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DECLARE YOUR JUSTICE: Judicial Office consults with Lord Carloway on including Justices of the Peace in Register of Judicial Recusals – as questions surface over Lord Gill’s omission of 500 JPs from judicial transparency probe

Calls to include Justices of the Peace in Recusals Register. SCOTLAND’S top judge has been called upon to include nearly five hundred members of the Judiciary of Scotland in a Register of Judicial Recusals which was created in response to a five year Scottish Parliament probe on lack of transparency within the judiciary.

The Lord President – Lord Carloway (real name Colin Sutherland) – is currently being consulted by the Head of Strategy and Governance of the Judicial Office on collecting recusal data from Justices of the Peace courts.

The move comes after journalists queried why JPs were not included in the current register of recusals listing when judges stand down from a case due to conflicts of interest.

The addition of Justices of the Peace to the recusals register follows recent development where Lord Carloway conceded to calls for full transparency on judicial recusals, reported here: RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

However, amid an ongoing probe on Justices of the Peace – where it has now been established some JPs have undeclared criminal convictions – there has been no explanation provided by the Judicial Office as to why some five hundred Justices of the Peace who comprise the bulk of membership of the Judiciary of Scotland – were left out of the publication of recusals by Lord Gill during the register’s creation in April 2014.

Moves by Scotland’s judiciary to become more transparent and open up the workings of Scotland’s courts and judiciary to the public, have come in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The petition, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.

The creation of such a register would ensure full transparency for the most powerful people in the justice system – the judiciary.

The resulting publicly available register of judicial interests would contain information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

A full listing of evidence in support of the petition calling for a register of judicial interests can be found here: JUDICIAL REGISTER: Evidence lodged by Judicial Investigators, campaigners, judges & journalists in four year Holyrood probe on judges’ interests – points to increased public awareness of judiciary, expectation of transparency in court.

The move to create a register of judicial interests has also secured the support of two Judicial Complaints Reviewers.

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

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

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

Both of Scotland’s recent top judges – former Lord President Lord Brian Gill, and current Lord President Lord Carloway, have testified before the Scottish Parliament on the petition, both failing to prove any case against creating a register of judicial interests.

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

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

The National newspaper reports on the call to include Justices of the Peace in the Judiciary of Scotland Register of Judicial Recusals.

Campaigner calls on Scotland’s top judge to extend register of recusals

Exclusive by Martin Hannan Journalist The National 3rd October 2017

SCOTLAND’S Justices of the Peace should have to register their recusals when they step aside from cases in their courts due to conflicts of interests, according to the man who is leading a campaign on judges’ interests.

The judicial register of recusals was established by Scotland’s most senior judge in April 2014, former Lord President Lord Gill, and the judiciary website shows all such recusals by judges and sheriffs and the reasons why they stepped away from a case.

Now legal campaigner Peter Cherbi has called for the register to be extended to Justices of the Peace, who are lay magistrates dealing with less serious cases such as breach of the peace or minor driving offences.

For five years Cherbi has been petitioning the Scottish Parliament on the issue of judges’ interests, and he sees a register of recusals as vital for public confidence in all the judiciary.

Cherbi said: “Given there are nearly 500 Justices of the Peace in Scotland who must act in accordance with the same rules laid down for other members of the judiciary, JPs should now be included in the Register of Recusals.

“I am surprised Lord Gill omitted Justices of the Peace when he created the Register of Recusals in April 2014. This was a significant omission, given the numbers of JPs across Scotland, and Lord Gill should have corrected this flaw before he left office in May 2015.

“I note Lord Carloway (left) has not attended to this glaring omission since taking office as Lord President in January 2016 until now being asked to do so.

“The omission of Justices of the Peace from the Register of Recusals has left out a significant portion of the judiciary and therefore concealed a more truer representation of numbers of recusals and interests across Scotland’s judges and courts, which are of significant public interest.

“I shall be informing the Public Petitions Committee of this development and if the need should arise, I will request MSPs write to the Judicial Office and Scottish Justices Association to make enquiries as to when JPs will be added to the Register of Recusals, and to seek an explanation why they were originally left out from the data, despite it being a relatively simple operation to include JPs in the recusals statistics.”

The National contacted the Scottish Justices Association, which represents the Justices of the Peace, but no reply had been received by the time we went to press.

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

 

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GOOD LORD, GLITCHES: “Gremlins & Glitches” theme of Lord Carloway’s opening of new legal year – Court of Session misses out on promised digital reforms, top judge takes swipe on judicial appointments in Law Society speech

Lord Carloway opens legal year 17-18. SCOTLAND’S top judge has marked the opening of the new legal year with an admission of significant problems with the rollout of digital technology in Scotland’s creaking, Victorian era courts & justice system.

Lord President and Lord Justice General – Lord Carloway (real name Colin Sutherland) – who presides over a £42milion a year 700 strong group of Sheriffs & Sheriffs Principal, Justices of the Peace and Court of Session judges who call themselves “Senators” – told his handpicked, closed door legal world audience that “Gremlins and glitches” had yet again slowed down major digital technology reforms.

Luckily for the creaking Court of Session and it’s judges – who are known to despise transparency and openly snear, perhaps even smite media intrusions into their haphazard and often calamitously costly hearings to litigants – Lord Carloway added integrated digital reforms were still some way off from impinging on salivating legal teams fees, which can in some cases have resulted in tens of thousands of pounds for what passes as a day’s ‘work’.

Carloway, spoke to an audience which included Lord Thomas, the Lord Chief Justice of England and Wales  and Lady Thomas, along with Sir Declan Morgan, the Chief Justice of Northern Ireland and Lady Morgan, Mr Justice Frank Clarke the new Chief Justice of Ireland and President of the Irish Supreme Court, Mr Justice John MacMenamin, a member of the Supreme Court in Ireland – and the new President of the United Kingdom Supreme Court, Baroness Hale and her husband, Dr Julian Farrand.

Lord Carloway told his audience: “As is often the case, pronouncements, about the advent of digital technology as the panacea for procedural and evidential woes, have proved somewhat optimistic. The new digital Integrated Case Management System has been rolled out in the sheriff courts, but glitches and gremlins have slowed its process. Even assuming that the digital portal, which is designed to absorb all court documents, including productions, into the ICMS, will be operational in the not too distant future, it may still be some time before the ICMS is introduced to the Court of Session.”

However, earlier this year, in late February of this year, The Times reportedLord Carloway –  “Scotland’s most senior judge has claimed that the Scots legal system is stuck in the 19th century and needs to be modernised to provide better justice.

Lord Carloway, the lord president of the Court of Session and lord justice general of the High Court, claimed that many rules and procedures appeared to be “preserved in aspic”.

Dear oh dear. The Scottish Courts and Tribunals Service (SCTS) received over £105million of public cash in the latest Scottish Government budget. If the courts cannot achieve a visit to PC World on £100million a year to equip the ageing Court of Session justiciary with an integrated computer framework, well, the public are not getting value for money.

Admittedly, over £11million of that figure is directed to the judiciary, in an effort to split the ever burgeoning judicial budget which hit £40.5million in 2016.

Alas, as in many public body accounts in Scotland – Cayman Islands style creative accounting  became the in-thing – where some Scottish Government Minister decided it would be good figure fiddling to split the judicial budget into two. That way, the financial accounts look like the judiciary took a £12million a year hit, yet in reality they now receive a near £12million bung via the main Courts budget.

And, yet, in yesterday’s Opening of the Legal Year 2017-2018 address to the usual closed shop audience, ever closed for fear of public criticism – amongst a speech of gremlins, glitches & the goonies, Lord Carloway reverts back to the myths of a ‘respectable’ and functioning justice system, which rests firmly in the day dreams of Scotland’s judicary, and annual profits of mostly Edinburgh based law firms and cash collectors – otherwise known as the Faculty of Advocates.

