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LORD TO PARLY: Top judge Lord Carloway to face Parliament probe on register of judges’ interests, former Cabinet Minister Alex Neil MSP also to be heard on judicial transparency proposals

Lord Carloway – offer to give evidence accepted by MSPs. SCOTLAND’S top judge is set to appear before the Scottish Parliament’s Public Petitions Committee after MSPs accepted an offer he made to give evidence in connection with calls to create a register of judicial interests contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Lord President Lord Carloway – who earns £220,655 a year and counts among his titles that of “Lord Justice General”  as head of Scotland’s judiciary – made the offer in a detailed letter offering some concessions to MSPs which has now been published by the Scottish Parliament.

In his letter to MSPs, Lord Carloway said: “I indicated in previous correspondence that I felt I could add little more to the views previously expressed. That remains my view. However, if the Committee wishes me to provide this evidence orally, I will do so.”

However, while Lord Carloway (real name Colin Sutherland) gave concessions to calls for expanding an existing “register of recusals” in which judges are now required to publish details of cases in which they step aside, the top judge maintained his grim opposition to judicial transparency and the creation of a register of judges’ interests for members of Scotland’s elite, wealthy judiciary.

Lord Carloway’s offer to attend the Petitions Committee was welcomed by the petitioner, reported earlier here: TO PARLY, M’LORD: Scotland’s top judge Lord Carloway finally offers to give evidence to Scottish Parliament probe on register of judges’ interests.

Carloway’s offer to give evidence was further welcomed by Angus MacDonald MSP (SNP, Falkirk East) – who proposed taking up Lord Carloway’s offer to give evidence to the long running, and widely supported proposal to create a register of judicial interests.

Mr MacDonald said: “I have followed this petition from day 1 – I think that it was lodged in December 2012 – and have deliberated on it for more than four years. It is encouraging and refreshing to note that the Lord President has offered to provide oral evidence to the committee, given the difficulties that we had with arranging for the previous Lord President to give evidence to us. We should take up Lord Carloway’s offer.”

Members of the Committee  unanimously backed Mr MacDonald’s proposal to call in the top judge.

The Public Petitions Committee has since indicated an invitation will be issued to Lord Carloway to attend a future hearing to give evidence.

At the same meeting, the Committee Convener Johann Lamont MSP (Scottish Labour, Glasgow)  informed members the Committee had received a request from former Cabinet Secretary Alex Neil MSP (SNP, Airdrie & Shotts) to appear before the Committee.

Ms Lamont and members of the Committee backed the request from Alex Neil, who will join the hearing when Lord Carloway attends the Petitions Committee at a date to be decided.

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

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

The meeting of the Scottish Parliament’s Public Petitions Committee is reported, with video footage here:

Register of Judicial Interests PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

 Judiciary (Register of Interests) (PE1458)

The Convener: The next petition is PE1458, by Peter Cherbi, which calls for the introduction of a register of interests for members of Scotland’s judiciary. When we last considered the petition, we agreed to seek further information from the Lord President and the Judicial Complaints Reviewer. Responses have been received from both and we also have submissions from the petitioner and a member of the public, Melanie Collins.

Members will recall that, when we wrote to the Lord President, we repeated our invitation to him to provide oral evidence, which he has now indicated that he would be willing to do. We express our gratitude for that.

Do members have any comments on further action to take on the petition?

Brian Whittle: I am glad that the Lord President has agreed to give evidence. That seems like what we should do next.

Angus MacDonald: I have followed this petition from day 1—I think that it was lodged in December 2012—and have deliberated on it for more than four years. It is encouraging and refreshing to note that the Lord President has offered to provide oral evidence to the committee, given the difficulties that we had with arranging for the previous Lord President to give evidence to us. We should take up Lord Carloway’s offer.

The Convener: We should also note that Alex Neil MSP has expressed an interest in speaking to this petition but is unable to be here today. It might be that he could attend the meeting with the Lord President. Angus MacDonald is right that this is a step forward.

Do we agree to invite the Lord President to give evidence at a future meeting, and see what comes out of that?

Members indicated agreement.

Lord Carloway’s impending attendance at the Public Petitions Committee was featured in “The National” newspaper.

The report also carried concerns from members of the legal profession they may be next in having to fill out registers of interest for clients to inspect.

 Judiciary chief to face MSPs over register of interests

Martin Hannan, Journalist

SCOTLAND’S most senior judge Lord Carloway, the Lord President of the Court of Session and Lord Justice General, is to be quizzed in public by MSPs for the first time on the issue of a register of interests for judges.

