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REGULATOR SCRUTINY: Scots Legal Complaints Commission cost consumers & taxpayers £30M – rogue lawyers ordered to pay ONLY £963K over TWELVE YEARS, probe reveals law firms buy secrecy from financially ruined clients with Non Disclosure Agreements

Legal services regulator faces scrutiny. SCOTLAND’S legal services regulator – the Scottish Legal Complaints Commission (SLCC) – created in response to evidence of bias by Law Society of Scotland control of solicitors self- regulation – has cost taxpayers & clients a staggering £30 Million since 2008.

And, amid renewed media interest in continuing pro-lawyer bias in the regulation of Scotland’s legal sector – data obtained from the SLCC now reveals pittance levels of compensation paid out to thousands of financially ruined clients – amounting to less than £963,000 over TWELVE years.

Evidence has also emerged that corrupt Scots law firms are using the same Non Disclosure Agreements used by corrupt businessmen and jailed ex-Holyrood moguls such as Harvey Weinstein to buy secrecy from financial scandal which could impact on their business reputation & brand.

Cases brought to the attention of the media indicate several well known law firms, and even High Street solicitors have forced financially ruined clients into accepting pitiful amounts of compensation – while imposing strict secrecy agreements to ensure the details of financial scandals and identity of the law firm will never be revealed.

In response to a Freedom of Information request – the Scottish Legal Complaints Commission admitted at least 377 cases of serious complaints against Scottish lawyers in ONLY three years – were subject to conditions of strict secrecy agreements between mediators, law firms and clients who eventually signed up to Non Disclosure Agreements (NDAs).

FUNDING LEGAL COMPLAINTS:

The cost of funding the Scottish Legal Complaints Commission comes from a general complaints levy – which is funded by legal fees taken from clients.

After the funds are collected from clients, the levy is then is paid to the SLCC by all practising solicitors, advocates, QCs and other legal representatives in Scotland.

The figures from 2008 to 2019 – sourced from the SLCC’s budget reports – list a total of around £27,812,965. collected from the complaints levy since 2009.

A further sum of at least £2million in public cash was paid to the SLCC by the Scottish Government in 2008-2009  – making a total income of around £29,812,965 since the legal regulator began investigating complains against rogue lawyers some twelve years ago.

The SLCC’s accounts from 2008-2019 reveal the following figures: 2008-2009 £2,000,000 (received from Scottish Govt), 2009-2010  £2,142480; 2010-2011 £2,661999 2011-2012  £2,714,918 (actual intake – £1,724,624 after SLCC forced to use £1m cash reserves to reduce levy) 2012-2013 £2,792,779; 2013-2014 £2,889,679; 2014-2015 £2,679,500; 2016-2017 £2,808,300; 2017-2018 £3,163,700; 2018-2019 £3,326,199; 2019-2020 £3,623,705 proposed levy & income.

COMPENSATION DOES NOT COVER ACTUAL CLIENT LOSS:

Confirming the total amount of compensation paid to clients who suffered huge financial losses, the response from the SLCC in relation to an FOI request stated: The total amount of compensation directed by the Scottish Legal Complaints Commission to be paid to complainers since its creation to 31 January 2020 is £963,277.38.”

The response added: “This figure includes compensation awarded for inconvenience and distress and compensation for actual loss.”

However, and importantly – the Scottish Legal Complaints Commission did not provide figures for any actual financial losses suffered by clients – or financial losses quantified by clients.

The FOI disclosure also revealed the Scottish Legal Complaints Complaints Commission does not record actual sums paid to complainants.

And, the legal regulator admitted tens of thousands of pounds in compensation have still not been paid to clients, by solicitors already ordered to do so by the legal regulator.

The SLCC stated in it’s FOI disclosure: “Whilst the SLCC does not record the actual sums paid, we do record where we are notified that compensation is not paid. This figure is currently £41,516.89.”

Additionally, new data recovered via a Freedom of Information request reveals at least 377 cases of serious complaints brought against Scottish lawyers in the past three years – were subject to conditions of secrecy agreements between mediators, law firms and clients who signed up to Non Disclosure Agreements (NDAs)

BUY SECRECY – LAW FIRMS FORCE NON DISCLOSURE AGREEMENTS TO CONCEAL SCANDAL:

On the subject of Non Disclosure Agreements between clients, and their solicitors and law firms who were the subject of complaints – the SLCC stated: “In summary, in the last three operational years (1 July – 30 June) and up to 31 January 2020,
there have been 377 cases which have been subject to such a confidentiality agreement.”


“The SLCC process allows parties to a complaint to resolve matters between themselves at any
point prior to a Final Determination being issued by the SLCC so it possible that such
agreements could be negotiated between parties out with our process to resolve a complaint.”

“It is not within the powers of the SLCC to recommend a NDA or similar as part of a resolution to
a complaint and the SLCC would not enter into such agreements to settle a complaint.”

“This information is provided to the SLCC as part of an informal resolution, and the parties to the
complaints are under no obligation to provide us with such information. Therefore it would not
be recorded in a readily accessible way on the SLCC system. I am unable to provide you with
exact figures in respect of these types of Non-Disclosure Agreements.”

“There have been approximately 2 instances of such agreements being recorded against
complaints settled out with the SLCC process within the last three years to the date of this FOI
request.”

While the SLCC does not itself pay compensation to clients – many of whom have suffered life changing and enormous financial losses at the hands of their own legal representatives – the legal regulator does order law firms to pay compensation and other payments to complainants.

However, in just a small snapshot of cases looked at by journalists – where solicitors helped themselves to their client’s assets, emptied bank accounts, appropriated land titles and property from deceased estates & fleeced millions of pounds from clients in investment scams – there are clear indications the current system to compensate for actual and quantifiable financial losses is still heavily weighted in the solicitor’s favour.

In some instances – the Scottish Legal Complaints Commission, Faculty of Advocates and Law Society of Scotland have clearly, and continually turned a blind eye to multi million pound losses attributed to clear, and documented examples of dishonesty & negligence on the part of legal representatives.

However – Diary of Justice has recently been approached by several clients who were forced to register complaints to the Scottish Legal Complaints Commission after losing considerable sums to rogue solicitors and several well known Scots law firms.

Once complaints were filed with the legal regulator, several clients alleged they felt that they were being intimidated into the mediation process – and forced to accept outcomes and settlements far short of their expectations or actual financial losses.

Some clients who entered the SLCC’s mediation process have also alleged they were denied the right to seek independent advice on mediation and settlement offers – which in some cases were time barred to ensure clients were forced to accept little or nothing in return for – in some cases – hundreds of thousands of pounds in actual financial losses.

The Scottish Legal Complaints Commission has so far not listed actual financial losses or financial losses quantified by clients in any statement from it’s creation in 2008 to publication of this article.

In response to queries from a DOJ journalist, the Scottish Legal Complaints Commission released a copy of their Agreement to Mediate.

The Agreement to Mediate – contains contains numerous conditions, including strict terms of confidentiality – for mediation to occur between clients, mediators & lawyers accused of wrongdoing.

On the issue of Settlements, the SLCC’s Agreement to Mediate states the following:

SETTLEMENT

11. When/if the Participants agree on how to resolve the dispute, the Participants will draw up a Settlement Agreement with the assistance of the Mediator, for the Participants to sign and date. The Settlement Agreement will be legally binding when it is in writing and executed by the Participants. The Participants will be legally bound by the Settlement Agreement once executed and undertake to give effect to the Settlement Agreement.

12. In the event that the Settlement involve actions by one Participant over a period of time, the other Participant will inform the SLCC’s Mediation Co-ordinator when all terms have been met.

13. In the event that a Participant does not fulfil the terms of the Settlement Agreement, the other Participant:

a) may be released from the Settlement terms if they so wish, by giving written notice to that effect to the other Participant; and

b) shall inform the SLCC of the failure to fulfil the terms of the Settlement Agreement.