Lord Carloway’s Opening of the Legal Year 2017-2018 speech in full:

Welcome everyone to the opening of the legal year. First let me thank you all for coming. Can I first introduce our guests from our neighbouring jurisdictions:

Lord Thomas, the Lord Chief Justice of England and Wales and President of the Courts of that jurisdiction and Lady Thomas;

Sir Declan Morgan, the Chief Justice of Northern Ireland and Lady Morgan

Mr Justice Frank Clarke the new Chief Justice of Ireland and President of the Irish Supreme Court

Mr Justice John MacMenamin, a member of the Supreme Court in Ireland

and a welcome return to Edinburgh to the new President of the United Kingdom Supreme Court, Lady Hale and Dr Julian Farrand

I am also pleased to welcome the Cabinet Secretary for Justice, Michael Matheson, Annabelle Ewing, Minister for Community Safety and Legal Affairs and Paul Johnston, the Director General for Education, Communities and Justice.

It is also a pleasure to have with us Liam McCollum, Chair of the Bar of Northern Ireland, Paul McGarry, the Chair of the Bar of Ireland, Seamus Woulfe, the Attorney General of Ireland and David Barniville, also from the Bar of Ireland.

Without indulging in a lengthy essay on the current state of the Scottish Courts and Tribunals, I would like to say a few words about where we are now and where we are going next.

We have now seen the structural changes of the Courts Reform Act bedding in; with the advent of the Sheriff Appeal Court, the All Scotland Sheriff Personal Injuries Court and the raising of the exclusive jurisdiction of the sheriff court to £100,000. We have introduced important changes to the structure of Scotland’s tribunals, with the establishment of the First-tier Tribunal for Scotland and the creation of distinct chambers for housing and property and for taxation.

As anticipated by the reforms, there has been a significant reduction in both appellate and first instance civil work in the Court of Session and in summary criminal appeals to the High Court. There has also been a predicted drop in the number of commercial cases. As a consequence of all of this, this court the Court of Session ought to become leaner, trimmer and fitter in the coming years.

There ought to be a significant reduction in waiting times for civil first instance and appellate hearings. This has already happened with appeals, which are generally being disposed of (including judgment) on average within 8 months of marking. Proofs of 4 days duration are fixed within 6 months of the request to do so. However, I fully recognise that further work requires to be carried out to accommodate longer proofs, within much shorter time-scales. I include in that equation the issue of the final opinion. This will be achieved partly as a consequence of the abolition of court terms in the coming year. This has already seen some of these proofs being allocated over what was formerly known as the Summer Vacation or Recess.

The policy of having at least 4 non-commercial judges in the Outer House over a period of at least three months will continue, or rather increase to five, so as to avoid any criticism that ordinary first instance business is being regarded as less of a priority than other work. Major inroads have been made in relation to providing all judges with sufficient writing time in civil cases. Statistically, there has been a substantial improvement in the time taken to issue judgments, even if there continue to be problems in specific cases.

The High Court is already processing solemn appeals as efficiently as is reasonably practicable with disposals occurring within 6 months of the grant of leave. It is anticipated that far fewer criminal appeal courts will be needed in the coming months. This will mean that we will be able to continue to run two civil Divisions each week if necessary. The post reform developments will result in much less reliance on retired or temporary judges and, in the sheriff courts, dependence upon fee paid and retired sheriffs. I remain very conscious of the fact that almost all High Court cases require an extension of time. However, I do not consider that this is caused by an inefficiency in the system. Rather, the introduction of enhanced disclosure, the need to search electronic databases and social media and advances in forensic science have made it all but impossible to comply with timescales set in a different era whilst at the same time accommodating the diaries of parties’ legal representatives. As a result of concerted efforts over the past year, all sheriff courts are now able to fix summary trial diets within the optimal 16 week timescale. In relation to domestic abuse cases that timescale is under 10 weeks. Reform in sheriff and jury practice ought to place the sheriff courts onto a similar efficient footing to the High Court.

As I said at this time last year, the focus must now change from structure to function. As is often the case, pronouncements, about the advent of digital technology as the panacea for procedural and evidential woes, have proved somewhat optimistic. The new digital Integrated Case Management System has been rolled out in the sheriff courts, but glitches and gremlins have slowed its process. Even assuming that the digital portal, which is designed to absorb all court documents, including productions, into the ICMS, will be operational in the not too distant future, it may still be some time before the ICMS is introduced to the Court of Session.

The enormously ambitious rules rewrite project, under the auspices of the Scottish Civil Justice Council, continues apace. Having produced its first report, the project now enters a second stage designed to develop a core narrative of draft civil rules applicable in both the Court of Session and the sheriff court. It has, to some, rather dull aspects, but the development of case management powers in relation to the conduct of proofs and other hearings will see an exciting change in the way things are done and the time which it takes to do them; provided, that is, that we continue to have a judiciary committed to improvement.

The next significant reform in solemn criminal procedure will be the expanded use of recorded evidence with vulnerable and child witnesses. This is already done, although not always consistently across the board. It is in summary criminal procedure that greater change is anticipated with fundamental proposals being made following upon the “New Model” paper produced earlier this year. The plan is to have all pre-trial procedures conducted by a digital case management process. More important will be the creation of a means to store, manage and share evidence digitally and securely. The idea that truth can be ascertained by using a combination of memory test, pressure and general inconvenience to witnesses will be replaced by a system which gives far greater precedence to images and statements recorded electronically at or about the time of the relevant incident and to the need to accommodate witnesses generally.

I would now wish to thank all of my judicial colleagues, especially the Lord Justice Clerk, Lady Dorrian, for their continued help and support. I am grateful to the administrative judges Lords Malcolm (formerly Lord Menzies), Turnbull, Boyd and Matthews, for all their assistance throughout the year. I also thank the SCTS chief executive, Eric McQueen, the new head of the Judicial Office, Tim Barraclough, our new Principal Clerk, Gillian Prentice, and all the court clerks and other staff working here in Parliament House, in the High Court Centres and throughout the country. Their commitment and hard work remain important an driving force in ensuring not only the continued existence of the justice system but also its progress. I have also very much appreciated the court’s continuing engagement with the Law Officers, all of whom are here today, in helping to develop policies and plans, both past and future, which make the system, as it is at present, fit for the 21st century.

Not least, I wish to thank the legal profession, especially those institutions represented here today, including the Faculty, the WS, SSC and Law Society, and also all those many counsel and solicitors who have participated so willingly, and for no reward, in the committees and working groups now beavering away in the background, for their dedication to the Scottish Legal System, for the effort which all have put in over the last year and in anticipation of the invaluable work which they will be carrying out in the coming year.

Lord Carloway, Lord President 25 September 2017

THE LORD PRESIDENT’S OTHER SPEECH:

The duties of a Lord President and his judges are far and wide.

International travel junkets akin to playing diplomat, or perhaps as unmasked by media attention – just charging up the taxpayer for ‘law conferences’ around the world in 5-Star hotels with golf courses, river tours and first class travel.

Or just a trip across Edinburgh to a law conference, the Lord President does not miss an opportunity to get his oar in give a speech, even if only to a shady bunch at the Law Society of Scotland annual conference – whose members are well practiced in dodging those murky Police Scotland & Crown Office hit-a-brick-wall probes into mortgage dealing, money laundering & bulk buying of properties on the cheap.

While the focus of Lord Carloway’s speech to the Law Society of Scotland audience, already fattened on over £1.3billion pounds of legal aid since the 2008 financial crash, and countless Scottish Government contracts of up to £20million a year and tens of millions more fleeced from public authorities & public bodies, the top judge took another swipe at those who may ‘interfere’ with a measure of transparency in the junta-like regime of Scotland’s courts & judiciary.

Lord Carloway breezed to his Law Society audience: “Under the ancien regime, before the advent of the Judicial Appointments Board, judges and sheriffs were recommended to the Queen for appointment by the Secretary of State, following consultation with the Lord Advocate and, in practice, the Lord President . It was perceived, by some, perhaps many, that judges were the product of cronyism or political patronage. It is true to say that every Lord Advocate in the century or so prior to 1970 was appointed to a superior court bench. Many nominated themselves as Lord President , Lord Justice Clerk  or became judges in the House of Lords .”

