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

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

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

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

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

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

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

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

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

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

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

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

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

The National reports on recent developments here:

Fresh call for all UK judges to register interests

Campaigner says UKSupreme Court should follow Scotland example on Judicial Recusals

Martin Hannan Journalist 2 August 2017 The National

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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RECUSALS 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

Court clerks concealed Lord Bracadale’s recusal for a year. AN INVESTIGATION into the content of a Register of Judicial Recusals– maintained by the Judiciary of Scotland – has revealed court clerks concealed details relating to at least one recusal of a senior judge – and then secretly altered records a year later – and only after journalists made enquiries.

The chance discovery of one such unlisted recusal – by Lord Bracadale (real name Alistair Campbell QC) in an unidentified case during 2016 – came as journalists studied volumes of newly released court papers showing failures in the Scottish Courts & Tribunals Service (SCTS) – who manage the Register of Judicial Recusals for publication by the Judiciary of Scotland.

However, when staff of the Judicial Office were confronted about the omission and asked why information relating to Lord Bracadale recusing from a case was not made public – it took nearly three weeks for spokesperson for the Judicial Office to come up with an explanation, claiming a “clerical error” had occurred, and that the information had since been applied to the register.

During March of this year, journalists presented the Judicial Office with a copy of a recusal signed by Lord Drummond Young which indicated Lord Bracadale had recused himself from a case during May 2016. Journalists then queried why the information did not appear on the Register of Recusals at that time.

It was not until the second week of April a spokesperson for the Judicial Office on 7 April 2017 offered an explanation to the media, which stated: “The register of recusals has now been amended to include the relevant entry. It was an oversight by a clerk which meant the necessary information was not passed on to the Judicial Office.”

The Judicial Office refused to answer further questions on the subject or identify if there were any further cases where recuals have not been recorded in the register.

The information eventually entered on the Register of Recusal now reads:

20/05/2016 Court of Session Lord Bracadale On the pursuer’s motion in relation to the judge’s previous decision to refuse the pursuer’s appeal at a procedural hearing

And a further query to the Judicial Office resulted in an email response from it’s then media chief Elizabeth Cutting which stated “As of today, 13 April, I am no longer working at the Scottish Courts and Tribunals Service.”

A request “for a note to be applied to the recusal register in relation to the addition of the recusal by Lord Bracadale” made by a journalist to the Judicial Office and Lord President’s Private Office – generated no further response or action.

Additionally, there was no further explanation provided by the Judicial Office as to why a year had elapsed before the information was correctly applied to the register, and only after the media had alerted the Judicial Office to the omission of the Bracadale recusal.

Legal observers have condemned the retrospective application of information to the Register of Judicial Recusals as “poor administration” and have questioned whether the information relating to Lord Bracadale’s recusal would ever have been added, had it not been for media enquiries to the Judicial Office.

Claims by a Judicial Office spokesperson of a year long “clerical error” significantly conflict with former Lord President Lord Gill’s evidence to the Public Petitions Committee on how the Register of Judicial Recusals was maintained by Court staff and clerks.

On 10 November 2015, Lord Brian Gill appeared before MSPs at Holyrood, and stated in the official record : “There are two points to make in answer to that. One is that the register of recusals is not voluntary. To the best of my knowledge, the clerks of court are scrupulously accurate in keeping the register and therefore, wherever there is a recusal, you may depend upon its being recorded in the register.”

Lord Gill – Court clerks should handle info on judicial interests, not a public register

The Register of Recusals was created by Lord Brian Gill in April 2014 as a response to a probe by the Scottish Parliament’s Public Petitions Committee’s deliberations on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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

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

The move by Lord Gill to create the Register of Recusals was aimed at dissuading MSPs from continuing an investigation into the secretive world of judicial influence, interests, and failures to declare conflicts of interest in court.

However, the investigation continued, and is now in it’s fifth year.

Gill, who eventually gave evidence to the Scottish Parliament’s Public Petitions Committee in November 2015, – available to watch in full here – Evidence of Lord Gill before the Scottish Parliament 10 November 2015 – came in for criticism after he demanded MSPs come to a decision and close the petition on his say-so during the stormy evidence session..

Throughout the meeting, the retired Lord President angrily remonstrated with Committee members who asked him detailed questions on interests and the conduct of Scottish judges.

At one point, Lord Gill gave a misleading answer to the then MSP John Wilson – who quizzed the Lord President on judicial suspensions.

And, in responses to independent MSP John Wilson, Lord Gill dismissed media reports on scandals within the judiciary and brushed aside evidence from Scotland’s independent Judicial Complaints Reviewers – Moi Ali & Gillian Thompson OBE – both of whom previously gave evidence to MSPs in support of a register of judges’ interests.

Facing further questions from John WIlson MSP on the appearance of Lord Gill’s former Private Secretary Roddy Flinn, the top judge angrily denied Mr Flinn was present as a witness – even though papers prepared by the Petitions Committee and published in advance said so. The top judge grimaced: “The agenda is wrong”.

And, in a key moment during further questions from committee member Mr Wilson on the integrity of the judiciary, Lord Gill angrily claimed he had never suspended any judicial office holders.

The top judge was then forced to admit he had suspended judicial office holders after being reminded of the suspension of Sheriff Peter Watson.

A statement issued by Lord Gill at the time of Watson’s suspension said: “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.”

In an angry exchange with MSP Jackson Carlaw, Lord Gill demanded to control the kinds of questions he was being asked. Replying to Lord Gill,  Mr Carlaw said he would ask his own questions instead of ones suggested to him by the judge.

Several times during the hearing, the retired top judge demanded MSPs show a sign of trust in the judiciary by closing down the petition.

During the hearing Lord Gill also told MSPs Scotland should not be out of step with the rest of the UK on how judges’ interests are kept secret from the public.

Questioned on the matter of judicial recusals, Gill told MSPs he preferred court clerks should handle information on judicial interests rather than the details appearing in a publicly available register of interests.

Lord Gill also slammed the transparency of judicial appointments in the USA – after it was drawn to his attention judges in the United States are required to register their interests.

In angry exchanges, Lord Gill accused American judges of being elected by corporate and vested interests and said he did not want to see that here.

However, the situation is almost identical in Scotland where Scottish judges who refuse to disclose their interests, are elected by legal vested interests with hidden links to corporations.

After the hearing was over, Gill was branded ‘aggressive’ by the then Committee Convener over his evidence to MSPs.

On Thursday 29 June, the Public Petitions Committee at Holyrood will hear from Scotland’s current Lord President, Lord Carloway – who wrote to MSPs last November stating he was under the impression Holyrood had closed the petition.

