RULE BY JUDGE: Top judge Lord Carloway declares Lord President’s office & unelected judiciary – should remain final regulators of Scotland’s lawyer-regulates-lawyer legal profession & legal services market

Top judge says judiciary must regulate lawyers. SCOTLAND’S top judge – Lord Carloway (real name Colin Sutherland) has declared his role as Lord President, and Scotland’s unelected judiciary – should remain as the final regulator of Scotland’s legal services market which is currently composed of around 11,000 self-regulating solicitors, advocates & Kings Counsel.

The statement by Scotland’s top judge came in Lord Carloway’s address to lawyers, judges and other legal vested interests in his recent Opening of the Legal Year 2023-2024 speech – where Carloway attacked plans to reform how lawyers regulate themselves in the Regulation of Legal Services (Scotland) Bill which is currently at Stage 1 consideration a the Scottish Parliament.

In a jibe at the Scottish Government’s admittedly feeble plans to reform regulation of the Legal profession in Scotland, Lord Carloway claimed the reforms to lawyers looking after themselves in complaints regulation – “gives rise to serious constitutional concerns about the rule of law …”

Lord Carloway said: “The first is the Regulation of Legal Services. The senior judiciary recently responded to Parliament’s call for views on the Bill. They were unanimous in the view that the Bill, as currently drafted, gives rise to serious constitutional concerns about the rule of law and the separation of powers. It is a threat to the independence of the legal profession and the judiciary. If the Bill is passed in its current form, Scotland will be viewed internationally as a country whose legal system is open to political interference. This will have serious adverse consequences.”

Scotland’s top judge went on to declare his unelected office of Lord President and his judiciary, should instead remain the ultimate regulator of rogue lawyers facing any complaint or question about their provision of legal services to clients.

Lord Carloway stated: “The rights of clients, who are the ultimate consumers of legal services, to obtain legal advice, must be protected from interference by the government. The only way to ensure that lawyers will be able to stand up for the individual, whether a person or an institution, against the government of the day, is for the Lord President, and the Court of Session, to remain as the ultimate regulator of the legal profession.”

Regulation of lawyers in Scotland is currently controlled by the Law Society of Scotland, Faculty of Advocates and a lawyer dominated Scottish Legal Complaints Commission (SLCC)

The Scottish Legal Complaints Commission is funded by client fees to solicitors and Advocates who then pay the complaints levy to the Scottish Legal Complaints Commission.

In Scotland, a decades old, repressive and at times highly vindictive regime of lawyers looking after themselves – has seen thousands of clients & consumers of legal services each year – ripped-off by their own solicitors with little or no recompense for the millions of pounds lost to legal services overcharging, theft, embezzlement & outright solicitor client fraud each year in Scotland’s legal services market.

In some of the most appalling cases of Scots lawyers found to have looted their clients assets – legal regulators have reacted to unwanted media coverage by using private briefings and turning newspapers and journalists against each other. In some well known cases, legal regulators encouraged articles against legal reforms, blocked publication of newspaper reports on identified lawyers & law firms, and personally went after ;law reform campaigners who seek nothing more than removing the self regulation element from regulation of legal services and legal representatives in Scotland.

However – despite the public protests of Lord Carloway and other ‘leaders’ of Scotland’s legal profession – including the Dean of the Faculty of Advocates who has also attacked the proposed legal reforms, the reality is the Scottish Government’s Regulation of Legal Services Bill falls far short of what is needed to quell Scots lawyers appetite for ripping off consumers and clients.

And unsurprisingly, according to legal and political sources – there are allegations much of the Scottish Government’s claimed solicitor regulation reform proposals are ‘deliberately deceptive’ and have already been negotiated away with legal interests and political partners in deals to water down what is currently in the bill.

Speaking on condition of anonymity, an MSP who along with others is said to be facing de-selection by their own embittered party – informed journalists of private briefings and meetings between MSPs of all parties – and lawyers and legal regulators who are anxious to ensure much of the already watered down proposals in the reform of legal regulation bill are eliminated or that the entire bill is stalled or axed completely.

No references to any of these meetings appear to exist in entries of the Holyrood lobbying register but it has been established meetings did take place and lawyers who met MSPs appear to believe they succeeded in their lobbying aims, stating so in private lawyer-only social media chat groups.

You can read more about the Scottish Government’s Reform of Legal Services Bill here: Reform of Legal Services Bill – Scottish Parliament

This latest attempt by a Scottish Government and the pro-lawyer Scottish Parliament to reform regulation of lawyers is the third attempt since 2000 – where in 2001 – and amid bitter evidence sessions – Holyrood’s Justice Committee led by Christine Grahame threw out calls for reform of how lawyers cover up complaints for their own colleagues.

A second attempt by another of Holyrood’s Justice Committees in 2006 saw arm twisting from legal regulators to shelve much of the proposals in the Legal Profession & Legal Aid Bill, which became law in 2007 after multiple amendments lodged by MSPs, including Scottish Conservative MSPs on behalf of legal vested interests.

What became the LPLA Act 2007, which led to the formation of the Scottish Legal Complaints Commission in 2008 – which in turn has led to some fifteen years and counting of disastrous complaints regulation by an overly false legal regulator which is in fact staffed and run by the same lawyers and vested legal interests who ran complaints at the Law Society of Scotland.

To make matters worse, the Scottish Legal Complaints Commission later set into policy a system which intimidated clients who had already been ripped off by their solicitors – into signing Non Disclosure Agreements to conceal thousands of complaints against Scots multiple law firms over the last decade – with many law firms appearing week after week at the Scottish Legal Complaints Commission to demand complainants sign more NDAs to conceal some of the worst and repetitive acts against clients which even the old Law Society of Scotland regime failed to keep away from public gaze.

And, it should be noted the Scottish Legal Complaints Commission has cost clients of Scottish solicitors around £40million pounds in complaints levies – paid for by law firms hiking client fees to meet their annual complaints levy.

Lord President Lord Carloway’s Legal Year address to lawyers, which takes the usual Judicial Office tone of launching threats against one piece of reform legislation, then absorbing another piece of legislation – the Victims, Witnesses and Justice Reform Bill as a form of pro-justice system judicial PR and follow-the-money-supply-to-law-firms – is well worth a read.

It should be glaringly obvious to all the Victims, Witnesses and Justice Reform Bill – more of which can be read here Victims, Witnesses and Justice Reform Bill – Scottish Parliament has only come about because Scotland’s judges, courts & lawyers have been mistreating and preying on victims of crime, abuse & countless other crimes for decades to the point the public and victims themselves demanded action – rather than the action coming willingly from the judiciary or legal profession who seem to believe they own the law.

Lord Carloway’s Opening of the Legal Year 2023-2024 speech can be downloaded here Lord Carloway – Opening of Legal Year Scotland 2023-24 with relevant content below:

Welcome to the opening of the legal year. I thank you all for coming. Since the abolition of formal court terms, today is primarily a ceremonial occasion, but it remains a useful opportunity to reflect on the progress we have made in the past year, and on what will, or at least might, happen next.

I extend a special welcome to Lord Burnett of Maldon, the Lord Chief Justice of England and Wales and thank him particularly for his work during his years in office in ensuring that Scotland’s voice was heard on legal matters in the Halls of Westminster and elsewhere.

Law Reform: Regulation of Legal Services and Criminal Justice

Looking to what it is that might happen next, there are two Bills on which views are currently being sought. Each proposes a series of notable reforms to the justice system.

The first is the Regulation of Legal Services. The senior judiciary recently responded to Parliament’s call for views on the Bill. They were unanimous in the view that the Bill, as currently drafted, gives rise to serious constitutional concerns about the rule of law and the separation of powers. It is a threat to the independence of the legal profession and the judiciary. If the Bill is passed in its current form, Scotland will be viewed internationally as a country whose legal system is open to political interference. This will have serious adverse consequences.

The rights of clients, who are the ultimate consumers of legal services, to obtain legal advice, must be protected from interference by the government. The only way to ensure that lawyers will be able to stand up for the individual, whether a person or an institution, against the government of the day, is for the Lord President, and the Court of Session, to remain as the ultimate regulator of the legal profession.

On a more encouraging note, the Victims, Witnesses and Justice Reform Bill contains proposals for significant reform of the criminal justice system, many of which are based on the Lord Justice Clerk’s Review. The judiciary welcome the reforms insofar as they aim to make giving evidence a less traumatic experience for witnesses, including the creation of a right to anonymity and to independent legal representation for complainers in relation to applications under the rape shield legislation, the establishment of a specialist sexual offences court and the abolition of the not proven verdict.