“That tradition was broken not so much with the appointment of Lord Wilson of Langside, who became Director of the old Scottish Courts Administration (now the Scottish Courts and Tribunal Service) and then Sheriff Principal of Glasgow, but when Norman Wylie appointed George Emslie to be Lord President in 1972. Nevertheless, Lord Advocates  continued to be appointed as Lords Ordinary and, one way or another, often progressed rapidly to similar positions of high judicial office .”

“The appointment of judges generally was political in the sense of the selection being by government; a system which is common, albeit with different focus, in many western democracies. It is seen as an element in the balance of power. Its merits and demerits have recently been analysed by the new President of the UK Supreme Court, who has mooted re-involvement of politicians from both government and opposition in the appointment of the most important chairs in the English legal system.”

“No-one would pretend that every judicial appointment from that era was of a person with complete legal and personal skills equipping him (as all judges then were) for high judicial office or a sheriffdom. There were problems. What is clear, however, is that the person who was, in practice, recommending the appointment would be fully appraised of the candidate’s qualities and failings. The Lord Advocate would be well aware of his prospective appointee’s experience, ability and knowledge. Consultation with the Lord President ensured that there was substantial input on suitability from the person who would be responsible for the new judge’s future performance and behaviour.”

Judicial Appointments

“There has been much recent public discussion, both in Scotland and in neighbouring jurisdictions, about the challenges which exist in the recruitment of new members of the judiciary. It is imperative, if Scotland is to maintain a high quality judiciary, especially at Court of Session level, that those at the top of the profession in the litigation field are highly motivated to apply for judicial office. It is equally important that the selection process itself does not deter or subsequently reject those candidates best qualified to fulfil the role. The aim must be to secure the services of those whom the profession regard as the leaders in their field and who are seen as the most able of their generation.”

“The independence of the judiciary is a vital element in our system. It is maintained primarily by selecting persons who have acted as independent advocates or solicitors throughout their professional lives, who have prosecuted and defended, and who have acted on the one hand for government, insurance companies and global conglomerates and on the other for the private individual, legal aided or otherwise, who has allegedly been oppressed or who has a legal right requiring vindication.”

“What must not be lost sight of is the simple fact, which cannot be underestimated, that for the Scottish justice system to operate properly, it needs judges and sheriffs who are not just competent lawyers with reasonable or even good people skills. It needs, at the high end, the best lawyers of the generation to lead the way; to take over the chairs of the permanent Divisions and to provide their wings. In the sheriff courts, although the same quality of legal skill and experience may not be a necessity, the appointments must be of people whom the profession recognise as prominent within their ranks.”

“I very much welcome the willingness of the new Chair of the Judicial Appointments Board to engage in a discussion about how the selection process might be improved to ensure that we do persuade the leading lights of the profession to apply for judicial office, and that the very best are successful in their applications.”

The full speech is available here:  LP Law Society of Scotland Annual Conference Keynote Address 19September2017

Put it this way. If suddenly, the Government banned elections, any form of public vote was suspended, and instead politicians were selected in the way the Lord President extols as fit for judges who head a £2.5 billion pound per annum publicly funded justice system, it would be branded undemocratic, a system of jobs for the boys, and well, in all honesty – totalitarian.

The “Greater Good” – The phrase used by the Lord President in the opening paragraph of his speech to the Law Society conference – is served by Transparency, in increasing amounts, and taken several times daily by a judiciary, courts and justice system in dire need of reform.

 

 

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APPROVED BY M’LORD: Former Police Chief & Legal Complaints board member receives approval from Lord Carloway to fill ‘window dressing’ Judicial Complaints Reviewer post

Ex top cop & SLCC Board member is new Judicial Investigator. A FORMER Deputy Chief Constable of Tayside Police who served as Convener of the Standards Commission for Scotland and was a board member of a tainted legal complaints quango – has been approved by Scotland’s top judge to investigate judges and serve as Scotland’s third Judicial Complaints Reviewer (JCR).

Ian Gordon, who also formerly served as a board member of the pro-lawyer Scottish Legal Complaints Commission (SLCC) and is currently Acting Commissioner with the Northern Ireland Public Service Ombudsman Office – will now serve as Judicial Complaints Reviewer from 1 September 2017 to 31 August 2020.

Ian Gordon’s appointment as JCR, which is required to be approved by Scotland’s top judge – currently Lord Carloway – was announced by Justice Secretary Michael Matheson yesterday, Monday 14 August.

However, MSPs from across the political spectrum have called for the judicial watchdog to be given new powers and a review of the role undertaken by the Scottish Government amid controversy over the lack of powers to the JCR.

Moi Ali – Scotland’s first Judicial Complaints Reviewer branded the JCR role as “window dressing” in evidence to MSPs at Holyrood during September 2013 – featured in a report here: As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

Moi Ali continually called for extra powers until she quit the role in 2014 amid lack of cooperation from the judiciary & Scottish Government.

Gordon’s appointment as Judicial Complaints Reviewer comes after both his predecessors complained the SNP Government starved the post of resources.

Last week, the Sunday Herald published a further report on the controversy around the office of Judicial Complaints Reviewer, revealing current Gillian Thompson has published further concerns on the relevance and efficacy of the job.

Gillian Thompson said her contracted hours of just three days a month “inevitably” led to delays, “inconvenience for complainants” and ultimately “a poor service”.

She said she doubted public expectations were being met, complained her access to investigation files was limited, and urged ministers to “review the relevance of the role”.

Gillian Thompson published two annual reports on her work as JCR, last week – which contain no case histories after the Scottish Government suggested such references be excluded in published reports.

Several weeks ago Thompson was caught in a controversy where documents released by the Scottish Government revealed she had accused her predecessor of being the source of media interest in the lack of published annual reports by the JCR.

The accusations turned out to be false, and the Scottish Government ordered journalists to destroy the initial release of documents, which was swapped for another version by Stuart Lewis, a Senior Media Manager for the Scottish Government’s Justice & Education hub. Lewis refused to identify who took the decision to order destruction of the FOI documents.

Further concerns have been raised after the Scottish Information Commissioner dodged calls to look into the case, after journalists called for a re-examination of how exemptions are used by the Scottish Government where Thompson’s written accusations were then censored under the guise of ‘protecting free and frank discussions between officials’.

A full report and publication of the FOI documents on the controversy around Thompson and the Scottish Government’s FOI release can be found here: Scottish Government request destruction of FOI papers – Files reveal Ministers silence on judicial complaints & civil servants attempts to exclude case histories from Judicial Investigator’s annual reports

Ms Thompson’s predecessor Moi Ali also complained a lack of funds and support had made the role of Judicial Complaints Reviewer “enormously frustrating and difficult”.

Today, it has been reported LibDem MSP Liam McArthur has urged Mr Matheson to review the post of JCR.

In a letter to the Justice Secretary, Mr McArthur said: “The only two holders of the post have both provided blistering accounts of their experiences. In appointing the third JCR the Scottish Government cannot ignore the criticisms of his predecessors and the serious questions that surround the credibility of this office. It is clear that the current system is not working.”

Tory MSP Liam Kerr said: “Given the criticism levelled at the Scottish Government by the former reviewer, it appears her successor has quite a job on his hands.

“If this role is to be a success, ministers have to provide the resources and support necessary. We can’t afford for this to be yet another wasted 12 months.”

Labour MSP Claire Baker added: “It is clear that the new JCR needs far greater support.

“For the SNP to simply announce a new JCR but fail to address any of the serious structural shortcomings in the role is simply unacceptable.

“The Scottish Government cannot hide from their responsibility. They must fully fund and resource the new JCR so that he can carry out his role in the best interests of the public.”