14. All Participants to the dispute reserve their respective rights should a Settlement not be reached through mediation.

CONFIDENTIALITY

15. The Participants, the Mediator and the SLCC agree that the discussions at mediation will be kept confidential, including the terms of any settlement Agreement.

This paragraph shall not apply where:

i) The Participants consent to specific disclosure;

ii) Disclosure is necessary to implement and enforce the Settlement Agreement;

iii) The Participants are, or any other person is, required by law to make disclosure;

iv) The Mediator reasonably considers that there is serious risk to the safety of any person if the Mediator does not make such a disclosure;

v) There is any allegation of a breach of the Settlement Agreement and disclosure is required for the purposes of taking further action.

16. A Participant may disclose information or documents obtained during the mediation to a person not present at the mediation where that Participant needs to do so in order to obtain professional advice or where the person is within that party’s legitimate field of intimacy. A Participant disclosing information or documents in these circumstances must inform the professional advisor or any such person that the information or documents are confidential.

17. In the event of breach of the obligations contained in paragraph 15 of this Agreement by any Participant, the Mediators, the SLCC and the Participant(s) who have not caused the breach shall no longer be bound by the terms of this paragraph but their rights to take further action in respect of any such breach of this Agreement shall be preserved.

18. Neither Participant may have access to the Mediator’s notes nor SLCC Mediator Review Form nor call the Mediator nor the SLCCas a witness in any proceedings related to any of the issues between them. The Mediator’s opinion will be inadmissible in any subsequent proceedings, which may take place between the Participants concerning the subject matter of the mediation.

The SLCC Agreement to Mediate also contains a key section which removes any liability from mediators should they be considered to have acted negligently or omit to consider issues within the scope of the mediation.

EXCLUSION OF LIABILITY

20. Neither the SLCC nor any Mediator, nor any body with whom the Mediator is professionally associated, shall be liable to the Participants for any act or omission, whether negligently or otherwise, in connection with the performance or purported performance of any of the services provided by them or the obligations arising under this Agreement. This Agreement may be produced and relied upon as a defence to any claim made by a Participant against the SLCC, any mediator or body with whom the Mediator is professionally associated.

Commenting on issues relating to mediation, a spokesperson for the SLCC provided the following statement: “We know that mediation is an unfamiliar process for some parties, but our experience is that, once people take part, it has very high resolution rates, receives higher customer satisfaction scores from both lawyers and complainers, and is more efficient. It allows both parties to take control of the outcome of the complaint, and find an agreed solution that resolves the complaint to both parties’ satisfaction, is often quicker than a full investigation, and is less costly to administer.”

“Of course, not all cases will be suitable for mediation, and mediation only proceeds where both parties agree to attend. Where mediation does not help parties reach an agreed outcome, or where it is not appropriate, cases progress to investigation.”

“We do ask for feedback from everyone who takes part in mediation, and we use this to take action on any concerns raised, and to consider what improvements we might be able to make to our processes.”

The SLCC also provided the following information:

These figures are from our last annual report year (2018-19): Outcomes at mediation: Before we start investigating a service complaint, we give the complainer and the lawyer or firm an opportunity to attend a mediation meeting, led by an independent external mediator.

Number of complaints resolved by mediation: 65

Agreed to mediation when offered: 39% (both parties need to agree to participate for mediation to proceed – if one party does not wish mediation then the matter is progressed to investigation instead)

Mediation was successful: 71% (mediation does have a high success rate in delivering agreed outcomes, but in 29% of cases parties either did not reach or accept an outcome, which they are entitled to do, and so the case proceeded to formal investigation and, if required, determination).

We have a page on our public facing website devoted to mediation (https://www.scottishlegalcomplaints.org.uk/your-complaint/our-process/mediation/), which explains the process for both complainers and lawyers, and includes an information booklet and a video featuring some of our mediators, to help people understand what mediation is and how it might help them to reach a consensual resolution.”

“The Legal Profession and Legal Aid (Scotland) Act 2007 provides that the SLCC may offer mediation as way of resolving service complaints.  This is set out in section 8 of the Act. The objective of mediation is to enable the parties to resolve the service issues complained about quickly, if they choose.

Mediation can be offered at any stage after a service issue is deemed an eligible complaint (mediation is not considered appropriate where there is an eligible conduct issue to be investigated).  It is voluntary, and requires the acceptance of both parties. Mediation is a confidential process which gives the complainer and the firm the opportunity to meet together with an independent third-party so they can both decide how to sort out the service complaint.  The mediator is a neutral person who helps them talk through the problem to see if they can agree a fair and reasonable solution.

If the parties reach an agreement at mediation and if all the settlement terms are fulfilled, that is the end of the complaint process. If the parties reach an agreement but for whatever reason, the settlement terms are not fulfilled, the complaint may proceed to Investigation, after the nature of the alleged breach has been considered by the SLCC. If the complainer alleges that the solicitor breached the terms of the Settlement Agreement, they can submit a new complaint to the SLCC about this. If the parties do not reach an agreement at mediation, the complaint moves to Investigation. Mediation is confidential to the parties of the mediation, the mediator and the SLCC.

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

 

 

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ADVOCATE PROBE: How legal regulators covered up for top QC – Files show Scots Advocate now working as Barrister in London – authored two versions of SAME letter for Faculty probe of cash scandal QC who failed clients in £6M Court of Session case

Craig Murray – re-written evidence removed bribes claim. AN INVESTIGATION of how the Faculty of Advocates and Scottish Legal Complaints Commission (SLCC) covered up complaints against a top QC – show the inadequacies of the same legal regulators who will now consider allegations against Gordon Jackson QC.

Documents uncovered from Court of Session case files reveal the Faculty of Advocates and Scottish Legal Complaints Commission failed to act on evidence where a Scottish Advocate now working as a Barrister in London – Craig Murray of 12 Kings Bench Walk – submitted two versions of written evidence in connection with an investigation of a senior QC – John Campbell QC.

John Campbell – a well known figure in Scottish legal circles – was found to have demanded cash payments direct from clients for legal work at the Court of Session in Edinburgh.

However, while Campbell was receiving cash from his clients – a move strictly forbidden by the Faculty of Advocates – court files also revealed Campbell removed – without instruction – over £4million and a costs claim from the same Court of Session case where he had also sought cash payments from his clients.

Now –  a fresh consideration of the same court files which identify Craig Murray as junior counsel to Campbell in the same Court of Session damages claim – show Craig Murray was also paid for his own work from the same irregular cash payments Campbell demanded from his clients.

Material previously obtained by the media established Advocate Craig Murray as the author of two versions of the same letter to the Scottish Legal Complaints Commission (SLCC) in connection with their investigation of serious allegations against John Campbell QC.

And, while Mr Murray communicated to his clients by email he was writing a letter of evidence in connection with their complaints against Campbell – it transpired Murray’s second version of the same letter was used by the Faculty of Advocates to dodge taking any action against John Campbell.

Critically – Records from the Faculty of Advocates reveal Gordon Jackson QC was Vice Dean of the Faculty of Advocates – and Scotland’s current top prosecutor – Lord Advocate James Wolffe QC was the Dean of the Faculty of Advocates – during the time of the Faculty of Advocates investigation of John Campbell.

Gordon Jackson & James Wolffe’s terms of office at the Faculty of Advocates also match up with Craig Murray’s two versions of the same letter to legal regulators in connection with the probe against John Campbell.

The media investigation prompted by papers obtained from legal regulators focused on Craig Murray’s role as Junior Counsel in Nolan v Advance Construction Ltd, and the conduct of legal figures in the case – spanning eight Court of Session judges – one a member of the privy Council, several Sheriffs, high profile QCs and Levy & Mcrae  – the law firm identified in the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

The letter was sent by Mr Murray to the Scottish Legal Complaints Commission in relation to a complaint against John Campbell QC – who lists Planning law as a speciality.