Carloway later demanded the Committee provide him with a list of questions he was to be asked if he agreed to appear before the full Committee in public.

Since the exchanges last year, it has taken a further eight months to arrange Carloway’s appearance before MSPs next week.

The hearing at Holyrood with Lord Carloway comes in between a busy schedule for the Lord President – which saw Lord Carloway and many other members of the judiciary fly to various overseas destinations including a £4K public cash funded trip to the USA for the Lord President, and handing out judicial jobs including a £180K a year seat on the Court of Session bench to controversial former Lord Advocate Frank Mulholland.

Full list of Judicial Recusals from March 2014 to 12 June 2017

DATE COURT (TYPE OF ACTION) NAME REASON FOR RECUSAL

24.3.2014 Livingston Sheriff Court (Civil) Sheriff Edington 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 process. The 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.

8.4.2014 Forfar Sheriff Court (Criminal) Sheriff Veal Sheriff personally known to a witness

10.4.2014 Selkirk Sheriff Court (Civil) Sheriff Paterson Sheriff had previously acted for a client in dispute against Pursuer

23.4.2014 High Court (Criminal) Lady Wise Senator had previously acted for a relative of accused

16.4.2014 Glasgow Sheriff Court (Criminal) Sheriff Cathcart Sheriff personally known to a witness

13.5.2014 Haddington Sheriff Court (Civil) Sheriff Braid Known to pursuer’s family

14.5.2014 High Court(Criminal Appeal) Judge MacIver Conflict of interest

20.5.2014 Court of Session (Civil) Lord Matthews Senator personally known to a witness

19.6.2014 Dingwall Sheriff Court (Criminal) Sheriff McPartlin Sheriff presided over a trial involving the accused, where the issue to which the new case relates was spoken to by a witness

20.6.2014 Elgin Sheriff Court (Criminal) Sheriff Raeburn QC Accused appeared before Sheriff as a witness in recent trial relating to same incident

24.6.2014 Glasgow Sheriff Court (Criminal) Sheriff Crozier Sheriff personally known to proprietor of premises libelled in the charge

26.6.2014 Court of Session (Civil) Lord President Relative of Senator acts for the respondent

27.8.2014 Court of Session (Civil) Lord Brailsford Senator personally known to husband of the pursuer

28.8.2014 Oban Sheriff Court (Civil & Criminal) Sheriff Small Sheriff personally known to a party

22.10.2014 Aberdeen Sheriff Court (Criminal) Sheriff Cowan 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.

8.12.2014 Alloa Sheriff Court (Civil) Sheriff Mackie 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 Senator personally known to parties of the action.

22.01.2015 Edinburgh Sheriff Court (Extradition) Sheriff MacIver Sheriff involved in case at earlier stage of procedure 30.01.2015 Dumfries Sheriff Court(Civil)Sheriff Jamieson Sheriff had previously dealt with the issue under dispute

06.02.2015 Greenock Sheriff Court (Civil) Sheriff Fleming Previous professional relationship between Sheriff’s former firm of solicitors and the defender

09.02.2015 Glasgow High Court (Criminal) Lady Scott 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 Due to a previous finding by the Senator in relation to an expert witness whose evidence is crucial to the pursuer’s case

13.03.2015 Aberdeen Sheriff Court (Criminal) Sheriff Cowan Accused known by the Sheriff as a regular observer of court proceedings from the public gallery

17.03.2015 Forfar Sheriff Court (Criminal) Sheriff Di Emidio Sheriff personally known to a witness

18.03.2015 Lerwick Sheriff Court (Criminal) Sheriff Mann Circumstances may give rise to a suggestion of bias

16.04.2015 Edinburgh Sheriff Court (Civil) Sheriff Arthurson QC Personally known to a party of the action

12.05.2015 Court of Session (Civil) Lord Boyd of Duncansby Senator was Lord Advocate when a successful prosecution was brought against one of the respondents

14.05.2015 Edinburgh Sheriff Court (Civil) Sheriff McColl Sheriff personally known to a party of the action

27.05.2015 Edinburgh Sheriff Court(Civil) Sheriff Crowe Sheriff had previously dealt a case in which the defender was a witness

29.05.2015 Glasgow Sheriff Court (FAI) Sheriff Principal Scott QC Sheriff Principal personally known to one of the deceased

04.06.2015 Court of Session (Civil) Lord Glennie Senator an acquaintance of a party to the action

04.06.2015 Court of Session (Civil) Lord Burns Previously acted as defence counsel in a criminal trial involving the pursuer.

24.07.2015 Edinburgh Sheriff Court (Criminal) Sheriff Maciver Sheriff personally known to a party in the case

11.08.2015 Banff Sheriff Court (Criminal) Sheriff Mann Sheriff personally known to a party of the action, having previously acted on behalf of the family while in private practice.

28.08.2015 Dundee Sheriff Court (Criminal) Sheriff Murray Sheriff personally known to a witness.

03.09.2015 Dumbarton Sheriff Court (Civil) Sheriff Turnbull Sheriff previously acted for a client in a dispute against the pursuer

04.09.2015 Edinburgh Sheriff Court (Civil) Sheriff Mackie Sheriff involved in a dispute against a party to the action

15.09.2015 Aberdeen Sheriff Court (Criminal) Sheriff Stirling Sheriff previously considered and refused issues which the accused wished to revisit

01.10.2015 Aberdeen Sheriff Court (Criminal) Sheriff Taylor Sheriff was privy to certain information which related to the accused’s credibility

08.10.2015 Lanark Sheriff Court (Criminal) Sheriff Stewart Accused made complaints against staff and sheriff

12.10.2015 Court of Session (Civil) Lady Clark of Calton Senator an acquaintance of a party to the action

20.10.2015 Inverness Sheriff Court (Civil)Sheriff Sutherland Personally known to a party of the action

20.10.2015 Glasgow Sheriff Court (Criminal) Sheriff Crozier Personally known to a director of accused company

12.11.2015 Court of Session (Civil) Lord Malcolm Senator acted as senior counsel for the defenders in a related action

18.11.2015 Court of Session (Civil) Lord Boyd of Duncansby Relatives of Senator involved in the action

26.11.2015 Inverness Sheriff Court (Civil) Sheriff Fleetwood Personally known to a party of the action

27.11.2015 Court of Session (Civil) Lady Paton Her Ladyship was on the bench in a criminal appeal against conviction by the pursuer

09.12.2015 Wick Sheriff Court (Criminal) Sheriff Berry Complainer personally known to resident sheriff

22.12.2015 Lanark Sheriff Court (Civil) Sheriff Stewart Personally known to both parties of the action

26/01/2016 Court of Session Lord Uist Judge dealt with same issue and same witnesses in a case being appealed