The head of the Scottish judiciary will appear at a future meeting of the Public Petitions Committee which has been investigating the matter since December 2012 after legal campaigner Peter Cherbi called for a public register of judges’ interests.

Also appearing before the committee will be Alex Neil MSP, the former Scottish Government minister who recently told The National: “I don’t see why judges should be operating to a standard that’s inferior to that which MSPs have to follow.”

Previous Lord President Lord Gill refused to appear in public before the committee, but did give evidence later, arguing against a register.

At the latest committee meeting, deputy convener Angus MacDonald, SNP MSP for Falkirk East, said: “Having followed this petition from day one and having deliberated on it for over four years, it’s encouraging and refreshing to know that the Lord President has offered to provide oral evidence to the committee, given the difficulties that we had with the previous Lord President.”

The National understands the main fear among senior legal figures is that the register would eventually be extended to advocates and possibly even solicitors, and that judges would also have to declare their shareholdings in companies, thereby indicating their personal wealth.

In a letter to the committee, Lord Carloway stated: “One possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these if that requires the disclosure of financial interests.

“In the same way, a register of judicial interests may have a damaging effect on judicial recruitment. You may be aware that, partly because of major changes to pension arrangements, difficulties have arisen in the recruitment of the senior judiciary. Revealing personal financial information is likely to act as a further powerful disincentive.”

He added: “I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that.”

However, the official Judicial Complaints Reviewer, Gillian Thompson, wrote to the committee saying: “I recognise that every judicial decision leaves a party that is dissatisfied and that a complainant may feel he or she did not get a fair hearing because the decision went against them.

“Although I have no evidence to support my view I do believe that if court users felt that judges were transparent in their publication of interests there might be a drop in such complaints.”

Petitioner Peter Cherbi said: “I am delighted MSPs have taken up Lord Carloway’s offer to give evidence on the widely supported proposal to create a register of judicial interests.

“As the Petitions Committee have also decided to invite Alex Neil MSP to the same meeting, I am hopeful of significant lines of questions being put to the Lord President on failures within the judiciary to recuse themselves and declare interests when it counts in court.

“Perhaps, if Lord Carloway realised the extent of support for the register, and the public’s expectation of transparency within the judiciary as well as all other branches of government, he will do the right thing and create the register of interests using his power as Lord President, giving Scotland a chance to teach the rest of the UK a thing or two in judicial transparency and declarations of interest.”

The Sunday Herald reports:

 Top judge to reform judicial conflict of interest rules after Holyrood scrutiny

Paul Hutcheon, Investigations Editor

SCOTLAND’s top judge has said he will strengthen the rules on judicial ethics amid concerns over the system for declaring conflicts of interest.

Lord Carloway has agreed that publishing details of when judges and sheriffs have declined to “recuse” themselves [stand down] from cases may provide “additional transparency”.

However, he has stopped short of supporting a full register of interest on the grounds that criminals could use the information to target his colleagues.

Holyrood’s Public Petitions Committee has for four years been considering whether judicial office holders should be compelled to publish details of their outside interests.

Under the plan, judges would be required to declare details of shareholdings, directorships and membership of bodies.

The previous Lord President, Lord Gill, was against the proposals as he feared judges’ privacy could be compromised by “aggressive media or hostile individuals including dissatisfied litigants”.

He also initially refused to give oral evidence in front of MSPs – citing a legal exemption – before eventually appearing after he left office.

However, on Gill’s watch, the Judicial Office for Scotland (JOFS) introduced a register of recusals which reveals when judges and sheriffs came off a case due to a potential conflict of interest.

Since 2014, there have been over 70 instances declared on the JOFS website, but campaigners believe the disclosure requirements do not go far enough and want a mandatory register of interest.

In a letter to the Public Petitions committee, Carloway has signalled he will beef up the register: “I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.”

He has also agreed to provide oral evidence to MSPs, if they still feel it is necessary, but he stepped up his criticism of a register of interest.

He wrote: “All senators and all sheriffs exercise a civil and criminal jurisdiction. I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that.”

He added: “One possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these, if that requires the disclosure of financial interests. In the same way, a register of judicial interests may have a damaging effect on judicial recruitment.”

Peter Cherbi, the campaigner who introduced the petition to Holyrood, said: “I welcome Lord Carloway’s agreement to my earlier suggestions to MSPs to include further details on recusals and whether a judge recuses themselves or not.”

However, he added: “A register of interest for Scotland’s judges would be a significant step forward in helping court users and legal teams ensure fair hearings of cases in our justice system. Lord Carloway could take the next step and authorise the creation of such a register.”

