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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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CASH IN THE CROWN: Forget millions on bonuses, mortgages, junkets & dodgy prosecutions – Holyrood Crown Office probe raises concerns, recommends changes for £113m ‘under-resourced’ & untrustworthy Prosecution service

Scots Prosecutors ‘getting by’ on £113m a year. SCOTLAND’S PROSECUTORS are “just about managing” on £113million a year of taxpayers cash – according to a report produced by the Scottish Parliament’s Justice Committee of the ‘Role and Purpose of the Crown Office & Procurator Fiscal Service (COPFS).

During the ‘bombshell’ inquiry into the Crown Office – an organisation once dubbed ‘the most corrupt institution in Scotland’ by a Cabinet minister – the Scottish Parliament’s Justice Committee heard claims COPFS staff suffered from shortage of resources,weak morale – including more than average levels of sick leave, claims of overwork.

MSPs also heard grips from the Lord Advocate – James Wolffe QC and his team over the level of public cash thrown at the infamous Edinburgh based Crown Office which now stands at a whopping £112.5million a year – according to figures in the Scottish Government’s own budget for 2016.

The report – into the ‘crime fighting’ Crown Office – which refused to prosecute the driver of the Glasgow bin lorry which left six people dead and injured 15 others in the centre of Glasgow – concludes: “On the whole, the public should have confidence that it is a rigorous and fair prosecutor. “However, the service remains under considerable pressure. There can be no room for complacency.”

The Committee’s inquiry also identified room for improvement in a number of Crown Office functions, including the support given to victims and witnesses – who are often poorly treated by COPFS staff.

However – during 2014 it was reported a senior manager in the Crown Office was suspended after openly criticising the treatment of crime victims.

John Fox, 47, made postings on an internal staff forum accusing his bosses of putting victims of domestic violence at risk. His criticism emerged days after the Sunday Mail newspaper revealed how victims of crime felt betrayed by Scotland’s justice system and were demanding reforms.

Mr Fox was formerly in charge of the 100-strong Victim Information and Advice Service (VIA), responsible for helping to improve services to crime victims and their families across Scotland. One of their tasks is to inform victims of domestic violence about the release from custody of the person charged with attacking them.

In some cases, victims of crime and witness have since alleged Crown Office employees told outright lies.

And, a recent investigation by the media reported key Crown Office employees hold secret criminal convictions for serious offences. The investigation, assisted by documents obtained by Freedom of Information legislation published here: Prosecutors own crime gang revealed  also found some victims and witnesses to crime had been threatened by Crown Office prosecutors and staff.

In a period of just two years – from November 2013 to November 2015 – the Crown Office admitted it retained records showing 15 cases reported to COPFS containing allegations of criminal offences by COPFS staff. Court proceedings were taken in 11 cases, three cases were disposed of by non-court disposal and no proceedings were taken in one case.

The charges brought against staff include assault and vandalism; road traffic offences; threatening and abusive conduct; breach of the peace; Misuse of drugs and offences against the police; data protection offences and an attempt to pervert the course of justice.

The Holyrood enquiry was apparently not handed any of this information. The inquiry did not take  steps to act upon it and quiz COPFS representatives, despite reports being available in the media  and to the inquiry – for some time.

Much of the inquiry’s focus on staff morale heard claims the Crown Office was underfunded and overworked, however figures revealed in a Freedom of Information request for the immediate three years after the collapse of several high street banks & huge cuts to public services – revealed successive Lord Advocates have spent over £572,307,16 on paying supposedly hard up staff everything from mortgages, relocation, rental costs and even phone bills, council tax and personal legal bills.

During financial year 2008/2009, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to 32 employees were: £212,500.76.
During financial year 2009/2010, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to 38  employees were £242,586.59.
During financial year 2010/2011, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to  26 employees were £117,220.14.

The cash expenses & junkets claims from COPFS staff continue, with figures released in another Freedom of Information request revealing a whopping £137,744.43 spent on further staff perks and junkets in 2014-2016. The FOI revealed:

During financial year 2011/2012, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to 16 employees were £85,513.21.
During financial year 2012/2013,payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to   8 employees were £38,711.35.
During financial year 2013/2014, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to  5 employees were £13,519.87.

The cash expenses & junkets claims from COPFS staff continue, with figures released in another Freedom of Information request revealing a further £28,090 spent on further staff mortgages, rent , phone bills, legal bills and other perks and junkets in 2014-2016. However, these figures are now thought to be in dispute – and of a much higher sum than was originally quoted by the Crown Office. Nevertheless the FOI revealed:

Payments made by COPFS for housing, rent or relocation allowances, or help with mortgages, for COPFS staff including Procurators Fiscal from 1 April 2014 to 31 March 2016, were made by 33  COPFS employees, totalling an extra £28,090.

A separate Freedom of Information request revealed the hard-up Crown Office media unit spent over £376,168.06 in one year alone on media relations – this despite the Lord Advocate’s staff of 6 full time media staff and one part time employee – operating a policy of “no comment” to journalists – who are in increasing numbers of cases told to put their request for comment in a Freedom of Information request.

