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RECUSAL REGISTER: Senators, Judges, Sheriffs & Tribunal members now declare more recusal detail in Conflict of Interest Register – as Holyrood Justice Committee probe petition to create a Register of Judges’ Interests

Judges’ conflicts of interest declared. SCOTLAND’S judiciary leads the rest of the United Kingdom in one area of transparency – the publication of Judicial ‘Recusals’ – the term used to describe when a judge or tribunal member has a conflict of interest and must stand aside from hearing a case.

Currently, around one hundred and seventy five recusals of judges and tribunal members have been recorded in the Register of Recusals – which is kept up to date by the Judiciary of Scotland here: Judicial Recusals – Judiciary of Scotland

The Register of Recusals came into being – albeit grudgingly – after Scotland’s now former top judge Lord Brian Gill – held an unprecedented private meeting with Committee Conveners during early 2014.

Gill created the Register of Recusals – as a response to growing calls for MSPs to press ahead with a petition calling for all judges to declare their interests in a publicly available register – Petition PE1458: Register of Interests for members of Scotland’s judiciary.

However, later in the same year, top judge Lord Brian Gill was forced to recuse himself from a case in which his own son – Advocate Brian Gill – represented one of the parties involved in an action – the details of which, and identities of the parties involved, were kept secret from media enquiries at the time in 2014.

Only recently, with again – grudging reforms to the Recusals Register, enacted only after requests from MSPs and direct discussions between the Judicial Interests petitioner and the Judicial Office itself, do we now know the identities of litigants, case references and extra details now published in the Recusals Register.

Whatever was so secret about publishing the fact the Lord President’s son represented a party in Belhaven Brewery v Assessor for Ayrshire XA 72/14 – causing the recusal of his father Lord Brian Gill from the bench, is still to be adequately explained – but we now know who were involved, just – not the ‘why’.

However, despite recent promises from the Judicial Office that Justices of the Peace – numbering well over 400 – were to be included in the Regster of Recisals – there are, strangely and without explanation, no references whatsoever to one single Justice of the Peace being the subject of a recusal.

Furthermore when enquiries were made of the Judicial Office to reveal more detailsof the JPs, all communications from the Head of Governance stopped after it was queried why no JPs had recused – sparking another mystery to be solved.

The lack of recusals in relation to Justices of the Peace was reported in more detail here : THE UNRECUSED: Mystery as 450 Justices of the Peace fail to register one single recusal in a full year after conflict of interest rules change for Scotland’s secretive army of lay magistrates

Additionally – and worryingly for those who prefer honesty with their judiciary – there is not a single mention of any of the judges who were forced to stand aside in the hearings relating to a multi million pound damages claim against the Lord Advocate and Scotland’s Chief ConstableA295/16 David Whitehouse (represented by Urquharts) v Liam Murphy &c (represented by Ledingham Chambers for SGLD – Scottish Government Legal Directorate)

The case related to legal action taken by former Rangers Administrator David Whitehouse – for wrongful arrest and financial damages against Lord Advocate James Wolffe QC and the Chief Constable of Police Scotland.

A media investigation revelaed the case was incredibly scheduled to be heard by the Lord Advocate’s wife – Lady Sarah Wolffe – who is a judge in the Court of Session.

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

It then emerged a series of judge swapping on the case, saw hearings passed from Lady Sarah Wolffe, to Lady Morag Wise, then Lord Paul Arthurson – and then to a FOURTH judge – Lord Sidney Neil Brailsford.

Yet, despite the blatant conflicts of interest in relation to the Lord Advocate’s own wife who was set to hear the case – there is – importantly – not one mention or reference, even a backdated note, within the Register of Recusals – to explain why, eventually – Lady Wolffe had to step aside from the case yet failed to issue a proper recusal for doing so.

Bizarrely, the case ultimately fell to be heard by Lord Malcolm – made famous after the judge – who’s real name is Colin Campbell QC – heard a case up to eight times where his son represented the defenders – yet saying nothing in court.

Another case which revealed significant problems with how the Judicial Office kept records of judicial recusals was that of an instance involving Lord Bracadale – where, only after media enquiries to the Judicial Office Press Chief, was it admitted a case in which Lord Bracadale had stepped aside from hearing, was not recorded in the Register of  Recusals.

After admitting the ‘mistake’ of failing to record the recusal by Lord Bracadale, clerks for the Scottish Courts & Tribunals Service then silently updated the Recusals Register, a year later, and without any note that the recusal had been amended after the ‘mistake’ had been investigated by the media.

The Bracadale recusal issue was reported in greater detail here: RECUSALS UNLIMITED: 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.

It is worth noting, Lord Carloway was asked questions about the failure to record Lord Bracadale’s recusal, during the Lord President’s evidence hearing with the Public Petitions Committee in July 2017.

Lord Carloway’s could not offer a satisfactory response, and it is worth noting the Head of Judicial Communications resigned her post during queries into why the Bracadale recusal had been concealed from the publicly available Register of Recusals.

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

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

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

The current list of Judicial Recusals as of the date of publication of this article lists the following members of thejudiciary, court locations, case references, and reaons for their recusal due to a conflict of interest:

Judicial Recusals 2014

DATE COURT & TYPE OF ACTION JUDGE CASE NAME & REF MOTION BY & REASON
24/03/2014 Livingston Sheriff Court (Civil) Sheriff Edington A v B* Defender; Sheriff drew to the parties’ attention a possible difficulty, namely the wife of one of the other resident Sheriffs was the author of a report contained with the proces s . T h e Sheriff asked parties if they wished him to recuse himself. The defenders, having considered the issue, made a motion for the Sheriff to recuse himself, which he then did.
08/04/2014 Forfar Sheriff Court (Criminal) Sheriff Veal PF v Richard Hughes SCS/2013/148273 Ex proprio motu**; Sheriff personally known to a witness
10/04/2014 Selkirk Sheriff Court (Civil) Sheriff Paterson MacDonald v Dickson PBL A11/13 Ex proprio motu; Sheriff had acted for a client in a previous dispute against the Pursuer
23/04/2014 High Court of Justiciary (Appeal) Lady Wise Barry Hughes v Her Majesty’s Advocate H CA/2014-001480- XC Ex proprio motu; Senator had previously acted for a relative of accused
16/04/2014 Glasgow Sheriff Court (Criminal) Sheriff Cathcart HMA v Michael J J Houston GLW 2013/013251; GLW2013/015913; GLW 2014/003566 Ex proprio motu; Sheriff personally known to the a witness
13/04/2014 Haddington Sheriff Court (Civil) Sheriff Braid C v D* Ex p rop rio motu; Sheriff known to pursuer’s family
14/05/2014 High Court of Justiciary (Criminal) Temporary Judge MacIver Mateusz Zborowski v Procurator Fiscal, Edinburgh HCA/2014­002089/XT Ex proprio motu; Conflict of interest
20/05/2014 Court of Session (Civil) Lord Matthews E v F* Ex p ro p ri o motu; Senator personally known to a witness
19/06/2014 Dingwall Sheriff Court (Criminal) Sheriff N McPartlin PF v Carl J Wheatley SCS/2013-110134 Ex proprio motu; Sheriff presided over a trial involving the accused, where the issue to which the instant case relates was spoken to by a witness
20/06/2014 Elgin Sheriff Court (Criminal) Sheriff Raeburn QC PF Elgin v Alistair Simpson

SCS/2014-011055

Ex proprio motu; Accused appeared before the Sheriff as a wi tn e ss in a recent trial relating to the same incident.
24/06/2014 Glasgow Sheriff Court (Criminal) Sheriff P V Crozier HMA v Paul Daniels GLW 2014 – 007144 Ex proprio motu; Sheriff personally known to proprietor of premises libelled in the charge.
26/06/2014 Court of Session (Civil) Lord Gill Belhaven Brewery v Assessor for Ayrshire XA 72/14 Ex proprio motu; Relative of Senator acts for the respondent
27/08/2014 Court of Session (Civil) Lord Brailsford G v H* Ex proprio motu; Senator personally known to husband of th e p u rs u e r
28/08/2014 Oban Sheriff Court (Civil) Sheriff W D Small Etonella Christlieb A22/14 & A23/14 Ex p ro p ri o m otu ; S heriff personally known to a party.
28/08/2014 Oban Sheriff Court (Criminal) Sheriff W D Small PF v Etonella Christlieb OBN2014-000138 Ex proprio motu; Personally known to a party of the action
22/10/2014 Aberdeen Sheriff Court (Criminal) Sheriff Cowan PF v George Mutch SCS/2013/-110352 Defender; Sheriff drew to parties’ attention that she was a member of the RSPB before commencement of a trial as the case involved an investigation carried out by the RSPB and many witnesses were RSPB officers. She invited parties to consider whether she should take the trial. The defenders, having considered the issue, made a motion for the Sheriff to recuse herself, which she then did.
08/12/2014 Alloa Sheriff Court (Civil) Sheriff D Mackie I v J* Ex proprio motu; Contemporaneous and overlapping proceedings comprising an appeal and a referral from the children’s hearing relating to children from the same family.
16/12/2014 Court of Session (Civil) Lady Clark of Calton Petition: Thomas Orr & another for Order Under Companies Act

P1769/08

Ex proprio motu; Senator personally known to parties of the action.
 

Judicial Recusals 2014

DATE COURT & TYPE OF ACTION JUDGE CASE NAME & REF MOTION BY & REASON
24/03/2014 Livingston Sheriff Court (Civil) Sheriff Edington A v B* Defender; Sheriff drew to the parties’ attention a possible difficulty, namely the wife of one of the other resident Sheriffs was the author of a report contained with the proces s . T h e Sheriff asked parties if they wished him to recuse himself. The defenders, having considered the issue, made a motion for the Sheriff to recuse himself, which he then did.
08/04/2014 Forfar Sheriff Court (Criminal) Sheriff Veal PF v Richard Hughes SCS/2013/148273 Ex proprio motu**; Sheriff personally known to a witness
10/04/2014 Selkirk Sheriff Court (Civil) Sheriff Paterson MacDonald v Dickson PBL A11/13 Ex proprio motu; Sheriff had acted for a client in a previous dispute against the Pursuer
23/04/2014 High Court of Justiciary (Appeal) Lady Wise Barry Hughes v Her Majesty’s Advocate H CA/2014-001480- XC Ex proprio motu; Senator had previously acted for a relative of accused
16/04/2014 Glasgow Sheriff Court (Criminal) Sheriff Cathcart HMA v Michael J J Houston GLW 2013/013251; GLW2013/015913; GLW 2014/003566 Ex proprio motu; Sheriff personally known to the a witness
13/04/2014 Haddington Sheriff Court (Civil) Sheriff Braid C v D* Ex p rop rio motu; Sheriff known to pursuer’s family
14/05/2014 High Court of Justiciary (Criminal) Temporary Judge MacIver Mateusz Zborowski v Procurator Fiscal, Edinburgh HCA/2014­002089/XT Ex proprio motu; Conflict of interest
20/05/2014 Court of Session (Civil) Lord Matthews E v F* Ex p ro p ri o motu; Senator personally known to a witness
19/06/2014 Dingwall Sheriff Court (Criminal) Sheriff N McPartlin PF v Carl J Wheatley SCS/2013-110134 Ex proprio motu; Sheriff presided over a trial involving the accused, where the issue to which the instant case relates was spoken to by a witness
20/06/2014 Elgin Sheriff Court (Criminal) Sheriff Raeburn QC PF Elgin v Alistair Simpson

SCS/2014-011055

Ex proprio motu; Accused appeared before the Sheriff as a wi tn e ss in a recent trial relating to the same incident.
24/06/2014 Glasgow Sheriff Court (Criminal) Sheriff P V Crozier HMA v Paul Daniels GLW 2014 – 007144 Ex proprio motu; Sheriff personally known to proprietor of premises libelled in the charge.
26/06/2014 Court of Session (Civil) Lord Gill Belhaven Brewery v Assessor for Ayrshire XA 72/14 Ex proprio motu; Relative of Senator acts for the respondent
27/08/2014 Court of Session (Civil) Lo rd Brailsford G v H* Ex proprio motu; Senator personally known to husband of th e p u rs u e r
28/08/2014 Oban Sheriff Court (Civil) Sheriff W D Small Etonella Christlieb A22/14 & A23/14 Ex p ro p ri o m otu ; S heriff personally known to a party.
28/08/2014 Oban Sheriff Court (Criminal) Sheriff W D Small PF v Etonella Christlieb OBN2014-000138 Ex proprio motu; Personally known to a party of the action
22/10/2014 Aberdeen Sheriff Court (Criminal) Sheriff Cowan PF v George Mutch SCS/2013/-110352 Defender; Sheriff drew to parties’ attention that she was a member of the RSPB before commencement of a trial as the case involved an investigation carried out by the RSPB and many witnesses were RSPB officers. She invited parties to consider whether she should take the trial. The defenders, having considered the issue, made a motion for the Sheriff to recuse herself, which she then did.
08/12/2014 Alloa Sheriff Court (Civil) Sheriff D Mackie I v J* Ex proprio motu; Contemporaneous and overlapping proceedings comprising an appeal and a referral from the children’s hearing relating to children from the same family.
16/12/2014 Court of Session (Civil) Lad y Clark of Calton Petition: Thomas Orr & another for Order Under Companies Act

P1769/08

Ex proprio motu; Senator personally known to parties of the action.
 