Tory MSP Jackson Carlaw said: “It seems that the judiciary may now be ready to respond to the calls made for some time and come into line with other elements of public life when it comes to declaring interests. It’s a move that’s been resisted for too long, and people are growing impatient about the ongoing prevarication.

“We want Scotland to be as transparent a place as possible and, while progress has been made in areas like politics, it’s essential that is matched elsewhere.”

A spokesperson for the Judicial Office for Scotland said: “The Lord President intends to amend the register of recusals to include details of cases where a judge has declined to recuse, and this change will be implemented as soon as the necessary guidance is drafted and issued”.

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

 

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TO PARLY, M’LORD: Scotland’s top judge Lord Carloway finally offers to give evidence to Scottish Parliament probe on register of judges’ interests – amid growing calls for full judicial transparency

Lord Carloway to face Holyrood on judicial transparency. SCOTLAND’S top judge has made an offer to appear before the Scottish Parliament’s Public Petitions Committee who are conducting a FIVE YEAR probe on proposals to create a register of judges’ interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary

Lord President Lord Carloway made the offer in a detailed letter offering some concessions to MSPs – which has now been published by the Scottish Parliament.

In his letter to MSPs, Lord Carloway said: “I indicated in previous correspondence that I felt I could add little more to the views previously expressed. That remains my view. However, if the Committee wishes me to provide this evidence orally, I will do so.”

Lord Carloway (real name Colin Sutherland) also claimed in his letter to MSPs – that the subject of “online fraud” should also be considered as a reason to keep judges links to big business and significant wealth away from public gaze.

However, MSPs have been reminded the subject of online fraud has proved no obstruction to the thousands of registers of interest already in operation across the public sector – from local councillors and workers on local government right up to the Prime Minister, politicians and even members of the security services.

And, while Lord Carloway remains bitterly opposed to full judicial transparency – which would see the creation of a register of judicial interests to match all other branches of Government and those in public life including MSPs – the top judge has given a further concession to the petition in a decision to expand the current “recusals register” – where judges step aside from cases due to a conflict of interest.

Writing to the Petitions Committee, Lord Carloway said: “I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.”

The concession from the Lord President comes after growing calls from those who support the judicial transparency proposals to give full information to the public on why judges are asked to recuse themselves in cases where conflicts of interest arise in court.

Since 2014 – when the then Lord President Lord Brian Gill created the register of recusals in an attempt to head off demands by MSPs and the public to bring in the register of interests for judges, there have been over 70 recusals from members of Scotland’s judiciary in cases throughout Scotland.

The recusals have occurred on issues where conflicts of interest have arisen – such as membership of charities, relationships between judges and those appearing before them in court, and other ‘conflicts of interest’.

In one case during 2014, Lord President Lord Gill was forced to step aside from a court hearing after he realised his son – Advocate Brian Gill, represented one of the parties in a court action which the Judicial Office have refused to give any further detail on since the recusal took place in late June 2014.

However, a recent investigation by the media has revealed judges are refusing to recuse themselves in high profile cases in the Court of Session – where inks to the judiciary permeate right across the court room.

An investigation published by Diary of Injustice earlier this month revealed Court of Session judge Lord Malcolm heard a case eight times, where his own son Ewen Campbell had an interest as a representative and adviser to the defenders – construction company Advance Construction Ltd.

Investigations by journalists has revealed there is no written record of any recusal by Lord Malcolm (real name Colin Malcolm Campbell) – who only stood aside from considering the action well into the hearings after he ‘realised’ the involvement of his son in the case.

Lord Malcolm then handed the case over to Lord Woolman – who heard the proof in the case – which has now become the subject of increasing questions after material was handed to the media suggesting key parts of the evidence founded upon by Lord Woolman have no evidential basis.

In an unprecedented move, Lord Malcolm then returned to the case for an eighth hearing to hand over money which had been lodged by a third party as caution for an appeal.

It is thought this is the first incidence of a judge returning to a case he previously stood aside from, yet there are no details contained in the current register of recusals, even though the pursuer lodged an appeal against Lord Malcolm’s reappearance in the damages claim.

The move has been frowned upon by legal observers – many of whom agree a judge should not be allowed to sit on a case they have previously recused themselves from, and calls are now being made to the Lord President to establish such a rule in the code of Judicial ethics and conduct, ensuring similar events do not take place in the future.

And, in relation to media enquiries seeking an explanation for Lord Malcolm’s decision to return to the case, the Judicial Office have refused to give any details on why Lord Malcolm refused to consider his position as a recusal matter.