Crucially, however, a significantly altered version of the letter – still bearing the name of Advocate Craig Murray as the author – removes references to ‘offers of a bribe’ to elected councillors at a Scottish local authority, and detailed references to evidence in a high value civil damages claim in the Court of Session – Nolan v. Advance Construction Scotland Ltd [2014] CSOH 4 CA132/11.

Enquiries by the media established the version of Murray’s letter to the Scottish Legal Complaints Commission, on the subject of  John Campbell’s role in Nolan v Advance Construction Ltd – was sent to the Faculty of Advocates via the law firm Clyde & Co (formerly, Simpson & Marwick) – who are known to represent members of the legal profession who are subject to complaints, allegations of dishonesty, corruption and negligence claims.

The complaint against John Campbell QC arose from his provision of legal services and representation to former National Hunt jockey & trainer Donal Nolan, who was the pursuer in – Nolan v Advance Construction Ltd – a case which exposed serious conflicts of interest in Scotland’s judiciary where Lord Malcolm (Colin Campbell QC) failed on multiple occasions to disclose the fact his own son was representing the defenders in the same court.

The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest, was reported here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders

Upon scrutiny of the two letters sent by Craig Murray to legal regulators – serious questions arose regarding the extensive differences between Murray’s two versions of the same letter to the Scottish Legal Complaints Commission and the version which was eventually sent to the Faculty of Advocates.

It is important to note both versions of the same letter used by the Scottish Legal Complaints Commission, and the Faculty of Advocates – identify Craig Murray as the author.

Significantly, certain references to allegations of bribery involving employees of a construction company and elected councillors, have been altered in a second version of Mr Murray’s letter – which bears no date.

Advocate Craig Murray’s letter to SLCC (Text marked in pink shows extent of deletions in Faculty’s version). In a letter dated 22 July 2014 to the SLCC, Craig Murray writes: “The most accurate account of Councillor Taggart’s position will be in that statement. My recollection of Ms Moore’s summary is that a person, whose identity was unknown to Mr Taggart, telephoned him about this case and offered a bribe. There was nothing to identify that person or connect that person to the defenders.”

However, the second version of the letter, has the references to bribery removed from the end of the sentence.

The undated letter still bearing Craig Murray’s name and Advocates address, then reads: The most accurate account of Councillor Taggart’s position will be in that statement. My recollection of Ms Moore’s summary is that a person, whose identity was unknown to Mr Taggart, telephoned him about this case. There was nothing to connect that person to the defenders.”

Then, both versions of the letter from Craig Murray to the SLCC continue: “An allegation that the defenders had been involved in bribing an elected public official to commit perjury in court would have been extremely serious. There was no basis upon which an allegation of that sort could have been made by a responsible solicitor or advocate. There could also be no further investigation (particularly in the midst of the proof diet) as it was not known who made the telephone call.”

Councillor John Taggart – who is referred to by Murray, was interviewed late last week.

Councillor Taggart’s role in discovering the dumping of contaminated waste by Advance Construction Ltd, and his further efforts to assist Mr Nolan, and constituents affected by events, was crucial in bringing the case to court and into the public eye.

In discussions with a journalist, Councillor Taggart made clear in his own view, the evidence in relation to the offer of an inducement related to an event occurred at the opening of Calderbridge Primary School (former site of Coltness Primary School), and NOT in a telephone conversation as Mr Murray claimed in his letter to the SLCC.

Further, Councillor Taggart indicated the “person, whose identity was unknown to Mr Taggart” – according to Craig Murray’s statement, had in fact handed his business card to the Councillor during the school opening event.

The Councillor further alluded to the identity of the person as an employee of a main contractor for North Lanarkshire Council.

It has since been established both Advocate Craig Murray, and Fiona Moore of Drummond Miller were present with the Councillor when his precognition of evidence was taken.

Further enquiries by journalists have now revealed the person who allegedly offered the inducement is an employee of a major construction contractor on North Lanarkshire Council’s list of approved contractors.

When it became known the incident involving the inducement was to be used in evidence, the person who approached the councillor left Scotland for Ireland and did not return for a number of months – despite being cited as a witness to attend court to give evidence in the Nolan v Advance Construction Ltd case.

The record later shows – John Campbell QC – failed to call the witness even though the individual alleged to have offered the inducement to the councillor appears on the final witness list for the proof hearing before Lord Woolman in 2014..

If the evidence of bribery had emerged during lines of questioning at the Court of Session, the testimony may well have had a significant impact on the case, and most probably initiated a Police Scotland investigation into the companies involved, and North Lanarkshire Council.

However, Senior Counsel for Mr Nolan – John Campbell QC – chose not to introduce the conversation about the allegations of bribery in court.

Undated, altered version of Advocate Craig Murray’s letter to SLCC. The removal of references to a bribe, and swathes of material removed from the second, ‘undated’ version of Craig Murray’s letter to the SLCC – raises further questions over the written testimony offered by the Advocate & some time Prosecutor to the Scottish Legal Complaints Commission.

Curiously, the undated version of Murray’s letter then surfaces at the Faculty of Advocates – who chose to rely on this heavily altered version of Murray’s original letter – in relation to an investigation which ultimately dismissed the complaint against John Campbell QC.

In a letter dated 7 October 2015 from the Faculty of Advocates to Melanie Collins, Iain WF Fergusson QC confirmed the Faculty of Advocates preferred the lesser content of the undated letter to be used in the complaint against the QC.

Fergusson wrote: ”The earlier of your two e-mails refers to two versions of a letter by Mr Craig Murray, Advocate to the SLCC. The committee relied on the undated version of the letter as support for Mr John Campbell QC’s version of events. This has brought to light an administrative error – the version of the letter dated 22 July 2015 was not before the committee when it considered and determined your complaint”

In a letter of 2 May 2016 to the Scottish Legal Complaints Commission, law firm Clyde & Co – acting as legal agent for John Campbell QC against the complaint attempted to explain the discrepancy between the two versions of Craig Murray’s letter and how the undated version ended up at the Faculty of Advocates.

Anne Kentish, of Clyde & Co wrote: “We have reviewed our files and have ascertained the sequence of events surrounding the letter. When the complaint was originally made against Mr Campbell, we were provided with a copy of the undated version of the letter from Craig Murray to the SLCC. It was provided to us on the basis that it set out the background to the complaint and Mr Murray’s recollection of events.. We did not, at that time appreciate that the letter was in draft. It resembled a file copy letter.”

“When senior counsel for Mr Campbell, Alistair Duncan QC prepared the response to the complaint on behalf of Mr Campbell, he indicated that Mr Murray’s letter to the SLCC should be included in the appendix to the response. When we prepared the appendix, we used the version of the letter that we had within our files which was the undated version. We did not at that time appreciate that the final, dated version, existed.”

“Later that day, Mr Duncan forwarded to us some emails which happened to have the dated version of the letter attached. We understand that Mr Duncan had been provided with the final version of the letter by Mr Murray. Neither we nor Mr Duncan realised that we were working from slightly different versions of the same letter (one being a draft and one being a final version)”

“As soon as we realised a final dated version of the letter existed (the day after the response was submitted to the Faculty) we provided Faculty with the final dated version of the letter and asked it to replace the undated version.”

“Mr Murray has confirmed that the undated version is a draft version of the final version dated 22 July 2014.”

However, the lengthy and laboured explanation from Clyde & Co to the Scottish Legal Complaints Commission, and the email from Iain Fergusson QC are completely at odds with a written explanation provided by Advocate Craig Murray to Mr Nolan’s partner, Ms Collins.

Seeking to explain the situation regarding his letter, an email dated 23 June 2015 from Craig Murray to Mr Nolan’s partner, Melanie Collins, stated the following: “I finished writing this letter on 22 July 2014. I signed it and sent it to the SLCC that day. Copies were also sent to you and to John Campbell QC. I did not submit one to the Faculty of Advocates, nor did any Office-bearer or member of Faculty staff see the letter before it was sent (or for that matter have I passed a copy to any Office-bearer or member of Faculty staff since). I do not know how the Faculty of Advocates came to have a copy of the letter. Could you possibly provide me with a copy of the letter or email from the Faculty of Advocates, enclosing my copy letter?”