Overall, the judiciary believe the Bill proposes a number of measures which, in principle, represent improvements to the existing system.

The Criminal Courts: Recover, Renew, Transform

Following the build-up of criminal cases which have waited for a considerable period of time to go to trial as a result of lockdown, the court service began the Recover, Renew and Transform programme in September 2021.

The recovery aspect aimed to restore the courts to their pre-pandemic capacity. It involved recruiting more sheriffs and court staff and the setting up of more High Court and sheriff trial courts. Good progress has been made. The challenge now is an ever-increasing volume of indictments and complaints which libel sexual offences. In the face of this new volume of criminal business, we no longer expect to restore matters to the pre-pandemic position. We need to adjust our expectations and set a new reasonable baseline for the number of cases waiting to go to trial at any one time.

Our modelling predicts that the number of High Court cases waiting for trial will recover to a new reasonable baseline level by March 2025, and sheriff solemn trials by March 2026.

Prisoner escort services are causing those in custody to arrive at court late. This has an impact on the smooth operation of the criminal courts. We are looking to accelerate plans to move to virtual custodies. Pilots have already taken place. As I have said many times before, the need to bring those arrested before a court as soon as practicable, must remain a priority.

The purpose of renewal is to establish better ways of working which promote the resolution of cases at the earliest opportunity. The Summary Case Management pilot continues in Dundee, Hamilton and Paisley Sheriff Courts. It aims to reduce the number of hearings to those which are necessary, by encouraging early resolution through early disclosure. Early disclosure has allowed the Crown to take a more targeted approach to the citation of witnesses. There has been earlier resolution of proceedings brought in the pilot courts and a reduction in the number of witness citations being issued in those proceedings. Work is underway to roll the pilot out to Glasgow Sheriff Court.

Specialist online courts are being set up to deal with domestic abuse cases. The idea is to ensure that the complainer and the accused do not require to meet each other. This reduces potential trauma for complainers.

Juries continue to be balloted remotely, thus sparing the public the inconvenience of coming to court. Over the course of the past year, over 450 police and expert witnesses have given their evidence remotely in High Court trials.

A key component of transformation lies in the implementation of the recommendations of Lady Dorrian’s Review. The court service has been making substantial progress in relation to those recommendations which do not require legislation. The creation of facilities to pre-record the evidence of children and vulnerable witnesses and the giving of evidence remotely is being accelerated. We now have designated facilities for commissions in Edinburgh, Glasgow, Inverness and Aberdeen.

Earlier this month, I visited the Bairns’ Hoose. The Hoose is designed to feel like a family home. It is based on an international model first developed in Iceland, called the Barnahus, which brings together justice, health, social work and recovery support for children in one location. The Hoose is, in essence, a comfortable and safe space in which children can give evidence, receive medical care, take part in decisions about their protection and obtain support to recover from trauma.

The Hoose is the first of its kind in Scotland. The Barnahus model was first advocated for in early 2016, as part of SCTS’s Evidence and Procedure Review. I am very pleased to see it implemented into the system, and I hope that we will see more of them developed in due course.

The Civil Courts: Technology and Transparency

On the civil side, there have been a number of notable technological improvements this year.

The importance of making the people’s courts as accessible as possible cannot be understated. The advent of new technology means that we can implement new, more efficient and convenient ways to do this. In June, we officially launched Court of Session Live, a new streaming service for Inner House proceedings. I thank Lord Pentland, and his cross-departmental task force, for their hard work in getting this up and running.

Alongside Court of Session Live, we are publishing information about, and summaries of, upcoming appeals much earlier than we have ever done before. We hope that this will enable those who are interested in viewing proceedings, whether online or in person, to make plans to do so.

We launched the new and improved Civil Online portal in May and have significantly expanded the level of service which the portal offers. In Simple Procedure cases, court users can now raise and respond to actions through the portal.

We secured funding from the Scottish Government to start developing a new case management system for the Office of the Public Guardian. The new interface will provide a more accessible and broader range of online services to the public.

Many of our Tribunals are experiencing growth in the volume of business. The work of the Social Security Chamber is expected to increase significantly. The new Local Taxation Chamber has inherited over 40,000 cases from its predecessor, the Valuation Appeals Committee. We are working closely with the Government to ensure that sufficient resources are made available to support this. Reform of the Tribunal system generally also continues, with the further expansion of the General Regulatory Chamber’s jurisdiction, and the potential transfer of the MHT into the First-tier Tribunal during 2024.

The court service are in discussions with the Faculty about the re-establishment of the practice of making justiciary and session papers available to the Advocates Library. This will enable advocates and, via the National Library, members of the public, to view them.

We are working hard to deliver these improvements, but, as ever, we can only do as much as resources allow. We will continue to do what we can within budgetary constraints. I ask only that the government continues to support us by providing us with sufficient funding to continue to deliver core services, as well as these improvements to the system.

Ends.

Earlier relevant coverage from this blog – of how the Legal Profession & Legal Aid Act (2007) was deliberately mangled by the Scottish Government, and Scottish Parliament – which allowed lawyers to continue to regulate themselves to the current date, can be found here: The Legal Profession & Legal Aid (Scotland) Act 2007

 

TRIBUNAL ROLE PROBE: Judge-appointed Vice-Chair of Scottish Solicitors Discipline Tribunal asks Court of Session to block Legal regulator probe of his conduct & role in “inappropriately brought” discipline case at Institute and Faculty of Actuaries

Tribunal Judge asks Court to block probe of his conduct. A SIGNIFICANT conflict of interest in how the legal profession investigates itself may play a role in one of three appeals to the Court of Session – after details emerged the Scottish Legal Complaints Commission (SLCC) – is facing legal action to block a regulatory investigation of three members of the Institute and Faculty of Actuaries (IFoA) – one of whom is Benjamin Kemp – the Vice-Chair of the Scottish Solicitors Discipline Tribunal (SSDT).

Material obtained by journalists reveal three separate appeals to the Court of Session against the Scottish Legal Complaints Commission’s decision to investigate Mr Benjamin John Tizzard Kemp and two additional members of the Institute and Faculty of Actuaries.Mr Kemp is represented by Brodies LLP

IFoA members Ms Emma Gilpin (Head of Regulation) and Mr Michael Scott (Head of Disciplinary) who also face investigation by the Scottish Legal Complaints Commission in the same complaint – have launched their own, separate appeals to the Court of Session which seek to overturn the SLCC’s decision to commence an investigation of their professional conduct.

Details of the complaints lodged against the three Institute and Faculty of Actuaries members appear to relate to IFoA Disciplinary action which was thrown out by a Tribunal, which then awarded costs against the Institute and Faculty of Actuaries for bringing the case.

The complaints, submitted by Mr Rhodri Tomos, former Fellow of the Institute and Faculty of Actuaries to the Scottish Legal Complaints Commission – relate to the bringing of a disciplinary action against Mr Tomos, from October 2019 to January 2021 after which the Disciplinary Tribunal Panel made a final determination the original disciplinary action was “inappropriately brought”, “unconscionable” and “not in the public interest”.

It has also emerged the Institute and Faculty of Actuaries were required to pay costs for the “inappropriately brought” disciplinary action.

Commenting on the case – Mr Rhodri Tomos, former fellow of the IFoA who submitted the complaints to the Scottish Legal Complaints Commission in relation to the conduct of Mr Kemp and the other IFOA members, said:

“The IFoA Disciplinary Tribunal Panel threw out the IFoA’s case against me very quickly in just a couple of hours, when the hearing was listed for 3 days.

The panel, chaired by an experienced Court Judge, criticised the disciplinary as inappropriately brought, unconscionable and not in the public interest. That’s the exact opposite of what the IFoA disciplinary scheme is supposed to be there for. The panel awarded costs against IFoA in my favour.

No member of the public had complained about me or my work. It was an internal “executive referral” from IFoA, which triggered my resignation from IFoA in Oct 2019 after working so hard since 2001 to qualify as a Fellow. I then suffered a long and stressful 16 months disciplinary process from IFoA, who used internal and external lawyers, including a QC against me, an unrepresented individual, yet they still lost.

My complaint to SLCC about the lawyers involved is entirely reasonable based on the DTP’s findings, which are final, and deserves a full investigation in the public interest. This matter is entirely self-inflicted by IFoA, who along with their oversight body the Financial Reporting Council have failed to investigate my complaints throughout. “

Earlier today, a potentially serious conflict of interest in the appeal by the Institute and Faculty of Actuaries members has been identified by legal sources – where one of the three IFoA members – Mr Benjamin Kemp now under investigation by the SLCC – also holds the position of Vice-Chair of the Scottish Solicitors Discipline Tribunal (SSDT).