Judicial Recusals 2015

DATE COURT & TYPE OF ACTION JUDGE CASE NAME & REF MOTION BY & REASON
22/01/2015 Edinburgh Sheriff Court (Extradition) Sheriff Maciver Poland v Lukasz Kosowski **Ex proprio motu; Sheriff involved in case at earlier stage of proceedings
30/01/2015 Dumfries Sheriff Court (Civil) Sheriff G Jamieson Browns Hairdressers v Lauren Brown A82/13 Ex proprio motu; Sheriff had previously dealt with the issue under dispute
06/02/2015 Greenock Sheriff Court (Civil) Sheriff I M Fleming Helen Humphreys v Norna Crabba B593/14 Ex proprio motu; Previous professional relationship between Sheriff’s former firm of solicitors and the defender
10/02/2015 High Court of Justiciary (Criminal) Lady Scott HMA v John McGregor IND2014-3553 Ex proprio motu; Due to a previous ruling made by the Senator in relation to a separate indictment against the accused
10/02/2015 Court of Session (Civil) Lord Jones Steven Paterson v David MacLeod & ors PD812/13 Pursuer; Due to a previous finding by the Senator in relation an expert witness whose evidence is crucial to the pursuer’s case
13/03/2015 Aberdeen Sheriff Court (Criminal) Sheriff A Cowan HMA v John Paris Lyon SCS-2015/012519 Ex proprio motu; Accused known by the Sheriff as a reg u l a r observer of court proceedings from the public gallery
17/03/2015 Forfar Sheriff Court (Criminal) Sheriff Di Emidio PF v Kevin R Hutcheon SCS 2014-110800 Ex proprio motu; Sheriff personally known to a witness
18/03/2015 Lerwick Sheriff Court (Criminal) Sheriff Mann PF v William McCover Ler-2015/000142 Ex proprio motu; Circumstance may give rise to a suggestion of bias.
16/04/2015 Edinburgh Sheriff Court (Civil) Sheriff Arthurson QC David H Kidd v Ronald G Clancy QC SC74/15 Ex proprio motu; Personally known to a party of the a ct i on
12/05/2015 Court of Session (Civil) Lord Boyd of Duncansby K v L* Defender; Senator was Lord Advocate when a successful prosecution was brought against one of the respondents.
14/05/2015 Court of Session (Civil) Lord Brailsford M v N* Defender; Senator previously involved in this case.
14/05/2015 Edinburgh Sheriff Court (Civil) Sheriff McColl David H Kidd v Ronald G Clancy QC SC74/15 Ex proprio motu; Sheriff personally known to a party of the action
27/05/2015 Edinburgh Sheriff Court (Civil) Sheriff F Crowe CEC v James McMillan SD738/14 Ex proprio motu; Sheriff had previously deal with a case in which the defender was a witness
29/05/2015 Glasgow Sheriff Court (FAI) Sheriff Principal Scott QC FAI – Glasgow Bin Lorry Ex proprio motu; Sheriff personally known to one of the deceased
04/06/2015 Court of Session (Civil) Lord Glennie Marshall Ronald v Duke of Buccleugh Ex proprio motu; Senator is an acquaintance of a party to the action
04/06/2015 Court of Session (Civil) Lord Burns Marshall Ronald v Duke of Buccleugh Ex proprio motu; Senator previously acted as defence counsel in a criminal trial involving the pursuer
24/07/2015 Edinburgh Sheriff Court (Criminal) Sheriff K M Maciver PF v James McKinstry Ex proprio motu; Sheriff personally known to a party in the case
11/08/2015 Banff Sheriff Court (Criminal) Sheriff Mann PF v James J Duguid SCS/2015-086256 Ex proprio motu; Sheriff personally known to a party of the action, having previously acted on behalf of the family while in private practice
21/08/2015 Edinburgh Sheriff Court (Civil) Sheriff Mackie GE Money Secured Loans Limited v Kenneth More & Shirely More B64/15 Ex proprio motu; Sheriff in dispute with pursuer
28/08/2015 Dundee Sheriff Court (Criminal) Sheriff Murray PF v Peter Whyte and Helen Williams SCS-2015/088655 Ex proprio motu; Sheriff personally known to a witness
03/09/2015 Dumbarton Sheriff Court (Civil) Sheriff Turnbull O v P* Ex proprio motu; Sheriff had previously acted for client in a dispute against the pursuer
04/09/2015 Edinburgh Sheriff Court (Civil) Sheriff Mackie GE Money Home Lending Ltd v Susan Glancy B1078/15 Ex proprio motu; Sheriff involved in a dispute against a party to the action
15/09/2015 Aberdeen Sheriff Court (Criminal) Sheriff Stirling PF v Graham Gordon SCS/2015008686 D efender; Sheriff previously considered and refused i s s u e s wh i ch the accused wished to revisit
01/10/2015 Aberdeen Sheriff Court (Criminal) Sheriff W. J. Taylor PF v Stanley Lawrence SCS/2014098082 Ex proprio motu; Sheriff was privy to certain i nfo rmati o n a b o ut the accused’s credibility
08/10/2015 Lanark Sheriff Court (Criminal) Sheriff Stewart PF v Laura Harrower LAN2015-000186 Ex proprio motu; Accused made complaints against the Sheriff and staff
12/10/2015 Court of Session (Civil) Lady Clark of Calton Rehab Abdel-Rahman for Judicial Review P833/11 Ex proprio motu; Senator an acquaintance of a party to the action
20/10/2015 Glasgow Sheriff Court (Criminal) Sheriff Crozier HMA v Gilmour and Dean SCS-2015/103172 Ex p ropri o motu; S h eriff personally known to a director of the accused’s company
20/10/2015 Inverness Sheriff Court (Civil) Sheriff Sutherland Church street investments v Julie Doughty SA296-15 Ex proprio motu; Sheriff personally known to a party of the action
12/11/2015 Court of Session (Civil) Lord Malcolm MacRoberts LLP v McCrindle Group Ltd CA133/12 Ex proprio motu; Senator acted as Senior Counsel for the defenders in a related action
18/11/2015 Court of Session (Civil) Lord Boyd of Duncansby Petition: Hunt for Judicial Review Ex proprio motu; Relative of Senator involved in the action
26/11/2015 Inverness Sheriff Court (Civil) Sheriff G Fleetwood The MacKenzie Law Practice v John Holden SA163/15 Ex proprio motu; Personally known to a party of the action
27/11/2015 Court of Session (Civil) Lady Paton William Beggs v Scottish Information Commissioner XA105/14 Ex proprio motu after intimation to parties and a negative response from the Pursuer; Senator was on the bench for an appeal against conviction by the Pursuer
09/12/2015 Wick Sheriff Court (Criminal) Sheriff Berry PF v Martin McGowan 2015/00289 Ex proprio motu; Complainer personally known to the Sheriff
22/12/2015 Lanark Sheriff Court (Civil) Sheriff Stewart Q v R[1] [2] Ex proprio motu; Sheriff personally known to both parties of the action
 

Judicial Recusals 2016

DATE COURT & TYPE OF ACTION JUDGE CASE NAME & REF MOTION BY & REASON
26/01/2016 Court of Session (Civil) Lord Uist Andrew MacLeod v Graham Douglas & another A356/14 Pursuer; Senator dealt with same issue and same witnesses in a case being appealed
27/01/2016 Dumbarton Sheriff Court Sheriff Gallacher Daniel Macaulay v Robert Whitton & Margaret Whitton SA653/15 **Ex proprio motu; Sheriff involved in previous proceedings
09/02/2016 Elgin Sheriff Court (Criminal) Sheriff Pasportnikov PF v Katie & Andrew O’Hare

SCS/2015-137949

Ex proprio motu; Sheriff previously presided over related case
10/02/2016 Elgin Sheriff Court (Criminal) Sheriff Pasportnikov PF v Scott Bate SCS2015- 137058 Ex proprio motu; Sheriff previously presided over a recent criminal and civil case.
18/03/2016 Edinburgh Sheriff Court (Civil) Sheriff Ross S v T* Ex proprio motu; Sheriff previously presided over criminal matter involving appellant
18/03/2016 Aberdeen Sheriff Court (Civil) Sheriff A Stirling Dandara Ltd

AB15009178/SCS – 2015 – 1552552

Ex proprio motu; Sheriff previously presided over civil matter involving accused
14/04/2016 Edinburgh Sheriff Court (Criminal) Sheriff Braid PF v John Wyse SCS/2016-041402 Ex proprio motu; Sheriff previously dealt with the accused in a previous case.
25/04/2016 Ayr Sheriff Court (Civil) Sheriff Montgomery Thomas Port and Catherine Port v Steven Easton and Easton Kitchens and Bathrooms A147/15 Joint motion; Sheriff previously acted for the defender as a solicitor
03/05/2016 Lanark Sheriff Court (Criminal) Sheriff N C Stewart PF v Alexander Law Law/2015-000463 Ex proprio motu; Complainer previously represented by Sheriff’s husband
20/05/2016 Court of Session (Civil) Lord Bracadale Donal Nolan v Advance Construction (Scotland) Ltd CA132/11 On the pursuer’s motion in relation to the judge’s previous decision to refuse the pursuer’s appeal at a procedural hearing
23/05/2016 Forfar Sheriff Court (Criminal) Sheriff P Di Emidio HMA v Alexander Sturrock SCS 2016-044654 Ex p ro p rio motu; Sheriff previously granted a search warra n t a n d i s be i n g ch a l l e n ged by the accused
13/06/2016 Glasgow Sheriff Court (Civil) Sheriff S Reid Norna Crabbe v Alexander Reid & Others A8111/07 P ursuer; Personally known to a witness
22/06/2016 Perth Sheriff Court (Civil) Sheriff David Clapham Commercial Legal Centre LLP v Cargo Bar Ltd SA5616 Ex proprio motu; Pursuer known to Sheriff
09/08/2016 Dunoon Sheriff Court (Civil) Sheriff Thomas Ward Derke Rodger v Capercaille Books Limited A14/15 Ex proprio motu; Sheriff personally known to a witness
19/08/2016 Greenock Sheriff Court (Criminal) Sheriff Thomas Ward PF Greenock v Henry Kerr and Angela Deeney GRE-2016

000548/GR16001177

Ex proprio motu; Accused known to Sheriff from Sheriff’s time in private practice
23/08/2016 Aberdeen Sheriff Court (Criminal) Sheriff Alison Stirling PF v Dandara LTD SCS2015155252- SCS2015101495 Ex proprio motu; Sheriff Stirling found the accused’s company liable in a civil matter
13/09/2016 Court of Session (Civil) Lord Pentland William Russell & others v John Morre and others A77/16 Joint motion; Senator previously acted for the first named defender
25/10/2016 Court of Session (Civil) Lord Brailsford HMA to appt admin re Mohammond Younas P1442/15 Appellant; A close relative is employed by one of the parties involved in the case
10/11/2016 Kilmarnock Sheriff Court (Criminal) Sheriff Foran PF v Stewart Daly KIL-2016-000635 Ex proprio motu; Sheriff personally known to a witness
17/11/2016 Dumfries Sheriff Court Sheriff G Jamieson Ronald Adams v Ronald Bell Dum-A62/16 Defender; Sheriff presided over a related civil proof in another case in which parties were witnesses.
18/11/2016 Court of Session (Civil) Lord Glennie Adebayo Aina for Leave to appeal a Decision of the Upper Tribunal XA99/16 Ex proprio motu; Earlier decision on a related issue might reasonable be though to influence any decision in the present case
30/11/2016 Perth Sheriff Court (Civil) Sheriff R McFarlane S Koronka

(Manufacturing) Ltd v Musgrave Generators Ltd A103/16

Ex proprio motu; Sheriff acted for the pursuers when p ractising as a solicitor
 

Judicial Recusals 2017

DATE COURT & TYPE OF ACTION JUDGE CASE NAME & REF MOTION BY & REASON
30/01/17 Edinburgh Sheriff Court (criminal) Sheriff Crowe Robert Wylie (EDI 2016 012008) **Ex proprio motu; Sheriff previously presided over criminal matter involving accused, which might reasonably be thought to influence any decision in the present case
13/02/17 Portree Sheriff Court (civil) Sheriff Taylor QC T v U[3] Ex proprio motu; Sheriff previously dealt with a criminal case involving parties
23/02/17 Inverness Sheriff Court (civil) Sheriff Fleetwood Ashwin Bantwal v Vrishali Shenoy Ex proprio motu; Sheriff presided over a jury trial involving parties
29/03/17 Perth Sheriff Court (civil) Sheriff Wade QC Drysdale Motorcycles v Derek Annand & Edwin McLaren (SE9/15) Ex proprio motu; Sheriff, in her previous role as advocate depute, was heavily involved in preparing the prosecution of one of the parties in the action
06/04/17 Kilmarnock Sheriff Court (civil) Sheriff Foran Lynsey Henderson v NHS Ayrshire & Arran Health Board

(KIL-PD55-14)

Pursuer’s motion granted; A witness was a former client of the Sheriff in previous role in private practice
04/05/17 Elgin Sheriff Court (criminal) Sheriff

Pasportnikov

PF Elgin v Douglas Welsh (ELG2017-000441) Ex proprio motu; Sheriff had previous knowledge of the parties through a Children’s Hearing matter
16/05/17 Banff Sheriff Court (criminal) Sheriff Mann PF Banff v Kate Law (x2) (BAN-2016-172) (BA16000365) Ex proprio motu; Sheriff personally known to relatives of the accused
12/06/17 Glasgow Sheriff Court (civil) Sheriff Platt Lucy Bruce v Andrew Bruce (GLW-F619-14) Ex proprio motu; Sheriff personally known to a witness
04/08/17 Forfar Sheriff Court (civil) Sheriff Murray Dundee Joinery Limited v Mike Hall (FFR-SG157-17) Defender’s motion granted; Sheriff had acted on behalf of the Pursuer in a civil action against the prospective Lay Representative as a Defender prior to him being appointed as a Sheriff
14/08/17 Elgin Sheriff Court (civil) Sheriff Pasportnikov Ann Hawksley v Gordonstoun Schools Limited (ELG-A80-16) Ex proprio motu; Sheriff has previous knowledge of the parties
23/08/17 Kilmarnock Sheriff Court (civil) Sheriff McFarlane V v W* Ex proprio motu; Sheriff has previous involvement with the parties
05/09/17 Edinburgh Sheriff Court (Civil) Sheriff Tait W v X* Ex proprio motu; The outcome of previous proceedings involving one of the parties might reasonably be thought to influence any decision in the present case
10/10/17 Alloa Sheriff Court (Children’s Hearing) Sheriff Mackie Y v Z* Ex proprio motu; Appeal arises as a direct consequence of a decision of the same Sheriff
18/10/17 Aberdeen Sheriff Court (criminal) Sheriff McLaughlin Bosede Obe Oghughu (SCS/21017-080483) Ex proprio motu; Sheriff previously presided over a trial involving the same accused and same witnesses.
23/10/17 Dumbarton Sheriff Court (civil) Sheriff Pender Promontoria v Colin & David Wilson Ex proprio motu; Personally known to a party in the action
30/10/17 Wick Sheriff Court (criminal) Sheriff Berry Robert John Sutherland Ex proprio motu; Family personally known to Sheriff
14/12/17 Dundee Sheriff Court (criminal) Sheriff Way HMA v Megan Sandeman (DUN2017-002839) Defence motion granted; Written material sent to the court for the Sheriff’s attention, also enclosed in a victim impact statement provided by the Crown, may reasonably have impugned the Sheriff’s impartiality
19/12/17 Wick Sheriff Court (criminal) Sheriff Berry PF Wick v Ian Stuart Sinclair Ex proprio motu; Sheriff personally known to a witness
*Parties anonymised due to sensitive nature of case **Of the judge’s own accord
DATE NAME OF JUDGE (AND COURT/TRIBUNAL) CASE NAME (AND/OR REF) MOTION BY & REASON
8/1/18 Sheriff Montgomery

(Ayr Sheriff Court)

James McColm v Meiqin McColm (F138/16) **Ex proprio motu; Knowledge of pursuer’s family background
19/1/18 Sheriff Fleetwood

(Inverness Sheriff Court)

Ashwin Bantwal v Vrishali Shenoy (INV-SM18-17) Ex proprio motu; Sheriff previously recused himself in another case involving the parties, having earlier presided over a jury trial involving parties
1/2/18 Lord Justice Clerk

(Court of Session)

Petition to the Nobile Officium by Derek Cooney (P115/17) Petitioner’s motion refused; no valid objection stated
6/2/18 Moira Clark

(Mental Health Tribunal for Scotland)

8212/SO63* Ex proprio motu;Personal conflict of interest
12/2/18 Sheriff A Brown

(Dundee Sheriff Court)