27/01/2016 Dumbarton Sheriff Court (civil) Sheriff Gallacher On the Pursuer’s motion in relation to a decision in a preliminary hearing

09/02/2016 Elgin Sheriff Court (criminal) Sheriff Pasportnikov Sheriff previously presided over related case

10/02/2016 Elgin Sheriff Court (criminal) Sheriff Pasportnikov Sheriff previously presided over criminal matter involving complainter

24/02/2016 Glasgow Sheriff Court (civil) Sheriff Reid Sheriff personally known to a witness

18/03/2106 Edinburgh Sheriff Court (civil) Sheriff Ross Sheriff previously presided over criminal matter involving appellant

18/03/2016 Aberdeen Sherirff Court (criminal) Sheriff Stirling Sheriff previously presided over civil matter involving accused

25/04/2016 Ayr Sheriff Court (civil) Sheriff Montgomery Sheriff previously acted for defender as a solicitor

03/05/2016 Lanark Sheriff Court (criminal) Sheriff Stewart Complainer previously represented by Sheriff’s husband

20/05/2016 Court of Session Lord Bracadale On the pursuer’s motion in relation to the judge’s previous decision to refuse the pursuer’s appeal at a procedural hearing

22/06/2016 Perth Sheriff Court (civil) Sheriff Clapham Pursuer known to sheriff

09/08/2016 Dunoon Sheriff Court (civil) Sheriff Ward Sheriff personally known to a witness

19/08/2016 Greenock Sheriff Court (criminal) Sheriff Ward Accused known to sheriff from Sheriff’s time in private practice

23/08/2016 Aberdeen Sheriff Court (criminal) Sheriff Stirling Sheriff Stirling found against the accused company in a civil matter and wrote on same

13/09/2016 Court of Session Lord Pentland The Lord Ordinary previously acted for the first named defender

25/10/2016 Court of Session Lord Brailsford A close relative is employed by one of the parties involved in the case

10/11/2016 Kilmarnock Sheriff Court (criminal) Sheriff Foran Sheriff personally known to a witness

17/11/2016 Dumfries Sheriff Court (civil) Sheriff Jamieson Sheriff previously presided over a related civil proof in another case in which parties were witnesses

18/11/2016 Court of Session (civil) Lord Glennie Earlier decision on a related issue might reasonably be thought to influence any decision in the present case

30/11/2016 Perth Sheriff Court (civil) Sheriff McFarlane Sheriff acted for pursuers when practising as a solicitor

30/01/2017 Edinburgh Sheriff Court (criminal) Sheriff Crowe Sheriff previously presided over criminal matter involving accused, which might reasonably be thought to influence any decision in the present case

13/02/2017 Portree Sheriff Court (civil) Sheriff Taylor QC Sheriff previously dealt with a criminal case involving parties

23/02/2017 Inverness Sheriff Court (civil) Sheriff Fleetwood Sheriff presided over a jury trial involving parties

29/03/2017 Perth Sheriff Court (civil) Sheriff Wade QC The sheriff, in her previous role as advocate depute, was heavily involved in preparing the prosecution of one of the parties in the action

06/04/2017 Kilmarnock Sheriff Court (civil) Sheriff Foran A witness was a former client of the sheriff in previous role in private practice

04/05/2017 Elgin Sheriff Court (criminal) Sheriff Pasportnikov Previous knowledge of the parties through a Children’s Hearing matter

16/05/2017 Banff Sheriff Court (criminal) Sheriff Mann Sheriff personally known to relatives of the accused

12/06/2017 Glasgow Sheriff Court (civil) Sheriff Platt Sheriff personally known to a witness

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

 

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EXCESS BAGGAGE: Lord Carloway’s £4K trip to Washington DC, Lady Dorrian’s £6K trip to Melbourne – Judicial overseas junkets rocket to £43k as new Lord President abandons Brian Gill’s edict on public cash for judicial jollies

Scots judges run up £43K taxpayer bill for overseas junkets. SCOTLAND’S judiciary ran up a taxpayer funded £43K bill on overseas travel junkets in just one year, travelling around the globe on what the Judiciary of Scotland and Scottish Courts and Tribunals Service (SCTS) claim is official ‘judicial’ business.

But the huge increase in judicial jetting around the globe – which doubled in cost from £22,605.92 in 2015.16 to £43,354,91 in 2016/17 – flouts previous attempts by former top judge Brian Gill to “take control” of judges demanding to go on foreign trips to luxurious destinations, with hotels & golf clubs & ‘hospitality’ added to the mix.

And, chief among the big time spenders of public cash on air miles is the Lord President himself – Lord Carloway – who already earns a public salary of £222,862 a year.

Carloway – real name Colin Sutherland – who also goes by the title of Lord Justice General – took a taxpayer funded £4,189.96 jet flight to Washington DC on what the Judicial Office claim is a “UK/USA Legal Exchange” held in Philadelphia and Washington.

While his number two – Lady Dorrian – Scotland;s first ever female judge serving as Lord Justice Clerk earning £215,216 a year – racked up the most expensive flight on taxpayers in the past year – a £6,188.99 trip to attend the Commonwealth Law Conference held in Melbourne Australia.

Also added to the grand list of judicial jet setting across the globe by Scotland’s judiciary is a double overseas junket taken by Lord Matthews and Sheriff Norman McFadyen – who were travelling to the ISRCL – Halifax, Nova Scotia legal seminar in Canada.

Lord Matthews – a Court of Session Senator claimed £4017 costs for the trip, compared with Sheriff McFadyen’s £1842 bill to the public purse.

An investigation of this trip revealed Lord Matthews travelled in a separate business class seat compared with the Sheriff who was forced to fly premium economy class.

The trip by Lord Matthews & Sheriff McFadyen also breached judiciary guidelines on overseas travel issued in 2014 by Lord Brian Gill – which said, as a “general rule”, only one judge or sheriff need attend each conference.

Former Lord Advocate Frank Mulholland also appears on the list of travel junkets by Scottish Judges.

Mulholland was promoted by Lord Carloway to a seat on the bench in the Court of Session – after he blocked a criminal prosecution of footballer David Goodwillie for rape.

Mulholland also blocked criminal charges against the driver of the Glasgow bin lorry which ran out of control in December 2014 killing six people in the centre of Glasgow while injuring 15 others.

Lord Mulholland, as he is now known – took a two day trip on the taxpayer to the European Court of Justice meeting on the 18 – 20 Sept 2016 in Luxembourg, at a staggering cost of £1,216.34

Previous investigations into Overseas travel records released by the Judicial Office for Scotland have also revealed Court of Session judge Lord Brailsford enjoyed a £4,898.94 eight day taxpayer funded junket to Sydney Australia from 11 – 19 November 2015.

