that section 48(c) of FOISA applied as the information requested is held by the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland. You have now asked us for our views on why we consider that to be the case.”

“I can confirm that COPFS holds a Register of Interests which extends to all members of staff. The Register is held on behalf of the Lord Advocate in order to guard against conflict of interest in prosecutorial decision making. The register of interests is designed to ensure that impartiality can be demonstrated in relation to any individual making prosecutorial decisions or involvement in the preparation or presentation of any case. Given the register is held on this basis, we consider that the information is held by the Lord Advocate in his capacity as the Head of the systems of criminal prosecution and investigation of deaths in Scotland.”

 Scottish information Commissioner files released on discussions with COPFS Register of Interests.

However, the enquiries and media interest prompted the Crown Office to acknowledge publicly for the first time the register of interests existed.

The Crown Office statement to the SIC in a letter dated further revealed: “Coincidentally, this issue has recently been considered by the COPFS Executive Board and a decision has been taken that the register should not published. To provide information about the personal interests of prosecution staff could compromise the security of individual staff members, undermine their ability to do their job and create conflict with our obligations under the Data Protection Act.”

“We intend, however, to provide a public statement of explanation about why we do not publish details of the Register of Interests on our website within the next 6 weeks and I will ensure that you are provided with a link to this when it is published.”

However, tt can now be revealed COPFS feared the register would also reveal close links between Advocate Deputes who prosecute criminals in court – and their spouses and partners who work in the Scottish Courts and some who serve on the judicial benches.

Discussions took place with regard to media enquiries , and fears were raised if the public and persons in court found out of  personal and family links between prosecutors and the judiciary, there could be questions over impartiality.

One such example of a Prosecutor with family in the judiciary is that of Advocate Depute Murdoch MacTaggart – who prosecuted the longest fraud trial in UK history in the case of Edwin & Lorraine McLaren – in connection with their sell your house & rent it back property scheme. MacTaggart was married to a Sheriff – Mhairi McTaggart.

There are a number of other personal relationships between prosecutors, crown office staff, the legal profession and judiciary – some of whom have appeared in and on both sides of the court together during  criminal trials – without any questions being raised on impartiality.

It is very clear COPFS felt the disclosure of personal and family relationships between prosecutors and judges may cause problems in a number of previous and ongoing trials.

The personal relationships between COPFS and others may be of lesser importance than prosecutors & COPFS staff business interests, which are significant and wide ranging, in a similar nature to what has recently been disclosed by Police Scotland, more on which is available here: POLICE REGISTER: ‘First responder’ Police Officers transparency in cops business interests register

However, in the case of COPFS employees & prosecutors business interests, there is significantly more potential for conflicts of interest in court.

And, it can also be disclosed a number of COPFS employees relatives and direct family appear to be working in highly paid positions in other public bodies, the Scottish Government and organisations within the justice system  including the courts – some of whom secured jobs without interview.

Enquiries in relation to the work histories of several Crown Office employees also reveals some Prosecutors and Advocate Deputes may also be exposed to questions over their links to law firms alleged to have committed significant fraud  with legal aid cash and embezzlement of client funds.

In a further investigation linked to the long running McLaren fraud trial, COPFS refused to respond to queries in relation to the status of any proceedings against a suspended lawyer – Karen MacTaggart – who was suspended as a solicitor from April 2014, according to a notice issued in the Gazette.

Karen MacTaggart is the sister of a Crown Office Advocate Depute – Murdoch MacTaggart.

The Crown Office was approached for an explanation on this but refused to respond.

The investigation has also revealed further concerns at the Crown Office – over fears publication of their Register of Interests would expose details of serving employees criminal convictions on everything from common assault, to perverting the course of justice, and dealing of Class A drugs including Cocaine – to COPFS colleagues and members of the public.

A further block on publication of the COPFS register of interests came about after members of IT staff at the Crown Office became embroiled in a scandal involving anti-catholic sectarian behaviour

One COPFS employee was sacked and another quit after an investigation was launched into alleged sectarian comments made on an internal messaging system.

Shocked staff blew the whistle on their colleagues after spotting the anti-catholic remarks & comments on their computer screens, and following an internal probe, the men were found to have breached strict rules on bullying, harassment and discrimination.

As a result, one worker has been sacked and another has resigned, and a third, who had a senior managerial role, was given a final written warning.

The male members of staff who made the comments worked in the IT department of the Crown Office and Procurator Fiscal Service (COPFS) in Ballater Street, Glasgow, close to the city’s sheriff court. It is also understood that a second IT manager was moved to another department after the probe was completed.

An investigation was first launched after two Catholic staff members complained that sectarian hate comments had been posted by the three men but the resulting inquiry failed to find evidence to substantiate the claims – even though other members of COPFS saw the actual comments.

None of the COPFS staff involved in the sectarian probe have been named by prosecutors, however the names have now been passed to journalists who are looking further at the case.