HMA v M Islam and S Smekramuddin (DUN2017-4074) Ex proprio motu;Witness known to Sheriff
23/2/18 Dr Ross Hamilton

(Mental Health Tribunal for Scotland)

8709/S063* Ex proprio motu; Patient known to the Medical Member, having treated a relative
27/2/18 Graham Harding

(Housing and Property Chamber)

RP/18/0148 Ex proprio motu; Party is a client of the tribunal member’s firm
6/3/18 Dr Ross Hamilton

(Mental Health Tribunal for Scotland)

7987/S1012b* Ex proprio motu; Previously provided second opinion on same patient
15/2/18 Linda Reid

(Housing and Property Chamber)

EV/17/0480 Ex proprio motu; Potential conflict of interest as the tribunal member has a professional relationship with certain partners and associates of the agents for one of the parties
20/2/18 Nicola Weir

(Housing and Property Chamber)

RP/18/0150 Ex proprio motu; One of the parties is the tribunal member’s family solicitor
28/2/18 Ian Campbell Matson

(Mental Health Tribunal for Scotland)

N/A Ex proprio motu; Work as locum at same hospital
7/3/18 Andrew Upton

(Housing and Property Chamber)

EV/18/0250* and CV/18/0251* Ex proprio motu; The tribunal member’s firm acts for the parent company of one of the parties
13/3/18 Dr James Deans

(Mental Health Tribunal for Scotland)

9142/S095* Ex proprio motu; Previously treated patient on compulsory basis
21/3/18 Sheriff Principal Lewis

(Sheriff Appeal Court)

Gabriel Politakis v RBS & Others Ex proprio motu; Previously presided in appeal involving appellant
23/3/18 Sheriff A Anwar

(Glasgow Sheriff Court)

GLW-F417-13 Ex proprio motu; Sheriff personally known to a witness
3/4/18 Graham Harding

(Housing and Property Chamber)

PF/18/0233 Ex proprio motu; conflict of interest
9/4/18 Mark Andrew

(Housing and Property Chamber)

RP/18/0162 Ex proprio motu; Tribunal member known to tenants involved in the case
9/4/18 Sheriff Fleetwood

(Inverness Sheriff Court)

PF v Jade Brown (INV 2017-1048) Joint motion granted; Sheriff was a longstanding agent of a key witness
17/4/18 Gillian Buchanan (Housing and Property Chamber) RP/16/0210 Ex proprio motu; Respondent has conmnection to member’s firm
2/4/18 Lady Paton

(Court of Session)

XA88/16 Motion by party litigant refused; no good reason for recusal
TBC Patricia Ann Pryce

(Housing and Property Chamber)

RP/16/0210 Ex proprio motu; Conflict
25/4/18 Gillian Buchanan

(Housing and Property Chamber)

RP/18/0602 Ex proprio motu; Previously acted for landlord
27/4/18 Graham Harding

(Housing and Property Chamber)

RT/18/0586 Ex proprio motu; One of the parties a client of the firm the applicant works for
27/4/18 Gillian Buchanan

(Housing and Property Chamber)

RT/18/0586 Ex proprio motu; Respondent known to applicant as client of Member’s firm
3/4/18 Sheriff Caldwell

(Falkirk Sheriff Court)

SCS/2018-035424 Sheriff heard evidence in a trial with same accused and witnesses
11/5/18 David Preston

(Housing and Property Chamber)

PF/17/0315 Ex proprio motu; factor known to applicant
11/5/18 Sheriff Fleetwood

(Inverness Sheriff Court)

A v B* Respondent’s motion granted; The sheriff, having previously made a Permancence Order in respect of the child, declined jurisdiction to hear the adoption proof
14/5/18 Ewan Miller

(Housing and Property) Chamber

CV/18/0981 Ex proprio motu; Tribunal member’s firm acts for on eof the parties
14/5/18 Susan Napier

(Housing and Property Chamber)

PF/18/0240 Ex proprio motu; Tribunal member’s worked for the housing association party when the development concerned was built
23/5/18 Elizabeth Currie

(Housing and Property Chamber)

CV/18/0599 Ex proprio motu; Tribunal member works for the local authority and is responsible for landlord registration
23/5/18 Jacqui Taylor

(Housing and Property Chamber)

EV/18/1075 and  CV/18/1077 Ex proprio motu; Tribunal member’s firm has acted for one of the parties
24/5/18 Jim Bauld

(Housing and Property Chember)

RP/18/0961 Ex proprio motu; Tribunal member’s firm instructed by one the parties
29/5/18 Andrew Cowan

(Housing and Property Chember)

CV/18/1130 and EV/18/1127 Ex proprio motu; Tribunal member’s firm acts for the applicant
29/5/18 Jim Bauld

(Housing and Property Chamber)

PF/18/0571 Ex proprio motu; Tribunal member’s firm acts for the landlord
4/6/18 Jim Bauld

(Housing and Property Chamber)

LM/18/1073 Ex proprio motu; Tribunal member’s firm acts for factor
5/6/18 Rory Cowan

(Housing and Property Chamber)

EV/18/1078 Ex proprio motu; Tribunal member previously dealt with one of the parties
12/6/18 Sheriff Cook

(Edinburgh Sheriff Court)

PF v Josh Harkness Defence motion granted; Sheriff had presided over a trial involving same accused and complainer
11/7/18 Lord Brailsford

(Court of Session)

Margaret Paterson v SCCR  (P376/17) Ex proprio motu; Lord Brailsford was one of a three-judge panel who had refused the petitioner leave to appeal the criminal conviction at second sift. The reason for refusing leave was germaine to the challenge raised in the judicial review.
31/7/18 Helen Miller

(Additional Support Needs Tribunal)

AR/18/0006 Case indirectly involves the school attended by tribunal member’s son
27/7/18 Sheriff Ward

(Dunoon Sheriff Court)

PF v Gavin Murphy Defence motion refused; Sheriff previously dealt with a children’s social work referral in relation to the accused where the complainers were witnesses
2/8/18 Andrew Cowan

(Housing and Property Chamber)

PR/18/1159 Tribunal member’s firm acted for the landlord’s agents in separate matters
14/8/18 Andrew Cowan

(Housing and Property Chamber)

RA/18/1621 Potential conflic of interest
19/9/18 Sheriff Fleming

(Glasgow Sheriff Court)

National Westminster Bank Plc v Morag Horsey (GLW-B885-18) Ex proprio motu; prior professional conflict
19/9/18 Sheriff Hamilton QC

(Dumbarton Sheriff Court)

DBN-SG155-18 Amir Smoli v John Currie Ex proprio motu; Sheriff knows the pursuer
21/9/18 Carolyn Hirst

(Housing and Property Chamber)

EV/18/1740 Ex proprio motu; Tribunal member has a conflict of interest, having worked as an independent consultant for one of the parties
28/9/18 Sheriff Dickson

(Tain Sheriff Court)

TAI-F43-13 Ex proprio motu; The Sheriff has knowledge of one of the parties in the conext of criminal proceedings
12/10/18 Alison Kelly

(Housing and Property Chamber)

CV/18/1659 and PR/18/1408 Ex proprio motu; Tribnual member knows the letting agent who is acting for the applicant
13/12/18 Temporary Judge Norman Ritchie QC

(Glasgow High Court)

HMA v Craig Tonnar (IND 2018/1312 Ex proprio motu; Material placed before the court may reasonably have impugned the judge’s decision on sentence.
13/12/18 Sheriff Berry

(Wick Sheriff Court)

PF v William Fernie Ex proprio motu; Accused is well known to the Sheriff
30/1/19 Suzanne Sinclair

(Mental Health Tribunal for Scotland)

08500/S063 Ex proprio motu; Psychiatrist who completed a medical report for a CTO application is the Tribunal member’s Doctor.
4/2/19 Suzanne Sinclair

(Mental Health Tribunal for Scotland)

08622/S050 Ex proprio motu; Appeal against a Short Term Detention Order made by a Doctor who was formerly the Tribunal member’s Doctor
6/2/19 Lady Wise

(Court of Session)

AD10/18 Ex proprio motu; The Lord Ordinary having heard Counsel at diet of proof that there was no opposition to the granting of the Petition and the natural parents were consenting, indicated that she was satisfied on the merits of the Petition. Subsequently however, the natural parents withdrew said consent and the matter required to proceed to proof. The Lord Ordinary indicated that as she had stated her view on the merits of the case she was not now in a position to hear the case.
8/2/19 Lord Bannatyne

(Court of Session)

Agilisys Ltd

v

CGI IT UK Ltd

(CA 55/17)

Defender’s motion granted; The Lord Ordinary, having made findings in respect of the credibility and reliability of some of the defender’s witnesses in the first proof, and being mindful of a real possibility of the perception of bias arising therefrom, recused himself from hearing the second proof, at which some of the same witnesses would again give evidence.
18/2/19 Sheriff Summers

(Aberdeen Sheriff

Court)

Blair Nimmo

v

Richard Dennis

(SQ60-18)

Ex proprio motu; Sheriff knows parties involved in the case
27/2/19 Sheriff Anwar

(Glasgow Sheriff

Court)

David Grier

v

Chief Constable,

Police Scotland

Pursuer’s motion granted; The sheriff, having previously intimated to parties that recusal may be necessary, declined jurisdiction, given that another sheriff at Glasgow was listed among the potential witnesses.
5/3/19 Rory Cowan

(Housing and Property Chamber)

EV/18/3486

and

CV/18/3487

Ex proprio motu; case involves a former client of the Tribunal member.
7/3/19 Suzanne Sinclair

(Mental Health Tribunal for Scotland)

09471/S063 Ex proprio motu; Doctor who completed a medical report for a CTO application is the Tribunal member’s Doctor.
12/3/19 Simone Sweeney

(Housing and Property Chamber)

PF/18/2240 Ex proprio motu; Tribunal member is an employee of one of the parties
19/3/19 Jim Bauld

(Housing and Property Chamber)

RP/19/0110 Ex proprio motu; Tribunal member is an employee of the fim which acts for the letting agent party
20/3/19 Helen Forbes

(Housing and Property Chamber)

CV/19/0143 Ex proprio motu; Legal Member acts for the appplicant’s representative
27/3/19 Patricia Anne Pryce

(Housing and Property Chamber)

FTS/HPC/CV/19/0249 Member has conflict with party
2/4/19 Sheriff Thomas Ward

Dunoon Sheriff Court

John & Joanne Ingham v Damien & Sheila Brolly Sheriff Ward has heard evidence in a previous case in relation to the same parties, involving the same or similar issues.
4/4/19 Rory Cowan

(Housing and Property Chamber)

RP/19/0381 Ex proprio motu; Tribunal member is employed by the Respondent representative
25/4/19 Andrew Cowan

(Housing and Property Chamber)

CV/19/0602 Ex proprio motu; Legal member has previously acted for the applicant
29/4/19 Sheriff Fleetwood

Inverness Sheriff Court

Caroline Brown

v Strathearn Stabling

SG2/19

Ex proprio motu; A person known to the sheriff has a financial interest in the outcome of the case

 

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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

MSPs to consider judicial interests call. A PETITION calling for the creation of a Register of Judges’ Interests in Scotland – which is now in it’s SEVENTH year is to be considered by the Scottish Parliament’s Justice Committee on Tuesday 5 February 2019.

The latest consideration of Petition PE1458: Register of Interests for members of Scotland’s judiciary comes after members of the Justice Committee initially heard the petition in late September 2018 – with several MSPs supporting the view the petition should be taken forward.

During the Committee’s meeting, John Finnie MSP of the Scottish Greens said: “Future generations will be surprised that we do not have such a register already.”

Daniel Johnson MSP (Scottish Labour) said: “We all need to be mindful that we have a legal duty to uphold the independence of the judiciary, but transparency enhances independence. I very much support the comments that colleagues have made. We should take the petition forward.”

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.

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.

The move to create a register of judicial interests enjoys cross party support, backing in the media, and crucial support from two of Scotland’s Judicial Complaints Reviewers – including Moi Ali

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee in a hard hitting evidence session during September 2013,and gave full sypport to 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.

Video footage of the Scottish Parliament’s Justice Committee’s first consideration of the judciial register petition in September 2018 can be viewed here:

Register of Judicial Interests – Justice Committee Scottish Parliament 25 September 2018

Official Report: Judiciary (Register of Interests) (PE1458)

Margaret Mitchell MSP (Scottish Conservatives) (Convener) : Under item 4, the committee will consider two petitions. I refer members to paper 4, which is a note by the clerk, and paper 5, which is a private paper. The committee is asked to consider and agree what action, if any, it wishes to take in relation to each petition. Possible options are outlined in paragraph 5 of paper 4. I remind members that if they wish to keep a petition open, they should indicate how they would like the committee to take it forward. If they wish to close a petition, they should give reasons. We will consider each petition in the order in which they appear on the agenda.

This is the first time that the committee has considered PE1458. The petition calls on the Scottish Parliament to urge the Scottish Government to introduce a register of pecuniary interests of judges bill, or amend existing legislation, to require all members of the judiciary in Scotland to submit their interests and hospitality received to a publicly available register of interests. Do members have any comments or questions?

John Finnie (Scottish Green Party):  I seem to have mislaid the paper, but from memory there were a number of recommendations around requiring further information. I would support that approach. Future generations will be surprised that we do not have such a register already. We need to be best informed, so I suggest that we get that additional information and consider the petition again.

Rona Mackay (Scottish National Party) :  I agree with my colleague, John Finnie. The Public Petitions Committee believes that a register is not unworkable and recommended it. As John Finnie said, we need to explore the petition further and get as much information as we can so that we can take it forward.

Daniel Johnson (Scottish Labour) : We all need to be mindful that we have a legal duty to uphold the independence of the judiciary, but transparency enhances independence. I very much support the comments that colleagues have made. We should take the petition forward. It makes an awful lot of sense to do exploratory work.

The Convener: Is it the committee’s wish, therefore, that we keep the petition open and seek further information?

Members indicated agreement.

Since the Justice Committee considered the petition last September, there have been explosive revelations in the media in relation to Scottish and UK judges serving in Gulf States regimes and dictatorships, where the same judges are required to swear additional judicial oaths on top of the judicial oaths already sworn in Scotland and the UK.

An exclusive investigation by Investigative Journalist Russell Findlay revealed Scottish judges were serving in Abu Dhabi & UAE courts while serious Human Rights abuses were taking place against British citizens in the same countries.

The report reveals TOP judges are accused of selling the reputation of Scottish justice by working for Middle East countries with toxic human rights records.

Two judges are on the payroll of the United Arab Emirates (UAE) where domestic violence against women is legal and where regime critics are tortured and jailed without trial.

The most senior is Lord Hope of Craighead — Scotland’s former top judge, a member of the House of Lords and ex-deputy president of the UK Supreme Court.

Our investigation found that Lord McGhie has been registered to sit in the UAE for the past two years while he was also dispensing justice at the Court of Session in Edinburgh.