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

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

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

Details of the shocking case – which has seen no less than seven additional judges hear motions and interlocutors, has now been made to MSPs studying the plans to create the register of interests – which would also require members of the judiciary to disclose their links to others in the legal profession, links to business and other information.

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

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

Lord Carloway’s letter to the Public Petitions Committee is now published in full, here: Letter from Lord Carloway to Public Petitions Committee re Petition PE1458

PE1458: REGISTER OF INTERESTS FOR MEMBERS OF SCOTLAND’S JUDICIARY

I refer to your letter of 23 January. I have taken some time to review the evidence provided to the Committee by Professor Alan Paterson and to reconsider the position.

I note that you request a response on three specific issues, as follows:-

• First, whether there have been any inhibitions to the administration of justice arising in relation to those members of the judiciary who have to register financial or other interests in connection with other roles.

Scotland has a relatively small judiciary and only a very small proportion of those judges and sheriffs sit on bodies which require disclosure of financial interests. For example, only four- one senator, the Chair of the Scottish Land Court, one sheriff principal and one sheriff – sit on the Judicial Appointments Board, while seven judges – three Senators including myself, a sheriff principal, two sheriffs and a JP – sit on the Board of the SCTS. I am aware that my predecessor, Lord Gill, in his letter of 5 February 2013 noted that a register of judicial interests could have other consequences. He said:

“Consideration requires to be given to judges’ -privacy and freedom from harassment by aggressive media or hostile individuals including dissatisfied litigants. It is possible that the information held on such a register could be abused.”

All senators and all sheriffs exercise a civil and criminal jurisdiction. I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that. That has not, to the best of my knowledge, happened with the small cohort of judges who have disclosed financial interests through JABS or the SCTS Board, but that sample is so small that no comfort can be derived from that. Rather, I expect that judges will become increasingly vigilant about the risks of personal information appearing in the public domain.

Accordingly, one possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these if that requires the disclosure of financial interests. In the same way, a register of judicial interests may have a damaging effect on judicial recruitment. You may be aware that, partly because of major changes to pension arrangements, difficulties have arisen in the recruitment of the senior judiciary. Revealing personal financial information is likely to act as a further powerful disincentive.

• Secondly, whether a decision on “recusal” should rest with a judge other than the individual who has been challenged or who has been identified as having a potential conflict of interests.

I assume that the proposition here is that the decision on declinature of jurisdiction should be made by someone other than the judge hearing the case, presumably another judge, or judges. At present, if a judge is asked to decline jurisdiction, and does not do so, then that decision can be reviewed, on appeal, by the appellate court. Any other system would not be an improvement. Cases are often allocated to judges, both in the Court of Session and the sheriff courts, at short notice. A party or a judge may not be aware of the circumstances in which the issue of declinature must be considered until the morning of the case. If he then requires to pass that issue to another judge, for consideration, the case is likely to be adjourned for that purpose, to the disappointment of litigants and the inefficient disposal of business in the courts.

The present system whereby a judge, having seen the papers and being aware of the precise extent of any interest financial or otherwise he may have, makes the decision on recusal, is the preferred option. Judges are invariably prudent in declining jurisdiction appropriately, but the right of appeal ensures that in, any rare case where that is not done, redress is available.

I should add that, as a generality, the problem, if there is one at all, rests with an over cautious approach to declinature: ie with judges or sheriffs declining jurisdiction and thus prompting an adjournment and causing delay when they should, in accordance with their duty, have heard and determined the cases placed before them.

• Thirdly, whether it would be in the interests of greater transparency for the “Register of Recusals” to be extended to cover instances where recusal has been considered or requested but jurisdiction has not been declined.

I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.

I hope this is of assistance to the Committee. I indicated in previous correspondence that I felt I could add little more to the views previously expressed. That remains my view. However, if the Committee wishes me to provide this evidence orally, I will do so.

Responding to the letter from Lord Carloway, the petitioner has lodged a reply with MSPs.

The petitioner endorsed Lord Carloway’s offer to give evidence before the Committee, answered Lord Carloway’s concerns in relation to online fraud.

Moves by the Lord President to expand detail in the current recusals register were also welcomed by the petitioner, who suggested Lord Carloway add the same level of detail to the register of recusals which also appears in court opinions published on the Scottish Courts and Tribunals Service website.

Writing to the Petitions Committee, the petitioner said:

Noting Lord Carloway’s offer to give evidence in public session, I urge members to invite the Lord President to an evidence session so the Committee and public can hear from the current Lord President on this petition and evidence submitted to the Committee.