Lord Brailsford – who became widely known after his son escaped criminal charges for ‘rape & murder’ threats to a girl on twitterwas outed in published documents obtained from the Scottish Government as the listed owner of the Laigh Hall – which forms part of Court of Session buildings located at Parliament House, Edinburgh.

Earlier reports also revealed Lord Gill enjoyed a two day trip during the twilight days of his short, if stormy three year term as Scotland’s top judge – to the Forum of Chief Justice of British Isles – held in the tax haven of Jersey. Lord Gill claimed £302.09 expenses on top of the £231.60  cost of travel to Jersey – taking the cost of his last ‘confirmed’ judicial overseas junket as top judge – to £533.69.

A Scottish Sun investigation revealed Lord Brian Gill travelled to Qatar in 2014 on a five day £2,800 taxpayer funded state visit – while dodging invitations to attend the Scottish Parliament to face scrutiny on his opposition to increased transparency of the judiciary.

And in early 2016,  Lord Gill billed the Scottish Parliament a further £267.75 worth of expenses claims – after the former top judge travelled 1st class to Edinburgh in November 2015 – demanding MSPs drop a three year probe on proposals to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The Sunday Mail newspaper also investigated judicial overseas junkets in 2015 – revealing three sheriffs spent £15,000 on an overseas junket to Zambia in Africa JUDGE JET: Sheriffs’ £15K tour of Africa adds to air miles racket of Scots judiciary – as top judges’ clampdown on judicial jet set junkets takes flight.

And a report in the Sunday Mail on June 2 2013 revealed Scottish judges spent over £83,000 on overseas travel junkets in three years – while top judge Lord Gill refused calls to appear before the Scottish Parliament to answer questions on the judiciary’s secretive financial interests & links to big business, banks & the professions.

The Sunday Mail featured an exclusive report on judicial air travel:

PLANE DAFT: It’s plane daft as judge costs taxpayers £2175 more than sheriff who flew on same flight to conference

Lord Matthews was travelling to the same legal seminar in Canada but racked up a huge bill in first class while Sheriff Norman McFadyen went economy.

By Craig McDonald 14 MAY 2017 Sunday Mail

A judge ran up a £4000 taxpayers’ bill flying business class to a conference – while a sheriff who accompanied him sat in economy.

Judge Lord Matthews and Sheriff Norman McFadyen were travelling to the same legal seminar in Canada.

But Matthews claimed £4017 costs for the trip, compared with McFadyen’s £1842 bill to the public purse.

High Court judge Lord Matthews also filed £201 in expenses for the excursion to Halifax, Nova Scotia, last year.

Sheriff McFadyen, who sits at Edinburgh Sheriff Court, claimed no cash back.

The trip also appeared to breach judiciary guidelines issued in 2014 which said, as a “general rule”, only one judge or sheriff need attend each conference.

Another trip saw five High Court judges – Lords Brodie, Glennie, Doherty, Pentland and Lady Scott – attend a Strasbourg conference at a total cost of £4378.

It also cost £1408 to send four sheriffs – Corke, Reith, Mackie and Stewart – to a conference in Dublin.

The taxpayer coughed up £43,354 for foreign travel by the judiciary office last year. The figure was double the total of £22,605 in 2015.

Labour’s justice spokeswoman Claire Baker MSP said: “Questions should be asked about why one person is travelling at twice the cost of another.

“There will be legitimate reasons why the judiciary require to attend international events.

“However, this is an overall significant increase on the previous year and they need to be mindful that this is public money. All trips need to be proportionate.”

Scottish Tory justice spokesman Douglas Ross MSP said: “This is a huge increase in travel costs and needs to be explained.

“When guidelines state that one judicial member should be sufficient for each event, it’s questionable why so many have been travelling together.

“This is taxpayers’ money and shouldn’t be splashed out on needless flights.”

The judge and sheriff were attending the International Society for the Reform of Criminal Law seminar between July 24 and 28 last year.

In 2014, the then Lord President, Lord Gill, issued guidance on overseas travel in which he stated “it should only be necessary for one judicial office holder to attend a conference overseas”.

Lord Gill said it would only “be in exceptional cases that I am likely to consider it necessary for more than one person to attend”. He added: “In all cases where funding is being sought, I will require a business case to be produced.

“I will need a clear justification for any overseas travel.”

Figures for judicial travel for the 12 months to March 31 showed a total of 38 trips were made overseas.

The biggest single claim was for a £6188 trip to Australia by Lady Dorrian to attend the Commonwealth Law conference in Melbourne.

The least expensive was when Lord Tyre managed an Academy of European Law trip to Frankfurt at a cost of just £84. The High Court judge did claim a further £57 in expenses for the trip last April.

Lord Tyre also attended events in Brussels, The Hague, Amsterdam, Barcelona, Warsaw, Madrid and Rome.

One of the most widely travelled of the judiciary last year was Edinburgh Sheriff Gordon Liddle.

He attended the Commonwealth Magistrates’ and Judges’ Association in Georgetown, Guyana, at a cost of £3637 and a European Network of Councils for Justiciary event in Warsaw, Poland, costing £607.

Sheriff Liddle also attended events in Ljubljana, Slovenia, costing £383 and in Bratislava, Slovakia, costing £285.

A spokesman for the Judicial Office for Scotland said last week: “There will be occasions where it is appropriate to send more than one member of the judiciary to important legal conferences.

“Attendance at overseas conferences is only authorised by the Lord President where there is a clear justification.”

He added: “Lord Matthews flew business class, while Sheriff McFadyen flew premium economy/economy, which goes some way to explaining the difference in cost.

“Furthermore, Lord Matthews’ flights required to be booked closer to the date of departure as he was presiding over a trial.”