The investigation also reveals how Scottish and UK judges are lured to the UAE, Abu Dhabi, and Qatar with big money salaries are available here: JUDGES FOR SALE: Special investigation into top lawmen being lured with big money jobs in Qatar and the UAE and here: Scottish judges slammed for being on payroll of oppressive regimes abroad

Two weeks ago, the petitioner was contacted and requested to provide a submission for the Justice Committee’s consideration of the petition.

The submission to the Justice Committee took the following form:

Submission re Petition PE1458 – A Register of Interests for Members of Scotland’s Judiciary

In response to the Justice Committee’s initial consideration of this petition, I agree with the decision by members to seek further and additional information to take the petition forward and create a Register of Judicial Interests for members of Scotland’s Judiciary.

I would also like to submit further developments since members last considered the petition, where reports in the media have revealed senior members of Scotland’s judiciary serving in overseas courts, particularly in the Gulf States such as UAE, Abu Dhabi, Qatar, and others.

It should be of interest to members that in the case of Lord McGhie, who is currently listed on the Judiciary of Scotland’s website as Chairman of the Scottish Land Court and President of the Lands Tribunal for Scotland, the biography of Lord McGhie’s interests does not mention the fact he also serves on the Abu Dhabi Global Market Courts.

Of note, the ADGM Court does list Lord McGhie’s service in Scotland as a member of the judiciary, however the Judiciary of Scotland omit all details of Lord McGhie’s overseas judicial service, as can be noted from the two separate judicial biographies forwarded to the Justice Committee,

An investigation by the Sunday Mail newspaper revealed Lord McGhie has been registered to sit in the UAE for the past two years while he was also dispensing justice at the Court of Session in Edinburgh – yet given there is clearly no mention of his service abroad, and the fact Lord McGhie will be subject to a judicial oath in the UAE as well as adhere to his judicial oath in Scotland, clearly a register of Judicial Interests would require information such as this to be published, while currently, the Judicial Office for Scotland does not publish such information.

It would be useful for the Justice Committee to make enquiries as to the two separate judicial oaths and terms of service which Lord McGhie is subject to, here in Scotland, and in the United Arab Emirates, as clearly, such information should be present in a publicly available Register of Judicial Interests.

The dual service of Scottish judges in overseas jurisdictions, including the Gulf States should be further examined, in the light of the published reports and significant public interest in the cases of lawyer David Haigh, where a Scottish Sheriff accepted Mr Haigh’s account of Human Rights abuses, and torture in Dubai, and the case of Matthew Hedges – held for five months without explanation, then charged with, and found guilty on allegations of espionage.

In recent enquiries with the Judicial Office for Scotland, I have noted there are no recusals by Justices of the Peace since the guidance on recusals was extended to JPs as of January 2018.

However, since Tribunal members interests were added to the recusals register, recusals jumped from around 20 a year to 49 in the past year.

The lack of recusals for Justices of the Peace, who number around 450 and comprise the highest proportion in terms of numbers of Scotland’s judiciary, are worthy of scrutiny, particularly as the Scottish Justices Association have expressed negative sentiments towards reform and transparency in the past, notably in the case of media reports in relation to overseas trips by Justices of the Peace, which are covered in a Sunday Herald investigation forwarded with this submission.

As part of the further information which the Justice Committee may wish to seek on judicial conflicts of interest, I would suggest making enquiries to the Judicial Office on how the guidance on recusals is being implemented, and how far down the line it goes, for instance, in selection and subsequent training of judicial office holders prior to their service on the bench and how such guidance plays a role in every day court proceedings.

The Register of Recusals is available for inspection online http://www.scotland-judiciary.org.uk/68/0/Judicial-Recusals

I also suggest members study the Norway model of a register of judicial interests https://www.domstol.no/en/The-Courts-of-Justice/The-ordinary-courts-of-Norway/Dommeres-sidegjoremal/ and how such a model, with enhancements could be created for Scotland’s judiciary.

From the report of the Justice Committee’s initial consideration of the petition, I agree with the support expressed by members for progressing the petition from Rona Mackay, Daniel Johnson, and John Finnie MSP who stated “Future generations will be surprised that we do not have such a register already.”

The Scottish Parliament, by way of the Public Petitions Committee, MSPs during the full debate in October 2014 and now the Justice Committee have amassed a level of information and submissions on this petition which should go forward in the public interest to create a Registrar of Judicial Interests – and apply the same level of transparency for members of the judiciary, which already exists for all other branches of the Executive and those in public life.

However, the above submission was initially rejected, by a Scottish Parliament clerk – who claimed there was no existing biography for Lord McGhie on the Judiciary of Scotland’s website, and that Lord McGhie was in-fact retired.

The clerk was challenged on his claims after journalists confirmed the existence of the biography for Lord McGhie remained on the Judicial Office website – and that Lord McGhie had in-fact sat as recently as 2018 on cases in the Court of Session, sitting alongside Lady Paton and Lord Drummond Young.

Journalist Peter Cherbi tweeted out the sequence of his findings on twitter, here: Twitter – Content of Judicial Service Bio of Lord McGhie questioned

The clerk, who has since been identified as Seán Wixted – did not reply to the petitioner’s information confirming the existence of the biography of Lord McGhie, nor was any response given as to why court opinions also show Lord McGhie sitting in court, despite the clerk’s claim the judge was retired.

A revised submission to the Scottish Parliament’s Justice Committee contained the following substitute paragraphs:

It would be useful for the Justice Committee to make enquiries in relation to members of Scotland’s judiciary who serve in overseas jurisdictions and details in relation to the two separate judicial oaths and terms of service which judges swear to, in jurisdictions such as the United Arab Emirates and here in Scotland, as clearly, such information should be present in a publicly available Register of Judicial Interests.

The dual service of Scottish judges in overseas jurisdictions, including the Gulf States should be further examined, in the light recent media coverage of the dual service of Scottish judges and significant public interest in such cases.

and added the following suggestion MSPs experienced in the petition should be asked for evidence:

Lastly, and noting the recommendations listed in papers for members consideration of this petition on Tuesday 5 February 2019, I would like to request the Justice Committee invite members of the Public Petitions Committee to give evidence to the Justice Committee on this petition, given the PPC’s six years of experience, dedication and exceptional work on this petition, which has accumulated significant evidence, testimony and backing from all sections of the community in favour of creating a Register of Judicial Interests for members of Scotland’s judiciary.

It was further noted in emails provided to the media the petitioner was not allowed to inform MSPs of the clerk’s demand the submission was edited at the request of the Committee’s own clerk, Mr Wixted.

Previously, on the Register of Judicial Interests Petition –

A video report of the Public Petitions Committee backing for the petition can be viewed online here: Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 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.

MSP at Holyrood have previously heard over sixty two submissions of evidence, during twenty one Committee hearings, and a private meeting between two MSPs and a top judge, and two private meetings since early December 2017 to decide a way forward on their six year investigation.

Cross party support for the Petition at the Scottish Parliament saw fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2018.

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.

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

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

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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JUDICIAL REGISTER: ‘Judges should register their interests’ says former Judicial Investigator – as Holyrood Justice Committee set to consider SIX YEARS of work, evidence and backing from MSPs & Public Petitions Committee

Scottish Parliament probe judicial interests & register proposal. A SIX YEAR Scottish Parliament probe into Petition PE1458: Register of Interests for members of Scotland’s judiciary which generated over sixty two submissions of evidence, twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate – is set to be looked at by Holyrood’s Justice Committee, tomorrow – Tuesday 25 September.

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.

The move to create a register of judicial interests enjoys cross party support from a full debate at Holryood in October 2014.

Now, members of the Scottish Parliament’s Justice Committee are set to look at the proposals, already backed by many MSPs and the Public Petitions Committee.

Recommendations for action by Justice Committee members – listed in papers for Tuesday’s meeting include the following options:

5. Once a petition has been referred to a subject Committee it is for the Committee to decide how, or if, it wishes to take the petition forward. Among options open to the Committee are to: Keep the petition open and write to the Scottish Government or other stakeholders seeking their views on what the petition is calling for, or views on further information to have emerged over the course of considering the petition; Keep the petition open and take oral evidence from the petitioner, from relevant stakeholders or from the Scottish Government; Keep the petition open and await the outcome of a specific piece of work, such as a consultation or piece of legislation before deciding what to do next; Close the petition on the grounds that the Scottish Government has made its position clear, or that the Scottish Government has made some or all of the changes requested by the petition, or that the Committee, after due consideration, has decided it does not support the petition;

The Committee may wish to consider what action, if any, it would like to take in  relation to the petition. Possible options are set out at paragraph 5 above. If this is an issue that the Committee would like to explore further, it may wish to consider writing to those listed at paragraph 9 to ask whether they had anything to add to their earlier contributions. It could also seek more information on the Norwegian model, and then obtain an updated briefing from SPICe.

Included also in the Committee papers are submissions from the Petitioner, and Moi Ali – Scotland’s first Judicial Complaints Reviewer – who gave evidence to the Public Petitions Committee in September 2013, supporting the petition’s calls for the creation of a register of judicial interests.

The submission from Moi Ali reads as follows:

This brief submission to the Justice Committee relates to its consideration of a proposal to implement a register of interests for the judiciary. I am writing as an ordinary citizen, but my submission is informed by my experience as Scotland’s first Judicial Complaints Reviewer (JCR).

In that previous role I gave evidence to the Petitions Committee in support of a register of interests.

Although now writing in a private capacity, I have served on public boards for nearly two decades and as a Board Member I have (rightly) been required to complete a register of interests for each role, to provide assurance to the public that my dealings are not motivated by money, family connections or friendships.

The Justice Committee members who will take the decision on a register of interests, as MSPs must publish their interests too.

It is time that the judiciary joined the rest of those in public life in taking this small, simple step to improve transparency and accountability, thereby enhancing their own reputation in the process.

I have long campaigned for greater transparency in public life, yet in my role as JCR I occasionally found the judiciary to be needlessly secretive.

I am not suggesting that there was anything to hide, but a failure to be transparent inevitably left the public with whom I dealt feeling suspicious.

I will not rehearse the arguments in favour of a register of interests: they are well known.

However, I would emphasise that although opposed by the judiciary, it is in their own interests as well as the public interest that there be a register of interests.

I would like to conclude by reiterating my respect for the judiciary and the essential work that they undertake. Judicial independence is vital to a democracy, but with independence goes accountability. A register of interests is a mechanism for enhancing accountability. Ms Moi Ali 18 September 2018

In March of this year, after lengthy deliberations & evidence,  the Scottish Parliament’s Public Petitions Committee backed the petition calling for the creation of a register of interests, and concluded the proposal to increase judicial transparency – should become law.

On Thursday, 22 March 2018, the Public Petitions Committee of the Scottish Parliament held it’s 25th hearing on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Members of the Committee concluded that such a register should be introduced into law – and cast aside arguments put forward by two top judges that such a register was “unworkable

Petitions Committee Convener Johann Lamont MSP (Scottish Labour) said: “In the course of our consideration of the petition, positive developments have occurred—most notably the introduction and further development of a register of judicial recusals. The register brings welcome transparency to instances where a judge may decide, or be requested, to decline to hear a particular case. “

“The committee particularly welcomes the recent agreement of the Lord President to expand the information that is captured in the register. However, the core action that was requested by the petition was the establishment of a register of financial interests.”

“We have given much thought to this request, hearing views both for and against such a register. Having taken those arguments into account, the committee has concluded that a register of financial interests is not unworkable, and it is the view of this committee that such a register should be introduced.”

Deputy Convener Angus MacDonald MSP (Scottish National Party) added: “This is another long-running petition, having been live since December 2012—for as long as I have been on the committee. It was originally based on a similar move in New Zealand, which was subsequently withdrawn.”

“Along with a wide range of back benchers from across the political spectrum, I spoke in favour of the introduction of a register of interests during a debate in the chamber in the previous session. It is clear to me that we need to ensure transparency and openness in public life as well as ensuring that people can have confidence in those holding public office. I believe that a register of interests along the lines of the system operating in Norway, which I have looked at, is the way to go. However, I am aware that the committee as a whole has not taken a view on that.”

“The petition has already secured a result, which you have referred to, with the introduction of a register of recusals, which was brought into effect in April 2014, directly as a result of this petition. You also referred to the fact that the current Lord President, Lord Carloway, has agreed to extend the scope of the register of recusals.”

“I would be keen for the Scottish Government and the Judicial Office for Scotland to do some further work on the introduction on the introduction of a register of financial interests. However, as you have suggested as possibly being the way forward, in the first instance we should refer the petition to the Justice Committee to allow it to move the issue forward.”

The Petitions Committee have since written to the Justice Secretary Michael Matheson, and Lord Carloway.

When responses are received, MSPs will consider further action.

Video footage and a transcript of the Public Petitions Committee hearing follows:

Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

Judiciary (Register of Interests) (PE1458):

The Convener:  The next petition, PE1458, calls for the introduction of a register of interests for members of Scotland’s judiciary. As members will recall, we have previously agreed to write to the Lord President and the Cabinet Secretary for Justice, and have considered a draft letter at previous meetings. The petition has received much consideration since it was lodged in 2012. I express my gratitude to the petitioner for raising the issue and to all those who have engaged in discussions on the issues that are raised in the petition, including the Lord President, Lord Carloway, and his predecessor, Lord Gill.

In the course of our consideration of the petition, positive developments have occurred—most notably the introduction and further development of a register of judicial recusals. The register brings welcome transparency to instances where a judge may decide, or be requested, to decline to hear a particular case. The committee particularly welcomes the recent agreement of the Lord President to expand the information that is captured in the register. However, the core action that was requested by the petition was the establishment of a register of financial interests. We have given much thought to this request, hearing views both for and against such a register. Having taken those arguments into account, the committee has concluded that a register of financial interests is not unworkable, and it is the view of this committee that such a register should be introduced.

In reaching that view, the committee is very clear that it does not consider there to be a basis for any suggestion of corruption in respect of Scotland’s judiciary or of inappropriate influences on judicial decision making. Rather, it is the view that we have reached, based on the principles of transparency and openness in public life. While that is the view of this committee, we also understand that the Lord President and the Scottish Government have indicated they do not support the introduction of a register.

Would it be appropriate for us to invite the Justice Committee to consider the petition in light of our recommendation? Would members be content to write to the Lord President and the Scottish Government setting out our view and to refer the petition to the Justice Committee for its consideration? Do members have any comments?

Angus MacDonald (Falkirk East) (SNP): This is another long-running petition, having been live since December 2012—for as long as I have been on the committee. It was originally based on a similar move in New Zealand, which was subsequently withdrawn. Along with a wide range of back benchers from across the political spectrum, I spoke in favour of the introduction of a register of interests during a debate in the chamber in the previous session. It is clear to me that we need to ensure transparency and openness in public life as well as ensuring that people can have confidence in those holding public office. I believe that a register of interests along the lines of the system operating in Norway, which I have looked at, is the way to go. However, I am aware that the committee as a whole has not taken a view on that.