The Scottish Solicitors Discipline Tribunal is the third, and effectively the judicial tier of legal regulation in Scotland – which acts on investigations carried out by the Scottish Legal Complaints Commission and hears ‘prosecutions’ of solicitors and advocates – undertaken by the Law Society of Scotland & Faculty of Advocates.

The appointment of Solicitors Discipline Tribunal members by Scotland’s top judge the Lord President, currently Lord Carloway (Colin Sutherland) – effectively makes all Tribunal members including Mr Kemp – judicial appointees.

Commenting on court challenge, a legal source said: “We have a situation developing in this appeal where the Vice Chair of the SSDT, the senior tier of legal regulation in Scotland whose members are appointed by Scotland’s top judge – is now asking the same judiciary to overturn a decision of Scotland’s statutory legal regulator to investigate complaints about his own professional conduct.”

The Scottish Solicitors Discipline Tribunal website confirms the role of Scotland’s top judge in appointing members of the SSDT, stating: “The Tribunal has both solicitor and lay members. All are appointed by the Lord President of the Court of Session – Scotland’s most senior judge. Solicitor members are nominated by the Law Society of Scotland, but may not also be members of the Council of the Law Society. Lay members are drawn from all backgrounds and walks of life, following open advertisement The principles of public appointment are followed by the Scottish Government in making recommendations to the Lord President.”

The Scottish Legal Complaints Commission were asked for comment and issued the following response: “As you are aware, we are legally quite restricted in what we can say – under s43 of our Act we can’t comment on any complaint, with the law making it a criminal offence. This includes confirming or denying whether a specific complaint has been received.  We are lobbying for this to be changed so we can be more transparent, but need to abide by the current legislation.”

The Judicial Office and Lord President were asked for comment on the position of Mr Kemp in this Court of Session appeal against the Scottish Legal Complaints Commission, given the inherent conflict of interest of Mr Kemp – effectively a judicial appointee, and Vice Chair of the SSDT – a key organisation in the regulation of solicitors, now asking the judiciary which appointed him – to overturn an investigation of the statutory body the SLCC to investigate complaints against himself.

No statement has been issued by the Judicial Office prior to publication, however any further statement or response will be added to the article.

It has not been confirmed by the Institute and Faculty of Actuaries as to whether the individual lawyers or the Institute and Faculty of Actuaries itself – is funding this appeal in the Court of Session.

In response to media enquiries, the Institute and Faculty of Actuaries said: “The IFoA does not comment on any live proceedings.”

It should be noted that cost orders have been awarded against the Institute and Faculty of Actuaries (IFoA) for investigations previously dismissed by the Disciplinary Tribunal.

These cost orders are referred to in the 2020-2021 Annual report of the Institute and Faculty of Actuaries Disciplinary Board, which states:

“Three cases were dismissed by the Tribunal panel without a hearing of the parties. Determinations where findings of misconduct are not made are not usually published by the Tribunal panels unless requested by the Respondent. Costs were awarded against the IFoA in respect of two of the dismissed cases. The total costs awarded against the IFoA was £69,248.73.”

The Institute and Faculty of Actuaries Disciplinary Board cost guidance states costs are awarded when IFoA bring cases inappropriately or negligently.

 

JUDICIAL REGISTER: Scottish Government confirm Register of Judges’ Interests will be created – after Holyrood TEN YEAR probe of judicial interests & recusals survives lobbying by legal vested interests to close public interest transparency petition

Scottish Govt agree to create Judicial Register. A PETITION to create a register of judges’ interests for all members of Scotland’s judiciary – survived a stormy session of the Scottish Parliament’s Justice Committee – after a failed last-minute Tory led attempt to shut down the TEN YEAR judicial probe.

The attempt to close down Petition PE 1458 was led by the now former MSP Justice Committee Convener – Adam Tomkins of the Scottish Conservatives – who launched blistering criticism on questions around judges’ interests during several hard edged statements to fellow members of the Justice Committee.

However, since these events took place on 2 March at the Scottish Parliament’s Justice Committee – the Scottish Government has since indicated they will create the register of judges’ interests as asked for in the petition – Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Petition PE1458 was originally lodged at the Scottish Parliament in 2012. The Petition calls for the creation of a publicly available register of judicial interests – containing information on all 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.

Confirmation the judicial register will now move forward, was reported in the media: SNP Government moves forward with register of interest plan for judges

The Daily Record article reports: Now Keith Brown, who was appointed by Nicola Sturgeon to be the new Justice Secretary, has confirmed the Government is taking it forward.

He said: “It was a manifesto commitment of the SNP to create a register of interests for members of the judiciary to improve transparency and trust in the justice system. “Now that the new government is in place, we will start looking at ways this register can be introduced and take forward the work needed to achieve this manifesto commitment.”

The Record further reports support for the petition, from MSPs and the Scottish Government: SNP MSP Michelle Thomson said: “I support the commitment from the Scottish Government to create a register of interests for the judiciary. Members of the judiciary, like any other public servant in receipt of public funds, must disclose interests that could influence their decisions or give the perception of doing so”.

A Scottish Government spokesperson said: “Introducing a register of interests for members of the judiciary will increase transparency and trust in the justice system. The Scottish Government will now begin work to engage with stakeholders to consider how best to bring forward this justice reform.”

An additional blog report will publish more detail around the latest events relating to the petition and the creation of a register of judges’ interests – which the Scottish Government confirmed will occur.

Back to the events of March 2021 – Adam Tomkins – the now former Justice Committee Convener after having retired as an MSP at the 2021 election – was joined in the well organised effort to shut down the judicial register debate by Annabelle Ewing – who is now the current Deputy Presiding Officer of the Scottish Parliament, and MSP Rona Mackay – formerly of the Petitions Committee.

However, Justice Committee member John Finnie who has since stood down as an MSP launched a scathing rebuttal of the Tory Convener’s concerted effort to shut down debate on Scottish judges interests and demanded the petition be kept open. Mr Finnie was joined in support by MSPs Rhoda Grant (Scottish Labour), Liam Kerr (Conservative) Liam McArthur (Liberal Democrat) & Shona Robinson (SNP).

In response to Tomkins & Ewing’s praise for judges, and their expressed agreement with the Lord President to shut the petition, John Finnie said in response: “I will follow on from the convener’s comments about the separation of powers. Of course, in any liberal democracy, it is absolutely right that we have an independent justiciary. I accept that. However, we are talking about one individual the Lord President.”

“I do not know that individual and I have no axe to grind one way or another, but I will paraphrase the previous exchanges with him. He said, “No, I don’t want it.” The committee decided to write to him again, and he said, “I’ve already told you that I don’t want it, and I’m telling you again that I don’t want it.” There were discussions about his coming to give evidence and even about whether it was appropriate to ask him to come to give evidence. He said, “Well, I could come and give evidence but, as I’ve told you and I’ll tell you for a third time, I don’t want it.” To be perfectly honest, that does not seem to me like a functioning liberal democracy.”

“What is there to fear from disclosing the information that is being asked for? Examples of other jurisdictions have been given where that is done without a problem. Should we be surprised that a Government of whatever persuasion wants to be in accord with the Lord President and does not want to dissent from the Lord President’s position? Perhaps not.”

I am not persuaded by either of those arguments, but there is a more compelling reason why we must keep the petition open. I am supportive of the intention of the petition. As always, the devil will be in the detail, but the detail that has been shared with us is that we are being urged to commission the work that we had already decided on. It is very clearly unfinished work for the committee. We undertook to do things in relation to the petition; we have not done those. For that reason, we must pass it on to our successor committee to pick up on that work, and it will be for it to decide how to proceed thereafter. The petition should be kept open.”

Justice Committee members Shona Robison, Liam McArthur & Rhoda Grant also agreed to keep the petition open. 

The Scottish Conservatives Liam Kerr also agreed, to keep the petition open.

A planned motion to close the petition was apparently scrapped at this point and discussions aimed at shutting down the petition – which took place outside the realms of the Justice Committee prior to the hearing – have since been made available to journalists.

Instead – The Tory Justice Committee convener Adam Tomkins managed a final spat at the TEN YEAR probe of judges interests and plans to create a register – displaying visible concern that Justice Committee members had kept the petition open

A very animated Adam Tomkins ended the terse, at times bitter hearing on the petition by stating “I will close by saying that just because it is appropriate for elected members in the legislature to have a register of interests, that does not mean that it is appropriate for members of the judiciary to have a similar register of interests. The function of the separation of powers is to treat different branches of government differently, according to their institutional function.I hope that that is a fair summary albeit with a gloss from me at the end of the committee’s decision.”

Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally lodged at the Scottish Parliament in 2012 – calls for the creation of a publicly available register of judicial interests – containing information on all 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.

Video coverage of the Justice Committee meeting of 2 March 2021 and discussions relating to the register of judicial interests petition can be viewed here:

Register of Judges Interests Petition PE 1458 Scottish Parliament Justice Committee 2 March 2021

Judiciary (Register of Interests) (PE1458) Tuesday 2 March 2021

Convener Adam Tomkins (Scottish Conservative, Glasgow): The second of the petitions before us is PE1458, which concerns a register of judicial interests. The petition, from Peter Cherbi, calls on the Scottish Parliament to urge the Scottish Government to create a register of pecuniary interests of judges bill or to amend the present legislation to require all members of the judiciary in Scotland to submit their interests and information on any hospitality received to a publicly available register of interests. I refer members to the relevant papers, which include submissions from supporters of the petition.

As with the previous petition, the committee has had PE1458 before it for a long time the petition was lodged in December 2012. The last time that the committee considered the petition, it agreed to seek further information on other potential conflicts of interest relating to key stakeholders in the Scottish judicial system and to hold a round-table session on the matter with constitutional and academic witnesses. I am afraid that the pressures of competing work have meant that we have not been able to organise a round-table event on the subject, so that remains undone.

I open the discussion to members. As with the previous petition, we need to decide whether to close the petition or to keep it open for session 6. If we take the latter course, we need to justify our decision.

Annabelle Ewing (Scottish National Party, Cowdenbeath): I am mindful of the fact that I should probably have waited for my colleagues to indicate that they wished to speak first, because that might have been more appropriate, given that I am a newish member of the committee. In any event, I have read the clerk’s note and have been peripherally aware of the petition over the course of several years.

I cite a few points. First, as far as I can see, the statement of principles of judicial ethics is a comprehensive set of requirements. The idea that there is nothing in place is a fallacy. Secondly, I note that additional safeguards have been put in place during the time that the petition has been open. I cite the register of recusals and the publication of judicial expenses and overseas travel. Thirdly, and most importantly, I was struck by the letter from the Lord President and the key point about the need for the independence of the judiciary, which is not comparable to any other profession. The independence of the judiciary of the country is a fundamental tenet of our laws and our society. I agree with the Lord President on those matters, so I do not support the continuation of the petition.

Convener Adam Tomkins (Scottish Conservative, Glasgow): Thank you, Annabelle. The Official Report will not show this, but I was nodding vigorously as you commented on the fundamental importance of the independence of the judiciary as a tenet of the separation of powers. That is the principle that should be front and centre when we consider questions such as this one.

For a register of judicial interests to be created, either the Lord President would need to set that up or Parliament would need to legislate to do so. As Annabelle Ewing has just said, the Lord President has said that he does not see the need for such a register. That is also the view of the current Scottish Government, which has said that it does not support a register.

Liam Kerr (North East Scotland) (Scottish Conservative): For complete transparency, I make the usual declaration that I am a member of the Law Society of Scotland.

I listened carefully to Annabelle Ewing and the convener, who spoke very persuasively. It is an interesting debate. I have not, as yet, heard a convincing argument against the proposal. I think that there is something in what Annabelle Ewing and the convener said, but I need to hear more. Some of the recent debates that the convener and I have been involved in give me pause for thought about the petition.

The convener prefaced his comments by saying that the committee was previously interested in obtaining more information on the issue, and that we talked about having a round-table session. I want to hear and learn more about the issue before I decide what I think about a register of interests. For that reason, I am inclined to think that we should keep the petition open with a view to me or whoever has the privilege of coming back and being on the committee looking at the issue again in the cold light of day of the new session of Parliament.

Convener Adam Tomkins (Scottish Conservative, Glasgow): Annabelle Ewing has asked me to remind members that, like Liam Kerr, she is a member of the Law Society of Scotland, although, again, like Liam Kerr, she has never been not yet, at least on the bench. Thank you, Annabelle.

Liam McArthur (Liberal Democrat, Orkney Islands): I have no such declaration to make. I agree whole-heartedly with what you said, convener, and with what Annabelle Ewing said in opening the debate. It is indisputable that steps have been taken to address at least some of the principles of the concerns that were raised in the petition.

The point where I am slightly anxious here, I refer back to Annabelle Ewing’s comments on the earlier petition about the value and benefits of consistency is that, having sisted the petition previously on the basis that the committee would hold a round-table session to solicit wider views from stakeholders, but then not having done so, it would be difficult to make an argument for closing the petition. Again, that argument seems to be for administrative neatness. We made a commitment as a committee. If, after the election, the incoming committee does not feel that it needs to be beholden to that commitment, that is a decision for it, but it would be passing strange for us to abandon, simply because of the prospect of an election, the conclusion that we reached when we considered the petition previously.

On that basis, as with the earlier petition, I am minded to suggest that we keep this one open until the next session.

Deputy Convener Rona Mackay (Scottish National Party, Strathkelvin and Bearsden): I was on the Public Petitions Committee when the petition started its journey before it came to the Justice Committee, and I am supportive of it I am on record as saying that. However, given that the Lord President and the cabinet secretary have made their views clear on it several times, at this stage, we should close it, with the knowledge that the petitioner can bring it back in the next session of Parliament if he wants to carry on with it.

I do not think that that would be inconsistent. The petition is different from the previous one, which we decided to keep open, because the circumstances are different. At this stage, my preference is to close the petition, and the petitioner can always bring it back. However, I am sympathetic to the subject.

John Finnie (Scottish Green Party, Highlands & Islands): I will follow on from the convener’s comments about the separation of powers. Of course, in any liberal democracy, it is absolutely right that we have an independent justiciary. I accept that. However, we are talking about one individual the Lord President.

I do not know that individual and I have no axe to grind one way or another, but I will paraphrase the previous exchanges with him. He said, “No, I don’t want it.” The committee decided to write to him again, and he said, “I’ve already told you that I don’t want it, and I’m telling you again that I don’t want it.” There were discussions about his coming to give evidence and even about whether it was appropriate to ask him to come to give evidence. He said, “Well, I could come and give evidence but, as I’ve told you and I’ll tell you for a third time, I don’t want it.” To be perfectly honest, that does not seem to me like a functioning liberal democracy.

What is there to fear from disclosing the information that is being asked for? Examples of other jurisdictions have been given where that is done without a problem. Should we be surprised that a Government of whatever persuasion wants to be in accord with the Lord President and does not want to dissent from the Lord President’s position? Perhaps not.

I am not persuaded by either of those arguments, but there is a more compelling reason why we must keep the petition open. I am supportive of the intention of the petition. As always, the devil will be in the detail, but the detail that has been shared with us is that we are being urged to commission the work that we had already decided on. It is very clearly unfinished work for the committee. We undertook to do things in relation to the petition; we have not done those. For that reason, we must pass it on to our successor committee to pick up on that work, and it will be for it to decide how to proceed thereafter. The petition should be kept open.

Shona Robison (Scottish National Party, Dundee City East): I do not have strong views on the petition. I have some sympathy with Annabelle Ewing’s comments about the additional safeguards, and I think that we all agree on the independence of the judiciary. However, I also have some sympathy with what John Finnie has said, in that we should be consistent if we feel that there is some unfinished business for our successor committee to take forward, even if that is just the holding of a round-table session and the gathering of further evidence, it might be in a better position to make a definitive call on whether there is more that should be done here.

I hope that we can reach a consensus. I would be content for the petition to be included in our legacy report as something for our successor committee to consider further.

Rhoda Grant (Scottish Labour, Highlands & Islands): I agree with what John Finnie said and proposed.

Convener Adam Tomkins) Scottish Conservative, Glasgow: I am grateful to colleagues for what has been a very helpful debate. My sense of the discussion is that members of the committee do not feel as strongly about this petition as they did about the previous one. Some modest and minor disagreement has been expressed about whether to keep the petition open or to close it. However, I think that the balance of opinion is in favour of keeping it open, if only because there is a sense of unfinished business. However unfinished the business is, though, I think that everybody who has expressed a view on the matter is clearly of the view that that business needs to be transacted subject to and in the light of the fundamentally important principles of the separation of powers and the independence of the judiciary.

I think that the body of opinion is that the petition should not be closed at the moment, but that our successor committee in session 6 should be invited to consider the matter, if only to hear views and perhaps to explore a little why the Lord President is opposed or why the judiciary, who are represented by the Lord President, are opposed to the creation of such a register.