However the biography issued by the Scottish Government on Mr Gordon contains no references to his time as one of the first intake of Board members at the discredited Scottish Legal Complaints Commission.

The SLCC was recently branded as a “toothless waste of time” by former Cabinet Secretary Alex Neil MSP (SNP Airdrie and Shotts) after the legal services regulator failed to act in a high profile case involving a senior QC caught up in a cash payments scandal.

The team responsible for setting up the Scottish Legal Complaints Commission and it’s board members in 2008 was led by Angela McArthur, Chief Executive of the Parole Board since December 2009

During Mr Gordon’s time on the board of the Scottish Legal Complaints Commission, the pro-lawyer regulator lurched from controversy to scandal, where media reports revealed board members infighting over dealing with members of the public, campaign groups, and drunken exchanges between board members & senior SLCC staff.

Ministerial Announcement of new Judicial Complaints Reviewer: Judicial Complaints Reviewer appointed

Cabinet Secretary for Justice Michael Matheson has announced the appointment of the third Judicial Complaints Reviewer.

Ian Gordon is a retired Deputy Chief Constable of Tayside Police. He is currently an Acting Commissioner with the Northern Ireland Public Service Ombudsman Office.

He was seconded to HM Inspectorate of Constabulary and was the lead police officer on the annual statutory inspection of five UK police forces, and was a member of the UK Police Professional Standards Group. He has conducted criminal, conduct and complaints investigations in the UK and undertaken enquires abroad on behalf of the Foreign Office.

Mr Gordon was also a Convener for the Standards Commission between 2010 and 2017 and contributed to a focused improvement to awareness of the codes of Conduct by elected members and Boards of Public Bodies.

This appointment was established by the Judiciary and Courts (Scotland) Act 2008 to review, when asked, the handling of a complaints investigation into members of the judiciary, to ensure that it has been dealt with in accordance with The Complaints About the Judiciary (Scotland) Rules 2016. The Reviewer has no powers to consider the merits of any complaint or the disposal of the complaint.

The appointment will be for a period of three years from 1 September 2017 to 31 August 2020, and will be paid a daily fee of £217. The appointment has been made with the approval of the Lord President.

All appointments are made on merit and political activity plays no part in the selection process.

FROM EX-COP TO JUDGING JUDGES – BIOGRAPHY IAN GORDON:

Ian Gordon is listed as Chair on the website of the Ericht Trust and is an active director of the Ericht Trust which is also registered as a company limited by guarantee, managed by a Board of Trustees who are elected at an Annual General Meeting, and a Company Secretary.

The Ericht Trust has since reported in March 2017 to be in the process of changing it’s name to the Erich Trust.

The Ericht Trust describes itself as a ‘not for profit’ charitable organisation, which focuses on community development and regeneration in line with Scottish Government policies on community empowerment. It is a member of Development Trusts Association Scotland (DTAS). DTAS provides support to its members and a link into a network of the many comparable Trusts working for the benefit of their communities across Scotland. Being part of this bigger family gives strength to the organisation when voicing opinion or seeking support from Government and Local Authorities.

The object of the Trust is to stimulate a range of community projects which will benefit residents and businesses and draw visitors to this area.

A register of interests posted by the Scottish Legal Complaints Commission also listed Mr Gordon as a director of Quarere Ltd.

Quaere Limited was set up on 20 Dec 2006 has its registered office in Perthshire. Its current status is listed as “Dissolved”. The company’s first directors were Marion Therese Gordon, Ian Alexander Gordon. Quaere Limited has no subsidiaries.

The company was listed under the headings of SIC 2003:7414 — Business And Management Consultancy Activities & SIC 2007: 70229 — Management Consultancy Activities (Other Than Financial Management)

Last annual accounts of Quarere Ltd were filed in 2009.

Other interests listed in Mr Gordon’s register of interests from his time at the Scottish Legal Complaints Commission include:

• Associate Professor in Policing for Charles Sturt University (Australia).
• Formerly Chair of the Association of Chief Police Officers in Scotland (ACPOS) Professional Standards Business Area.
• Vice-Chair of ACPOS General Policing Business Area.

Previous articles on the Judicial Complaints Reviewer and complaints against Scotland’s judiciary can be found here: Judicial Complaints Reviewer – Reviewing complaints against Scotland’s judiciary

 

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JUDICIAL REGISTER: Calls for all UK judges including UK Supreme Court, and Tribunals to declare links to business, wealth, professional & other interests in published registers of interests

All UK Judges & tribunals should declare interests. AS THE Scottish Parliament continues an investigation into proposals calling for members of the Judiciary of Scotland to declare their interests, a call has been made to roll out a publicly available judicial register for all judges & tribunals all across the UK.

Calls to bring all UK judges, including top judges based at the UK Supreme Court, and all tribunal members into line with judicial transparency proposals currently being considered in Scotland – would require those who sit in judgement to declare all interests, professional & personal links, wealth, property and other interests, in a register of interests, similar to disclosures made by politicians and others in public life.

The move comes after a recent development where Scotland’s top judge conceded to calls for full transparency on judicial recusals, reported last week here: RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

Attempts by Scotland’s judiciary to become more transparent and open up the workings of Scotland’s courts and judiciary to the public, have come in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The petition, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.

The creation of such a register would ensure full transparency for the most powerful people in the justice system – the judiciary.

The resulting publicly available register of judicial interests would contain information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

A full listing of evidence in support of the petition calling for a register of judicial interests can be found here: JUDICIAL REGISTER: Evidence lodged by Judicial Investigators, campaigners, judges & journalists in four year Holyrood probe on judges’ interests – points to increased public awareness of judiciary, expectation of transparency in court

And, two of Scotland’s recent top judges, former Lord President Lord Brian Gill, and current Lord President Lord Carloway, have testified before the Scottish Parliament on the petition, both failing to prove any case against creating a register of judicial interests.

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

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

The National reports on recent developments here:

Fresh call for all UK judges to register interests

Campaigner says UKSupreme Court should follow Scotland example on Judicial Recusals

Martin Hannan Journalist 2 August 2017 The National

THE UK Supreme Court and the courts in England and Wales and all tribunals across Britain do not have a system that shows where judges and tribunal members have been forced to step aside from cases due to actual or possible conflicts of interest.

As The National revealed on Monday, Scotland is shortly going to have an expanded register of judicial recusals that records when judges and sheriffs withdraw from cases, but no such register exists for the judiciary south of the Border or for any public tribunal.

Now the legal campaigner who has fought for Scottish judges to declare their interests for more than five years is calling on UK Supreme Court justices, the English and Welsh judiciary and the various tribunals to do the same and keep a register of recusals.

Peter Cherbi’s current petition before the Scottish Parliament is asking that the judiciary in this country declare their financial interests, as US Supreme Court Justices must do.

Cherbi accepts, however, that the Judicial Office in Scotland has already acted to bring in a more details register of recusals. Now he wants the UK Supreme Court to do the same.

Cherbi said: “We have now moved forward in Scotland in terms of judicial transparency with the publication of judicial recusals. If Scotland can do it, so can England and Wales, and the courts in Northern Ireland. The English justice system touts itself worldwide as the law of choice for litigants. If this is truly the case, then it is for the UK judiciary to be as transparent as Scotland and publish their own recusal register, and a register of interests as we are working on here.

“With the recent announcement of Lady Hale being appointed as President of the UK Supreme Court, I will be writing to her, requesting she consider creating a register of recusals for UKSC, as so far, the UK Supreme Court has also been silent on matters of recusals, which the public, court users, and legal representatives have a right to know.

“I shall also be contacting the European Court of Justice and the European Union to ask that courts throughout the EU be encouraged to publish recusal data and more detail on their judges. All EU citizens should have the same entitlements to judicial transparency we are now creating in Scotland.”

Cherbi thinks the Supreme Court and English and Welsh courts can lean learn from the experience here, where a register of recusals has been kept since 2014 and which is to be expanded.