“I note that you have provided two copies of the letter. One is dated 22 July 2014 and has page numbers and footnotes. That is the letter I submitted to the SLCC and copied to you. The letter you have labelled 5B has no date, no page numbers and no footnotes. This letter is not in a form which I saved on my computer or sent to anyone else. It appears to have the same content, font and (roughly) layout as the dated version, but I have not checked on a line-by-line basis.”

It is unusual for such material to be made public as papers submitted to the SLCC remain unreleased due to confidentiality rules.

However, the papers have been made available to journalists who are investigating the litigation process of Nolan v Advance Construction Ltd – after the case was brought to the attention of MSPs at the Scottish Parliament.

And, given the author of the letter – Craig Murray also works as an ad hoc Advocate Depute prosecutor in Scotland’s courts, concerns were raised over the implications of a Prosecutor writing various versions of the same letter – where one version contained alterations to witness testimony in relation to criminal acts –  and references to evidence in what has now become a key case of judicial failures to recuse, and accusations of bias in the courts.

The Crown Office were previously asked for comment on the matter and the impact on Murray’s role as a prosecutor when the court files first came to light in 2017,

Initially, the Crown Office refused to comment, and demanded any request for media reaction be put in the form of a Freedom of Information request.

Pressed on the matter, a spokesperson for the Crown Office then suggested: “..as Mr Murray is not a COPFS employee any request for formal comment in relation to his professional conduct as an Advocate should be submitted to Mr Murray himself, the Dean of the Faculty of Advocates or the SLCC. Any allegations of criminal conduct should be raised with Police Service of Scotland.”

However, there are clearly public interest questions in relation to a prosecutor named as the author of a letter where one version, used by a law firm with direct connections to the judiciary – removed evidence in relation to criminal acts and bribery.

The Crown Office was then asked if the Lord Advocate intends to act to protect public confidence in the Crown Office and Procurator Fiscal Service by ordering an investigation into the use of altered versions of Mr Murray’s letter to the SLCC, and act on the status of Mr Murray as an Advocate Depute.

No reply was received.

However, the Dean of the Faculty of Advocates during the sequence of events which lead to the Faculty of Advocates investigation of John Campbell – is the current Lord Advocate James Wolffe QC.

As part of his current role as Lord Advocate – James Wolffe QC can call Craig Murray to prosecute criminal cases while acting as an ad hoc Advocate Depute.

The National newspaper carried an exclusive investigation into the Nolan v Advance Construction Scotland Ltd case, here: Couple’s human rights breach claim raises questions about how judicial conflicts of interest are policed.

Papers from the court files, and digital evidence now being considered by journalists indicate the legal team of John Campbell QC, Advocate Craig Murray & Gregor McPhail who acted for Mr Nolan in Nolan v Advance Construction (Scotland) Ltd – received disbursements from John Campbell from funds Campbell obtained by personally collecting substantial cash sums from clients.

The payments – outwith the normal procedure of paying advocate’s fees via a solicitor and to faculty services – have previously been reported in the media and Diary of Justice due to concerns in relation to irregularities and potential tax avoidance issues.

During the earlier media investigation, Craig Murray was contacted for his comments on material handed to the press.

Craig Murray was asked why there were significant differences between two versions of his letter to the Scottish Legal Complaints Commission, one dated, the other undated.

Craig Murray refused to comment.

Craig Murray was asked to confirm if his letter was altered by someone other than himself.

Craig Murray refused to comment

Craig Murray was asked if he was aware of Lord Malcolm’s true identity (Colin Malcolm Campbell) and his relationship to solicitor Ewen Campbell, one of the legal agents working for the defenders.

Craig Murray refused to comment.

Lastly, Craig Murray was asked to comment on both versions of the letter he sent to the Scottish Legal Complaints Commission. He was asked which one he wrote and if he was aware anyone altered the second undated version of his letter.

Craig Murray refused to give any comment.

A billing document from Craig Murray’s Compass Chambers to the client, revealed he was to be paid £800 +VAT per day for proof preparation and £1,250 + VAT per day for Court, which ran to 8 days. A bill was subsequently received from Mr Murray’s stables for around £39,000.

It has since been established, the SLCC relied on the dated version of Murray’s letter, while the Faculty of Advocates relied on the heavily altered undated version of Murray’s letter regarding their consideration of a complaint against John Campbell QC.

Papers obtained from case files and published in this investigation confirm the second, undated version of Craig Murray’s letter appears to have originated from the Edinburgh law firm – Clyde & Co (formerly Simpson & Marwick).

The letter from Clyde & Co also confirms the second, undated version of Murray’s letter was sent to the Faculty of Advocates, on the instructions of Alistair Duncan QC.

Duncan was tasked with defending John Campbell QC in relation to the complaint investigatoin launched by the Scottish Legal Complaints Commission.

However, Court papers record the same Alistair Duncan QC – who went on to defend John Campbell QC against the legal regulator’s complaints investigation – once appeared for the defenders against Mr Nolan – in the Nolan v Advance Construction case – on 9 November 2011.

Previously – the Scottish Legal Complaints Commission was provided with the two versions of Craig Murray’s letter, and a copy of a letter from Clyde & Co, admitting their role in providing the second, undated version with alterations to the Faculty of Advocates.

The Scottish Legal Complaints Commission were asked for a statement on the existence of the two versions of Craig Murray’s letter in connection with the investigation of John Campbell QC – and what action the regulator intended to take.

The SLCC refused to comment.

However, the SLCC confirmed a meeting had taken place between their Chief Executive – Neil Stevenson – and former Cabinet Minister Alex Neil MSP – who has provided powerful backing for his constituent – Donal Nolan.

A spokesperson for the SLCC said: “I can confirm that a meeting between our CEO and Alex Neil MSP took place.   The meeting was to discuss the SLCC’s process: what powers we have; actions we can take; and what we can’t do.”

The case involving Murray was brought to the attention of the Scottish Parliament’s Public Petitions Committee – who are probing judicial interests, failures of judges to recuse over conflicts of interest, and opposition of Scotland’s current Lord President – Lord Carloway – to calls for the creation of a register of judicial interests.

Had a comprehensive and publicly available register of judicial interests existed at the time of the Nolan v Advance Construction Ltd case, details of judicial links in the register could have prevented injustice in the Nolan case – and many others in the courts – from the very outset.

Scrutiny of publicly available legal profiles for Advocate & barrister Craig Murray now reveal there are NO REFERENCES on his current work profiles to his role and legal representation in Nolan v. Advance Construction [2014] CSOH 4 CA132/11 –  the same land contamination case he served with senior counsel John Campbell QC – which led to investigations by two legal regulators in Scotland, and evidence Murray was paid from secret cash payments collected by John Campbell QC.

Craig Murray currently maintains a practice at Compass Chambers in Edinburgh while also working as a barrister in London. Murray also continues to advertise his work as a Prosecutor for the Crown Office & Procurator Fiscal Service (COPFS).

GLOWING LEGAL PROFILE: Craig Murray – Advocate, Barrister & Advocate Depute:

Craig Murray – Year called: 2008

Qualifications: LLM in Commercial Law (Distinction),University of Edinburgh Member, Chartered Institute of Arbitrators Faculty Scholar, Faculty of Advocates LLM in Human Rights Law, University of Strathclyde, Dip Forensic Medical Sciences, Society of Apothecaries, Dip Legal Practice, University of Edinburgh LLB (Hons), University of Edinburgh.

Craig has a busy defender personal injury practice in the Court of Session, representing insurers and local authorities. A substantial practice part of his practice is in defending fraudulent claims at all levels, in particular employers’ liability cases and road traffic claims.Craig also represents claimants in medical and dental negligence claims.