Regarding Lord Carloway’s concerns about online fraud and the proposal to create a register of judicial interests, I would point out the subject of online fraud has not particularly affected or precluded other branches of public services and government, including the Scottish Parliament, from maintaining registers of interests which include financial and other details – for a considerable length of time.

Online fraud is a matter which everyone in society must deal with. Information readily published by the courts, the Crown Office and other bodies within the justice system in relation to court opinions or verdicts, contain financial, location or other personally identifiable information of significantly greater detail than is currently published about any member of Scotland’s judiciary.

With regards to concerns in relation to judges declining positions on public bodies which require the disclosure of financial details, I wish to point out judges are wealthy, well connected and influential members of the most powerful group of people in society – the judiciary. The viewpoints they hold, their status, power, and their part in decision making goes on to form public policy or law, impacting on all areas of public life.

Members of the judiciary who hold positions on public bodies, remunerated or not, should be required to declare their financial and other interests, like other members of those bodies, as there is a public expectation of transparency in all decision making and branches of Government.

Noting Lord Carloway’s comments on the current system of judges deciding whether to recuse themselves or not, this system has been proved to hold significant failures, where cases have been heard by judges who refuse to recuse themselves or, have failed to declare an interest.

The Committee has already been made aware of such cases where in one example an individual was denied their liberty, then an appeal judge who threw out the appeal, claimed in a newspaper investigation he forgot he prosecuted the same individual who was appealing his conviction.

A new system of someone else deciding if a judge should recuse themselves, along with a full and open account of the recusal decision, should be created. I do not believe such a system would pose unwarranted financial expense or considerable delays to cases.

Noting Lord Carloway’s acceptance of my previous suggestions to widen the scope of the recusals register, I support the inclusion of details where a judge is asked to recuse, considers recusing on his own, or refuses to recuse.

Further, I suggest it would be no great effort to include case reference numbers, and parties in the publication of details in the recusals register (the subjects of cases permitting), in similar form as already regularly appears in court opinions on the Scottish Courts website.

The routine publication of such detail and data should be standard practice of a transparent and accountable justice system so when a recusal request or decision occurs, court users, legal representatives ,the public and media know exactly why and for what reason a decision was taken.

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

 

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IN THE COMPANY OF FRIENDS: Hidden links between Scotland’s wealthy judges & big business begin to emerge as Scottish Parliament consider proposals to create a register of judicial interests

Top judge forced to publish limited disclosures of judicial conflicts of interest. INCREASING revelations in the media of undeclared links between Scotland’s wealthy, unaccountable judges and big business, as well as undeclared earnings, secret relationships, undeclared criminal convictions and links to offshore trusts have forced top judge, the Lord President Lord Brian Gill to publish a limited amount of information on how judges recuse themselves from conflict of interests in cases being heard in Scottish Courts.

The move to disclose recusal data only came about after Lord Gill gave an undertaking on the issue to MSPs of the Scottish Parliament’s Public Petitions Committee who are currently investigating proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary. The petition calls for judges to declare all their interests in a published publicly available register of judicial interests.

An Exclusive investigation by the Sunday Herald newspaper revealed Sheriff Principal Alistair Dunlop QC who is in charge of courts in Tayside, Central & Fife, held shares in supermarket giant Tesco while hearing a case against the same company. The articles by journalist Paul Hutcheon also go on to detail significant shareholdings of Scotland’s top judge Lord Gill, who is hostile to the creation of a register of judicial interests:

Pressure grows for register of judges’ interests as sheriff hears Tesco case while holding shares in company

Paul Hutcheon Investigations Editor Sunday 27 April 2014

A senior sheriff presided over a court hearing involving Tesco at the same time as he held shares in the multi-national supermarket giant.

Sheriff Principal Dunlop QC did not absent himself because having shares in a company that is party to a court action does not require a member of the judiciary to step down from a case.

A Holyrood committee is considering proposals that would require judges and sheriffs to publish their outside interests, including details of their finances.

Members of the judiciary, unlike other senior public servants, do not need to give any details of their external sources of income.

A self-regulating system governing the behaviour of the judiciary is in place instead, with judges and sheriffs taking an oath requiring them to “do right” by people “without fear or favour”.

The Statement of Principles of Judicial Ethics, issued in 2010, also notes that judges must act impartially and recuse, or remove, themselves in the event of a conflict of interest: “Plainly it is not acceptable for a judge to adjudicate upon any matter in which he, or she, or any members of his or her family has a pecuniary interest,” it states.