The petition has already secured a result, which you have referred to, with the introduction of a register of recusals, which was brought into effect in April 2014, directly as a result of this petition. You also referred to the fact that the current Lord President, Lord Carloway, has agreed to extend the scope of the register of recusals.

I would be keen for the Scottish Government and the Judicial Office for Scotland to do some further work on the introduction on the introduction of a register of financial interests. However, as you have suggested as possibly being the way forward, in the first instance we should refer the petition to the Justice Committee to allow it to move the issue forward.

Rona Mackay: I broadly agree with what my colleague has said. That is a natural way forward for the petition. I do not think that we can take it any further, given the history that we have just heard. I think that it is sensible to send it to the Justice Committee for its consideration.

The Convener:  Do we agree to write to the Lord President and the Scottish Government setting out our view and to refer the petition to the Justice Committee for its consideration?

Members indicated agreement.

Decision: PE1458 by Peter Cherbi on Register of Interests for members of Scotland’s judiciary. The Committee agreed to write to the Lord President and the Scottish Government setting out its view that a register of interests should be introduced and to refer the petition to the Justice Committee, under Rule 15.6.2 of Standing Orders, for its consideration.

The judicial interests petition – filed at Holyrood in October 2012 and 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 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.

MSP at Holyrood have previously heard over sixty two submissions of evidence, during twenty one Committee hearings, and a private meeting between two MSPs and a top judge, and two private meetings since early December 2017 to decide a way forward on their six year investigation.

Cross party support for the Petition at the Scottish Parliament saw fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2018.

The move to create a register of judicial interests enjoys cross party support, is widely supported in the media and  in public debate as a result of media coverage.

The petition secured early support of Scotland’s Judicial Complaints Reviewer Moi Ali, and her successor – Gillian Thompson.

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, giving early backing to 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 supported  the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

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.

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

The letters sent by the Public Petitions Committee to Lord President Lord Carloway, and Justice Secretary Michael Matheson recommend the creation of a register of judicial interests:

Dear Lord Carloway,

Petition PE1458: Register of Interests for members of Scotland’s judiciary

Calling on the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

As you may be aware, the above petition was lodged in December 2012 and has been considered by the current Public Petitions Committee and its Session 4 predecessor. Over this period MSPs have taken on board the arguments for and against a register of interests and the nature of the interests that might be covered in such a register. This letter sets out the conclusions that the Public Petitions Committee has reached on the petition.

In setting out these conclusions, I would emphasise that the Committee absolutely recognises that an independent and well-functioning judiciary is, and must be, an essential part of our system of government.

I also make clear that the Committee’s consideration of the petition, and the views set out in this letter, reflect our viewpoint that there is no basis for any suggestion of corruption in respect of Scotland’s judiciary or of inappropriate influences on judicial decision making.

The Committee has reached its views based on the wider contemporary picture of transparency and openness in public life wherein preventing the perception of any undue influence is important in ensuring confidence in those holding public office.

Register of recusals

One of the welcome developments in the course of this petition has been the introduction of a register of recusals. The Committee notes that this register was brought into effect in April 2014 directly as a result of the petition and a meeting between the then Lord President, Lord Gill, and representatives of the Session 4 Public Petitions Committee. In recent discussions with the Committee, and the petitioner, you agreed to extend the scope of the register of recusals. As a result, the register will now ensure transparency about recusal across courts and tribunals in Scotland. The Committee very much welcomes these measures.

In doing so, we note that this addresses one of the arguments made against a register of financial interests – that it would not capture those instances where consideration of any potential conflict in a case was based on a social or personal connection that may not be known about prior to a case coming to court.

The Committee agrees that the practicalities are such that it would not be possible or proportionate to require advance registration of personal connection with parties that may at some point be relevant within a particular case. However, we do consider that public transparency of such connections is vital and the register of recusals is the tool that strikes an appropriate balance in this regard.

We would also observe that the value of collating information about recusals is that it enables analysis to be undertaken of the way the recusal systems operates and for this analysis to inform ongoing thinking about the administration of justice through the Scottish courts.

Register of financial interests

Turning now to the core question of a register of interests, the Committee’s most recent consideration of the petition focussed on seeking to understand and explore some of the arguments put forward against the introduction of such a register.

These arguments have included—

• a risk of online fraud due to retribution from dissatisfied litigants (which, it was argued, may have an inhibitory effect on the administration of justice if judges start to decline roles on public bodies such as the board of the Scottish Courts and Tribunals Service) and,

• the possibility of the existence of a register of interests having a damaging effect on recruitment.

Members do, of course, have an understanding of the practical operation of a register of interests given the duties that apply to elected members. However, in considering the arguments put forward, we have not considered the role of judges as analogous to the role of elected members or had in mind any particular model for a register of interests that might be appropriate for judges.

Instead, our consideration has been based on an understanding of the expectations that apply to all holders of public office, whether elected or unelected, in relation to disclosure of financial interests. As we noted above, such disclosures not only allow for demonstration that decision-making is not influenced by personal interests but also prevent the perception of the influence of interests on decision-making.

Having considered these arguments and the thinking behind them, the Committee has not been convinced that a register of interests is an unworkable idea and it is the view of the Committee that such a register should be introduced.

Recognising that the Scottish Government and the Judicial Office for Scotland have indicated that they do not support the introduction of a register, the Committee today agreed to refer the petition to the Justice Committee, inviting that Committee to consider the petition further, in light of our recommendation.

Yours sincerely: Johann Lamont MSP Convener

The National reported on the success of the six year petition calling for a register of judicial interests, in the following articles:

Judges register backed by MSPs to become law

Martin Hannan Journalist 23 March 2018

IT’S taken nearly six years and 25 hearings but as The National predicted yesterday, a register of interests for all Scottish judges is set to become law.

The petition for a register by legal issues campaigner Peter Cherbi will now go the Justice Committee at Holyrood with a recommendation that the register becomes law.

The current and previous Lord Presidents, Lord Carloway and Lord Gill respectively, both strongly opposed the register which they feel will make it difficult for judges to be recruited.

Committee chair Johann Lamont said: “The committee has concluded that a register of financial interests is not unworkable and it is the view of the committee that such a register should be introduced.”

She said the committee’s view had been reached with regard to “the principles of openness and transparency in public life”.

Having achieved his success after years of work, Peter Cherbi told The National: “I am delighted to hear the Public Petitions Committee support the creation of a register of interests for judges, and applaud their work on this petition.

“From filing the petition in 2012, being a part of the process to submit evidence, report on hearings, and observing witness evidence, I am very impressed that Holyrood followed this through from committee, to a full debate in the main chamber in October 2014, where the petition gathered overwhelming cross party support, to now, with the decision to recommend the creation of a register of judicial interests.

“Key evidence from Judicial Complaints Reviewer Moi Ali in September 2013 was, I believe, the turning point and a key moment where the proposal for register of judicial interests gathered steam.

“MSPs were able to hear for themselves from someone within the justice framework how a register of interests for judges would not only benefit transparency, but also bring back much needed public trust and respect to the justice system and our courts.

“My sincere thanks to MSPs Angus MacDonald, David Torrance, current Convener Johann Lamont, ex-convener David Stewart, Jackson Carlaw, particularly Alex Neil who asked key questions several times in the process, former MSPs Chic Brodie and John Wilson and all members of the Public Petitions Committee past and present who have given their considerable time, effort and input into this petition, have taken the time to study the evidence, and arrive at the conclusion transparency in the judiciary is a good thing, and not as Lord Carloway and Lord Gill claimed ‘unworkable’.”

This is a good day for the Scottish Parliament and for transparency.

The Sunday Mail print edition reported on the Petitions Committee backing for legislation to require judges to declare their interest, and also featured a report on Alex Neil MSP – who supports the judicial transparency proposals and is prepared to bring in a Members Bill to create a register of judges’ interests:

BATTLE TO BRING IN JUDGES’ REGISTER

Sunday Mail 25 March 2018

Ex-minister Alex Neil will defy Nicola Sturgeon with a bill forcing Scotland’s judges to declare their interests.

Holyrood’s petitions committee have asked the Government to legislate for a register which may include details of financial, professional and personal connections of judges, sheriffs and justices of the peace.

Sturgeon is expected to reject the committee’s recommendation. But Neil believes there is enough cross-party support to raise his own bill, in a rare act of SNP backbench rebellion.

He said: “If no bill is brought forward by the Government, I would intend to do so myself, as there is significant support from other MSPs.”

Former health secretary Neil backs the register after representing constituent Donal Nolan, who took Advance Construction to court over a land dispute.

It later emerged that judge Lord Malcolm sat on the case despite his lawyer son Ewen Campell acting for the construction firm.

Neil said: “If the committee decide to recommend a bill, it is absolutely necessary as I have seen from cases such as Nolan v Advance Construction where there were undeclared interests.”

The Scottish Sun print edition also reported on the Petition Committee’s backing for a register of judicial interests and Alex Neil MSP’s plan for a Member’s Bill:

JUDGE LIST IS BACKED

Scottish Sun 23 March 2018

MSPs defied Nicola Sturgeon yesterday by calling for judges to list their financial ties.

Holyrood’s cross-party Public Petitions Committee backed a register of interests for the judiciary.

Its convener Johann Lamont said the move was based on “principles of transparency and openness in public life”.

Top judge Lord Carloway claimed the register would hit recruitment and the Government has said it was “not needed”.

Last night Nats MSP Alex Neil warned if plans for the list are not backed he is “prepared to do it as a Member’s Bill”.

A further report in The National newspaper:

MSPs to call for judges’ register in Scotland after years-long campaign

Martin Hannan Journalist 22 March 2018

AFTER nearly six years and 25 sittings of evidence and debate on the petition to create a register of judges’ interests, The National has learned that the Holyrood Petitions Committee is set to recommend legislation to the Scottish Government.

The petition lodged by legal issues campaigner Peter Cherbi in 2012 called for a Register of Pecuniary Interests Bill and when it meets later today, the Petitions Committee will have a draft letter before it suggesting the Scottish Government brings in such a register.

Cherbi’s petition has been strongly supported by MSPs such as Alex Neil and equally strongly opposed by members of the judiciary led by the current and former Lord Presidents, Lords Carloway and Gill respectively, who said it could be harmful to judges and their recruitment.

Cherbi said last night: “Everyone apart from the judiciary, and apparently those with a desire on becoming a judge, gets the idea that judges should declare their interests in a register, just like everyone else in public positions.

“For the judiciary to have stalled this transparency proposal on their reasoning that judges should be given a pass from transparency just because they are judges does not fit in with modern life or expectations by the public of openness in government and the justice system.

“Two top judges have given evidence. Both adopted overwhelmingly aggressive positions to the idea that the same transparency which exists across public life, and which they are charged with enforcing in our courts, should be applied to them.

“Yet amidst their inferences that justice would shut down, judges could not be hired, and the world would stop turning, neither Lord Carloway nor Lord Gill could make a convincing case against creating a register of judicial interests.

“Prosecutors, police, court staff, even the legal aid board – all key parts of the justice system have registers of interest. Therefore there can be no exclusion from transparency for the most powerful members of the justice system – the judiciary itself.

“Who would have thought judges would have been so fearful of transparency and disclosing their own interests, that it would have taken six years for the Scottish Parliament to reach this stage of recommending legislation? Time now to take openness forward for our judiciary, which will ultimately help regain a measure of public confidence in the courts.

“This is a win win for Scotland. We as a team, petitioners, the media, Judicial Complaints Reviewers, those in our courts and even the legal profession who back this move – changed the judiciary’s expectations of openness and requirements of transparency.”

The video timeline of debate at the Scottish Parliament’s Public Petitions Committee from 2012 to 2018 on Petition PE1458:

Petition PE1458 Register of Interests for Scottish Judiciary Scottish Parliament 8 January 2013

The Committee decided to call for submissions on the petition from the Lord President, the Law Society of Scotland, Faculty of Advocates and Crown Office.

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament

Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to legislate to create a Register of Interests for Scotland’s judiciary was heard today 5 March 2013. The Committee decided to call for further evidence and also to invite the Lord President Lord Gill and others along to speak to MSPs and be questioned on the matter.

Petition 1458 Register of Interests for Scotland’s Judiciary Scottish Parliament 16 April 2013

 

A petition calling for a register of interests for Scotland’s judiciary has again been debated at the Scottish Parliament, where upon the Lord President Lord Gill’s refusal to attend the Petitions Committee to give evidence, the Petitions Committee decided to repeat its invitation to Lord Gill to attend, and also agreed to seek the views of the Judicial Appointments Board and the Judicial Complaints Reviewer.

Petition 1458 Register of Interests for Scottish Judiciary 25 June 2013 Scottish Parliament

Members of the PPC decided to invite Moi Ali, the Judicial Complaints Reviewer to give evidence and also to contact Dr Kennedy Graham MP of the New Zealand Parliament. Dr Graham currently has a bill before MPs in New Zealand calling for a Register of Pecuniary Interests of Judges. During the debate it was noted Lord Gill has refused to attend the Scottish Parliament to discuss the petition and judge’s interests, but has attended the Justice Committee to discuss court closures in Scotland.

Evidence from Judicial Complaints Reviewer Moi Ali on Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament

Moi Ali, Scotland’s Judicial Complaints Reviewer gives evidence to MSPs at the Scottish Parliament regarding Public Petition PE1458 calling for a Register of Interests for Scotland’s Judiciary.

Petition 1458 Register of Judicial Interests Public Petitions Committee 28th January 2014

Following a private meeting between Scotland’s top judge, the Lord President Lord Brian Gill, and the Convener & Deputy Convener of the Public Petitions Committee of the Scottish Parliament,the Committee agreed today, 28 January 2014 to defer consideration of Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to create a register of judicial interests, pending receipt of a letter from the Lord President.

The Convener, David Stewart MSP and Deputy Convener, Chic Brodie MSP reported back to members on what had been said at the private meeting with Scotland’s top judge who refused to attend the Scottish Parliament to be questioned on his deep seated opposition to the proposal to requie Scottish judges to declare all their interests, hidden wealth, family & business links and other matters which may impact on cases being heard before judges in Scottish courts.

Committee Member John Wilson MSP requested details of the private meeting with the judge be put on the official record of the Committee, and Jackson Carlaw MSP drew attention to the fact had it not been for the Petitions Committee asking tough questions there would not even be any letters forthcoming from Lord Gill.

The petition will be heard once a letter has been received from Scotland’s top judge, who appears to be set against any attendance to face questions on why judges should not be required to register their interests, unlike all other public officials, politicians, Government Ministers and others.

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

The Committee agreed to seek time in the chamber for a debate on the petition. The Committee also agreed to write to the Lord President and the Scottish Government.

Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament Public Petitions Committee

The Committee agreed to continue the petition, and is seeking a debate in the main chamber of the Scottish Parliament. The Committee also agreed to write to the Lord President and the Scottish Government for more detailed responses.