Craig has been instructed in a number of complex product liability cases, including pharmaceutical cases (Vioxx and Celebrex) and medical products (mesh surgical implants and PIP silicone implants).

Craig has substantial experience in property damage claims and other aspects of reparation.Craig occasionally acts in public law and human rights cases, including judicial review, mental health appeals and immigration.Craig has previously been a tutor on the Diploma in Regulatory Occupational Health & Safety at the University of Warwick and on the Civil Court Practice course at the University of Edinburgh.

Craig was appointed as an Advocate Depute ad hoc in July 2015. He is a member of the Children’s Panel for the Scottish Borders.

Craig Murray – Biography 12 Kings Bench Walk

Craig Murray Call: 2017 Areas of expertise Personal Injury Clinical Negligence Product Liability Industrial Disease Public Authority Liability Fraud

Call: 2017 – Bar of England and Wales 2008 – Scottish Bar

Craig joined 12 King’s Bench Walk as a tenant in December 2018, having successfully completed a practising pupillage at these Chambers.

Craig has been an Advocate at the Scottish Bar for over 10 years, where he has considerable experience in a full range of personal injury and clinical negligence work. He has appeared in the Supreme Court (Campbell v. Peter Gordon Joiners Ltd [2016] UKSC 38) and has conducted a civil jury trial without a leader (Bridges v. Alpha Insurance 2016 SLT 859). He has appeared in an 8-day trial against experienced senior and junior counsel (Pocock v. Highland Council [2017] CSOH 40 (aff’d [2017] CSIH 76). He has appeared in numerous appeals to the Inner House of the Court of Session, with and without a leader. He has prosecuted serious crime (including attempted murder) in the High Court of Justiciary. Craig is primarily instructed by UK-wide insurers and local authorities, but accepts instructions to act for claimants, particularly in clinical and professional negligence cases. He is regularly instructed in high-value RTA claims involving fatalities or brain injury. He has considerable experience in defending stress at work, harassment and assault claims, in particular those arising in schools and care establishments. Craig has an interest in local authority liability and issues of justiciability. During his pupillage, Craig had experience of motor insurance law. Craig is available to accept instructions throughout the jurisdiction. He maintains a practice at Compass Chambers in Edinburgh.

Personal Injury: Craig has experience in all aspects of personal injury law, including high value road traffic accidents, employers’ liability claims, occupiers’ liability claims, disease cases and common law liability.

He has acted for defendants and claimants in high value RTA claims involving vehicles, cyclists and pedestrians. He is familiar with preparing and leading evidence on driver perception, conspicuity and accident reconstruction. He regularly prepares and leads evidence from motor engineers and forensic collision investigators.
He has experience of a full range of employer liability claims, including: work equipment cases, accidents at height, accidents on construction sites, and fatal diving accidents.
Craig has successfully defended occupiers’ liability claims concerning listed buildings (Brown v. Lakeland 2012 Rep LR 140; Norgate v. Britannia Hotels [2018] 8 WLUK 71).
Craig has acted for claimants and defendants in mesothelioma and other asbestos-related disease cases. He has acted for claimants in noise-induced hearing loss cases, HAVS cases and silicosis claims. He has acted for claimants and defendants in Legionella claims.
Craig is regularly instructed by Scottish local authorities. He has succeeded in novel arguments concerning the non-justiciability of certain claims (Ryder v. Highland Council [2013] CSOH 95; Macdonald v. Comhairle Nan Eilean Siar [2015] CSOH 132) and recently appeared in the important appeal of Bowes v. Highland Council [2018] CSIH 757.

Clinical Negligence: Craig has a keen interest in clinical negligence and the wider aspects of medical law. He holds a Diploma in Forensic Medical Sciences. He has acted for claimants in clinical negligence and dental negligence cases in Scotland for 10 years. He has also acted for defendants in clinical negligence and ophthalmic negligence cases.

Recent cases include:A fatal claim concerning a failure to diagnose lung cancer.
A substantial claim by a young competition dancer for a failure to diagnose a mid-foot fracture, leading to 5 operations, arthrodesis and life-long disability.
A failure to diagnose deep vein thrombosis, leading to amputation of a lower leg.

Product Liability: Craig has been instructed in some of the largest group litigations in Scotland concerning product liability, including:

Medicines. In a claim against Merck relating to Vioxx, an NSAID painkiller, 6.5 million documents were produced by the defendant. Claims concerning the drug Celebrex are ongoing (see Richards & Jarvie v. Pharmacia [2017] CSOH 77 (aff’d [2018] CSIH 31).

Surgical mesh products. PIP implants. Metal on metal hips. Craig also has experience of claims arising from motor vehicles and surgical stents.

Industrial Disease: Craig regularly acts for claimants and defendants in mesothelioma and other asbestos-related disease cases in Scotland. He is familiar with the aetiology of lung disease and the latency period of asbestos-related disease. He has acted for claimants in noise-induced hearing loss cases, both cumulative exposure and ‘acoustic shock’ cases. Craig has been involved in HAVS cases and silicosis claims. He has acted for claimants and defendants in Legionella claims.

Public Authority Liability: Craig is regularly instructed by Scottish local authorities. He has succeeded in novel arguments concerning the non-justiciability of certain claims (Ryder v. Highland Council [2013] CSOH 95; Macdonald v. Comhairle Nan Eilean Siar [2015] CSOH 132) and recently appeared in the important appeal of Bowes v. Highland Council [2018] CSIH 757. Craig has represented Scottish police forces in a number of cases.

Fraud: Craig is regularly instructed in Scotland to represent insurers in personal injury claims arising from road traffic accidents where fraud is suspected. He has run several trials of 4 days’ duration or more, in which fraud has been pled on the basis of contrived accidents, fictitious accidents or phantom passengers.

Agricultural Accidents: Craig has a particular interest in personal injury claims arising from agricultural accidents.

Recent cases include: Defending numerous claims of injuries caused by cattle at market.
Defending landowners in respect of accidents involving trees (Craig holds a LANTRA tree felling qualification)
Defending a claim by a worker who lost an arm in a thresher (ongoing)
Road traffic accident involving a tractor, in which Craig was trained on a John Deere 6930 tractor
Work equipment cases involving JCBs, grain dryers, crushers and fence post drivers.

Qualifications & Awards: LLB (Hons), University of Edinburgh LLM (DIst), Commercial Law, University of Edinburgh LLM, Human Rights Law, University of Strathclyde Dip Legal Practice, University of Edinburgh Dip Forensic Medical Sciences, Worshipful Society of Apothecaries Member Chartered Institute of Arbitrators Faculty of Advocates Scholarship (2007)

Appointments & Memberships: Personal Injuries Bar Association Chartered Institute of Arbitrators

Directories: Legal 500, Leading Individual, 2019 “His written work is of an impeccably high standard.” Legal 500, 2019 “His attention to detail is phenomenal; he has an excellent legal mind. He always gives advice in a clear manner and is very pragmatic and thorough. He also has very good negotiation skills.” Chambers & Partners, 2020

DO you have a complaint with the Scottish Legal Complaints Commission or Faculty of Advocates?

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

 

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TOP JUDGE – SCRAP JURIES: Scottish Government’s attempt to abolish jury trials during coronavirus outbreak put on hold after outcry from legal profession & politicians

Lord Carloway – scrap most juries during virus outbreak. AN ATTEMPT by Scotland’s top judge and the Scottish Government to ‘temporarily’ axe jury trials as part of emergency Coronavirus legislation – was withdrawn from legislation passing Holyrood today – after the legal profession & politicians criticised the move.

However – the plan to axe juries in many trials – which Scotland’s Lord Justice General Lord Carloway attempted to justify as a method of ‘speeding up’ justice – has not been totally dropped by the Scottish Government.

Constitutional Relations Secretary Michael Russell told the Scottish Parliament that Ministers will revisit the issue of pushing through emergency reforms of the justice system at a later date.