However, senior members of the judiciary who are board members of the Scottish Courts Service (SCS) do have to submit details of their financial interests.

The rules require disclosure of items including membership of clubs and shareholdings whose value is worth more than £25,000 or greater than 1% of the issued share capital of the company. The value of the holding does not need to be registered.

Sheriff Principal Dunlop, whose territory spans Tayside, Central and Fife, is an SCS board member who declares shares in 29 firms.

These include well-known companies such as Vodafone, Royal Bank of Scotland, G4S, Diageo, Lloyds Banking and Weir Group. He also declares shares in Tesco.

In 2009, Falkirk council licensing board was in dispute with Tesco Stores Ltd – a subsidiary of the PLC – over a premises licence in a service station.

The supermarket giant appealed in 2010 and Sheriff Principal Dunlop, who held the Tesco shares at that time, oversaw a highly technical and procedural hearing in the case.

According to a spokesman for the local authority, the Sheriff remitted it back to the council and the application was subsequently granted by the board. Dunlop is a highly respected legal figure and there is no suggestion of wrongdoing or personal gain. However, the case has again thrown a spotlight on whether the system for declaring and registering judicial financial interests is satisfactory.

Peter Cherbi, a campaigner for judicial accountability, said: “It should be necessary for judges to declare all their interests and in even greater detail than politicians do.”

Moi Ali, the outgoing Judicial Complaints Reviewer in Scotland, recently wrote to a Parliament committee to express her support for a register.

“An independent judiciary underpins a civilised society. But with independence goes accountability, and a register of interests is a mechanism for enhancing accountability.”

The Judicial Office for Scotland (JOS) recently introduced a register of recusals, which shows cases where judges or sheriffs have absented themselves.

There have been four recusals since March. In a criminal case, Sheriff Veal recused himself as he was “personally known” to a witness.

Lady Wise recused herself from a high court case last week as she had previously acted for a relative of the accused.

A spokesperson for the JOS confirmed the Sheriff Principal held the Tesco shares at the time of the hearing. She added: “In the case involving Tesco and Falkirk Council Licensing Board, Sheriff Principal Dunlop dealt with a procedural issue in order to seek a pragmatic solution to a procedural matter and enable the case to proceed.

“There is well established case law to guide a judge or sheriff on when they should recuse in cases where they may hold shares in a company that is party to an action. Simply being a shareholder is not sufficient to require recusal.

“The Sheriff Principal quite properly dealt with the procedural matter as he was entitled to do and did not consider it necessary to recuse himself.”

Revealed: shareholdings of the top judge opposed to register of interests

Paul Hutcheon Investigations Editor Sunday 27 April 2014

A top judge and staunch opponent of a register of interests for the judiciary has shareholdings in several investment funds.

Lord Gill, who has been critical of plans to require judges to publish their financial interests, made the declaration in his capacity as a board member of a courts quango.

It can also be revealed that his predecessor as Lord President, Lord Hamilton, declared shares in dozens of companies when he was in post.

In a written submission to the Scottish Parliament’s public petitions committee, Lord Gill argued that a register of interests for judges and sheriffs was unnecessary, adding that their privacy could be impacted by “aggressive media or hostile individuals”.

He wrote: “The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the judiciary.”

The Lord President declined Parliament’s invitation to elaborate on his argument in person, a snub he was within his rights to deliver as judges cannot be compelled by law to give oral evidence to Holyrood. The Lord President instead agreed to a private meeting with MSPs.

However, despite his hostility to a register, Lord Gill is required as a Scottish Court Service (SCS) board member to declare shareholdings and membership of outside bodies. Other board members include Lord Justice Clerk Lord Carloway, Sheriff Principal Dunlop, Lord Bannatyne and sheriffs Iona McDonald and Grant McCulloch.

These registers have recently been made available to the Sunday Herald. Lord Gill, the de facto leader of Scotland’s judges, declared shares in Henderson UK Growth Fund, Newton International Growth Fund, Aviva Investors UK Equity Fund, Terrace Hill Group and Vestry Court Ltd.

Sheriff McDonald declared shares in seven companies: pharmaceutical giant GlaxoSmithKline, banks HBOS and Barclays, Royal Dutch Shell, Standard Life, Unilever and Equiniti.

Lord Hamilton, who was Lord President until two years ago, registered shares in 33 firms in 2011. These included Barclays, BSkyB, BP, Centrica, Nestle SA and Rio Tinto.

Also listed were shares in Statoil ASA, National Grid, HSBC bank and Edinburgh Dragon Trust.