Another reason for the Crown Office to refuse publication of it’s own register of interests hit the headlines in March 2016, when the Sunday Mail newspaper reported that the then Lord Advocate’s brother was at the centre of a probe into financial dealings – reported here: Revealed: Lord Advocate’s brother Iain Mulholland at centre of dirty money probe after arranging £550k mortgage for rogue lapdance tycoon

Iain Mulholland, the younger brother of Scotland’s top prosecutor who announced he was standing down last week, helped prepare paperwork that secured businessman Steven MacDonald a huge loan now being probed by the Crown Office.

Prosecutors hunting assets linked to organised crime claim MacDonald conned bank bosses into lending him enough cash to buy his Diamond Dolls strip club.

They claim the businessman lied on a mortgage application to get a £552,000 cash injection from the Bank of Scotland to purchase the property in Glasgow city centre.

Mortgage broker Iain Mulholland arranged MacDonald’s loan application through his First to Mortgage firm.

The 48-year-old fixed the loan that is now the focus of a major investigation by the Civil Recovery Unit (CRU) – investigators at the Crown Office, led by his brother, who seize dirty money, property and other assets linked to organised crime.

In another case referred to within COPFS circles amid media queries on the secret register of interests – concerns were raised after a senior female member of staff was discovered to be involved in a relationship with an underworld figure accused of supplying guns and drugs.

There were fears information was being provided to the crook – which may have impacted on a now collapsed prosecution against several gangsters.

And in another development, information has come to light regarding the status of a Grade 6 Manager at the Crown Office, and the employment of his relative who was later charged with drug dealing.

The COPFS Manager’s step-son – who worked part time in the NHS – and has a direct relative working in the same organisation –  was handed a lucrative Crown Office job with access to sensitive information – without even an interview.

The individual – identified as Mr Peter Murphy –  worked at the Crown Office for around two years and was then arrested, apparently, on a Petition Warrant relating to the supply of Class A drugs.

Murphy’s employment at COPFS included access to sensitive information and systems which contained files relating to drug dealers within the city.

Sources said “It was presumed that given the quantity of drugs involved the case would be prosecuted at the High Court” – however no trace of any trial has been discovered and, allegedly, the Crown Office drug dealer received a community disposal at Sheriff Court level.

COPFS staff suspect the watered down and preferential treatment of the COPFS drug dealer was a result of information provided to the police or the Fiscal reducing the charges.

After the incident, Peter Murphy was allowed to resign from the Crown Office, rather than be sacked.

However, investigations around the case first revealed in the Scottish Sun during 2016 in reports of drug dealing at the Crown Office case – has since established Mr Murphy’s identity as the COPFS employee charged with drug offences.

The Crown Office has refused to answer further questions on this case, however, records show Mr Murphy’s step father – John Tannahill – a Grade 6 Manager – has worked at the Crown Office since October 2002.

John Tannahill currently occupies the positions of Head of COPFS Police Reform Team and Process Review Team and Major Incident Co-ordinator, Chair, Judicial Panel Scottish Football Association – according to Mr Tannahill’s Linkedin page.

Further internal discussions on the publication of the register reveal senior legal figures concerns that their own staff may be identified as members of organisations condemned for associations with the far right and racism if the Crown Office register becomes public.

There are now calls to make the Crown Office Register of Interests a polished document, to enable court users and legal representatives have access to the information in relation to Prosecutors interests.

However, the Crown Office has refused to issue any further comment on the content of their register of interests other than a brief online reference to it’s existence, which was only published after discussions with the Scottish Information Commissioner.

Crown Office Register of Interests

The Civil Service Code, which applies to all civil servants, requires that they should not put themselves in a position where duty and private interests conflict, nor make use of their official position to further those interests.
As a public servant, an employee has a particular duty to ensure that their public position is not, and raises no reasonable suspicion of being, abused in their own personal interest.

The Crown Office and Procurator Fiscal Service holds a formal Register of Interests which extends to all members of staff.

The Interests are defined as:

Business interests (including directorships) not only of the employee but also  close family members

Shareholdings or other securities/financial interest which the employee or members of their close family hold

Any political interest or interest/membership in an organisation, club or society where there is the potential for a conflict of interest to arise as a result of official position

It is held on behalf of the Lord Advocate in order to guard against conflict of interest in prosecutorial decision making.

It is designed to ensure that impartiality can be demonstrated in relation to any individual making prosecutorial decisions or involvement in the preparation or presentation of any case.

The Register is not published.

To provide information about the personal interests of prosecution staff could compromise the security of individual staff members, undermine their ability to do their job and create conflict with our obligations under the Data Protection Act 1998.

It is worth noting while the Lord Advocate is determined to withhold the information contained in the COPFS register of interests from public scrutiny, the Crown Office itself believe members of their own staff are not honest in their own declarations and entries in the register.

And, in a number of trials, prosecutors and COPFS staff have been switched around at the last minute after failing to declare interests which could have potentially harmed criminal trials.

While the Crown Office would only issue the above statement online in relation to it’s secret Register of Interests – the evidence now in the public domain in relation to serious conflicts of interest held by prosecutors, personal links to the judiciary, businesses who themselves have contracts within the justice system, and other more serious issues including jobs handed out to family members – make the case for publication much stronger.

For previous articles on the Crown Office, read more here: Scotland’s Crown Office – in Crown detail

 

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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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