I will close by saying that just because it is appropriate for elected members in the legislature to have a register of interests, that does not mean that it is appropriate for members of the judiciary to have a similar register of interests. The function of the separation of powers is to treat different branches of government differently, according to their institutional function.

I hope that that is a fair summary albeit with a gloss from me at the end of the committee’s decision.

A reference in the Justice Committee’s Annual report for 2020 to 2021 states the following: Petition PE1458 – is a petition by Peter Cherbi calling on the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill or amend present legislation to require all members of the Judiciary in Scotland to submit their interests and hospitality received to a publicly available Register of Interests.

The Report states the Petition, and another will be kept open for the next session of the Scottish Parliament: At its meeting of 2 March 2021, the Committee considered these two petitions for the final time this session and agreed to keep both petitions open for a new committee to consider in session 6.

SCOTTISH PARLIAMENT JUDICIAL INTERESTS PROBE:

The judicial register 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.

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 lengthy Scottish Parliament probe on judicial interests has generated over sixty two submissions of evidence, at least twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate and has since been taken over by Holyrood’s Justice Committee after a recommendation to take the issue forward from the Public Petitions Committee in March 2018.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary.

The Scottish Parliament’s Justice Committee has consistently supported calls for a judicial interests register over multiple hearings – where MSPs have spoken out on Scottish judges involvement in the Gulf States, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in May 2019 – where MSPs backed the petition – can be found here: JUDICIAL REGISTER: Justice Committee investigate approach to judges’ interests in other countries – MSPs say ‘Recusals register not comprehensive enough’ ‘Openness & transparency do not contradict independence of the judiciary’

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 – where evidence in relation to Scottish judges swearing dual judicial oaths and working for Human Rights abusing Gulf States dictatorships – can be found here: JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

UNCONVINCING TOP  SCOTS JUDGES WHO REFUSED TO BE TRANSPARENT:

Scotland’s most recent two top judges failed to convince MSPs that a register of interests is not required for Scotland’s judiciary

Former Lord President Brian Gill, and current Lord President Lord Carloway consistently argued the existence of judicial oaths and ethics – which are both written, and approved by  judges negate any requirement for further transparency in the judiciary.

However, both the Scottish Parliament’s Public Petitions Committee – who investigated the judicial interests petition for six years, and the Justice Committee – who have considered the petition since 2018, found the judiciary’s arguments against transparency to be “unconvincing”.

Video footage and a full report on Lord Brian Gill giving 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”

Video footage and a full report on Lord Carloway (Colin Sutherland) giving 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

Earlier reports of how the Justice Committee handled Petition PE1458, and evidence which emerged in relation to the Judicial Office and Court Service instructing Justices of the Peace and judges to falsely not record recusals, can be found here: INJUSTICE OF THE PEACE: Judge admits Scottish Courts concealed conflict of interest recusals – Justices of the Peace were told by Court staff any cases where JP judges decided to step down from court hearings – would NOT be recorded in official register of judicial 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

 

 

FIRST INTERESTS: Judge recommended for judicial role by Nicola Sturgeon – found First Minister committed three counts of professional misconduct – in Law Society probe of Ms Sturgeon’s failure to provide legal service protections for domestic violence victim

First Minister recommended judge role for lawyer – who found her guilty of misconduct. AN INVESTIGATION has established Scotland’s First Minister – Nicola Sturgeon – was found to have committed THREE counts of professional misconduct by a solicitor she later recommended for the position of a Sheriff within Scotland’s powerful judiciary – currently led by Lord President – Lord Carloway.

The findings of professional misconduct by Sheriff Pasportnikov against the First Minister – were the result of a complaint lodged by a client to the law firm where Nicola Sturgeon worked at the time – Bell & Craig solicitors.

The complaint against Nicola Sturgeon involved the currently serving First Minister’s failure to provide adequate legal services to a victim of domestic violence.

And, the issues in relation to Ms Sturgeon’s failure to provide adequate legal services only came to light after Ms Sturgeon suddenly left the law firm = and the client was forced to go to another solicitor – who it was reported – discovered legal aid forms had not been sent to the Scottish Legal Aid Board – despite assurances the legal aid application had been submitted.

In response to the complaint – the Law Society of Scotland appointed a case manager – a solicitor, and now Sheriff – Olga Pasportnikov – to investigate.

In a five-page report, dated Dec 1998, Olga Passportnikov said: “The complaint in this case has been identified as professional misconduct by breach of code of conduct and conduct unbecoming a solicitor.”

Pasportnikov identified three counts ‘of professional misconduct by breach of code of conduct and conduct unbecoming a solicitor’.

They were: failing to raise interdict, misleading client about legal aid application & failing to properly consider her financial circumstances

Among ‘circumstances which have been ascertained during the course of the enquiry’ were the legal aid form had been completed and signed by the client and the client’s employers but not sent.

Despite the findings of Sheriff Pasportnikov, and her identification of multiple serious issues where she concluded Ms Sturgeon’s failure to provide competent legal services qualified as professional misconduct – the Law Society of Scotland concluded there should be no further action and Nicola Sturgeon left the legal profession.

It is important to note – the Law Society of Scotland cleared Nicola Sturgeon even after their case manager Ms Pasportnikov identified various breaches of professional misconduct by Nicola Sturgeon – and that Ms Sturgeon – who then ‘stood down’ from the legal profession – to contest a seat for the Scottish National Party – then entered politics without an on the record finding of professional misconduct by the Law Society of Scotland.

Records show from announcements in the legal profession’s press, and Scottish Government news postings –  Announced on 31 July 2015 – Olga Pasportnikov was appointed by the Queen following a report to the First Minister Nicola Sturgeon – by the Judicial Appointments Board for Scotland.

Ms Pasportnikov, a University of Dundee graduate, was admitted as a solicitor in 1991. She worked mainly in private practice before joining the Law Society of Scotland in 1998. She has been with the Crown Office & Procurator Fiscal Service since 2003, and is also current convener of the Fife Young Carers Management Committee.

The First Minister has statutory responsibility for making recommendations to Her Majesty the Queen and is required by statute to consult the Lord President of the Court of Session before making her recommendation.

The Judicial Appointments Board for Scotland is an ‘independent’ advisory public body with the role of recommending individuals for appointment to judicial offices within the Board’s remit including judge of the Court of Session, chair of the Scottish Land Court, sheriff principal, sheriff, and summary sheriff.

It has since come to light this story was filed with a Scottish newspaper for publication in June 2018 – after several other newspapers refused to publish the story.

According to now deleted tweets from a former journalist which have now been widely published online – a story on the complaint regarding Nicola Sturgeon’s failure to provide adequate legal services to a victim of domestic violence, and the identification of several counts of professional misconduct against Ms Sturgeon by currently serving Sheriff Olga Pasportnikov – had support from one editor to be published – until a ‘Political editor’ at the same newspaper voted the story down.

The deleted tweet goes on to allege that some weeks later, the same newspaper which did not publish the story on Nicola Sturgeon – was leaked details of the harassment complaints against Alex Salmond and the investigation by Police Scotland – which subsequently led to Mr Salmond being charged with 14 offences, including two counts of attempted rape, nine of sexual assault, two of indecent assault, and one of breach of the peace.

Mr Salmond appeared in court on 21 November 2019 and entered a plea of “not guilty”.

At the subsequent trial, Mr Salmond was cleared by a jury trial – heard by Scotland’s Lord Justice Clerk – Lady Dorrian.

The information came to light after Justice Committee Convener Adam Tomkins (Scottish Conservative) & former Scottish Government Legal Affairs Minister Annabelle Ewing (Scottish National Party) made a motivated and concerted effort to close down the same Judicial Interests Register petition which Nicola Sturgeon has opposed and sought to close – throughout her term as First Minister.

The Justice Committee hearing of 2 March 2021 can be viewed here: Register of Judges Interests Petition PE 1458 Scottish Parliament Justice Committee 2 March 2021

This is the same Judicial Interests Register petition the First Minister has tried to undermine and block since Ms Sturgeon became First Minister.

If a Register of Judges’ Interests did become a requirement – Sheriff Pasportnikov who found Nicola Sturgeon guilty of professional misconduct may be forced to list that fact and other details of her service to the Law Society of Scotland.