He said: “Our approach in Scotland to improving courtroom and judicial transparency, fuelled by the hard work of cross party MSPs, the Scottish Parliament, fantastic support from Judicial Complaints Reviewers Moi Ali and Gillian Thompson, and backing by the media is a good reminder that team work and cross party support can bring significant change for the good.”

He also wants entities such as employment tribunals to be more open: “My ongoing investigations into tribunals suggests declarations of interests are more often than not concealed, and recusals are few and far between, if ever occurring, and there is little if anything those before tribunals can do about it.

“The public, who are being judged, are entitled to know who their judges are. It is as simple as that.

“Those who judge cannot be judge in their own cause, nor write and approve their own rules, without expectation of full transparency and accountability. Independence of the judiciary is guaranteed, and no one would ever question it. However, those who judge must live by the same laws and expectations of transparency they enforce upon the rest of us.

A spokesman for the UK Supreme Courts said: “Justices are bound by their judicial oath and a code of conduct to declare any relevant interest in a case to the parties, before they consider the matter. There are no current plans to publish a register of recusals.”

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

 

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RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

Spotlight on Judiciary brings success on Recusals. SCOTLAND’S top Judge – Lord President Lord Carloway – has conceded to calls to publish full details of cases in the Register of Judicial Recusals – a publicly available register which records  instances where judges step aside in cases due to conflicts of interest.

The improvements to the register of recusals, agreed after lengthy exchanges between the Head of Governance of the Judiciary of Scotland & journalists – acknowledge the woeful lack of detail previously entered on cases, where little was given away about the case subject, litigants, points of law involved or even whether judges had refused to recuse themselves after being asked to do so.

Soon, members of the public, court users and legal representatives will be able to find out much more about why judges have stood aside in cases, the identity (where appropriate) of legal cases, litigants, case reference numbers and legal representatives – which all appear in court opinions published online by the Scottish Courts & Tribunals Service (SCTS).

The move has come about after Lord Caloway was quizzed on Judicial Recusals at a recent meeting of the Scottish Parliament’s Public Petitions Committee – where it became clear recusals of judges which had occurred, were not included on the register for reasons not well explained by Lord Carloway in his responses to former Cabinet Secretary Alex Neil MSP.

Now the register is to be corrected, and all the extra information now agreed to be entered by the Judicial Office will also be backdated to the date the recusals register came into being, in April 2014 – when Lord Brian Gill created the register of recusals in response to the Scottish Parliament’s ongoing consideration of Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The further publication of information revealing the identities of solicitors & law firms bold enough to challenge the judiciary and raise motions for recusals could also significantly benefit members of the public in access to justice issues, enabling clients to select a lawyer who isn’t afraid to raise questions on the appropriateness of a judge to hear a case if there are conflicts of interest which must be raised as matters for recusal.

The extra concessions from the Judicial Office – which go further than Lord Carloway indicated during his meeting with MSPs, come after journalists pursued a Freedom of Information request seeking all information contained in forms submitted in motions from legal teams & litigants for judges to step aside in court hearings.

Initially, the Judicial Office claimed it held no information on recusals other than a form for collecting information on recusals, a blank copy which was provided to journalists, who then sought a review of the refusal to release further information.

Then, writing in response to a request for a review of the Judicial Office’s earlier decision to refuse release of detail on recusals, Mr Steven D’Arcy Head of Strategy & Governance said: “Following the Lord President’s letter to the Petitions Committee, the Register of Recusals will be extended to cover instances when a judge has recused them self and when he or she has declined to do so – a copy of the this letter can be found here. The Judicial Office for Scotland has amended the guidance for SCTS staff and a copy is attached to this letter.”

The Judicial Office does hold copies of submitted recusal forms. However, when a form is submitted the information of the recusal is placed on our website. Therefore this is exempt information as you can reasonably obtain it other than by requesting it (section 25(1) of the Freedom of Information (Scotland) Act 2002)).”

The form now issued by the Judicial Office for Scotland to collect recusal data lists the following information and terms:

Intimation of a Decision of Declinature (Recusal)

Declinature of jurisdiction, also referred to as recusal, refers to the act of a judicial office holder abstaining from participation in legal proceedings due to a conflict of interest or when his or her impartiality might reasonably be impugned.

The attached form  should be completed by clerks of court in the event of a formal motion for recusal being granted or refused in open court and accordingly recorded in an appropriate interlocutor.

The return should only be completed for recusals involving a senator, temporary judge, sheriff principal, sheriff or summary sheriff (this includes fee-paid members of the judiciary). It should not be completed when there has only been an informal administrative decision not to sit in a particular case.

The returns should be completed electronically and emailed to the Judicial Office for Scotland.

This information is being collated on behalf of the Lord President and this requirement should be completed accurately and timeously. Local records should be noted once the return has been submitted.

If you have any questions please contact the Judicial Office for Scotland.

The form of Intimation of a Decision of Declinature of Jurisdiction (Recusal) seeks, and records COURT (Location), DATE, NAME OF JUDGE, CASE NAME & REF, ACTION TYPE, MOTION (please select), GRANTED/REFUSED, REASON (please provide specific reasons), CLERK OF COURT, CONTACT DETAILS.

However, on analysing the form provided by the Judicial Office, it was plain there was a significant amount of information gathered by the form which was still to remain unpublished.

A series of discussions then took place between the Head of Governance at the Judicial Office & journalists pursuing the release of recusal information, which ultimately concluded in an agreement to publish all the information where appropriate.

Journalists asked: Just to confirm this information to be published will go right back to the first recusals in 2014 contained in the register of recusal archive?”

Mr D’Arcy responded: “…if it was 2014 then the answer is Yes. All case names/references that we can publish will be added to the list of recusal information on our website.”

A recent investigation by Diary of Injustice revealed instances where senior Court of Session judges have stood aside from cases were not entered into the register of recusals, for up to a year later, and then only after DOI journalists had queried the Judicial Office over the cases.

A full report on investigations into judicial recusals can be found here: Doubts over credibility of register of judges’ recusals – as Judicial Office admit court clerks failed to add details of senior judges recusals – then silently altered records a year later

During enquiries into failures to record recusals, Elizabeth Cutting, Head of Communications of the Judicial Office stood down from her post, leaving acting head Baktosch Gillan to reply to queries on why a recusal relating to Lord Bracadale had been concealed from the register of recusals for up to a year.

Responses from the Judicial Office claimed there had been a “clerical error”, a claim echoed by Lord Carloway during his attendance at the Petitions Committee where the top judge was widely criticised for his attempts to thwart increases in judicial transparency with the creation of a register of interests for Scotland’s judiciary.

The National reported on the developments to publish full details on judicial recusals in Scotland, here:

More details to be shared about judges recusing themselves from cases

Bridget Morris Journalist 31 July 2017 The National

THE register which shows when judges have stood aside from court cases because of a probable or perceived conflict of interest is to be extended and give more details to the public.

Since the Register of Recusals – the legal term for stepping aside from a case – was started by the Judicial Office for Scotland in 2014, the public has been able to read about the location of the recusal, the reason why sheriff or judges recused themselves and the name of those sheriffs and judges, but not the name of the cases or their reference numbers.

Now, after a Freedom of Information request by the legal blogger and campaigner Peter Cherbi, full details of the cases including names and reference numbers will be added to the Register of Recusals.

The Judicial Office has decided to backdate the information to the start of the register three years ago, though sensitive matters such as child protection cases will not be included in the extended release of details.

The decision, which is understood to have been made or sanctioned by Scotland’s most senior judge, Lord Carloway, the Lord President, will make accessing information on recusals much easier.

Cherbi said: “With the latest concessions offered by the Judicial Office on releasing all information with regard to recusals, this is a tacit acceptance that the content of the recusals register created by Lord Gill in early 2014 has been woefully lacking in critical detail, and has by the very lack of detail led to a register which has omitted key recusals for reasons not well explained by Lord Carloway.