JUDICIAL JUNKETS – Judges cost taxpayers £43K in flights to ‘legal’ conferences, hotels with health spas, golf courses & hospitality in 2016/17:

The full list of Overseas trips for 2016-2017 currently acknowledged by the Judicial Office for Scotland:

10 – 12 April 2016 Lord President – CJEU Bilateral meeting – Luxembourg £673.83 £20.00 £693.83

10 – 12 April 2016 Lord Tyre – ENCJ Conference – Barcelona £284.76 £74.69 £359.45

21 – 23 April 2016 Lord Tyre – Board of Trustees of the Academy of European Law – Frankfurt £84.64 £57.09 £141.73

1 – 3 June 2016 Lord Tyre – ENCJ General Assembly – Warsaw £604.94 £73.97 £678.91

1 – 3 June 2016 Sheriff Liddle – ENCJ General Assembly – Warsaw £607.35 £32.86 £640.21

29 – 30 June 2016 Lady Dorrian – Joint meeting of the Working Party on e-Law with legal practitioners – Brussels £511.92 – £511.92

3 – 4 July 2016 Lord Tyre – ENCJ Executive Board Meeting – Madrid £464.59 £76.35 £540.94

24 – 28 July 2016 Sheriff McFadyen – ISRCL – Halifax, Nova Scotia £1,842.93 – £1,842.93

24 – 28 July 2016 Lord Matthews – ISRCL – Halifax, Nova Scotia £3,816.19 £201.74 £4,017.93

6 – 11 August 2016 SP Abercrombie – Representing the Scottish Sentencing Council -Salt Lake City, Utah. £230.98 £36.13 £267.11

14 – 23 Sept 2016 Lord President – UK/USA Legal Exchange – Philadelphia and Washington USA £4,189.96 £123.11 £4,313.07

18 – 20 Sept 2016 Lord Mulholland QC – Attending ECJ meeting – Luxemburg £1,131.03 £85.31 £1,216.34

18 – 22 Sept 2016 Sheriff Liddle – CMJA Conference – Georgetown, Guyana £3,637.78 – £3,637.78

26 – 27 Sept 2016 Lord Tyre – ENCJ Project Group Meeting – Rome £381.07 £104.93 £486.00

1 – 3 October 2016 Lady Dorrian – Opening Legal Year – Dublin £623.21 – £623.21

1 – 3 October 2016 Lord Doherty – Opening Legal Year – Dublin £623.21 £162.19 £785.40

3 – 14 October 2016 Sheriff L Drummond – FBIJCC Stage 2016 – Paris £3,185.32 £350.83 £3,536.15

16 – 21 October 2016 Sheriff O’Carroll – IAJ Conference 16 – 21 October 2016 – Mexico City £3,660.29 – £3,660.29

17 – 28 October 2016 Sheriff C Cunninghame – FBIJCC Stage 2016 – Bordeaux £1,899.73 £210.70 £2,110.43

20 – 22 November 2016 Lord Brodie – Bilateral between the European Court of Human Rights and the Senior Judiciary of Scotland – Strasbourg £740.14 £229.62 £969.76

20 – 22 November 2016 Lord Glennie – Bilateral between the European Court of Human Rights and the Senior Judiciary of Scotland – Strasbourg £817.23 – £817.23

20 – 22 November 2016 Lord Doherty – Bilateral between the European Court of Human Rights and the Senior Judiciary of Scotland – Strasbourg £817.23 £47.51 £864.74

20 – 22 November 2016 Lord Pentland –  Bilateral between the European Court of Human Rights and the Senior Judiciary of Scotland – Strasbourg £827.43 £82.13 £909.56

20 – 22 November 2016 Lady Scott – Bilateral between the European Court of Human Rights and the Senior Judiciary of Scotland – Strasbourg £817.23 – £817.23

21 November 2016 Lord Tyre – ENCJ Executive Board meeting – Brussels £366.87 £87.16 £454.03

24 – 25 November 2016 Sheriff D Corke – 4 Nations Public Guardian Conference – Dublin £361.32 – £361.32

24 – 25 November 2016 Sheriff F Reith QC – 4 Nations Public Guardian Conference – Dublin £363.48 £39.65 £403.13

24 – 25 November 2016 Sheriff A Mackie – 4 Nations Public Guardian Conference – Dublin £298.19 £8.40 £306.59

24 – 25 November 2016 Sheriff N Stewart – 4 Nations Public Guardian Conference – Dublin £336.90 £336.90

8 – 9 December 2016 Lord Tyre – Attending ENCJ Independence & Accountability Project Team Meeting – The Hague £441.97 £63.21 £505.18

11 – 12 December 2016 Sheriff Liddle – ENCJ – Project Group Meeting – Bratislava £285.36 £22.15 £307.51

26 – 28 January 2017 Lord Boyd – Attending ECHR Judicial Seminar, Principle of international Law – Strasbourg £497.40 £32.53 £529.93

12 – 14 February 2017 Lord Tyre – ENCJ Executive meeting – Brussels £428.74 £30.39 £459.13

12 – 14 March 2017 Sheriff Liddle – ENCJ Project team meeting – Ljubljana £383.69 £26.78 £410.47

15 – 25 March 2017 Lady Dorrian – Commonwealth Law Conference – Melbourne Australia £6,188.89 £6,188.89

16 – 17 March 2017 Lord Tyre – ENCJ, Project meeting – Vienna £301.98 £12.25 £314.23

26 – 28 March 2017 Lord President – Judges Forum, 60th Anniversary of the signatures of the Treaties of Rome – Luxembourg £32.14 £32.14

30 – 31 March 2017 Lord Tyre – ENCJ, Digital Justice Seminar – Amsterdam £132.94 £132.94

Total cost of trips: £42,860.72 Total Expenses claimed: £2,323.82 Grand Total of Judicial Overseas costs to March 2017: £43,354.91

GUIDANCE BY GILL – Former Lord President Brian Gill’s guidance on judicial overseas junkets:

After several spats between members of the judiciary who were keen to take overseas junkets to luxurious destinations & enjoy tours, hospitality & golf instead of attending law conferences on taxpayers cash, Lord Gill attempted to curtail demands of greedy judges on the public purse.

Guidance issued by Lord Gill in 2014 stated:

I have been reviewing the arrangements to control expenditure to meet attendance at conferences by the judiciary, especially where the conference is taking place outwith the United Kingdom. I have also been considering the arrangements for the authorisation of all other overseas travel to be paid from public funds. With immediate effect the following arrangements are to apply to future requests.

Requests for funding for attendance at conferences and for all other overseas travel should be sought only from the Judicial Office . No request for support to meet attendance at conferences, or other overseas travel should be made to any other part of the Scottish Court Service.

In all cases where funding is being sought I require a business case to be produced by the judicial office holder or the judicial representative body that is seeking funding. The business case does not need to be long, but it must:

(i) identify the nature of the conference;

(ii) the number of judicial office holders it is suggested should attend;

(iii) why that number is necessary if it is more than one;

(iv) the benefit either to those attending or to the judiciary more widely from attendance at the conference;

(v) the likely costs of attendance ; and

(vi) the likely impact on the efficient administration of business.

The business case should be sent to the Executive Director of the Judicial Office for Scotland, Stephen Humphreys. He will assess whether funds are available to meet the costs of attendance and if so pass the business case to me.