On Wednesday 3 March 2021 – the Judicial Office for Scotland were asked the following questions:

A currently serving Sheriff – Olga Pasportnikov – conducted an investigation of complaints lodged about Scotland’s current First Minister Nicola Sturgeon while she was a solicitor at a law firm identified as Bell & Craig

Ms Pasportnikov was, as the Judicial Office will be aware – a case manager for the Law Society of Scotland from September 1998 to March 2003

In a five-page report released in December 1998, Olga Pasportnikov said: “The complaint in this case has been identified as professional misconduct by breach of code of conduct and conduct unbecoming a solicitor.”

Olga Pasportnikov found Ms Sturgeon guilty of 3 identifyable counts of professional misconduct:

They were: failing to raise interdict as instructed, misleading client about legal aid application, failing to properly consider the client’s financial circumstances

Events then saw the Law Society clear Ms Sturgeon, who quickly left the legal profession.

Noting Ms Pasportnikov currently declares her time at the Law Society of Scotland on her Linkedin page as a “case manager” – along with other career attributes including a term at the Crown Office as a Procurator Fiscal Depute, and her current role as a serving Sheriff

– does Sheriff Pasportnikov have any comment onthe following questions:

why she does not list her role of investigating complaints against solicitors?

why she found Ms Sturgeon guilty of 3 identifyable issues of professional misconduct?

why no regulatory punishment took place upon Sheriff Pasportnikov’s findings?

Does the Judicial Office have any comment on the above events and any comment on the impact of a currently serving Sheriff with a long history as a solicitor, prosecutor and now a judge – having found Scotland’s current First Minister Nicola Sturgeon guilty of three counts of professional misconduct to which no sanction was ever applied by legal regulators and never declared in any register of interests?

On Friday 5 March 2021 – the Judicial Office for Scotland (JOFS) issued a statement to the media.

The Judicial Office claimed Sheriff Pasportnikov had forgotten she had investigated a complaint case involving the current First Minister Nicola Sturgeon,

A spokesperson for the Judicial Office said:

“The Sheriff was one of a number of case managers working on the Law Society for Scotland’s Client Relations Team from 1998 – 2003. Her role was limited to that of gathering and categorising information as a first step in a much longer process. She did not produce any reports or make any findings. Covering a volume of work, she would not remember specific names in routine cases, including where a solicitor was cleared entirely.”

“In Scotland, sheriffs are appointed by Her Majesty on the recommendation of the First Minister, who makes their recommendation on the basis of a report by the Judicial Appointments Board for Scotland (JABS). The First Minister has statutory responsibility for making recommendations to Her Majesty and is required by statute to consult the Lord President of the Court of Session before making their recommendation.”

“JABS is an independent advisory public body with the role of recommending individuals for appointment to judicial offices within the Board’s remit including judge of the Court of Session, chair of the Scottish Land Court, sheriff principal, sheriff, and summary sheriff.”

A response to the Judicial Office statement was submitted – querying the JOFS claim, and confirming – that material now in the public domain – does confirm Sheriff Pasportnikov did in-fact – investigate a complaint against Nicola Sturgeon and that Sheriff Pasportnikov identified several breaches of professional misconduct by Ms Sturgeon.

No reply to the additional query has been received, nor has the Judicial Office disputed the terms of questions & information supplied to JOFS staff.

It would be difficult to believe a case relevant to the current First Minister was forgotten about by the investigating reporter – Sheriff Pasportnikov – as there is obviously only one Nicola Sturgeon in Scotland – the current First Minister.

Earlier today, a legal expert assessed the material now in the public domain and deleted tweets from a former journalist which names a Scottish newspaper and a ‘spiked’ story on Ms Sturgeon.

The legal expert said he hoped the Committee on the Scottish Government Handling of Harassment Complaints would now scrutinise the information available and ask further questions of the First Minister.

He said: “In view of suggestions on social media platforms – a former journalist held this information for a number of years, and approached several newspapers seemingly without success – people may reasonably expect questions to be asked of why this story has not come to light until now and the method of travel to the media.”

He added: “Was there motive in withholding this story involving Scotland’s First Minister, either by a newspaper, a political party or a journalist? I am curious to find out. However, I am also curious as to why no one with the information offered the material in evidence to the long running Scottish Parliament investigation of issues involving Alex Salmond.”

“Given the First Minister responded to questions on what appear to be references to the investigation of Ms Sturgeon and a newspaper deal –  MSPs should ask rigorous questions of anyone involved in this matter given the situation we face where information now exists alleging the Sheriff complaint probe of Scotland’s First Minister was allegedly swapped for a story on harassment complaints and a Police investigation of Alex Salmond in the summer of 2018”

In discussions late this afternoon – others have come forward to confirm they were aware of this story for some time, but were unable to obtain any answers from Ms Sturgeon on these events.

JUDICIAL INTERESTS REGISTER – would have required declaration of Sheriff’s role in FM Complaint:

It has been previously reported Nicola Sturgeon personally intervened to block the Judicial Register petition – during a long running investigation by the Scottish Parliament’s Public Petitions Committee

The surprise intervention by the First Minister in the bid to bring transparency to Scotland’s secretive judges came to light after a failed attempt by her then Legal Affairs Minister – Paul Wheelhouse – to overturn the petition with claims that ‘gangsters’ could misuse information in a judges register.

In the letter – dated 30 March 2015 – Nicola Sturgeon also revealed Legal Affairs Minister Paul Wheelhouse had a secret meeting in February 2015 with Lord Gill to discuss the petition and the Judiciary & Scottish Government’s concerted opposition to creating the Judicial Register.

Writing in the letter to John Pentland MSP, Convener of the Public Petitions Committee, the First Minister said: “This petition calls on the Scottish Government to create a Register of Interests for the Judiciary. The Scottish Government considers that such a register of judicial interests is not necessary and that the existing safeguards – the Judicial Oath, the Statement of Principles of Judicial Ethics and the system for complaints against the judiciary – are sufficient. These safeguards, together with the register of judicial recusals, are sufficient to protect individuals from judicial bias.”

Further to the evidence that the Minister for Community Safety and Legal Affairs, Mr Wheelhouse, gave to the Committee on 9 December 2014, he discussed this petition when he met the Lord President in February. The Minister acknowledged the Lord President’s concerns about the introduction of a register of judicial interests. The breadth of such a register would make it virtually unworkable. It would need to cover not only financial interests, but also memberships of groups and associations and familial and social relationships. Even so, such a register might not capture relevant issues that could arise.”

“The position of the judiciary is different from that of MSPs and others who hold public office. The judiciary cannot publicly defend themselves. The Lord President has cautioned that such a register could also have unintended consequences. Consideration requires to be given to judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. In addition, there is currently no evidence that judges who should have recused themselves from cases have not done so.”

The Sunday Herald newspaper reported on First Minister Nicola Sturgeon’s intervention on behalf of the judiciary and her opposition to the judicial transparency proposal:

First Minister rejects call for register of judges’ interests

Paul Hutcheon Investigations Editor Sunday 10 May 2015

NICOLA Sturgeon has rejected calls for judges to declare details of their finances in a register of interest. The First Minister said the proposal, lodged by justice campaigner Peter Cherbi, was “not necessary” and claimed existing rules were “sufficient”.

Holyrood’s Public Petitions Committee is in the middle of a long-term probe into whether judges, sheriffs and justices of the peace should be brought into line with other senior public sector figures.
MSPs, MPs, councillors and board members of public bodies are all required to register their outside financial interests.

A petition lodged with the Scottish Parliament in 2012 called for members of the judiciary to declare their “pecuniary” interests, which would include shareholdings, directorships and membership of external bodies.

Judicial officer holders can recuse – or remove – themselves if a conflict of interest arises during a case, but nothing more is required.

The plan was met with hostility by the country’s top judge, Lord Gill, who repeatedly snubbed calls by the committee to give oral evidence. He relied on written testimony to blast a proposal he said could compromise judges’ privacy by encouraging “aggressive media or hostile individuals”.

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

The issue has now reached the desk of the First Minister, who has backed Lord Gill.

In a letter to John Pentland MSP, the Committee convener, she supported the status quo: “The Scottish Government considers that such a register of judicial interests is not necessary and that the existing safeguards – the Judicial Oath, the Statement of Principles of Judicial Ethics and the system for complaints against the judiciary – are sufficient.

“These safeguards, together with the register of judicial recusals, are sufficient to protect individuals from judicial bias.”

She also repeated Lord Gill’s fear about “aggressive media” and noted: “The position of the judiciary is different from that of MSPs and others who hold public office. The judiciary cannot publicly defend themselves.”

The First Minister also revealed that Paul Wheelhouse, her Minister for Community Safety and Legal Affairs, met Lord Gill in December to discuss the petition.