“The release of case references, identities of litigants if appropriate and also, I urge, the identities of legal teams acting in such cases where recusals have been sought, gained or refused could have assisted court users and legal representatives in making a more accurate assessment of how to progress cases before judges who may have conflicts of interest which, as we have seen from recent reports do occur.”

Previous article on Judicial Recusals can be found here:  Judicial Recusals in Scotland – Cases where judges have stood down over conflicts of interest

 

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READ THE SHRED: Scottish Government request destruction of FOI papers – Files reveal Ministers silence on judicial complaints & civil servants attempts to exclude case histories from Judicial Investigator’s annual reports

No JCR annual reports in 3 years. FILES RELEASED by the Scottish Government reveal Scotland’s Judicial Complaints Reviewer (JCR) took an undisclosed decision in 2016 not to publish annual reports on complaints about alleged judicial misconduct, while civil servants agreed further annual reports could be watered down.

The documents – obtained under the Freedom of Information act reveal a three year silence on annual reporting of complaints about the judiciary by Gillian Thompson OBE, who currently serves as Scotland’s Judicial Complaints Reviewer until August 31 2017.

Emails from the Scottish Government to the JCR also reveal a civil servant in the Justice Department told Ms Thompson she could water down the length of reports on her work, and did not need to include examples of cases – which had been a hallmark of previous annual reports published by Scotland’s first JCR – Moi Ali.

And, key passages of the documents provoked a storm in the media after now redacted paragraphs revealed Ms Thompson had wrongly claimed her predecessor was the source of media articles in relation to the role of the JCR – when in fact the articles reporting on a lack of annual reports from the Judicial Complaints Reviewer had been down to good journalism.

Upon the material being reported to the Scottish Government as unsuitable for publication, on the grounds there was a clear breach of Freedom of Information legislation relating to publication of comments of third parties and material likely to inhibit free & frank discussion between officials, the Scottish Government’s media team took over the handling of the matter, and demanded the documents already released to journalists be destroyed.

Stuart Lewis, Senior Media Manager for the Scottish Government’s Justice & Education hub provided an unsigned letter stating: You also brought to our attention the remarks made on page 28 of the pdf document. These remarks were made by a third party and do not reflect or represent the views of the Scottish Government. On reflection, those remarks should also have been considered to be personal data.

This was an oversight which we take seriously. We will circulate guidance across the Justice Directorate for use in responding to future FOI requests and specifically about redaction of personal information including personal data.

In the circumstances, we would ask you not to circulate this information any further and ask that you confirm that you have deleted/destroyed the information. We have included a redacted copy of the information for publication which excludes this personal data.

We are very grateful to you for drawing this matter to our attention and for giving us the opportunity to address it before you publish our response.

The initial release of documents from the Scottish Government were subsequently destroyed. However, what became clear from the release of information was that exemptions of disclosure which supposedly protect “free and frank discussions” between civil servants are being used to conceal potentially defamatory statements & conjecture between public servants unhappy about attention from the media on public interest issues.

The files, since released in a second cleaned up version by the Scottish Government, also reveal major changes appear to have been planned for the way in which JCR annual reports were to be published, after an email from an unidentified Scottish Government civil servant informed Gillian Thompson there was no need to refer to actual cases in her annual report.

An excerpt from an email, dated 8 September 2015 reads: “We look forward to receiving your Annual Report in due course and agree that there is no need for this to be a lengthy document, nor to include examples of cases.”

An excerpt from a letter, dated 3 October 2016 reveals the decision taken by Ms Thompson against publishing annual reports – despite a Ministerial direction obtained by Ms Thompson’s predecessor to ensure the public found out about the work of the Judicial Complaints Reviewer.

An extract from a letter from Gillian Thompson to Neil Rennick, Director of the Scottish Government’s Justice Department reads: From the beginning of my tenure I have prioritised the reviews requested by those who believe that their complaint has not been handled by the Judicial Office for Scotland in line with the relevant Rules. It took me well into 2015 to clear the backlog I inherited and the reviews that came to me in the first 6 months.

My view is that the role of the JCR is to provide the service available within the narrowly drawn legislation as efficiently and effectively as possible given the constraints, including the time constraints.

I have always viewed the preparation of a report on activity and effort as second order. My contract refers to a responsibility to “as directed by Scottish Ministers to prepare and publish reports on investigations”. The wording implies that a direction will be given and does not specify what should be reported or when.

I confess that whilst I have accepted that what is meant is to follow Moi Ali’s example I have not attached the same level of importance to providing a report as she did. [REDACTED]

I have not produced a report for 2015 or 2016. The interest also suggests that producing one report followed closely by another will mean that I will have to divert available time to handling the fallout after each rather than undertaking reviews

Early in October I said that I would put aside casework and concentrate on drafting reports. As of this letter I have 7 reviews outstanding and there may be more once I go to VQ tomorrow. I think that for me to feel that I am providing the level of service that complainants are entitled to expect I have to revert to case handling.

I have decided, therefore, that I will conflate the reports and produce an end of term/tenure report in August 2017.

This decision was not announced in public, or on the Judicial Complaints Reviewer’s website.

A further scrutiny of the FOI released documentation also reveals attempts at ‘information management’ in response to enquiries on the role of the JCR, where civil servants suggest Gillian Thompson take the same line as Scottish Government in response to an MSP’s enquiry.

A redacted email from a civil servant in the Scottish Government’s Justice Department to Gillian Thompson reads: “The line that we intend to take in the response to the MSP enquiry is that certain arrangements were set up for the previous JCR. However, these have been comprehensively reviewed and we are in the process of changing over to more secure arrangements – having been maintained on a transitional basis as you inherited the office to maintain continuity. Could we take this line with [redacted] and you could respond from your SCOTS account to avoid any further Gmail related criticism? You might say that you can’t currently gain access to the correspondence on the old Gmail account as it’s in the process of being changed over.”

An issue which does stand out from much of the discussions between Gillian Thompson and the Scottish Government, is the lack of any communication with two Lord Presidents, Lord Gill, and his successor Lord Carloway on the subject of the missing JCR annual reports.

Not one document or communication from an anxious Lord President or Judicial Office exists in the FOI release, provoking questions why the judiciary were keen not to enquire as to why no annual reports were being produced by the Judicial Complaints Reviewer for the past three years.

As things currently stand, the only annual reports from the Judicial Complaints Reviewer which currently exist are those written by Moi Ali, Scotland’s first JCR.

Diary of Injustice has previously published the JCR annual reports authored by Moi Ali, here: Judicial Complaints Reviewer Scotland Annual Report 2011-2012, Judicial Complaints Reviewer Scotland Annual Report 2012-2013 and Judicial Complaints Reviewer Scotland Annual Report 2013-2014

The Sunday Herald reported on the release of documentation and the Scottish Government’s request files be destroyed, here:

Cover-up row after government asks writer to destroy watchdog letter released under FOI

Paul Hutcheon Investigations Editor 9 July 2017

THE Scottish Government is at the centre of a cover up row after asking a journalist to destroy a document released under freedom of information laws.

Civil servants provided a letter showing that Judicial Complaints Reviewer (JCR) Gillian Thompson had wrongly claimed her predecessor may have been behind a media story about her.

Days later, the Government stated: “We would ask you not to circulate this information any further and ask that you confirm that you have deleted/destroyed the information.”

In 2016, the Sunday Herald revealed that Thompson, whose role includes examining whether complaints against judges were handled properly, had not published an annual report since taking up the job.

This was in contrast to the previous post-holder Moi Ali, who had fought for the right to publish a yearly account of her annual activity in the job.

Peter Cherbi, who publishes a blog on legal issues, asked the Scottish Government for all communications and discussions with the JCR going back several years.

In a letter to Scottish Government Justice Director Neil Rennick, dated October 2016, Thompson wrote: “I have always viewed the preparation of a report on activity and effort as second order.”