Mr Russell  said further discussions would “allow an intensive and wide-ranging discussion by all interested parties, including victims, whose voice has not yet been fully heard, about the right way to ensure that justice continues to be done in Scotland”.

The emergency legislation being heard today (Wednesday) at Holyrood had proposed allowing judge-only trials for the most serious charges to “ensure that criminal justice systems can continue to operate during the coronavirus restrictions”.

Scotland’s top judge – Lord Carloway (real name Colin Sutherland) claimed axing juries would speed up justice and prevent a “monumental backlog”.

Lord Carloway said in a statement: “We will be facing a monumental backlog of solemn criminal trials once the current restrictions are lifted and trials can recommence. Unless action is taken to mitigate the impact of this, there will be substantial delays in bringing accused persons to trial. These are likely to stretch into years rather than months. The delays will be unprecedented in Scottish legal history. This will have many adverse impacts, including uncertainty for the accused, complainers and witnesses. Such delays will have a highly disruptive effect on their lives, and potentially on the wider system.”

However, the plan drew ire from many quarters, including even SNP politicians where Justice spokeswoman Joanna Cherry criticised the plan in a tweet – stating: “I don’t believe this is necessary. Trials being delayed is enough. This is the obvious compromise. The reality is that life is on hold for everyone.”

Last night, John Mulholland, President of the Law Society of Scotland said: “We respect the fact that the public health threat posed by Covid-19 has presented government with an unprecedented challenge. However, it should not limit our responsibility for ensuring proper scrutiny of measures proposed and an understanding of the impact they may have.

“Juries have been an important principle of the Scottish Criminal Justice system for hundreds of years. To remove this provision for the most serious of crimes would be a significant step and have major implications. We fully appreciate the desire to avoid any backlog in cases which might interfere with the proper administration of justice. However, we have not reached that point and so there is not sufficient justification to warrant trials without jury for serious criminal offences. We believe the case for taking such an extraordinary measure has not been made.

“We have taken this view after consulting with many of the most experienced solicitors in criminal law and those with direct experience of serious criminal cases. There is deep concern, right across the legal profession, at the reform being proposed.

“We want to continue to work positively with the Scottish Government around the changes which are necessary to our justice system to deal with the spread of Covid-19. The past few weeks have proved that we need to be flexible and responsive to emerging situations and creative in our solutions. There are provisions within current legislation which allow flexibility and it is important that these are explored fully before additional measures are introduced.”

And in an updated statement today, the Law Society of Scotland President said: “I am reassured that the Scottish Government has listened to the concerns raised by the Law Society on behalf of our members about the possibility of allowing trials to take place without a jury in the most serious of cases. I would like to thank all our members who took the time to provide their views on this fundamental issue. We look forward to engaging positively with the Scottish Government and partners as they investigate practical ways to ensure that justice can continue to be carried out effectively during the outbreak.”

responded to the withdrawal of the jury axe proposal, saying: “I am reassured that the Scottish Government has listened to the concerns raised by the Law Society on behalf of our members about the possibility of allowing trials to take place without a jury in the most serious of cases.”

The Scottish Government also took the opportunity to use the Coronavirus bill to extend deadlines for Freedom of Information responses – from 20 days to 60 days – however in another concession from the Scottish Government after criticism from the Libdems & Scottish Greens – Europe minister Jenny Gilruth announced amendments will be tabled to address concerns over the extension of the deadline for FOI requests.

The ‘temporary’ nature of the measures announced today can be legally enforced for the next 18 months, a term that would include the need for Parliament to agree to two separate six-month extensions.

Lord Carloway’s proposal to axe juries in most trials can be read in full, below: LJG response to Coronavirus Bill

The Lord Justice General has made a statement in response to the Coronavirus (Scotland) Bill introduced in the Scottish Parliament today.

In his statement, the Lord Justice General said: “The Coronavirus (Scotland) Bill introduced in the Scottish Parliament today contains provisions relating to the justice system. Some of these measures impact on long-standing and well-established elements of the system designed, in normal times, to form part of a suite of protections and safeguards for all those participating in, or affected by, the administration of justice. They are not to be altered lightly.

“These are not normal times. My overriding concern is to ensure that, in these extreme circumstances, we can continue to preserve the fair, effective, and efficient administration of justice, in the hope that we can facilitate the return to normal operations as early as is possible.

“The most noteworthy proposal in the Bill is that which would allow for solemn trials to be heard without a jury; with the verdict determined instead by a judge or sheriff. This would represent a significant, if temporary, change to the way the courts conduct business.

“I would like to set out the rationale for this, from the perspective of the judiciary and courts. We will be facing a monumental backlog of solemn criminal trials once the current restrictions are lifted and trials can recommence. Unless action is taken to mitigate the impact of this, there will be substantial delays in bringing accused persons to trial. These are likely to stretch into years rather than months. The delays will be unprecedented in Scottish legal history. This will have many adverse impacts, including uncertainty for the accused, complainers and witnesses. Such delays will have a highly disruptive effect on their lives, and potentially on the wider system.

“The scale of the potential backlog is very daunting. At a conservative estimate, the backlog will be over 1000 trials, on the optimistic assumption that the restrictions are lifted by the start of the summer. Before the current crisis began, measures were already being put in place to help the High Court process an unprecedented number of new indictments each year. The increasing levels of prosecution would have stretched the Court’s capacity to its limits. This new challenge threatens to overwhelm the system. Jury citation will prove difficult and take longer, in a country recovering from high sickness rates, schools and public services re-commencing, business recovering after lengthy staff absences and people taking missed holidays after lengthy restrictions.

“Anything that can be done, therefore, to address the forthcoming backlog will help avert a critical logjam in the system in the period of recovery once restrictions are lifted. Of course some form of time limitation on this measure is required, although it would be needed for all of the period during which the country recovers from the full effects of the current suspension of trial business in the courts.

“Ultimately, Parliament must decide how it wishes to maintain public confidence in our justice system and allows the courts to continue to administer justice effectively. This means balancing the legitimate concerns about removing juries for a time-limited period against the potential for excessive delay and disruption of the system that the backlog will cause. My concern is that the potential delay and disruption, if mitigatory measures are not taken, may be so severe that it will compromise the effective administration of justice for some years to come.”

Media Notes:

This is a Parliamentary Bill introduced by the Scottish Ministers and it will be for them to draft any regulations further to the Bill’s passage, including when and how the measure discussed in the statement might be used.

The Lord Justice General has explained that “ultimately Parliament must decide how it wishes to maintain public confidence in our justice system and allows the courts to continue to administer justice effectively”.

 

 

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COPY MINISTER: ‘Copied’ content from ex Minister sent by Justice Secretary Humza Yousaf to Holyrood MSPs – Public must rely on judges judging judges for transparency, Scottish Government will not create register of judges’ interests

Judges should judge judges – Minister. SCOTLAND’S Justice Secretary – Humza Yousaf – has told Holyrood’s Justice Committee that judges should be allowed to judge themselves, and the public must rely on judicial oaths & ethics – written and approved by the judiciary – instead of transparency in courts.

The Justice Secretary’s letter of 3 April to Holyrood MSPs, which was released only late last week – also states the Scottish Government willnot create a register of judicial interests in response to the widely supported Petition PE1458: Register of Interests for members of Scotland’s judiciary.

However, it has emerged Humza Yousaf’s letter of April 2019 – is almost a duplicate of a letter sent in April 2014 by Kenny MacAskill during his time as Justice Secretary.

The recent letter from Mr Yousaf to Margaret Mitchel MSP – Convener of the Justice Committee, effectively re-states the Scottish Government’s refusal to create a register of judges’ interests.

Mr Yousaf also claims in his letter that “no further evidence has been provided to the Justice Committee that strengthens the arguments already put forward in favour of the introduction of the register.”

However, recent submissions to the Justice Committee including accounts of serving Scottish judges swearing dual oaths for high earning judicial posts in Qatar, Abu Dhabi and other Gulf States point to substantial new evidence submitted to MSPs, backing up the need for a full register of judicial interests.