The next fifteen video clips are from the debate held at the Scottish Parliament on Thursday 09 October 2014, in which MSPs, Scottish Government ministers and members of the Public Petitions Committee spoke in the debate. The full text of the speeches of each MSP can be found here: DEBATING THE JUDGES: Cross party support for proposal seeking a register of interests for members of Scotland’s Judiciary as Scottish Parliament holds first ever debate on judicial accountability & transparency

David Stewart MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

David Stewart: The committee’s motivation in giving consideration to the issue and in seeking time in the chamber to debate it is a point of principle and comes from the starting point of there being an assumption of openness and transparency in all areas of public life in order to shine a light, if you like, into every corner of Scottish society.

Roseanna Cunningham MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Roseanna Cunningham: The setting up of a register of judicial interests would be a matter for the Lord President, as head of the judiciary in Scotland. The Lord President takes the view that a register of pecuniary interests for the judiciary is not needed. Furthermore, a judge has a greater duty of disclosure than a register of financial interests could address.

Graeme Pearson MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Graeme Pearson: Until the petition was discussed, there was no knowledge of recusals in the public domain. I welcome the fact that, as of April this year, the Lord President has introduced a register of recusals. It is fair to say that without the petition and the work of the Public Petitions Committee, such a register would probably not have been considered.

Jackson Carlaw MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Jackson Carlaw: It is perhaps difficult to take on the judiciary, because judicial independence is always mentioned. As I said, that is a cornerstone of democracy, but because there has been no separation of accountability and independence, it is easy for the judiciary to say, ‘We are independent, so don’t interfere in that.’ Unless independence and accountability are separated, legislation will continue to include no requirement for more openness and transparency.”

Angus MacDonald MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Angus MacDonald: If we as elected members have to register and declare our interests, I see no reason why members of Scotland’s judiciary should not be subject to a full and publicly available register of judicial interests.

Anne McTaggart MSP Register of Judicial Interests debate – Petition PE1458 Scottish Parliament 9 Oct 2014

Anne McTaggart: In Scotland, claims continue to emerge of trials that have been unfair as a result of religious, ethnic or national bias. As long as those claims continue to exist, it is the Parliament’s job to promote fair government. In conclusion, I declare my support for the petition and encourage support from all the other MSPs.

David Torrance MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct

David Torrance: Although I understand that conflicts of interest are on occasion declared in open court prior to taking on a case, the introduction of a register of interests would provide a more consistent and sound basis on which to move forward.

Neil Findlay MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Neil Findlay: We need to do much more to make our society less secretive and less closed, and I think that the register that we are discussing is just one step towards that end. I, for one, give it my full support and urge other MSPs to do the same.

Joan McAlpine MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct 2014

Joan McAlpine: I gently suggest to the Lord President, in whose gift it is to set up a register, as we cannot legislate for it in the Parliament, that he should be mindful of the need for the judiciary to move with the times, along with every other public institution, in order to retain the confidence of the public.

John Wilson MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

John Wilson: A register of interests for judges is an area in which we could move forward and build more confidence in the system that we have in place.

Stewart Stevenson MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Stewart Stevenson: I encourage Lord Gill and his successors to think about recalibrating their relationship with Parliament.

Jackson Carlaw MSP closing speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Jackson Carlaw: Mind you, I would point out that we, too, swear an oath, but we nonetheless still subscribe to a register.

Elaine Murray MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Elaine Murray: “Given the position of power held by the judiciary, it is essential not only that they have absolute integrity–but crucially, that they are seen to have absolute integrity.” Therefore, the issue is not that anyone doubts the judiciary’s integrity, but that the public need to see that integrity.

Roseanna Cunningham MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Roseanna Cunningham: A number of members referred to the register of interests of MSPs. However, the situation is different, because we are directly accountable to the electorate.

Chic Brodie MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Chic Brodie: There is concern that a register would have unintended consequences—a phrase that has been used often in the debate—for the judiciary’s freedom and privacy and its freedom from harassment from the media or dissatisfied litigants. Those are concerns, but they are no less so for others in public life, including MPs and MSPs, who may be attacked publicly for non-declaration of interests. Although it is argued that the establishment of a register may have the unintended consequence of eroding public confidence in the judiciary, it might equally be argued that its absence might have the same effect.

The debate at the Scottish Parliament now returns to deliberations of the Public Petitions Committee on Petition PE1458 – A Register of Interests for members of Scotland’s Judiciary:

Register of interests for judiciary Petition PE1458 Scottish Parliament 28 October 2014

Paul Wheelhouse Register of Judicial Interests Petitions Committee Scottish Parliament 9 Dec2014

Minister for Community Safety Paul Wheelhouse gives evidence to the Public Petitions Committee on their investigation of proposals to create a register of judicial interests as called for in Petition PE1458. Mr Wheelhouse on behalf of the Scottish Government opposes the creation of a register which will inform the public about what judges have, their interests, links to big business, banks, shares in corporations and tax avoidance scams.

Petition 1458 Register of interests for Scotland’s Judiciary Scottish Parliament 12th May 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 12 May 2015. The Committee agreed to call Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer to give evidence on the creation of a register of judicial interests.

Evidence of Gillian Thompson Judicial Complaints Reviewer Register of Interests for Judges Petition PE1458 Scottish Parliament 23 June 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 23 June 2015. The Committee took evidence from Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer who gave evidence in support of the creation of a register of judicial interests.

Lord Brian Gill evidence to Public Petitions Committee Scottish Parliament 10 Nov 2015

Lord Brian Gill, former Lord President and Lord Justice General of Scotland gives evidence to the Scottish Parliament’s Public Petitions Committee on Petition PE1458 calling for a register of interests for judges.Gill refused two earlier invitations to appear before the Public Petitions Committee in 2013 and was dubbed “Lord No No.”. Several times during the debate the 73 year old ‘retired’ Lord Gill called on the panel of MSPs to show faith in the UK judiciary and scrap the petition along with calls for greater transparency of judges interests.

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

Petitions Committee member Kenny MacAskill MSP calls for the committee to invite the new Lord President upon their appointment to appear to give evidence. Convener Michael McMahon MSP agrees to write to the new Lord President.

Petition PE1458 Register of judicial interests Scottish Parliament 23rd February 2016

The Committee decided Lord Carloway is to be called to give evidence, MSPs will also contact Professor Alan Paterson of the University of Strathclyde for evidence.

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

The Petitions Committee decided to call Lord President Lord Carloway to give evidence, and also hear from Professor Alan Paterson of the University of Strathclyde.

Petition PE1458 Register of Interests for judges Public Petitions Committee 22 Dec 2016

MSP Angus MacDonald (SNP) moves to call Professor Alan Paterson to give evidence to the committee and for msps to consider evidence from the Professor then to contact the Lord President, Lord Carloway.

Professor Alan Paterson Petitions Committee PE1458 19th Jan 2017

Professor Alan Paterson evidence to Public Petitions Committee on creating a register of interests for members of Scotland’s judiciary.

PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

Members of the Scottish Parliament’s Public Petitions Committee decide to invite Lord President Lord Carloway to provide evidence before the Committee at a future date, and to invite Alex Neil MSP to appear before the Committee at the same meeting. The decision was taken after Lord Carloway offered concessions on the recusal register of Scotland’s judiciary – created as a result of this petition.

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

Lord Carloway gives evidence to the Public Petitions Committee on a proposal to create a register of judicial interests for members of Scotland’s judiciary. The proposal has been investigated by the Scottish Parliament for five years, there is wide support for the register, from cross party msps to the media to both Judicial Complaints Reviewers.

The Petition will next be heard on Thursday 7 December 2017 where the Public Petitions Committee will be asked to consider taking evidence from Baroness Hale, President of the UK Supreme Court, and to seek further evidence on the operation of Norway’s Register of Judicial Interests.

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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JUDGE THE JUDGE: In public and on camera, Senate Judiciary confirmation hearings for US Supreme Court nominee Brett Kavanaugh demonstrate public, media & elected politicians have a right to know & question views of candidates for the judiciary

Judge Brett Kavanaugh faces Senate Committee. FOR THREE days this week, citizens in the United States of America, and anyone across the globe has been able to tune into the US Senate Committee on the Judiciary nomination hearings of Judge Brett Kavanaugh – for a position on the Supreme Court of the United States (SCOTUS)

The hearings, broadcast via C-SPAN – the Cable-Satellite Public Affairs Network – have been a regular occurrence for several years now, airing to the public hearings where elected senators of the US Senate are able to quiz nominees for judicial posts in the US – including those nominated by the sitting President for a position on America’s top court.

After the death of Justice Anthony Scalia in in 2016, and the blocking of former President Barack Obama’s nomination of Merrick Garland to join the US Supreme Court, President Trump has already succeeded in adding one Justice – Neil Gorsuch to the Supreme Court – in April 2017.

Now, President Trump’s second nomination to SCOTUS – Judge Brett Kavanaugh – who has stirred up significant controversy amid allegations of thousands of papers being withheld from scrutiny during his involvement in previous White House administrations – looks likely to be confirmed, despite concerns on Kavanaugh’s responses to significant issues of public concern raised by the minority Democratic Party Senator members of the Senate Judiciary Committee.

Without examining who did what and when – and there is a lot of this to consider – the fact these hearings take place in public, where members of the judiciary are rightly quizzed by democratically elected representatives in a national legislature as to their views on law, legal precedents, their past work, experience, and so on – is a bonus to transparency, public awareness of the law, the courts, and the role of the judiciary,

The Senate Judiciary confirmation hearings on Judge Brett Kavanaugh are available at the following links, for viewing:

Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 1)

Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 2)

Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 3)

Among several shorter clips of the hearings posted by C-Span, is the series of questions from Senator Kamala Harris to Judge Kavanaugh – which is well worth watching – here:

Exchange between Sen. Harris and Judge Kavanaugh on Mueller Investigation (C-SPAN)

For more on the hearings, events at the US Supreme Court, and campaigning groups calling for reform of accountability and transparency at the US Supreme Court, please visit the excellent website of FIX THE COURT.

Fix the Court is a national, non-partisan grassroots organization created to take the Supreme Court to task for its lack of accountability and transparency and to push Chief Justice John Roberts and the court’s eight associate justices to enact basic yet critical reforms to make the court more open and honest.

It educates the American people about the many problems plaguing the court and its justices and is building a movement of conservatives, independents and progressives demanding change with a common voice.

For more information on the reforms Fix the Court is pursuing, click here.

An interview with Fix the Court’s Executive Director – Gabe Roth – can be found online here: US Supreme Court: Is life tenure too long?

JUDICIAL SELECTION IN SCOTLAND – SECRECY RULES:

A world away from the United States & Senate Committees quizzing members of the judiciary, here in Scotland, as in the rest of the UK, judicial recruitment and appointments more or less come down to members of the judiciary appointing members of the legal profession, often personally known to them – to plush, well salaried, powerful positions within Scotland’s judiciary.

Judicial Appointments in Scotland – as demonstrated by the appointment of Lord Carloway (Colin Sutherland) to what became little more than a simple elevation of Carloway as Lord Justice Clerk to that of the grandiose title of Lord President and Lord Justice General – aka Scotland’s top judge – are a behind closed doors process which the public, media, elected representatives have absolutely no role to play, or right to see.

All that the public, Scottish Parliament MSPs and media were able to inspect of Carloway’s appointment, were disclosed in a Freedom of Information request, published by DOI in April 2016

SECRETLY SELECTING A PRESIDENT, SO SECRETLY:

How judges select Scotland’s judges – in secret The selection panel for the office of Lord President – of which Lady Dorrian was a member – considered five candidates for the position of Scotland’s top judge – according to papers released by the Scottish Government in response to a Freedom of Information request by the media.

While there was significant speculation during 2015 that a female judge would be appointed to the top judicial post of Lord President, the unpredicted shift away from a male only top judge did not happen this time around.

Responding to queries, the Scottish Government refused to disclose the genders & diversity information relating to any of the candidates for the top job, citing privacy concerns.

Written exchanges between civil servants and the selection panel reveal a short listing meeting was held on 1 September 2015. The panel considered that two applicants Lord Carloway  [Redacted] merited an interview on the basis of the quality of their applications.

The panel agreed that given the level of appointment, candidates needed to be able to demonstrate that they met the criteria to an exceptional degree [Redacted].

The content of the selection panel’s report recommending Lord Carloway for the nomination of Lord President, was completely censored by the Scottish Government.

Emails between Scottish Government show First Minister Nicola Sturgeon had decided on Lord Carloway’s nomination as Lord President around 18 November 2015. Lord Carloway’s appointment as Lord President was finally made public a month later in December 2015.

The disclosure, heavily redacted, and composed of twenty two short pages of meagre detail – are a far cry from public judicial nominations in the United States, handled by the Senate Committee on the Judiciary.

And, there is a reason for this – revealed by none other than Lord Carloway’s former boss – Lord Brian Gill – who was described by Lord Neuberger during a valedictory speech in London as an ‘iron fist in a velvet glove’ – just weeks before Gill’s secret divorce of his long time wife was revealed in the Scottish Sun newspaper.

During early November 2015, Lord Gill – who had stood down after a testy, tumultuous three year term as Lord President in which he battled overwhelming backing for a register of judicial interests – finally gave evidence to the Scottish Parliament, and on the subject of judicial recruitment, Brian Gill told MSPs of his complete disdain for the US Justice system, attacking the way in which judicial nominees had to face questions from those outside the judiciary’s carefully closeted world.

A full report on Gill’s ‘brass neck’ attack on how US Justices are nominated, was published in 2016 here: OPENNESS? LORD, NO: The day Scotland’s former top judge lashed out at America’s justice system, accusing US judges of financial ties to corporations & vested interests

Gill went a step further, slating the US Justice system itself in his response to MSP Angus MacDonald – in video footage available here:

Lord Brian Gill slams US judges – Top Scots judge claims US judiciary elected by vested interests

Official Record: Petitions Committee 10 November 2015

Angus MacDonald: Thank you. It was important to get that fundamental view on the record.

What is your view of the fact that the United States of America has successfully introduced a register of judicial interests? Has the system in the States increased public confidence in the judiciary?

Lord Gill: I do not know that we would want to have a judiciary here that is like the one in the United States. It depends on your personal point of view. I do not give you my view, but I am sure that you can guess what it is.

Angus MacDonald: I will not pick up on that particular point.

Has there been any evidence on the impact that the US system has had on the independence of judges or the way in which the media treats judges in the USA?

Lord Gill: I would be very sorry to see a judiciary in which candidates ran for election and in which candidates’ election campaigns were based on fundraising from companies and corporations that might be litigants in their courts. I would also be very sorry if the day ever came where, before appointment, judges had to come before a committee of this honourable legislature for confirmation and for examination of their political, ethical and social views.

The full evidence session held at the Scottish Parliament with Lord Gill on 7 November 2015 can be viewed here: Evidence of Lord Gill before the Scottish Parliament 10 November 2015 with a full report and transcript of the meeting here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests.

In between refusing to give evidence to the Scottish Parliament, Lord Brian Gill spent his time on international travel, and giving a lecture on judicial ethics while on a taxpayer funded state visit to Qatar – a country not known as a haven of transparency or human rights.