I will then consider all requests and respond directly to the judicial office holder. I will need a clear justification for any overseas travel. As a general rule it should only be necessary for one judicial office holder to attend a conference overseas. It will only be in exceptional cases that I am likely to consider it necessary for more than one person to attend.

Where support is provided to attend a conference a report is to be prepared and sent to the Executive Director within one month of the end of the conference. The report will be placed on the Judicial Hub and the Judicial website. It is important that as many of the judiciary as possible are able to benefit from the investment of public money in attending the conference.

Lord President Lord Gill, July 2014

Previous articles on the judiciary’s use of public cash to fund judicial overseas junkets can be found here: Overseas travel of Scottish judges.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 Judiciary (Register of Interests) (PE1458)

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

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

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

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

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

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

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

Members indicated agreement.

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

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

 Judiciary chief to face MSPs over register of interests

Martin Hannan, Journalist

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Sunday Herald reports:

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

Paul Hutcheon, Investigations Editor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Writing to the Petitions Committee, the petitioner said:

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

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

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

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

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

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

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

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

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

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

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

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

 

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CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders

Judicial Interests probe – Lord Malcolm heard case involving his own son. AN INVESTIGATION by MSPs into proposals to create a register of judges’ interests has received evidence which contradicts claims by top judges – that members of the judiciary recuse themselves when they have conflicts of interest in court.

Papers lodged with the Scottish Parliament’s Public Petitions Committee in relation to Petition PE1458: Register of Interests for members of Scotland’s judiciary – reveal Court of Session judge – Lord Malcolm – real name Colin Malcolm Campbell QC – took part in multiple hearings on a case which began with his son – Ewen Campbell – providing legal representation to building firm Advance Construction Ltd.

However, Lord Malcolm did not recuse himself from any of the hearings, and no one in the court made the pursuers aware of any relationship between Lord Malcolm and Ewen Campbell until years into the court case.

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

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

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

Crucially, answers lodged by the defenders in relation to an appeal by the pursuer in 2016 – finally confirmed the relationship between the judge hearing the case and the defenders solicitor, admitting Ewen Campbell was Malcolm’s son, and had been acting for the defenders in court in earlier hearings.

However, the admission of the relationship between the judge and the defenders solicitor came years into the case, and questions are now being asked as to why the judge, and no one else in court informed the pursuers of this potential conflict of interest at a much earlier stage in the action.

A quote from a motion raised by the defenders in 2016 stated: “Lord Malcolm’s son, namely Ewen Campbell, was formerly an assistant solicitor at Messrs Levy & Mcrae, Solicitors, Glasgow. That firm is the principal agent instructed by the Defender and Respondent. Ewen Campbell was formerly involved in the present cause as an assistant to the partner handling the case.”

Pleadings to the court reveal Lord Malcolm heard the case on eight separate occasions, listed as 3 May 2012, 11 May 2012, 24 July 2012, 4 October 2012, 13 March 2013, 11 April 2013, 20 May 2013 and  on 16 March 2016.

However, there is no record of any recusal by Lord Malcolm in the case.

During the 11 April 2013 hearing, a note of the decision written by clerk Kate Todd reveals Lord Malcolm appointed Lord Woolman to hear the proof.

The move to appoint another judge is now subject to debate and questions from the pursuers and legal observers, given the fact Lord Malcolm had already taken part in no less than five hearings in Mr Nolan’s case without any recusal with regard to his son’s interest as legal agent for the defenders.

According to normal procedure, the appointment of Lord Woolman to the proof should instead have been undertaken by the Office of the Keeper of the Rolls of the Court, and not by another judge.

Lord Woolman has since come in for criticism after key parts of his 2014 opinion have been subject to concerns in relation to a lack of evidence and ‘unauthorised’ actions attributable to a senior QC.

However the saga of Lord Malcolm’s appearances in the case did not end with the proof being handed over to Lord Woolman in 2013.

Lord Malcolm returned to the same case during 2016 for another hearing – in order to hear and grant a motion handing money to the defenders – which had been lodged for an appeal by a friend of Mr Nolan.

The return of a judge to a case in which MSPs have been told he should have stood aside due to a conflict of interest – has now prompted concerns over the integrity of information currently supplied by the Judicial Office since 2014 relating to judicial recusals – and previous claims by judicial figures to politicians that judges had recused themselves when required to do so prior to the creation of the recusals register in 2014.

And, it has been pointed out – Lord Malcolm’s position on such an obvious conflict of interest contrasts starkly with action taken by former Lord President Brian Gill – who avoided the same situation when forced to step down from a case in June 2014 when Lord Gill’s son – Advocate Brian Gill – appeared in the same court acting for a party in a hearing.

With increasing calls for transparency on judges’ declarations and interests, questions are also being asked why a judge was allowed to sit unchecked so many times on a case in which his own son provided legal representation for the defenders.

The case involving Lord Malcolm – has now been brought to the attention of members of the Scottish Parliament’s Public Petitions Committee – who are involved in a five year probe on the judiciary and proposals put forward to require judges to register their interests.

Writing in a submission to MSPs, Mr Nolan’s partner – Melanie Collins – said had a register of interests for judges existed in Scotland, the existence of such a register would have resulted in Lord Malcolm recusing himself from hearing the case.

Ms Collins also highlighted links between the same judge – Lord Malcolm – and a ruling affecting hundreds of solicitors and members of the public which toppled over 700 investigations by the Scottish Legal Complaints Commission against solicitors and law firms accused of wrongdoing.

Ms Collins informed MSPs the SLCC were at the time investigating a complaint in relation to issues surrounding Mr Nolan’s case.

However, the ruling by Lord Malcolm ‘coincidentally’ closed down the legal regulator’s investigation into solicitors involved in the case, and hundreds of other cases after the judge struck down a 30 year policy where the Law Society of Scotland and SLCC investigated “hybrid complaints’ comprising of conduct and service issues against solicitors since before 1980.

Now, Ms Collins and her partner Mr Nolan both have the support of their constituency MSP Alex Neil and backing to bring their experiences to the Scottish Parliament.

The full submission from Melanie Collins: PE1458/CCC: SUBMISSION FROM MELANIE COLLINS

I would like to make the following submission in relation to the current system of judicial recusals.

In my view the system is not transparent about the circumstances in which judges should recuse themselves, such as circumstances in which a judge could be perceived as having a potential bias, or the instances in which a judge may be asked to consider recusing themselves but decide not to do so. My experience demonstrates that the recusal register is not working and that a register of interests being put in place is both necessary and correct to allow the public to have faith in the judiciary and transparency of the judicial system.

My views arise from a case raised on my partner’s behalf and in which a senior judge did not recuse himself, in circumstances in which the existence of a register of interests may have resulted in him having done so.