The declarations have raised the question of why, if Lord Gill and other senior colleagues can register financial interests as SCS board members, all judges and sheriffs cannot do the same.

However, in a letter to the Committee, Lord Gill said the SCS entries were an “entirely different” matter. “The requirement of those judicial office holders who are members of the SCS to register their interests arises in the context of their membership of a public body,” he said. “The disclosure of their interests arises from their work as board members, which may involve the placing of contracts and employment questions. It is not related to their holding judicial office.”

Chic Brodie, an SNP MSP, said: “This shows there is no consistency. There should be a consistent set of rules across the judiciary.”

A spokesperson for the Judicial Office for Scotland declined to comment beyond Lord Gill’s letter.

The Sunday Mail newspaper also reported on the UK legal first where recusals of judges are now published:

BENCHED: Judges reveal conflicts of interest

by Mark Aitken Sunday Mail 27 April 2014

Scotland’s judges are coming clean when they have to step away from court cases because of a conflict of interests.

Scotland’s top judge has decided that for the first time the public can see online why judges and sheriffs have stood down from hearing criminal trials and civil actions.

It comes after the Sunday Mail told of MSPs’ anger that the Lord President Lord Gill had dismissed calls for a judicial register of interests and snubbed invitations to discuss his position at a Holyrood committee.

The judiciary of Scotland’s website lists four cases in the past month where a sheriff has decided not to hear a case. Reasons include a sheriff being known to a witness and a sheriff having previously represented a client in a civil case. The disclosure by Lord Gill, Scotland’s most senior judge, follows his block on a judicial register of interests.

But campaigners say judges should reveal business, professional and financial links and do not believe the latest move goes far enough.

Peter Cherbi has called for a judicial register of interests, which could disclose hospitality, gifts and property, as well as personal or financial links to outside bodies.

He said: “The judiciary have the power to change public life, change the law or even throw out legislation passed by elected representatives. “Any group with such power can’t be seen to exempt itself from the public’s expectation of similar levels of transparency and accountability which apply to other branches of government and public life.”

SNP MSP John Wilson said that until there was a full declarable register for judges, there would be doubts about “the interests that judges may be putting before the legal arguments”.

Lord Gill has rejected calls for a register as he fears judges may be harassed by the media and has refused to attend Holyrood’s public petitions committee

Petition PE1458: Register of Interests for members of Scotland’s judiciary is due to be heard again at the Scottish Parliament next week on 6 May 2014.

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

 
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Posted by on May 1, 2014 in Blogroll

 

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YOU ARE RECUSED: Anti-transparency top judge forced to publish conflict of interest recusal data as Scottish Parliament considers register of judicial interests proposals

Top judge comes clean on limited disclosures of judicial conflicts of interest. SCOTLAND’S top judge, the Lord President Lord Brian Gill has been forced to publish a limited amount of information on how judges recuse themselves from conflict of interests in cases being heard in Scottish Courts. However, the move to disclose recusal data has only came about after Lord Gill gave an undertaking on the issue to MSPs of the Scottish Parliament’s Public Petitions Committee who are currently investigating proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary calling for judges to declare all their interests in a published available register of judicial interests.

The publication of the limited information on recusals by Lord Gill, who has twice refused invitations to appear before msps to give evidence and face questions on his opposition to the proposal to require all members of Scotland’s judiciary to disclose their interests, is seen as an attempt to stem increasing calls for a full register of judicial interests from the media, members of the public, campaigners and Scotland’s Judicial Complaints Reviewer who all believe the plan will increase transparency and accountability in Scotland’s judiciary.

The first ever published disclosures of albeit limited information on recusals by Scotland’s judiciary contains a brief, but important glimpse of the until now secret links between judges and others in the legal system.

24 March 2014 Livingston Sheriff Court Sheriff Edington. In a Civil action a recusal was recoded because a “Court report was prepared by spouse of a resident sheriff”

8 April 2014 Forfar Sheriff Court Sheriff Veal. In a Criminal case a recusal was recoded detailing the “Sheriff personally known to a witness”

10 April 2014 Selkirk Sheriff Court Sheriff Paterson. In a Civil case a recusal was recoded detailing “Sheriff had previously acted for a client in dispute against Pursuer”

23 April 2014 High Court Lady Wise. In a Criminal case a recusal was recorded detailing “Senator had previously acted for a relative of accused”

While the move to publish recusal information is welcome, there are thought to be a raft of on-going cases in the Court of Session in which recusals have not been made, where judges undeclared relationships with law firms, solicitors, and undisclosed investments including financial relationships with banks, big business and other institutions have apparently not resulted in recusals, due to the judiciary’s resistance to declare a full and true picture of their wealth, earnings and investments.