Lord Gill’s Qatar expedition funded by public cash is reported in further detail here: LORD JET SET: Scotland’s top judge Lord Gill takes 5 day STATE VISIT to Qatar as investigation reveals judiciary’s international travel junkets spree.

A year on from the confrontation between Lord Gill and the Scottish Parliament – only after two refusals to give evidence – MSPs await to hear from Scotland’s current top judge Lord Carloway – who, like his predecessor, given an equally hostile opinion on the very notion of judicial transparency and requirements of judges to declare their interests.

A recent report on Lord Carloway’s opposition to judicial transparency can be found here: Top judge Lord Carloway hits out at judicial interests register proposal.

The proposals before the Scottish Parliament received cross party backing from MSPs during a full debate at Holyrood during October 2014 – Debating the Judges – call for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations 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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COURT FRACKING: Scottish Government ban on fracking does not exist says Lord Pentland – Court of Session throws out INEOS challenge as Judge says Ministerial claims “did not accurately express the legal effect of the decisions”

Scottish Govt fracking ban does not exist – judge. SCOTLAND’S top court has ruled that claims by Ministers that fracking is banned, are not consistent with current law, and therefore the forced extraction of extracting shale gas from subterranean  rocks – has not been banned in Scotland.

The Court of Session’s decision also hits out at numerous “mistaken” statements by SNP ministers of a ban on what many regard as an environmentally damaging process which uses water and chemicals pumped at high pressure into underground shale beds to release methane gas.

Earlier today, the Judiciary of Scotland published Lord Pentland’s ruling on the INEOS challenge to the Scottish Government’s claims of a ban on fracking – in which the court threw out the challenge, on the grounds there was and is no existing prohibition against shale gas extraction in Scotland.

Despite claims of a ban on fracking by numerous Scottish Government Ministers, including the First Minister herself Nicola Sturgeon, Lord Pentland ruled that no such ban exists, and that in reality there is little more than an evolving planning policy.

Revealing there is no existing legal basis for claims by the First Minister & others that a ban on fracking is in force – Lord Pentland said statements by ministers including Paul Wheelhouse MSP and First Minister Nicola Sturgeon that a ban existed “did not accurately express the legal effect of the decisions” involved.

The statement issued by the Judicial Office notes that [despite numerous claims by Ministers] “the Lord Advocate, on behalf of the Scottish Ministers, made it clear to the court that such statements were mistaken and did not accurately reflect the legal position”.

Lord Pentland’s judgement concludes that “as a matter of law, there is no prohibition against fracking in Scotland”.

The ruling issued today followed statements by the Scottish Government to the Scottish Parliament during October 2017 that fracking had effectively been banned through the use of new guidance on planning consent.

Energy minister Paul Wheelhousewho once made false claims to a Holyrood Committee that fictitious gangsters made transparency in the judiciary impossible – told MSPs last year that “fracking cannot and will not take place in Scotland”.

Similarly, First Minister Nicola Sturgeon said “fracking is being banned in Scotland – end of story”.

Earlier this year, and after the continued claims by the Scottish Government and it’s supporters of a ban on fracking, Ineos Upstream Ltd and Reach CSG sought a judicial review of the effective ban, the Scottish Government began t changed its tune.

When the case was called in court, the Scottish Government’s own lawyer – James Mure QC  – claimed the legal challenge by Ineos was premature as SNP ministers had “not yet adopted a position” and that in effect Ministers had merely announced a preference for a ban.

James Mure QC was forced to admit to the court that his client the Scottish Government had merely spun the issue of a preference of a ban, into an actual ban.

The QC was forced to tell the court in the earlier hearing: “The concept of an effective ban is a gloss. It is the language of a press statement.”

However, in the Court of Session opinion issued today, Lord Pentland’s judgement rubbished Ministerial claims of a ban on fracking, concluding that “as a matter of law, there is no prohibition against fracking in Scotland”.

In the judgment, Lord Pentland also rejected Ineos and Reach CSG’s case on the basis that no ban exists.

The Herald newspaper reported on the court’s decision today, and also reported – “After the judgment was released, the SNP rewrote the environment section of its website, deleting the words “The Scottish Government has put in place a ban on fracking in Scotland”.

Ineos, which runs the Grangemouth refinery and already imports US shale gas as a precursor for petrochemical works, would like to frack gas in the Central Belt.

It has previously accused the government of an “Alice in Wonderland” position on fracking.

Ineos said it now expected all planning applications for fracking to be considered on merit, not “prejudice and political expediency” and ministers of wasting public money by not being clearer earlier.

Mr Wheelhouse, who told MSPs there was a ban, welcomed the Court saying there wasn’t.

He said: “This decision vindicates the extensive process of research and consultation which the Scottish Government has undertaken since 2015.

“As I set out in October, our preferred position is not to support Unconventional Oil and Gas extraction in Scotland, and that position remains unchanged.

“I have repeatedly set out to parliament that we would undertake a Strategic Environmental Assessment (SEA) ahead of finalising that position and that approach has been endorsed by the overwhelming majority of the Scottish Parliament.

“The work to complete the SEA and a Business and Regulatory Impact Assessment is currently underway and the findings will be carefully considered.

“In the meantime, a moratorium is in place which means no local authority can grant planning permission and Ministers would defer any decision on any planning application that did come forward until the policymaking process is completed.

“The practical effect of the current moratorium and the policymaking process which is underway to finalise our position is that no fracking can take place in Scotland at this time.”

In his judgement published earlier today, Lord Pentland quoted First Minister Nicola Sturgeon and Mr Wheelhouse’s statements in parliament about there being a ban.

However, in what seems an attempt at appeasing the misleading statements by Ministers, Lord Pentland was forced to add that the accuracy of such misleading ministerial statements was not the core issue – even though the existence of the misleading claims by the First Minister & Scotish Government led to the Ineos legal challenge in the first place.

Lord Pentland said: “The legal question is not whether ministers have accurately described or commented on their understanding of the legal effect of the various steps they have taken or authorised to be taken under the planning system, but the fundamentally different question of what the legal effect of those steps really is.

He added: “The ministerial comments reflecting the opinion that there was an effective ban on fracking are (a) irrelevant to the legal question before the court; (b) not binding on the court; (c) in any event, not determinative of the question of construction that the court has to address; and (d) to the extent that they did not accurately express the legal effect of the decisions taken must be left out of account when it comes to answering the legal question.”

“To the extent that some sections of the ministerial statements made to the Scottish Parliament were capable of being read as suggesting that the policy would amount to a ban on fracking, Mr Mure QC accepted on behalf of the Lord Advocate that such statements did not accurately reflect the legal position; they were to that extent mistaken.”

The full statement issued by the Judicial Office for Scotland

Ineos Upstream Ltd and another v Lord Advocate

A petition seeking judicial review of certain acts and decisions of the Scottish Government in implementation of what was purportedly an indefinite ban on “fracking” has been refused. The Court of Session held that the legal effect of certain statements and planning directions made by the Scottish Ministers to the effect that the Scottish Government will not support the development of unconventional oil and gas extraction in Scotland, and a subsequent decision that the directions should continue in force indefinitely, is that there is in fact no prohibition against fracking in force. The following is a summary of the detailed opinion issued by Lord Pentland.

On 28 January 2015 the Scottish energy minister, Mr Fergus Ewing MSP, made a statement to the Scottish Parliament on the development of unconventional oil and gas extraction in Scotland (“UOG”) to the effect that there was to be work on planning and environmental regulation, a health impact assessment, and a consultation process on UOG. He stated that given the importance of this work it would be inappropriate to allow any planning consents in the meantime. He therefore announced what he described as a “moratorium” on the granting of planning consents for all UOG developments, including the method of oil and gas extraction known as hydraulic fracturing or “fracking”. The moratorium was to continue until such time as the work referred to had been completed. The minister stated that a direction would be sent to all Scottish planning authorities to give immediate effect to that policy. A similar direction would be issued to SEPA.

The 2015 Planning Direction and the 2015 SEPA Direction gave legal effect to the moratorium, by requiring planning authorities to intimate the receipt of planning applications for any UOG developments to the Scottish Ministers, prohibiting planning authorities from granting planning permission within 28 days of notification to ministers, and giving ministers the power to call in applications for determination by them. The power of the Scottish Government to call in planning applications for determination by them, coupled with the 2015 Planning Direction and the 2015 SEPA Direction gave Scottish Ministers the means to control two of the essential legal requirements for onshore extraction of UOG. By refusing planning permission or authorisation of controlled activities, the Scottish Government could prevent onshore UOG development extending beyond drilling of core samples. To date, the notification requirements under the 2015 Planning Direction have not been triggered. No application has been remitted to ministers by SEPA under the 2015 SEPA Direction.

Following further research into the impact of onshore UOG development in Scotland and a public consultation, the Minister for Business, Innovation and Energy, Mr Paul Wheelhouse MSP made a statement to the Scottish Parliament on 3 October 2017 in which he confirmed the Scottish Government’s “preferred position”, namely that it would not support the development of UOG in Scotland and that it would use planning powers to deliver its position; that it had written to local authorities across Scotland to make it clear that the directions that give effect to the moratorium would remain in place indefinitely; and that this action was sufficient to “effectively ban” UOG in Scotland.

On 5 October 2017 at First Minister’s question time, in reply to an observation that there was concern that the ban was not yet legally watertight, the First Minister said that: “What Paul Wheelhouse outlined to the chamber earlier this week is an effective way of banning fracking and … is the quickest way of banning fracking.”

At a debate on UOG in the Scottish Parliament on 24 October 2017, Mr Wheelhouse said that the Scottish Government was honouring the commitment it had previously given to allow MSPs an opportunity to “endorse our carefully considered and robust position on unconventional oil and gas”.  An amended motion was passed endorsing the Scottish Government’s decision to introduce an immediate and effective ban on UOG and noting that this position would be subject to a strategic environmental assessment before being finalised.

In December 2017 Ineos Upstream Limited and Reach Coal Seam Gas Limited, which both hold interests in petroleum exploration and development licences (“PEDLs”) in respect of certain onshore areas in Scotland raised the present proceedings, seeking judicial review of the acts and decisions of the Scottish Government in relation to UOG in Scotland. The basis of the petitioners’ case was that in 2017 the Scottish Government unlawfully imposed an indefinite ban on fracking.

The Lord Advocate on behalf of the Scottish Ministers maintained that, on a correct understanding of its acts and decisions, the Scottish Government did not impose any such ban. He contended that since there was no ban the petitioners have no case; the petition for judicial review was based on a series of fundamental misunderstandings of the Scottish Government’s position and should accordingly be refused.

Refusing the petition, the judge held that, as a matter of law, there is no prohibition against fracking in Scotland. The fact that the emerging policy position was expressed as being a “preferred” one shows that the Scottish Government understood that unless and until the strategic environmental assessment was completed, a policy on UOG could not lawfully be finalised and adopted. Ministerial comments reflecting the opinion that there was an effective ban on fracking were (a) irrelevant to the legal question before the court; (b) not binding on the court; (c) in any event, not determinative of the question of construction that the court had to address; and (d) to the extent that they did not accurately express the legal effect of the decisions taken must be left out of account when answering the legal question.

Lord Pentland’s opinion stated: “The petition is predicated on the proposition that the Scottish Government has introduced an unlawful prohibition against fracking in Scotland. Whilst acknowledging that there have been a number of ministerial statements to the effect that there is an effective ban, the Lord Advocate, on behalf of the Scottish Ministers, made it clear to the court that such statements were mistaken and did not accurately reflect the legal position. The stance of the Scottish Government before the court is that there is no legally enforceable prohibition. For the reasons set out in this judgment, I consider that the Government’s legal position is soundly based and that there is indeed no prohibition against fracking in force at the present time. What exists at present is an emerging and unfinalised planning policy expressing no support on the part of the Scottish Government for the development or extraction of UOG in Scotland. The process of policy development is not yet complete; the important stages of a strategic environmental assessment and a business and regulatory impact assessment have still to be carried out. There is no basis on which the court should interfere with those procedures; the petitioners will have a full opportunity to contribute to and participate in them. I conclude that since there is no prohibition against fracking, the petitioners’ case is unfounded; their application for judicial review of the alleged ban must accordingly fail.”

The full opinion can be accessed online here: Ineos Upstream Ltd and another v Lord Advocate

The Top judge who said court lawyers & judiciary should profit from & serve shale gas extraction & fossil fuel interests:

THREE years ago, Scotland’s now former top judge – Lord Brian Gill spoke on the very same day the Scottish Government announced the ‘moratorium’ on fracking, expressing his desire – and ultimately judicial policy – that fracking for shale gas should go ahead, and will increase business in the courts.

In a speech given at a Holyrood digital media conference on the same day that Minister Fergus Ewing MSP announced the moratorium on fracking, Lord gill also said he wanted to turn Scotland’s legal system into a mediation haven for big business, big oil, shale gas barons & bankers, according to a speech he gave on the theme of “Digital Justice” last week.

Lord Gill’s plans for fracking & big oil mediation was hoped to draw in millions for lawyers and judges – without the need to declare any interests.

During the fourteen page speech – Gill (72) also urged the legal sector to better exploit Scotland’s “natural resources” and renewable energy for their own profit.

Speaking on the issue of fracking, and taking aim squarely at the Scottish Government’s alleged policy on a moratorium, Lord Gill told conference delegates: “Our resources of energy may be increased by the retrieval of shale gas, if that should be allowed. It seems to me therefore that the opportunity that our natural resources present should be served by the court system.”

Speech by Lord Gill on Digital Justice, Fracking & Big Oil. During the speech, Lord Gill also chastised his own judicial colleagues & lawyers for missing out on exploitation of Scotland’s oil boom.

Lord Gill said: “In the 1960s and 1970s the economy of Scotland was transformed by the discovery of North Sea oil. The judges and lawyers of that time were not alert to the opportunity that Scotland could be an international forum for resolving disputes in the oil and gas industry. We paid a price for our complacency when the international oil and gas industry passed us by.”

Gill continued: “Half a century on we should look at Scotland’s economic opportunities and see how the courts can best serve them. In recent years a commitment to renewable energy has brought wind power to the fore as an energy source. Other forms of renewable energy may follow.”

The top judge also claimed Scotland can be made an international centre for litigation and mediation.

Gill said “Our legal system should be a driver for economic progress in Scotland. Our courts and our judges can and should contribute to the prosperity of our country. We can do that if, by the excellence of our judges, and our legal profession and the efficiency of our courts, we make Scotland a forum of litigation that not only retains litigations that at present go elsewhere but also becomes a forum of choice for litigations from abroad..”

Lord Gill’s own speech on the issue of fracking, and personal desire for shale oil gas extraction to go ahead, as a matter of judicial policy – was at complete odds with the statement issued by Scottish Government Minister Fergus Ewing on the same day to MSPs at Holyrood.:

While Gill gave his ‘fracking is good for the legal profession, courts & judiary’ lecture, Mr Ewing told the Parliament: “I want to ensure that the voices of the communities likely to be most affected are heard, and are heard in a more formal and structured way.I am therefore announcing today that in addition to the technical work I’ve referred to on planning, environmental regulation and upon assessing the impact on public health, Scottish ministers will also launch a full public consultation on unconventional oil and gas extraction.”