In his evidence to the Committee, Wheelhouse said he feared a register could leave judges open to “threats or intimidation”, adding that colleagues at an environment quango had already been threatened by organised criminals. However, emails between the Government and Scottish Environment Protection Agency revealed no link to organised crime.

Cherbi said: “I am surprised Nicola Sturgeon supports a judicial ban on transparency just because judges have been asked to declare their substantial interests. “We are always told if you have got nothing to hide you have nothing to fear. What are the judges hiding and what do they fear? “There cannot be one set of rules for judges and another for everyone else. A register of interests will enhance public trust in the justice system, not detract from it.”

A Scottish Government spokesperson said: “The Scottish Government considers that a specific register of interests is not needed. Existing safeguards, including the Judicial Oath, the Statement of Principles of Judicial Interests and the system of complaints against the judiciary, are sufficient to ensure the impartiality of the judiciary in Scotland.”

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

 

BANKRUPTCY PROBE: Creditors & law firms in judicial conflict case linked to top judge – were excluded from sequestration by Trustee handed role by law firm linked to bust £400M Heather Capital Hedge Fund, & Court of Session illegal fee deal judgement

QC branded Levy & Mcrae ‘untrustworthy’ in £6m case. A LAW FIRM branded “untrustworthy” by a senior QC, and which once stood accused of transferring millions linked to the collapsed £400m Heather Capital Hedge Fund – is now at the centre of a case linked to judicial conflicts of interest, and the resolution of two remaining issues in a controversial sequestration linked to Scotland’s top judge.

Levy & Mcrae – the Glasgow based law firm who were recently found to have constructed an illegal fee agreement along with Advocate Jonathan Brown – in a case involving A&E Investments & businessman Robert Kidd – are now accused of appointing a trustee – Kenneth Pattullo of insolvancy practitioners Begbies Traynor – who hindered and excluded creditors attempts to secure consideration of legitimate debts including legal fees & legal funding of Mr Nolan’s case.

Files now handed to the ongoing media investigation – reveal that two remaining issues of the long running Nolan v Advance case – relate to the deliberate exclusion of creditors in the sequestrations of Mr Nolan and his partner – after their £6m action against Advance Construction – heard by Lord Woolman in the Court of Session – scored a victory on principle – but lost out on legal expenses.

The documents – released by the Accountant in Bankruptcy – reveal creditors – including solicitors who provided legal services, and the providers of significant legal funding which enabled Mr Nolan to go into the Court of Session and secure the win against Advance Construction – still await a consideration of sums due to them from the sequestrations.

However, further enquiries and responses from the Accountant in Bankruptcy now indicate the Trustee Kenneth Pattullo – who was directly appointed by Levy and Mcrae at Hamilton Sheriff Court in the sequestrations of both Mr Nolan and his partner – did not take account of either of the significant debts – which comprise most of Mr Nolan’s legal fees and legal expenses.

Instead – records show that Mr Pattullo and others at Begbies Traynor – did not reply to enquiries from legitimate creditors and solicitors – and focused on selling off a portfolio of properties including substantial plots of land in Wishaw, and a valuable farm – to pay Mr Pattullo’s own fees, and an offshore vulture fund known as Promontoria – which bought additional debt incurred by Mr Nolan and his partner from the secured lender – The Clydesdale Bank.

In a response to a request for review – Alex Reid of the AIB commented “Representation has been received highlighting that neither Mr Nolan nor his solicitor [redacted] received notification of any meeting of creditors. In accordance with Section 21A of the Act the trustee must give notice to every creditor known to him, at the time, whether or not they intend to hold a creditor meeting…”

However, it can be revealed the AIB have previously been presented with copies of confidential emails from law firms to Mr Pattullo’s office – showing multiple requests by lawyers to contact Begbies Traynor to establish communication and a consideration of positions regarding legal fees, and legal funding provided to Mr Nolan for his court case.

The new evidence raises questions of why Begbies Traynor did not acknowledge creditors attempts to communicate with the Trustee while there are multiple references within the released files to legal fees geneerated by Levy & Mcrae for their client – Advance Construction (Scotland) Ltd.

The files also slow some Edinburgh based law firms who did act on behalf of Mr Nolan were included in the sequestration – while other law firms, creditors and providers of legal funding do not appear.

With over 1000 documents released by the AIB currently being studied – it can now be reported that the two remaining creditors have now secured significant backing to present their case for consideration of debts and repayment to the Accountant in Bankruptcy – who are expected to remain involved in this process for some time.

Within the sequestration files released by the Accountant in Bankruptcy, legal fees for Advance Construction appear to amount to around £212K – which is in the form of legal fees the company are alleged to have paid Levy & Mcrae, and Gavin Walker & Roddy Dunlop QC.

However – legal sources close to the case have raised questions over the ‘small’ sum of £212K – given the length of the case and lawyers who represented Advance – such as Peter Watson, Jamie Robb and Ewen Campbell, with the addition of Gavin Walker QC and Roddy Dunlop – the current Dean of the Faculty of Advocates.

To compare – the legal fees of around £212K used by Advance Construction to sequestrate both Mr Nolan and his partner are much less than Mr Nolan’s legal costs – which are estimated at up to £500,000.

Mr Nolan’s legal fees including include hiring of construction site plant & equipment, use of multiple law firms including Biggart Baillie, Tods Murray, and John Campbell QC, advocate Craig Murray, solicitor Gavin McPhail and additional inspection and survey reports on contaminated material which culminated in Advance Construction being forced to admit in court they had dumped the contaminated material  illegally on Mr Nolan’s land.

And, while it is a matter of record the pursuer – Mr Nolan – won his action against Advance Construction in the Court of Session – his own QC – John Campbell – inexplicably withdrew his own client’s claim for legal expenses – which would have seen most or all of the legal fees and legal funding paid by the defenders had Mr Campbell returned to court for the expenses hearing.

A law accountant who has studied the case is of the view that had Mr Nolan’s counsel – John Campbell QC made the usual court claim for legal expenses against Advance Construction – Lord Woolman or any judge hearing the exepnses claim would have granted much of Mr Nolan’s legal expenses along with his victory in the case against the defenders – Advance Construction.

However, Mr Campbell did not follow through with instructions to appear at an expenses hearing and lodge a full claim for Mr Nolan’s legal expenses.

Mr Campbell has not offered any explanation for his refusal to lodge an expenses claim for his client’s winning case, and instead was found to have withdrew much of the claim without any instruction to do so.

A full report on how John Campbell QC reduced his own client’s financial claim almost to zero and without any instruction or consultation – can be found here: CASHBACK QC: Legal regulator’s files reveal senior QC reduced claim without instructions, withheld key evidence & witnesses including Cabinet Secretary from Court of Session case

A further investigation of John Campbell’s involvement in the case revealed the senior QC signed a no-win-no-fee agreement with his client Mr Nolan – then went back on it’s terms after Campbell refused to appear for the expenses hearing and the case had concluded.

A full investigation of Campbell’s fee scam and the Faculty of Advocates role in concealing undeclared cash payments to Campbell is reported in further detail here: CASH ADVOCATE: £9K consultations & £75K meetings – Edinburgh Quaich Project Charity QC Boss scammed clients on no-win-no-fee deal – Faculty of Advocates files reveal extent of Advocates cash-for-fees HMRC tax dodge scam

Ironically, during discussions with his clients – John Campbell himself described Levy and Mcrae as “untrustworthy” and

An earlier investigation revealed Trustee Kenneth Pattullo of Begbies Traynor was directly appointed by Levy and Mcrae at Hamilton Sheriff Court in the sequestrations of both Mr Nolan and his partner.

Documents previously published revealed Levy & Mcrae altered the appointment of the AIB in the sequestration of Mr Nolan’s partner to that of their own preferred choice – Mr Pattullo.

Now – fresh questions over the conduct of the Accountant in Bankruptcy have now been raised after documents revealed Levy & Mcrae requested the AIB become Trustee in the sequestration of Mr Nolan – in Jamuary 2015.

The letter and petition, published here:  Petition to appoint AIB January 2015 Jamie Robb Levy Mcrae reveals Jamie Robb of Levy & Mcrae asked the AIB to assume the position of Trustee in their sequestration of Mr Nolan in January 2015.

Records then show Levy & Mcrae went on to appoint Mr Pattullo in the same unusual manner in Mr Nolan’s sequestration – and the AIB did nothing in either case – despite having the power to intervene and call a meeting of all interested parties including debtors & creditors alike to find a way forward after the court’s alteration of an appointment where the court did not appear have the power to act.