The matter, which I note has already been mentioned in a submission by the petitioner and has been aired by Committee members, has relevance to a recent ruling in the Court of Session a recent ruling in the Court of Session carried out by the Scottish Legal Complaints Commission .

In a civil case raised in the Court of Session, on behalf of my partner, Mr Donal Nolan, Lord Malcolm (Colin Campbell QC) heard and ruled on evidence in the case.

His son, Ewen Campbell, who at the time was with Levy & McRae, was an assistant solicitor involved in the day-to-day running of the case, providing the defenders with advice and representation in court. Ewen Campbell reported back to Peter Watson, formerly a senior partner of Levy & Mcrae, and (at the date of this submission) currently suspended as a temporary sheriff.

In the case raised on behalf of my partner Mr Nolan, had a register of interests for members of the judiciary existed prior to the case coming to court, this may in my view have resulted in Lord Malcolm having recused himself.

In relation to the impact of this on the ruling in the case involving the Scottish Legal Complaints Commission, the SLCC were investigating matters in relation to this case which the ruling by Lord Malcolm had the effect of changing the hybrid complaints process which resulted in numerous cases not being concluded.

There are examples in the judicial recusals register of judges recusing themselves, particularly the instance where former Lord President, Lord Brian Gill, recused himself on 26 June 2014, after his son appeared in the same court acting for a respondent.

It is not clear to me how this instance differed from my case where Lord Malcolm did not recuse himself and on which Lord Brodie’s opinion concluded that the circumstances did not satisfy the test for apparent bias or that there was a question of interest on the part of Lord Malcolm. This lack of clarity about when recusal is appropriate does not help in assuring public faith in the judiciary and transparency of the judicial system .

Members may also wish to note I have written to the current Lord President Lord

Carloway, to make him aware of concerns in relation to my own experience before the Court of Session.

No action has been taken by Lord Carloway to address the matter, which in my view is of significant concern where there is a potential conflict of interest, and where the transparency of the judicial system could be improved. In a response from the Lord President’s Office, information about the complaints mechanism for judges was not provided.

As members of the Committee have previously been made aware of certain details of this case, I would very much welcome the opportunity to give evidence in a public session, and also that my MSP, Alex Neil whose assistance has been invaluable in advancing matters, be invited to give evidence before the Committee.

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THE UNRECUSED: The judge, his son, conflicts of interest and failure to recuse – undermines public confidence in Court of Session:

An ongoing investigation into a case in which a judge did not recuse himself from seven hearings on a case where his own son represented the defenders, and returned for a eighth hearing in 2016 to hand over sums lodged as cation for an appeal – is eroding confidence in Scotland’s top court –  the Court of Session.

Journalists examining papers relating to Lord Malcolm’s eighth appearance to the case of Nolan v Advance Construction Ltd – have revealed a motion lodged by pursuer Mr Nolan for permission to appeal the decision by Lord Malcolm to hand over the £5,000 lodged as caution for expenses was blocked by Lord Brodie – but only after the judge appeared to be talked out of considering the pleadings by the defender’s QC.

The appeal raised by Mr Nolan against Lord Malcolm’s decision to hand over the cation – raised a conflict of interest and human rights, stating “grounds of justice and all persons who have an interest in the case should have been declared”.

This appeal was lodged during 2016 – only after the pursuer had been alerted to the fact a solicitor – Ewen Campbell – who acted for the defenders was actually the son of the judge – Lord Malcolm – who had presided over the case on seven previous hearings.

During hearings in relation to the initial lodging of the £5K cation by a friend of Mr Nolan – the QC, Roddy Dunlop acting for defenders Advance Construction Lrd asked Lord Menzies to increase the amount of the cation to around £35K.

However, Lord Menzies denied the defenders their motion to increase, and thought £5K was sufficient for to advance the appeal.

Then, in a later hearing, Lord Brodie said the money for the appeal should have been left in situ after the pursuer entered pleadings – requesting the cation be returned to the third party.

However Balfour & Manson – acting on behalf of Levy & Mcrae – for Advance Construction Ltd – presented a motion requesting the money be handed over to the defenders.

It was at this hearing, Lord Malcolm returned for the eighth occasion after earlier recusing himself from the case – to hand over the cash to the defenders.

The pursuer – Mr Nolan – then sought a written opinion from Lord Malcolm for his decision on 16 March 2016 to hand over the cation – however none was forthcoming from the judge or his clerks.

An opinion by Lord Brodie from the Court of Session – dated 20 May 2016 which the Scottish Courts Service has refused to publish – reveals Lord Brodie – who previously ruled on parts of the case, returned to hear Mr Nolan’s motion requesting for leave to appeal Lord Malcolm’s decision to the UK Supreme Court.

In the difficult to obtain opinion, Lord Brodie appeared to be going for the pursuer’s pleadings in that the test was met for a fair minded observer to conclude a conflict of interest existed on the part of Lord Malcolm.

However, as Lord Brodie’s opinion continues, the judge is then persuaded against granting the pursuer’s request for leave to appeal by the defender’s QC – Roddy Dunlop.

Commenting on the developments at the Scottish Parliament, the petitioner suggested the rules around judicial recusals should be improved to ensure a judge who has already recused themselves from a case should not be allowed to return to the same case at any later date.

The petitioner further stated: ”It appears Mr Nolan had no chance of obtaining justice at the Court of Session in a situation where the father of the defender’s legal agent was the presiding judge, the law firm acting for the defenders had senior partners who were judicial office holders and therefore colleagues of the presiding judge, and a QC who was representing the defenders has family links to the judiciary.”

“Had a register of judicial interests already existed, most or all of these relationships should have been caught and properly dealt with if public scrutiny and the test of fair mindedness of external observers were able to be applied to events in this case.”

As investigations into the case continue, papers currently being studied by journalists are set to reveal further issues:

* a senior QC sent emails to the pursuer and his partner demanding cash payments outside of the process where Advocate’s fees are normally paid through solicitors to Faculty Services. At the time of these demands for cash payments, the current Lord Advocate – James Wolffe QC – was the Dean of the Faculty of Advocates and fully aware of the QC’s irregular requests for cash.

* a set of desperate emails from a senior QC demanding possession of a recorded consultation during which, among other issues the pursuer’s legal team seem aloof of developments in major contamination & planning related cases.

* Evidence of Advocates’ demands for cash payments and falsified documents handed to James Wolffe QC – the then Dean of the Faculty of Advocates and now Scotland’s top prosecutor – the Lord Advocate – were not acted upon or properly investigated.