An earlier report on Lord Gill’s speech on the issue of fracking can be found here: FRACKING JUDGES: Scotland’s top judge promotes shale gas extraction, big oil and renewable energy as profit incentive for courts on same day Scottish Government announce ban on fracking

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I hope you find this information helpful.

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

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

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

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

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

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

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

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

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

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

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

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

HEATHER CAPITAL £28M CIVIL CLAIM ENDS:

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

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

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

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

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

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

On Monday 16 February the Lord President considered the matter.

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

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

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

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

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

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

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

Records from the Court of Session reported:

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

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

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

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

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

 

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NORWAY, M’LORD: Judicial interests register of Norway cited as example to follow for Holyrood MSPs six year investigation to create a register of judges’ interests in Scotland

Norway’s judicial interests register cited as example for Scotland. A SIX YEAR Scottish Parliament investigation to create a register of judicial interests for judges of the Judiciary of Scotland – should follow the model used by an operational judicial register in Norway which has been in use for some years.

Unlike in Scotland, where judges have lobbied to remain exempt from public transparency of their interests, the Courts of Norway have operated a Register of extra-judicial activities for many years, which lists jobs, investments and other interests of members of the Norwegian judiciary.

The website of the Courts of Norway states that “The rules on registration of interests apply to all judges, including deputy judges.”

“Full-time and provisional judges are covered if appointed or employed for a period exceeding one month. ‘Interests’ cover membership, offices or other forms of commitment other than a company, organisation, association or body of the state, county or local authority.”

The Norway model has been put forward to members of the Scottish Parliament’s Public Petitions Committee – as an example of an operating register of judicial interests in a country close to Scotland which should be included in the evidence base accumulated by Holyrood over the past six years of studying how to move forward on legislation to create a register of interests for all judges in Scotland.

A register of judicial interests for Scotland would include all judges – from the Lord President, down to Justices of the Peace, and members of tribunals.

On Thursday, 22 March 2018, the Public Petitions Committee will hold the 25th hearing to discuss Petition PE1458: Register of Interests for members of Scotland’s judiciary.

A further request has been filed with the Public Petitions Committee to contact Norway’s judiciary, seeking  material and information on how their register operates, and any insight the Norwegian judiciary & Government hold on how the register has benefited their judiciary and justice system.

A late submission to the Public Petitions Committee states: “Given the six years of evidence collected by the Scottish Parliament on the merits of creating a register of judicial interests for Scotland, to have evidence from a working register of interests as part of the public debate and the Parliamentary record of this petition is a worthwhile step to take.”

“While the recusals register does not tell the full story on conflicts of interest, having up until now, carefully avoided any mention of financial conflicts of interest & disclosures relating to instances where judges have been asked to recuse but have failed to do so, the recusals register is again, another indicator that an accurate, updated and fully published register of judicial interests is beneficial to the public, court users, and public scrutiny of the judiciary.”

Readers can View here the Register of extra-judicial activities from the Courts of Norway website.

The judicial interests petition – filed at Holyrood in October 2012 and 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 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.

MSP at Holyrood have previously heard over sixty two submissions of evidence, during twenty one Committee hearings, and a private meeting between two MSPs and a top judge, and two private meetings since early December 2017 to decide a way forward on their six year investigation.

Cross party support for the Petition at the Scottish Parliament saw fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2018.

The move to create a register of judicial interests enjoys cross party support, is widely supported in the media and  in public debate as a result of media coverage.

The petition secured early support of Scotland’s Judicial Complaints Reviewer Moi Ali, and her successor – Gillian Thompson.

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, giving early backing to 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 supported  the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

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.

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

NORWAY: A register of judges’ interests Scotland could adopt, and improve upon:

THE COURTS OF NORWAY:

To ensure that no one is any doubt about the impartiality of a judge in a case, there is a ‘register of extra-judicial activities : View the Register of extra-judicial activities (pdf)

This lists honorary posts, investments etc. that a judge may be engaged in alongside his/her duties as a judge. The purpose of the register to ensure full openness. This page provides details of what is registered and how to search the register.

The rules on registration of interests apply to all judges, including deputy judges. Full-time and provisional judges are covered if appointed or employed for a period exceeding one month. ‘Interests’ cover membership, offices or other forms of commitment other than a company, organisation, association or body of the state, county or local authority.

What is registered?

The rules basically require all interests to be registered with the exception of:

  • Membership of political parties, religious communities, stakeholder organisations and non-profit organisations.

  • Offices and the like in non-profit organisations with fewer than 100 members.

  • One-off lectures and the like.

What should be registered:
  • Investments in individual companies exceeding NOK 200,000 at the time of investment or ownership exceeding 10% of the company. The duty to register does not cover bank accounts, unit trusts or the like. The size of investment does not have to be registered.

  • Honorary posts in associations, societies, organisations or political parties with over 100 members.

  • Membership of brother- or sisterhoods, e.g. the Freemasons or Odd Fellow.

  • Employment in private or public sector companies.

  • Participation in committees, boards or the like set up by the public sector. The same applies to private arbitration boards or the equivalent.

  • Other involvement, e.g. in education, exam censor, authorship, arbitration or other types of activity.

  • The last position held before being appointed as a judge.

An interest should be deleted from the register when more than three years have passed since it ended.

How Norway’s Judiciary works:

Background:

Independence of the Courts

The independence of the Courts of Justice protects all citizens against arbitrary decisions and abuses committed by other branches of state power, This independence is a consequence of Norway being a constitutional democracy. The Constitution sets clear limits on legislative and executive power even when decisions are carried by a majority vote.
Control of the other branches of state power

The Courts of Justice exert a control function regarding new laws and changes to existing laws that are proposed by the National Assembly. If a law is against the Constitution by, for example, violating the constitutional rights of one or many citizens, a court may set aside the law in any trial where such rights are deemed to have been violated. In a case brought before the Supreme Court where two or more judges deem that a specific law breaks the constitution the case is settled in a plenary meeting of the Supreme Court. This may result in the Supreme Court setting aside the law in question in the settlement of the case.This implies that the Supreme Court through its rulings can control or limit the legislative power of the National Assembly. This control or limitation by the Supreme Court has only occurred on very rare occasions.

In concrete cases the Courts of Justice also have the authority to check on decisions made by the government or other subordinate administrative bodies. In such cases the Courts of Justice will decide whether the administration has remained within the framework of the law, whether the resolution is based on accepted facts and correct proceedure, and that the administration’s judgement is not improper or seriously unreasonable. If such errors have occurred, an administrative pronouncement can be ruled invalid by the Courts of Justice. However, it should be noted that such a ruling can only occur in response to an actual dispute brought before a court.

How independence is guaranteed

According to our Constitution judges’ decisions in each and every case are to be independent of external influence. Judges’ verdicts cannot be instructed or influenced. The decisions of the Supreme Court cannot be rejected or altered by other authorities.

Over the last few decades the situation has changed somewhat. The influence of international courts of justice has grown, especially regarding the international conventions on human rights. Amongst others, the Court of Human Rights in Strasbourg plays an important role in the development of law and jurisdiction in Norway. When, in future, the Court of Human Rights interpretes the convention differently from the Supreme Court the Norwegian Supreme Court must act in accordance with the guidelines and rulings made in Strasbourg. So even though the Supreme Court is the ‘last instance’, the Supreme is obliged to take into consideration the decisions of the Court of Human Rights.

A verdict can only be altered by a superior court of justice after an appeal proceedure. In criminal cases the usual deadline for appeal is 14 days after the verdict is handed down. In civil cases the deadline is one month. A superior court on its own initiative cannot instruct a subordinate court on its proceedings in any one specific case. However, if one party makes an appeal or an interlocutory appeal against a verdict, the court of justice processing the appeal may rule that the subordinate court must process the case again. The subordinate court must then abide by the interpretation of the law which constitutes the basis for the superior court’s ruling.

The National Assembly (Stortinget) passes general laws which the Courts of Justice apply in all cases heard in court. The Courts of Justice are independent in their interpretation of the law. This means that the courts, headed by the Supreme Court, have a a great influence on how the letter of each law is applied in each individual case. Furthermore, there exists large areas of the law wherecourt rulings and interpretations have developed or evolved contemporary law and jurisdiction.

The Courts of Justice and all judges must be protected from external influence over rulings and verdicts. For a state to be democratic and legal the judges must be both independent and impartial with regards disputing parties and all interests represented by such parties. The parties in a case may request a judge to step down if the judge in question has any connection with the case or the individual parties which might raise doubts over the impartiality or independence of the process. Judges have a personal responsibility to ensure that they do not give grounds for disqualification in any individual case.

Although the independence of the courts is guaranteed by the Constitution, all courts are not insulated from democratic developments insociety.The National Assembly passes regulations relating to the organisation of the courts, for example: how many courts shall be provided throughout the nation, where they shall be situated, the number of presiding judges for each court and the proceedure for appointing judges. All of the latter are practical matters reflecting the ever changing developments in society. The Courts of Justice are administratively subordinate to the independant Norwegian Courts Administration (NCA).

Judges cannot be dismissed

Judges appointed according to the constitutional regulations have, like other civil servants, an especially protected employment status according to § 22 of the Constitution. They hold permanent positions and cannot be dismissed or moved against their will. They can only be dismissed following a court hearing and a verdict of guilty. Permanently appointed judges can be suspended, but such a decision can only be carried out by the King in cabinet. Civil or criminal proceedings to remove a judge must be started immediately following the King’s decision to suspend a judge. Like other civil servants permanent judges can be punished for breaking the law while carrying out their duties or for offences committed outside their workplace. However, the decision about whether to prosecute for offences relating to a judge’s duties may only be taken by the King in cabinet. Permanently appointed judges cannot be indicted for public order offences according to the regulations for all civil servants. Supreme Court judges enjoy even stronger protection and can only be removed through an impeachment process.

Judges are guaranteed protection of office to enable them to make rulings and give verdicts that may be unpopular, judges have to be free of the fear of dismissal because their decisions are not supported by the authorities or by other judges. By granting judges such a secure position, all parties appearing in court are ensured an independent and impartial ruling from the Courts of Justice.

What does it mean to be a lay judge in a norwegian court? (film)

The Courts must have the people’s confidence

The decisions of judges often have great significance for many individual citizens. It is a vital requirement in a state governed by law that all the citizens of that state respect a court’s ruling as well as the laws on which such rulings are based. The courts need the trust of the people in order to maintain their authority and legitimacy. It is the legitimacy and the authority of a court which ensures that rulings are respected. The credibility of the courts must not be weakened by the perception that courts can be influenced by any external pressure.

In order for the courts to be able perform in a free and independent manner it is necessary that they have sufficient professional and economic resources to be able to fulfil their tasks.

Both the costs and the duration of court proceedings can have a negative effect on whether an ordinary citizen will take their case to court. An efficient rather than a long drawn out processing of cases is itself a guarantee of legal protection. “Justice delayed is justice denied”. The issue of reducing the duration of case processing has received a great deal of attention in recent years in Norway. Norwegian courts are now among the most efficient in Europe in this context.

A brief history of the Norwegian courts

The Viking Age

We know that there were legislative, judicial and executive authorities as early as the 10th century. In those days the kinship group was the most important executive power; crimes and conflicts were resolved by negotiation between the kin-groups, often involving agreement on the penalty. In the course of the 11th century there developed local and regional assemblies (bygdeting and lagting), which also functioned as courts; the Norwegian word ting still means both. Their most important function was to reach solutions to various disputes and their formation was driven by population growth, bigger districts and increased collaboration between districts. King Håkon I “the Good” changed the composition of the assemblies from universal attendance to representation by delegates. The most famous regional assemblies from that period are the Gulating for Western Norway and the Frostating for the Trøndelag in the middle of the country. The Hålogaland, Eidsivating and Borgarting assemblies developed in the 12th and 13th centuries, but never achieved the same influence as Gulating and Frostating. Legislative codes from the Gulating and Frostating were rediscovered in modern times. The development of the assemblies and the discovery of the codes clearly show that the rule of law was well on the way to becoming centralised as early as the 12th century.

The most usual legislative instance at that time was customary law: that is to say, there were many rules of law, but not laid down by any public authority. Customary or common law is still in use today not only in international law, but also in national areas such as constitutional and administrative law, some parts of private law and the law of damages.

The High Middle Ages

In the course of the High Middle Ages the king acquired more power, and ultimately discharged all three roles – legislative, judicial and executive. The Church also had a role in all three areas, resulting in a constant tug-of-war for supremacy. The need for codification increased, and in 1274, under king Magnus VI “Lawmender” the old regional laws were reworked and called the National Law (Landsloven). This was meant to be authoritative for the regional courts and to some extent for the district courts.

The Law was regarded as an administrative unification of Norway, the political unification being traditionally dated to 1030. The National Law also involved amendments to the judicial and executive aspects of the legal system, such as royally appointed court presidents (lagmenn) to chair the proceedings between the parties. More higher courts (lagting) were created, and sited in towns or other centres. Crime was no longer conceived as an offence against the kin-group, but as against the King. The period saw not only the beginnings of centralisation, but also of bureaucratising and professionalisation.

The Union period

Norway was in union with Denmark, and intermittently with Sweden too, from 1390 to 1814, a period in which the Norwegian legal system saw further professionalisation. Norwegian cases began in the city or district court, proceeded to the higher courts and finally to the Overhoffretten in Oslo, from 1624 called Christiania. After Denmark created a Supreme Court in 166 1, Norwegian cases could be appealed there.

The Danes had little knowledge of Norwegian laws and legal thinking, and therefore settled cases by their own laws. The Supreme Court was subject to the king, and until 1771 all decisions made by the Supreme Court were to be reviewed by him. In 1771 this review power was abolished, except for death sentences. In the course of the Danish Union, attempts were made to increase the distinction between the judicial and executive powers, at the same time as the king maintained his position as the fount of legislation.

The National Law promulgated under Magnus “Lawmender” was still applicable law in Norway. As the 17th century progressed a need was felt to update it, leading to the Norwegian Law (Den norske lov) of 1687, which was to a certain extent based on the Danish code of 1683. The Supreme Court in Denmark could now deal with two legal codes that were more or less similar.

The separation of powers and the Norwegian Constitution

The principle of “separation of powers” – that is, between the legislative, executive and judicial functions – was formulated by the French philosopher Montesquieu. Montesquieu’s separation of powers was central to the Norwegian constitution of 1814, adopted after that year’s separation from Denmark. The King was the executive power, the Storting the legislative power and the courts the judicial power. The Norwegian constitution was more liberal than many others, inter alia being based on the principle of popular sovereignty.

Norway acquired its own Supreme Court in 1815. The Norwegian constitution remained in force after the young state entered a union with Sweden, and so the final Norwegian independence in 1905 did not represent any change in the Norwegian legal system. During the German occupation of 1940-45 the Supreme Court resigned, and judges were appointed who were loyal to the occupiers. Neither the judges nor their decisions from this period were recognised after Liberation.

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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