She added: “I confess that whilst I have accepted that what is meant is to follow Moi Ali’s example I have not attached the same level of importance to providing a report as she did.”

Thompson then inaccurately stated that Ali may have had a role in the story about her not publishing an annual report: “Indeed if our difference of view needed highlighting, on one reading of the recent [Sunday] Herald article, she seems to have been a source in outing the fact that I have not produced a report for 2015 or 2016.”

After receiving the letter, Cherbi got an email from the Government which tried to backtrack on this part of the freedom of information release.

Addressing Thompson’s comment, the Government stated: “These remarks were made by a third party and do not reflect or represent the views of the Scottish Government. On reflection, those remarks should also have been considered to be personal data. This was an oversight which we take seriously.”

Cherbi told this newspaper: “As a journalist I am concerned about being asked by the Scottish Government to destroy material which clearly the public have a right to know given the matter at hand – transparency and accountability of the judiciary and courts.

“Moi Ali as JCR was and remains a staunch supporter of judicial transparency. She was very attentive as JCR, produced annual reports, gave evidence to the Scottish Parliament, stood up to an overbearing judiciary and went so far as to ask for more powers for the JCR role.”

Ali said: “I was categorically not the source of this media coverage about the JCR, and only provided a reactive, on-the-record response to the Sunday Herald. I am equally disappointed that Scottish Government shared Ms Thompson’s baseless conjecture, without my knowledge, with a freelance journalist. This is not acceptable, although I accept their subsequent sincere apology for their error.

“When I wrote to Ms Thompson asking how she proposed to remedy the situation, I received a reply noting my concerns. I have now written again asking for a retraction and apology, as it is damaging to one’s reputation.”

Thompson said: “I made an observation to my lead contact in Scottish Government. I did not make it public.”

A Scottish Government spokesperson said: “Some personal data was included in error within a larger release of information requested under FOI legislation. We acted quickly to correct this as soon as it was brought to our attention. We are sorry for this breach of our standards and have apologised to those affected.”

The Sunday Mail newspaper also reported on the lack of annual reports from the Judicial Complaints Reviewer, here:

 THREE YEARS OF NOTHING

Scotland’s judicial watchdog has failed to produce a single annual report in her three years in the job.

By Mark Aitken, Political Editor Sunday Mail 2 July 2017

In 2014, Gillian Thompson was appointed Judicial Complaints Reviewer to investigate complaints by the public against judges.

Her contract ends next month – but she has so far failed to produce any annual reports.

Former civil servant Thompson replaced Moi Ali, who in her final report detailed complaints of alleged racial biogtry, bullying, lying, conflicts of interest and making secret recordings of meetings.

Legal campaigner Peter Cherbi said: “I’m a little concerned at Ms Thompson’s policy of not producing a report each year given the public expectation of being kept updated on judicial transparency and complaints about judges.

“Yet at the same time, this goes to the very heart of the lack of powers handed to the Judicial Complaints Reviewer and a significant lack of resources for one person to deal with queries and complaints against a 700-plus strong judiciary.

“It would have always been open for Ms Thompson to inform the public about the lack of resources and support for the JCR’s office.

“Moi Ali did a fine job on speaking out in office and speaking to the Scottish Parliament. If more had been said in these past three years, perhaps the JCR role could have been given greater priority with some much needed scrutiny.”

Ali was appointed as Scotland’s first JCR in 2011 but resigned in 2014 saying she got no co-operation from law chiefs.

And documents revealed under freedom of information laws show that in April, Thompson also wrote to Holyrood justice director Neil Rennick about the lack of support she received.

She said: “In looking back over my experience as JCR, I believe that the lack of any such support did have a detrimental effect on my first 18 months in office from which I seem to have never recovered.”

Another email reveals that she submitted a draft of her 2014-15 report only last November. The report has yet to be published.

In an email to Holyrood staff, Thompson wrote: “Clearly it is very late but I hope it is a reasonable read.”

A Scottish Government spokesman said: “The priority of the Judicial Complaints Reviewer has been to ensure complaints from members of the public have been properly dealt with, which she has done.”

Previous articles on the Judicial Complaints Reviewer and complaints against Scotland’s judiciary can be found here: Judicial Complaints Reviewer – Reviewing complaints against Scotland’s judiciary

 

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REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

Lord Carloway – judges will not declare interests. SCOTLAND’S top judge has come in for sharp criticism after telling MSPs he is against judicial transparency and the creation of a register of judges’ interests – unless scandal or corruption is discovered by the judiciary within their own ranks.

Yesterday, Lord Carloway (real name Colin Sutherland) appeared before members of Holyrood’s Public Petitions Committee, where in his evidence, the judge blasted transparency, court users, litigants the press, public, the internet and even social media – as reasons judges must be exempt from declaring their interests.

Carloway – who earns over £220,000 a year as Scotland’s ‘top judge’ – even declared to MSPs that creating a register of interests for judges would deter recruitment of ‘talented’ lawyers – reported in more detail by The National

The protests from Scotland’s current top judge are in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

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

The short session with Lord Carloway held yesterday, lasted a mere thirty six minutes.

Carloway’s stuttering performance was brought to a swift end by the Convener after detailed lines of questions from Alex Neil MSP saw Scotland’s top judge bounce from subject to subject, unable to offer a single clear reason as to why judges should be treated any differently from others in public life.

The Scottish Sun newspaper reported in today’s edition Alex Neil MSP (SNP Airdrie and Shotts) slammed Lord Carloway’s “extremely unconvincing” argument. He added: “He put no rational case against.”

Lord Carloway’s appearance before MSPs was rated as “poor” by legal insiders, comparing the session to that of his predecessor Lord Brian Gill, who gave evidence to MSPs in November 2015 – after resigning earlier from the post of Lord President in May 2015.

Gill, who had waged a three year battle against the petition, refused to attend the Scottish Parliament on several occasions – a refusal resulting in heavy criticism in the press and from politicians who said Gill had insulted Holyrood.

Scottish Parliament’s Public Petitions Committee’s deliberations on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

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

In a statement issued to the media late yesterday, Moi Ali – Scotland’s first Judicial Complaints Reviewer who gave evidence to the Scottish Parliament in 2013, criticised the stance of the Lord President at today’s hearing.

Moi Ali said: “I hold judges in high esteem for the important work they do, but I regret to say that Lord Carloway did a great disservice to the judiciary in his evidence to the Petitions Committee. He appears to have a very low opinion of users of the Court Service, suggesting that people who do not get the result they want may act with resentful, malicious and hostile intent. This is insulting to the public at large.

“His suggestion that a register of interests would lead to retaliation by unsuccessful litigants in the form of online fraud is frankly ludicrous and deeply offensive. I personally handled complaints reviews by unsuccessful litigants when I was the independent Judicial Complaints Reviewer, without any kind of threat or malicious action – even where I did not find in favour of the complainant.”

“I published a register of interests when in that role, despite not being required to do so. Why? Because it’s a basic expectation that that’s what public servants do in the twenty-first century.”

“The fact is that the judiciary do not wish to be open and transparent in this respect, and choose to present themselves as a special case. It seems to me that if a register is required to be completed by MPs, MSPs and public Board members, then it must also be required of the judiciary.”

“My opinion is not founded on a belief that judges are corrupt; rather, it comes from the view that transparency builds trust and confidence. As a society, we must be able to have complete confidence in our judiciary – and that starts with their openness and transparency.”

In a statement to the media, law blogger & petitioner Peter Cherbi said: “Transparency apparently stops at the doors of our courts and that’s it, Judges are to remain judges in their own cause and we shouldn’t have a register of interests until there is a scandal. Not on in 2017.”

Lord Carloway doesn’t seem to consider the fact these litigants and their legal representatives he holds in such distain – prop up his £220K a year job and our courts in exorbitant fees and hundreds of millions of pounds in publicly funded legal aid.

“And just exactly why does transparency inhibit the recruitment of judges? All other branches of public life have registers of interest and do just fine on recruitment. Lord Carloway is really struggling with this one.”