* North Lanarkshire Council paid out £2 million pounds of public cash which ended up with the defenders after they were paid in a subcontract agreement – yet the contaminated material dumped by the defenders on Mr Nolan’s land is still there and no action has been taken to remove it while the Scottish Environmental Protection Agency (SEPA) ‘looked the other way’.

* Mr Nolan had obtained a Soul & Conscience letter from his doctor due to ill health, lodged as document 148 of the process. The existence of the Soul and Conscience letter meant Mr Nolan should never have been put a position to address a court under the circumstances but was forced to do so.

* the blocking of an appeal to the UK Supreme Court by Lord Hodge – who failed to declare he previously sat on the Nolan v Advance Construction Ltd case at least eighteen times while he served as a judge in the Court of Session.

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

 

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JUDICIAL REGISTER: Evidence lodged by Judicial Investigators, campaigners, judges & journalists in four year Holyrood probe on judges’ interests – points to increased public awareness of judiciary, expectation of transparency in court

Judicial register required for openness in court. EVIDENCE accumulated as a result of a four year probe by the Scottish Parliament on proposals to require judges to register their interests – points to the inescapable conclusion there is a need for a fully published and publicly available register of interests for the judiciary.

The overall impression reached by many involved in the debate around judicial interests is that creating such a register with full declarations by judges will enhance public trust in judges, and bring the judiciary into line with transparency rules which apply to all other branches of Government.

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

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

A full history, list of evidence, Parliamentary hearings and submissions from all sides of the debate including campaigners, legal academics, both of Scotland’s Judicial Complaints Reviewers, law related organisations, the Scottish Government and Scotland’s top judges in relation to Petition PE1458: Register of Interests for members of Scotland’s judiciary is published for readers and those with an interest in how the judiciary operate, below:

Date Petition Lodged: 07 December 2012

Note: This article will be updated as new submissions and evidence are published by the Petitions Committee.

Petition aim: 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.

Petition History:

Summary:

8 January 2013: The Committee agreed to write to the Scottish Government, the Lord President, the Faculty of Advocates and the Law Society of Scotland. Link to Media report – Declare your interests M’Lords

5 March 2013: The Committee agreed to invite the Lord President to give evidence at a future meeting and seek further information on the proposed New Zealand legislation. Link to Media report – ‘Methinks the Lord President doth protest too much’

16 April 2013: The Committee agreed to write again to the Lord President and seek views from the Judicial Appointments Board for Scotland and the Judicial Complaints Reviewer. Link to Media report – What is there to hide?

25 June 2013: The Committee agreed to invite the Judicial Complaints Reviewer to give evidence at a future meeting. The Committee also agreed to write to Dr Kennedy Graham MP, New Zealand Parliament. Link to Media report – top judge ‘should reconsider his position on Scotland Act’

17 September 2013: The Committee took evidence from Moi Ali, Judicial Complaints Reviewer. The Committee agreed to write to Dr Kennedy Graham MP, New Zealand Parliament, the Crown Office and Procurator Fiscal Service, the Scottish Court Service and the Scottish Government. The Committee also agreed to consider the debate that took place during the passage of the Scotland Act 1998 on section 23. Link to Media report – evidence of Moi Ali, Judicial Complaints Reviewer

JCR Moi Ali gives evidence to Scottish Parliament on a proposed Register of Judicial Interests

26 November 2013: The Committee agreed to defer future consideration of the petition until after the meeting between the Convener, Deputy Convener and the Lord President. Link to Official Report 26 November 2013

28 January 2014: The Committee agreed to defer consideration of the petition pending receipt of a letter from the Lord President. Link to Media report – Private Parly

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. Link to Media report – Recuse me not

6 May 2014: The Committee agreed to write to the Lord President and the Scottish Government. Link to Media report – MSPs seek views from scripted top judge

9 October 2014: The Committee held a debate in the Chamber on the subject of the petition. Link to Media report – Debating the judges – full debate at Holyrood, video & official report

28 October 2014: The Committee agreed to write to the Lord President and the Judicial Complaints Reviewer. The Committee also agreed to invite the Cabinet Secretary for Justice to give evidence at a future meeting. Link to Media report – Secretary for the judge

9 December 2014: The Committee took evidence from Paul Wheelhouse, Minister for Community Safety and Legal Affairs, and Kay McCorquodale, Civil Law and Legal Systems Division, Scottish Government. The Committee agreed to consider the petition again in the new year to reflect on the evidence received today, the annual report of the previous Judicial Complaints Reviewer and the new rules and guidance to be published by the Lord President. The Committee also agreed to write to the new Judicial Complaints Reviewer. Link to Media report – Too many secrets

12 May 2015: The Committee agreed to invite the Judicial Complaints Reviewer to give evidence at a future meeting. Link to Media report – You ran M’Lord

23 June 2015: The Committee took evidence from Gillian Thompson OBE, Judicial Complaints Reviewer. The Committee agreed to write to the Scottish Government, Lord Gill and, when appointed, the new Lord President. Link to Media report – Register, M’Lord

JCR Gillian Thompson OBE evidence to Scottish Parliament: Register of Interests for Judges Petition PE1458 Scottish Parliament 23 June 2015

10 November 2015: The Committee took evidence from Rt Hon Lord Gill, former Lord President of the Court of Session. The Committee agreed to reflect on the evidence heard at a future meeting. Link to Media report – Judge Another Day

Evidence of Lord Gill before the Scottish Parliament 10 November 2015

1 December 2015: The Committee agreed to write to the new Lord President once appointed. Link to Media report – Evidence, M’Lord

23 February 2016: The Committee agreed to include the petition in its legacy paper for consideration by the Session 5 Public Petitions Committee. In doing so, the Committee agreed to write to Professor Alan Paterson, University of Strathclyde. Link to Media report – Declare it, M’Lord

29 September 2016: The Committee agreed to invite the Lord President and Professor Alan Paterson to give oral evidence at a future meeting. Link to Media report – Question Time, M’Lord

22 December 2016: The Committee agreed to consider what further action to take on the petition once it has taken oral evidence from Professor Alan Paterson at its meeting on 19 January 2017. Link to Committee video footage: Petition PE1458 Register of Interests for judges Public Petitions Committee – Scottish Parliament 22 Dec 2016

19 January 2017: The Committee agreed to write to the Lord President and the Judicial Complaints Reviewer. Link to Media Report: “Transparency is part of accountability” says Law Professor to MSPs

30 March 2017: The Committee agreed to invite the Lord President to provide oral evidence at a future meeting. Link to Media Report: Top judge Lord Carloway to face Parliament probe on register of judges’ interests

Click on each link to view written Submissions to the Scottish Parliament:

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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