A previous report published material which questioned the court’s improper use of powers to switch out Trustees in the sequestration of Mr Nolan and his partner from the Accoutant in Bankrutpcy to Mr Pattullo, here: FIRE SALE: AIB face sequestration probe as files reveal Trustee was paid £20K by vulture fund to sell home & firebombed farm five days after targeted attack on couple at centre of land case linked to top Scots judges, an ex-Sheriff, an asbestos dumping building company & law firm Levy and Mcrae

And, an earlier investigation revealed Scotland’s top judge – Lord Carloway (Colin Sutherland) – deliberately concealed his own links to this case while he faced questions in the Scottish Parliament from MSP Alex Neil and members of the Public Petitions Committee, here: JUDGE OF CONFLICT: Top judge who attacked MSPs over judicial interests probe – failed to declare relative’s role at law firm targeting MSP’s constituents’ home & farm in £6M court case linked to Lord Malcolm conflict of interest scandal

Nolan v Advance Construction Scotland Ltd [2014] CSOH 4 CA132/11 is the same case which exposed serious conflicts of interest in Scotland’s judiciary – notably where Lord Malcolm (Colin Campbell QC) failed to disclose on multiple occasions – the fact Lord Malcolm’s son – Ewen Campell – represented the defenders in the same court.

The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest, is reported in further detail 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.

LAW FIRM AT CENTRE OF ILLEGAL FEES & CONFLICT OF INTEREST CASE:

Earlier this year, Levy & Mcrae – the same law firm who masterminded the Advance Construction case in the Court of Session, and the resulting sequestrations of the pursuers in a case now linked to Scotland’s top judge Lord Carloway – were found by Lord Doherty to have constructed an illegal fee agreement after a ruling by Lord Doherty.

Levy & McRae had billed their former client – businessman Robert Kidd the seven-figure sum after representing him in a successful damages claim against another firm of solicitors.

The £19 million settlement figure was paid to Levy & Mcrae – after the firm deducted it’s legal fees which included £3million of “success fees” for winning the case.

Mr Kidd then launched a legal action against Levy & McRae, claiming it should not have charged him the success fees on top of its legal fees.

The case was heard by Lord Doherty – who later ruled the fees were “illegal and unenforceable”,

The judge said the fees breached a legal principle designed to prevent conflict of interest when a lawyer has a financial stake in the amount a client gets in compensation.

The £6million sum included a basic fee to Levy & McRae of £2.1million plus a success fee of £1.89million while advocate Jonathan Brown was paid £1.1million plus a success fee of £990,000.

Lord Doherty said: “The substance of what was agreed was that the defenders’ (Levy & McRae and Jonathan Brown) remuneration would increase in proportion to the sum recovered.

“That gave them a clear ­pecuniary interest – a stake – in the amount recovered.

“In my view, that pecuniary interest created a conflict of interest which gave rise to an unacceptable risk that the proper administration of justice might be obstructed.”

Levy and Mcrae have lodged an appeal against the decision by Lord Doherty.

The full judgment from Lord Donerty is here: A&E Investments Robert Kidd v Levy & Mcrae and Jonathan Brown – Lord Doherty 2020csoh14

And more a recent report in the Sunday Post Top advocate found guilty of “unsatisfactory professional conduct” after charging client extra fee of almost £1 million reports the Advocate Jonathan Brown was found guilty of “unsatisfactory professional conduct” after charging his client – Robert Kidd an extra fee of almost £1 million for representing him in a successful £20m damages action against another firm of solicitors.

The case arose after Mr Kidd hired lawyers, including Mr Brown, to sue his former solicitors over the sale of his oil firm ITS. Mr Kidd said Mr Brown had failed to tell their QC Andrew Smith details of the arrangement which brought his total bill to £2m.

The Sunday Post further reported that the Faculty of Advocates Disciplinary Committee has since made a finding of unsatisfactory professional conduct against Mr Brown, ruling that he should have informed Andrew Smith QC that he had an arrangement with Mr Kidd by which his fee increased according to the amount recovered from the opponent, and how the amount on which the success fee was measured should be calculated.

Mr Kidd’s spokesman Jim Diamond told the Sunday Post: “We’re very happy with the decision of unsatisfactory professional misconduct. We want the success fee repaid in full plus interest at 8%. We will also be seeking repayment of our legal fees in this matter which could amount to more than £100,000.”

Levy & Mcrae – Court papers reveal their part in Heather Capital hedge fund writ

Detailed documents submitted to the Court of Session as part of a now abandoned writ against Levy & Mcrae and their former partner Peter Watson – revealed the following acts attributed to Levy & Mcrae and Heather Capital:

[21]      In the Levy Mcrae case:

• On 4 January 2007, Heather Capital transferred £19 million to its client account with Levy & Mcrae (Lord Doherty paragraph [5]).

• On 24 January 2007, Heather Capital transferred £9.412 million to its client account with Levy & Mcrae (Lord Doherty paragraph [5]).

• The money was intended to be loaned to a first level SPV Westernbrook Properties Ltd (WBP) for onward lending to second level SPVs (Lord Doherty paragraph [5]).

• On 9 January 2007, Levy & Mcrae transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).

• By a memorandum dated 17 March 2007, Heather Capital’s auditors KPMG “identified a number of concerns relating to the documentation provided in respect of these loans”.Further work and information was required (Condescendence 5, page 13 of Levy & Mcrae reclaiming print).

• On 29 March 2007, Levy & Mcrae transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).

• In April to June 2007, amounts equivalent to the loans thought to have been made to WBP (including accrued interest) were “repaid” to HC via Cannons, solicitors, Glasgow.The directors were unable to ascertain the source of these repayments (Lord Doherty paragraph [7]).

• Approaches made by Heather Capital to Mr Volpe and Triay & Triay, a firm of solicitors in Gibraltar, were met with a total lack of co-operation (Lord Doherty paragraph [8]).

• At a board meeting on 6 September 2007, “KPMG could not approve HC’s accounts … Santo Volpe had executed certain loans to SPV companies where non‑standard procedures had been followed which meant that inadequate security had been given for some loans … Gregory King stated that the loans to the SPVs had been repaid in full in May 2007” (Condescendence 5, page 13 of Levy & Mcrae reclaiming print).

• By email to a non‑executive director of HC (Mr Bourbon) dated 7 September 2007, Mr McGarry of KPMG referred to the previous day’s board meeting, and expressed concerns about the situation.He asked for further information, namely “all possible evidence regarding the movement of monies out of Heather Capital into these SPVs and onwards to whatever purpose the funds were applied – ie, sight of bank statements, payment/remittance instructions, certified extracts from solicitors clients’ money accounts etc”.(It should be noted that, contrary to HC’s averment in Condescendence 5 at page 13C‑D of Levy & Mcrae reclaiming print, the email did not restrict the inquiries requested to “explaining what information was required from Santo Volpe”:the request was much broader.)

• In October 2007 the non‑executive directors of HC met with the Isle of Man Financial Services Commission (FSC) to discuss “the issues” (Lord Doherty paragraph [8]).A director also disclosed the suspicious activity and Mr Volpe’s obstruction to the Isle of Man Financial Crime Unit (FCU), who said they would investigate (Condescendence 5 page 14 of LM reclaiming print).The auditors KPMG carried out an additional full scope audit.

• By letter dated 18 October 2007, FSC wrote to the directors of HC setting out further information which they required.

• By letter dated 26 November 2007 Mr King advised the HC board that “some sort of fraud had been deliberately introduced with invalid land registry details on a number of the loans”.He stated that he had applied pressure to Mr Volpe and Mr Cannon, whereupon there had been “full repayment of the loans with relevant interest” which meant that “investors were secure”.

• On 17 December 2007, KPMG signed the accounts and added a completion note using language such as “The risk of fraud increased to high as a result of the documentation issues surrounding the SPVs, where some form of fraud appeared to have been attempted”.In their audit report opinion, they stated “We have been unable to verify where funds advanced to the SPVs were invested.In addition, we were supplied with false documentation in relation to the SPVs which appears to have been a deliberate attempt to mislead us.Given these loans were repaid in the period, we consider that the effect of this is not so material and pervasive that we are unable to form an opinion on the financial statements [opting instead for express qualifications that loan and security documentation could not be validated] … There is uncertainty as to where the monies lent to the [SPVs] were then subsequently invested … Investigations continue to determine what party (or parties) were involved in and were accountable for these events, and whether any action should be taken against them …” (Lord Doherty paragraph [9]).

• By letter to HC dated 4 January 2008, KPMG gave serious warnings about their inability to validate loan and security documentation, and lack of evidence as to the purpose for which the money advanced to SPVs was applied.In their words:

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

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