Clerks to the Justice Committee were quizzed on the content of Mr Yousaf’s claims in relation to no new evidence.

In response, a Justice Committee clerk told the petitioner: “Your submission was publicly available to the Scottish Government to refer to, before the Cabinet Secretary provided the letter dated 3 April”

It has also emerged the Lord President – Lord Carloway, and others including the Law Society of Scotland, Faculty of Advocates, Crown Office and others have refused to engage with the Justice Committee’s call for views on creating a register of judges’ interests.

A clerk for the Justice Committee informed the petitioner: “Before the Committee last considered your petition on 5 February, clerks approached those who have previously given evidence to the Public Petitions Committee to ask if they had anything to add to their previous submissions.”

“We approached the Lord President, the Crown Office and Procurator Fiscal Service, the Law Society of Scotland, the Faculty of Advocates, the Scottish Courts and Tribunals Service and the Judicial Complaints Reviewer. Only the Scottish Courts and Tribunals Service responded, stating that they had nothing to add”

Mr Yousaf’s letter of 3 April 2019 to the Justice Committee reads as follows:

Thank you for your letter of 20 February seeking my views on the above petition and whether it remains the Scottish Government’s position that a register should not be introduced.

I have given consideration to the matter and I don’t think it is necessary to establish a register of interests. I share the views of both of my predecessors that there are sufficient safeguards in place to ensure the impartiality of the judiciary.

These safeguards are the judicial oath, the statement of principles of judicial ethics and the various rules made under the Judiciary and Courts (Scotland) Act 2008 which concern complaints about the judiciary and judicial conduct.

I note that no further evidence has been provided to the Justice Committee that strengthens the arguments already put forward in favour of the introduction of the register.

However, the “the various rules made under the Judiciary and Courts (Scotland) Act 2008 which concern complaints about the judiciary and judicial conduct” – which include the post of Judicial Complaints Reviewer – remain unchanged since Scotland’s first JCR – Moi Ali gave evidence to the Public Petitions  Committee during 2013.

And, during her time as Judicial Complaints Reviewer – Moi Ali requested increated powers from the Scottish Government – to give the office of JCR a more formidable and independent oversight role on complaints against judges – only to be turned down by the then Justice Secretary – Kenny MacAskill.

The request by Moi Ali to increase powers of the Judicial Complaints Reviewer ws reported here: Scottish Government urged to give more powers to Judicial Complaints Reviewer as MSPs hear lack of judicial scrutiny undermines public confidence in justice system

An earlier letter of 22 April 2014 from Kenny MacAskill – who was Justice Secretary from 17 May 2007 until ‘stepping down’ sacked from the post on 21 November 2014 – to David Stewart MSP – then Convener of the Public Petitions Committee reads as follows:

Thank you for your letter of 6 March 2014 regarding the above Public Petition. I apologise for the delay in responding.

You ask whether the Scottish Government will review its position on whether members of the judiciary ought to register their interests. I note the evidence the Committee has gathered on this issue and, in particular, the arguments presented by the Judicial Complaints Reviewer (JCR) that a register of interests would increase transparency and public trust in the judiciary.

The JCR considers that there is merit in a register of interests for members of the judiciary. I do not think it necessary to establish such a register. I continue to be of the view that there are already sufficient safeguards in place to ensure the impartiality of the judiciary.

These have been set out in previous correspondence and comprise the judicial oath, the Statement of Principles of Judicial Ethics and the rules made under the 2008 Act. I do not consider that the case has been made that these existing safeguards are not effective.

It is of note, that after being kicked from the post of Justice Secretary – Kenny MacAskill ended up on the same Public Petitions Committee which was considering the petition calling for a register of judicial interests.

And, during a hearing of the Petitions Committee on 1 December 2015 – MacAskill – by now devoid of Ministerial rank – suggested calling the new Lord President – who was yet to be publicly identified at the time due to the appointments process – but was known to be Lord Carloway (Colin Sutherland)

The post of Lord President – with a salary of £220K per year – became vacant after Lord Brian Gill unexpectedly walked out of the top judicial post in May 2015 – giving only 30 days notice he intended to quit.

The 1 December 2015 hearing was reported in more detail here : EVIDENCE, M’LORD: Scotland’s next top judge to be asked to give evidence in Scottish Parliament’s probe on secretive world of undeclared judicial wealth, interests & judges’ links to big business

Video footage of Mr MacAskill at the Public Petitions Committee in that meeting can be found here:

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

Judiciary (Register of Interests) (PE1458) 1 December 2015

The Convener: Our next petition is PE1458, by Peter Cherbi, on the creation of a register of interests for members of Scotland’s judiciary. Members have a note on the committee’s previous consideration of the petition and the submissions from the petitioner.

Do members have any comments?

Kenny MacAskill: We have heard from the previous Lord President and I think that we should hear from the new Lord President, whoever he is likely to be—I do not think that there is a “she” on the shortlist. That appointment is likely to be made in the next week or so, so there is still time for him to appear before us.

The Convener: In that case, we will write to the new Lord President, as we said that we would.

Decision: The Committee agreed to write to the new Lord President once appointed.

PETITION – A REGISTER OF JUDGES’ INTERESTS

The Scottish Parliament’s Justice Committee are currently investigating calls for a probe of Judicial Recusals, as part of their work on considering Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

Previous articles on the lack of transparency within Scotland’s judiciary, investigations including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee and Justice Committee work in  relation to creating a Register of Judges’ Interests – can be found here : A Register of Interests for Scotland’s Judiciary.

 

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TOP COP SECRETS: Transparency lacking at Police Scotland as spy scandal cops refuse to disclose files on complaints & historical sexual assault case details involving Deputy Chief Constable Iain Livingstone

Police Scotland refused to disclose secret files on top cop. SCOTLAND’S single national Police service – Police Scotland has refused to disclose details of secret files on a case involving allegations of sexual assault against the force’s most senior office – Deputy Chief Constable Iain Livingstone.

The force also refused to disclose any non-disclosure agreements which may have been part of any settlement of the case – which ultimately led to the female officer leaving her job,

And, the information has been categorised as so sensitive, Police Scotland refuse to confirm if the files even exist.

The move came in relation to Freedom of Information requests seeking details of information held by Police Scotland on accusations and allegations of sexual assault made by a female Police Officer against current DCC Iain Livingstone during his time in Lothian and Borders Police.

Also sought for disclosure was information contained in any discussions or misconduct hearings in relation to these allegations and information contained in any admissions by Iain Livingstone with regards to these allegations and, any information contained in any non-disclosure agreements, termination of employment, resignation or retirement of any persons or Police Officers making these allegations against Iain Livingstone.

However a statement from Police Scotland in response to the Freedom of Information request refused any form of disclosure or acknowledgement of the status of any files held by Scotland’s single national Police service – who said:

“Police Scotland endeavours to provide information whenever possible. However, under section 18(1) of the Act, a public authority may refuse a request where:

• if the information existed and was held by the authority, it would be exempt from release under any of Sections 28 to 35, 38, 39(1) or 41 of the Act; and

• the authority considers that to reveal whether the information exists, or is held by it, would be contrary to the public interest.

In this instance, it is considered that to reveal whether the information you have requested exists, or is held by Police Scotland, would be both exempt from release under the Act and contrary to the public interest. There is a strong public interest in protecting individuals’ privacy, and personal information is exempt from release into the public domain under section 38 of the Act if it would be unfair, unlawful or otherwise breach the Data Protection Act.

For these reasons, Police Scotland must refuse your request under section 18(1) of the Act.

This notice should not be taken as conclusive evidence that the information you have requested exists or is held.”

Issues surrounding the allegations of sexual assault made by a female Police Officer against Iain Livingstone while he served at Lothian & Borders Police in 2003 resurfaced during recent scrutiny of Police Scotland over the past year.