“Moi Ali was right all along. These people are the most powerful, and require the most transparency. Everyone gets the idea of transparency except the judiciary. Time now for a full register of judicial interests and for Parliament to act where the Lord President has failed.”

“Carloway’s arguments against a register are waffle – look at how the Sunday Times was treated in England over the Cruddas case where judges failed to declare interests in their links to political parties.”

“We should remember this is not just about protecting court users, a register is about protecting the public and the media who in many cases as we know, advance the cause of transparency and public interest where Governments, the Executive, public bodies and the courts all fail.”

Full report & video footage of Lord Carloway’s evidence to the Public Petitions Committee:

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

As the hearing began, Johann Lamont opened questions to Lord Carloway on arguments he put forward relating to “online fraud” as an inhibition to a register of judicial interests.

Carloway failed to provide any example in response to the questions on his own argument, and then claimed he was unaware of details of any other registers of interest.

The Lord President then turned on court litigants, claiming a register of judicial interests and any attempts to bring transparency to the judicial bench would help “paranoid” litigants take revenge on a judge after losing their cases.

Carloway – who has been a judge for 18 years, then went on to castigate financial declarations of interest, claiming if such a register existed he would not be able to hire “lawyers of excellence” for positions up to £200,000 a year judicial jobs.

The Lord President even complained about the level of judicial salaries and pensions during his evidence to MSPs as yet another reason and “disincentive to lawyers of experience and skill to become members of the judiciary”.

He said: “We have a relatively small pool of lawyers of excellence who are capable of taking on the job of being a member of our senior judiciary.

“We have particular difficulties with recruitment at the moment. If I were to say to senior members of the profession, ‘By the way, if you wish to become a judge you will have to declare all your pecuniary interests and open them to public scrutiny’, I have no doubt whatsoever that that would act as a powerful disincentive for lawyers of experience and skill becoming members of the judiciary.

“I can assure the committee, we need them more than they need us.”

In response to questions from Angus MacDonald on declarations of judicial interests in the United States, Lord Carloway said he was not in a position to comment on the US judicial system as he did not know enough about it.

However, it recently emerged Carloway regularly visits judicial gatherings in North America at taxpayers expense and mingles with judicial groups at plush locations for ‘legal conferences’.

Angus MacDonald then challenged Lord Carloway on recusals, in relation to cases where judges have either concealed conflicts of interest or have refused to stand aside from a case.

Mr MacDonald quizzed the Lord President on omissions in the recusals register – to which Lord Carloway said he was not concerned about.

The Lord President then told MSPs there was only one omission he was aware of in the recusals register.

However in response to a recent DOI investigation into judicial recusals, a number of cases are now being studied by journalists which appear to have been omitted from the recusals register.

And in at least one case, it has been alleged court clerks actively discouraged a motion for recusal, and suspicions are, more cases may fall into this category.

In a question from Rhona Mackay MSP (SNP) who asked Lord Carloway what the Law Society of Scotland’s view was on a register of interests.

Lord Carloway bluntly replied “I don’t know the answer to that”.

Maurice Corry MSP then asked Lord Carloway if he would provide further details to the register of recusals and options to make the recusals register more transparent.

Lord Carloway said it was not particularly required to apply further details to the current register of recusals, which is currently published by the Judicial Office with sparse detail.

Angus MacDonald then asked the top judge if he could be content to see clerical errors corrected in the register with a footnote if applied at a later date. Lord Carloway said yes.

Alex Neil MSP, who attended the Petitions Committee as a guest, then asked Lord Carloway if it should be left up to a judge to decide on an issue of principal if it should be left up to a judge to recuse themselves or should it be for the Lord President or the keeper of the rolls to insist upon if there is a conflict of interest.

Lord Caloway said he was happy with the system as it stood.

However Mr Neil pressed Lord Carloway on the point, saying the system was balanced against people who come to court for justice, particularly if they are under resourced or never find out about conflicts of interest in court.

Responding, Lord Carloway reverted to an obscure report prepared by a group of European judges which said there was no need for a register of judicial interests in the UK.

However, the judges and legal team who prepared the GRECO report referred to by Lord Carloway – are also against the introduction of registers of interests for members of the judiciary in the EU.

Carloway then insisted the Scottish judiciary was “not corrupt”, and said he would not even consider a register of interests until there was evidence of corruption.

The Lord President said: “Until such time as it’s demonstrated that there is corruption within the Scottish judiciary, I’m entirely satisfied that there is no requirement for a register of interests and that it would be positively detrimental to the administration of justice, particularly in relation to the recruitment of judges and especially at the higher level of the judiciary.”

Alex Neil put further questions to Lord Carloway, comparing the existence of the register of interests for MSPs which exists at the Scottish Parliament to ensure transparency.

Mr Neil reminded the Lord President the existence of the register of interests for MSPs did not exist due to allegations of corruption, rather to ensure transparency.

Responding to a case quoted by Alex Neil in relation to a construction firm –  Advance Construction Ltd – in which a Court of Session judge & Privy Councillor heard a case eight times which involved his own son – Lord Carloway said he was happy Lord Malcolm acted properly without recusing himself in the case.

Carloway claimed that Lord Malcolm had acted in accordance with the code of judicial ethics.

Carloway was then challenged by Alex Neil on whether the top judge had actually investigated details of the case – to which Carloway initially claimed he was not aware of any documents.

However, pressed on the matter, the judge admitted he had read documents from the individuals named by Mr Neil.

Lord Carloway said “As far as I am aware the documents were not addressed to me, but I could be wrong about that”

An earlier investigation by the media revealed  Lord Malcolm (real name Colin Campbell QC) heard the case in question no less than eight times while his son – Ewen Campbell – worked for Levy & Mcrae  – the Glasgow law firm now subject to multi million pound writs in connection with the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

Ewen Campbell had been appointed to run the case by a judicial colleague of Lord Malcolm & Lord Carloway – Sheriff Peter Watson who was at the time a senior partner of Levy & Mcrae.

Sheriff Watson was since suspended from the judiciary by Lord Brian Gill, who as Lord President in 2015, suspended Watson to protect public confidence in the judiciary – after both Watson and Levy & Mcrae were named in a multi million pound writ relating to the loss of millions of pounds in the collapse of the Heather Capital hedge fund.

Responding to further points raised by Alex Neil, Lord Carloway hit out against suggestions judges should register what their relatives are doing and where they are working.

Carloway said “this was going way beyond I suspect what is expected of politicians in a register of interests”.

However, Alex Neil informed Lord Carloway that MSPs are already required to register what their close relatives do.

In response, Lord Carloway compared politicians to members of the judiciary, and claimed judges require a different type of independence as enjoyed by politicians.

The top judge said interests in the judiciary usually relate to social connections with people rather than pecuniary interests, which do not appear in the register of recusals.

However, as there are no requirements to declare pecuniary interests in the current recusals register, it is of particular note not one financial related recusal has appeared in the register of recusals, which covers 700 members of the judiciary, some of whom are earning up to £220,000 a year, and for many years.

In further points put to Lord Carloway, Mr Neil said that the perception of fairness is not present in the way matters are conducted in court.

In response, Carloway again referred back to the case mentioned by Mr Neil, saying he was happy with the way in which Lord Malcolm, had handled the court correctly.

Carloway claimed there was no active involvement whatsoever by Lord Malcolm’s son – Ewen Campbell – who is now an advocate.

However, Ewen Campbell’s name is listed on court papers from the outset of hearings in the Court of Session in front of his father, Lord Malcolm.

And, it has since emerged a written and signed statement by Ewen Campbell as a witness in the case mentioned by Alex Neil has been provided to journalists, along with a statement signed by suspended sheriff Peter Watson – a judicial colleague of Lord Carloway.

These developments and statements, which are to be published in a further investigation into judicial recusals, now calls into question Lord Carloway’s claims in his evidence to MSPs.

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

 

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