There is also an increasing suspicion that potentially hundreds of civil cases previously heard in Scotland’s courts may not have been heard fairly due to judges refusing to even consider recusing themselves or openly disclose any conflict of interest in cases they presided over. From investments in banks, to insurance firms, positions on boards, directorships, links to other public bodies, property holdings, directorships, earnings from law firms etc are but a few of the secret interests privately held by members of the judiciary which have never been declared ever in court.

And, in criminal cases, it has previously emerged that prosecutors who were promoted to judges and then proceeded to throw out appeals against people they had themselves convicted, have also refused to disclose any conflicts of interest during court hearings.

In one case reported by the media in which Mr William Beck was wrongfully convicted for a criminal offence, the now retired Lord Osborne who threw out Mr Beck’s appeal then claimed to a newspaper he had forgot he prosecuted the same man in the case years earlier. The report on this case, which has since been presented to the Petitions Committee by Mr Beck, was featured on Diary of Injustice here : Failure to Recuse : Evidence handed to MSPs in judicial register of interests proposal reveals judges who blocked injustice appeal failed to declare interests in court

This very unfair state of affairs in Scotland’s courts, where judges are writing their own rules on what they are required to disclose. and what they can keep secret, will continue until a full register of judicial interests requiring all members of Scotland’s judiciary to disclose their interests is created.

A YEAR TO RECUSE – Top judge branded register plan as ‘unworkable’, then offered disclosure on recusals after year of stalling MSPs on register of interests debate:

Short note from top judge gives little on transparency. Lord Gill made the offer to publish recusal data after a year of resisting calls from msps to hand over statistic on how judges dealt with conflicts of interest in court. Lord Gill’s letter to msps offering the small change said : “I  am  pleased  to say that  my officials have  devised  a means  by  which this  can be  achieved.

Court  Clerks  will inform  the Judicial Office  for  Scotland  when  a judge  or sheriff has  to recuse.  The reason  for  recusal  will be provided. The  fact of recusal and the reason  for  it  will appear  on the Judiciary of Scotland website.

I intend to commence the  collection of information from  1 April  2014 to  give  time for  the administrative  arrangements  to  be put in  place.  The  website  will be updated  as  notification of recusal is  received.”

The concession on recusals by Lord Gill is widely seen as having little value without a full register of interests to accompany it, and comes after the judge spent a year refusing to cooperate with msps looking for answers on the secret world of Scottish judges. Lord Gill also refused at least two invitations from the Petitions Committee to attend evidence sessions and face questions in public from the full Committee. At one point Gill even used loopholes in the Scotland Act to dodge parliamentary scrutiny with an implication judicial cooperation with Holyrood may be withdrawn over the issue.

While a welcome move, the offer by the Lord President does not tackle any of the core issue of calls for greater judicial transparency with the creation of a full register of interests for Scotland’s judiciary – a plan the top judge angrily branded ‘unworkable’, reported earlier here: Judicial Transparency is “not workable” claims Scotland’s top judge Brian Gill in private meeting with Holyrood msps on register of judicial interests petition

However, Scotland’s judiciary are well known as a group of select, predominantly white, extremely wealthy influential lawyers who have an unelected and almost unchallengeable power to stall or close debate on their own secret vested interests, change any of our lives at the stroke of a pen, or strike down legislation desired by the greater community and voted through by democratically elected politicians in our own Scottish Parliament.

Clearly any group in society which have such almost limitless power, must above all, be as transparent as other branches of government and society to which it applies its rulings. However, as Scots have discovered during a full year of debate at the Scottish Parliament’s Public Petitions Committee, if anything, the judges are even more secret than the secret service itself when it comes to the thorny question of judges pecuniary and other interests.

Their personal, undeclared wealth including extensive family and business links throughout the legal profession, offshore ‘tax efficient’ trusts, ownership of numerous and high value properties through a variety of interesting arrangements, investments, directorships and shareholdings, collectively generate millions of pounds in earnings for the judges and their families each year, yet none of it is declared because the judges write their own rules exempting themselves from transparency and any accountability over how their interests collide with their duties in court.

Petition PE1458: Register of Interests for members of Scotland’s judiciary is due to be heard at the Scottish Parliament on 6 May 2014, and previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail & Sunday Herald newspapers, and video footage of debates at the Scottish Parliament on the register of judicial interests can be found here : A Register of Interests for Scotland’s Judiciary

 

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