Livingstone was however, cleared of the allegations by a hearing chaired by another senior Police officer – John McLean, Strathclyde assistant chief constable. The Police led hearing on allegations against Police Superintendent Livingstone established there had been no sexual impropriety or intent on Mr Livingstone’s part.

However, interest in the 2003 case and details surrounding it has resurfaced – after the single Police service – created by the Scottish Government in 2013 – was hit by several scandals including numerous suspensions of senior officers, allegations of Ministerial meddling with ultimately led to the ousting of Chief Constable Phil Gormley, and the ongoing probe into senior officers use of a surveillance unit within Police Scotland to illegally spy on journalists & cops.

At the time of the sexual assault allegations in 2003, Iain Livingstone, 37, was working as an aide to Scotland’s most senior police officer, Sir Roy Cameron, at Her Majesty’s Inspectorate of Constabulary, when he was suspended in February 2003 over the claims – which arose from a drunken party at the Scottish Police College at Tulliallan.

It was reported at the time that Iain Livingstone – previously a solicitor and member of the Law Society of Scotland – had been suspended for 17 months after the WPC claimed she had been sexually assaulted during the party.

Five allegations of serious sexual assault made by the female Police officer against Livingstone were dismissed – but, at an internal misconduct hearing, Mr Livingstone admitted less serious allegations, including being in the woman’s room overnight after falling asleep.

A qualified lawyer and member of the Law society of Scotland, Mr Livingstone switched careers in 1992, joining Lothian and Borders Police. In just 10 years, he reached the rank of superintendent.

Livingstone was ultimately demoted from superintendent to constable following the disciplinary hearing, although is now in the position of caretaker Chief Constable of Police Scotland, while the Scottish Government attempt to find another ‘suitable’ candidate to fill the Chief Constable post vacated by Phil Gormley.

However, recent interest in the case surfaced after it emerged DCC Iain Livingston was being promoted to fill the Chief Constable slot vacated by Gormley – who had effectively been ousted from his job after Justice Secretary Michael Matheson intervened in a decision taken by the Scottish Police Authority to allow Mr Gormley to return to work

And, it later emerged that during evidence given by Deputy Chief Constable Iain Livingstone to the Scottish Parliament’s Justice Committee, neither Livingstone or the Justice Sub Committee Convener John Finnie declared they knew each other, after papers revealed Mr Finnie had represented Mr Livingstone when he was cleared of the sexual misconduct claims in 2003.

In a further refusal to disclose information on the current top cop in Scotland, Police Scotland refused to reveal any information in relation to additional complaints made against Deputy Chief Constable Iain Livingstone.

And, again, Police Scotland refused even to confirm if such information was held – this despite information already available in the public arena including discussions on social media platforms relating to additional complaints made against DCC Livingstone by Police Officers.

A request for information relating to numbers of complaints, subject of complaints, and identities (not name, but by rank, status as Police Officer, civilian employee, member of the public or other) – who have made complaints (and the numbers of complaints) against current DCC Iain Livingstone from 1 April 2013 to the date of this FOI request and the status, and outcomes of these complaints – resulted in the following response from Police Scotland, with a refusal to disclose:

“Police Scotland endeavours to provide information whenever possible. However, under section 18(1) of the Act, a public authority may refuse a request where:

• if the information existed and was held by the authority, it would be exempt from release under any of Sections 28 to 35, 38, 39(1) or 41 of the Act; and

• the authority considers that to reveal whether the information exists, or is held by it, would be contrary to the public interest.

In this instance, it is considered that to reveal whether the information you have requested exists, or is held by Police Scotland, would be both exempt from release under the Act and contrary to the public interest. There is a strong public interest in protecting individuals’ privacy, and personal information is exempt from release into the public domain under section 38 of the Act if it would be unfair, unlawful or otherwise breach the Data Protection Act.

For these reasons, Police Scotland must refuse your request under section 18(1) of the Act.

This notice should not be taken as conclusive evidence that the information you have requested exists or is held.”

And, it emerged in February of this year that during evidence given by Deputy Chief Constable Iain Livingstone to the Scottish Parliament’s Justice Committee, neither Livingstone or the Justice Sub Committee Convener John Finnie declared any previous links to each other while Livingstone testified before MSPs.

A report in the Sunday Mail newspaper in February revealed Mr Finnie – previously a serving Police Officer and representative for the Scottish Police Federation (SPF) – had represented Mr Livingstone when he was cleared of the sexual misconduct claims in 2003.

The issue was reported by the Sunday Mail newspaper here:

Green MSP under fire after failing to reveal sex case link to top cop Iain Livingstone

John Finnie failed to tell MSPs he represented the acting chief constable when he was cleared of sexual misconduct.

By Mark Aitken 18 FEB 2018

John Finnie failed to tell MSPs he represented Iain Livingstone

A Green MSP is facing questions over his connection with Scotland’s acting chief constable.

Former police officer John Finnie failed to tell fellow MSPs he had represented Iain Livingstone when he was cleared of sexual misconduct.

He failed to declare the link at a meeting of Holyrood’s justice committee when Livingstone was being questioned.

Finnie spent 14 years as an official for the Scottish Police Federation (SPF) – the organisation who represent police officers up to the rank of chief inspector.

Livingstone, the frontrunner to replace Phil Gormley as Scotland’s chief constable, was acccused in 2004 of sexually assaulting a female police officer.

Livingstone admitted falling asleep in the woman’s room at the Scottish Police College in Tulliallan, Fife, after a drunken party in 2000.

Iain Livingstone was accused of sexually assaulting a female police officer in 2004

At an internal hearing, more serious allegations were dropped.

Livingstone, who was then a superintendent, was demoted to constable but won his job back on appeal. Livingstone’s appeal was backed by the SPF.

Finnie said at the time that the case had highlighted “the ease with which the system can be abused and the punitive consequences which affect not only the officer but their family”.

At Holyrood’s justice committee in January, Finnie quizzed Livingstone about staffing levels and said losing chief officers was one of the benefits of creating a single police force.

Scottish Labour justice spokesman Daniel Johnson said: “John is a valued colleague on the justice committee but I am alarmed that he did not see fit to declare this link with the acting chief constable.

“Police Scotland are in desperate need of scrutiny – and the public will expect such scrutiny to be conducted professionally.

“I would urge him to correct the record and to ensure he declares interests fully and promptly in future.”

A spokesman for the Scottish Conservatives added: “He also owes parliament an explanation as to why he neglected to mention this very important link.”

Finnie began his career with Lothian and Borders Police in 1976 and moved to Northern Constabulary three years later.

He served as a full-time officer with the SPF from 1992 to 2006.

Finnie was elected as an SNP MSP in 2011 but quit the party the following year in protest at the decision to end their long-standing opposition to Nato membership.

Finnie and the Greens failed to respond to the Sunday Mail’s calls.

It has since come to light there are a number of non disclosure agreements in force which relate to Police Officers and others connected to Policing in Scotland, a matter now being probed by the media for further reporting.

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Summary of recommendations

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

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

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

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

REGULATION REVIEW:

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

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

A full report on the Scottish Government’s review of legal services – unmasked as a lawyer dominated pro-self regulation panel – can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

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

*Two former Presidents of the Law Society of Scotland;

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

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

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

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

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

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

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

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

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

However, when the Scottish Government created the ‘independent’ review last April, 2017, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the ‘independent’ review created by the Scottish Government, should include judges – and the membership of the review team should be expanded to balance up the panel’s current top heavy legal interests membership.

And, in a case related to significant failures of legal regulation, Alex Neil  branded the Scottish Legal Complaints Commission (SLCC)  “a toothless waste of time” – after the legal services regulator failed to act in a high profile case involving a senior QC – John Campbell – who is caught up in a cash payments scandal – which has since led to information provided to journalists on other Advocates & QCs who have demanded & pocketed substantial and apparently undeclared cash sums from clients.

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Russell Findlay 26 November 2017 Sunday Mail

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EXCLUSIVE: Mar 27 2011 Russell Findlay, Sunday Mail

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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