And, an investigation by the Sunday Mail newspaper in 2011 established the Lord Advocate had authorised massive bonuses for Crown Office staff who pocketed bonus payments of more than £580,000 in just two years.

Figures released via Freedom of Information requests revealed 419 COPFS employees shared payouts totalling £326,844 in 2009-2010, while 518 COPFS staff were handed £253,330 for 2010-11.

In 2009-2010, eight employees of the Crown Office received Bonuses of up to £20,000 while a further 15 COPFS employees received bonuses of up to £8,000.

In the same year up to 200 members of staff received bonus pay-outs of up to £500 while a further 200 COPFS employees were paid bonuses of up to £1000 each.

And, an investigation by the Scottish Sun newspaper revealed supposedly hard up Crown Office staff were travelling to international destinations all bankrolled by taxpayers cash.

The allegedly hard up Crown Office spent more than £57,000 of taxpayers’ cash last year alone flying staff across the globe. Hong Kong, Mauritius, Taiwan and New York were among 15 exotic destinations visited by Crown Office employees. And since 2012, they have taken off on a total of 109 international flights to places like South Africa, Australia and Malta.

The Crown, led by Lord Advocate Frank Mulholland, racked up £29,504 on 39 international flights to meetings and conferences last year and £27,603 on 143 domestic trips.The number of overseas flights has remained fairly steady over three years at 36, 34 then 39. But domestic flights have increased sharply from 97 to 131, then 143 last year.

Amsterdam was the most common destination, with 30 trips since 2012. The Dutch city is a major travel hub and close to the International Criminal Court in The Hague. Flights to Washington DC and Malta were in connection with the ongoing probe into the 1988 Lockerbie bombing.

While the information has been available in the public arena for some time, COPFS representatives appearing in front of the Justice Committee did not face any lines of questioning of the massive cash spends on personal junkets, mortgages, rent and other bills accumulated by staff who managed to have them all paid off by taxpayers.

The Justice Committee also had to make do without attendance of Scotland’s top judge and other members of the judiciary after Lord Carloway issued a letter to all branches level of the judiciary informing them of his decision to refuse to give evidence to the Justice Committee’s probe into the Crown Office.

Lord Carloway  – who earns £222,862 a year for his role as Lord President & Lord Justice General – said the Scottish Courts & Tribunals Service (SCTS) should give evidence to the Justice Committee, rather than individual members of the judiciary – even retired ones

Carloway’s letter went out to every high court judge, the Sheriffs’ Association and the Scottish Justices Association (SJA) – which represents Justices of the Peace.

After Lord Carloway’s decision to refuse to attend the Justice Committee was made known – the SJA pulled out of its scheduled appearance in front of MSPs.

The report found that Scotland’s public prosecutor is coping in its core role of steering trials through the courts to an appropriate outcome, but the level of adjournments and postponements is unacceptably high and inadequate communication is a key problem.

It recommends that the COPFS develop more efficient and effective ways to update people whose attendance is no longer required at a trial.

It also says the COPFS should consider concerns raised about the erosion of prosecutors’ autonomy and discretion, the lack of preparation time and the consequences for morale.

Justice Committee convener Margaret Mitchell said: “An effective Crown Office is fundamental to an effective criminal justice system in Scotland.”

Ms Mitchell continued: “The committee heard many concerns during our inquiry. Across the board, witnesses identified possible improvements which could be made to how COPFS works – and better serve justice and the public. This report, its findings on the service’s strengths and weaknesses, and its recommendations are a considered, cross-party view following six months of work. These findings must be taken into account by COPFS management and the Scottish Government. There is no room for complacency, and the committee will be keeping close watch on developments.”

Justice Committee report – Role and Purpose of the Crown Office and Procurator Fiscal Service

Focussing on areas of Crown Office operation, the following excerpts are reproduced from the Committee’s final report:

Digital strategy

110. The “vision” of the Digital Strategy, published in 2014, is “to have modern, user-focused justice systems which use digital justice technology to deliver simple, fast and effective justice at best cost”. It is estimated by the Scottish Government that full implementation of the strategy across the entire justice sector (including the administrative and civil spheres) could save some £20-25 million per annum. The strategy sets out three objectives—

allow people and businesses to access the right information at the right time, principally by expanding online the amount of available information about the justice system. This objective also includes a commitment, by the end of 2017, to enable victims of crime to track their case online;

fully digitised justice systems;

make data work for us, ie collect and use data including stakeholder feedback to develop a more efficient and responsive justice system.

111. It is the second of these objectives that appears to have most potential to unlock efficiencies in the prosecution system, particularly in tandem with complementary reforms envisaged under the Evidence and Procedure Review. It includes plans for—

a “digital evidence vault” enabling the secure storage of all digital evidence in civil and criminal cases;

greatly increased use of live video links to reduce the need for accused, victims and witnesses to have to come to court in all instances;

the serving of more court documentation (eg arrest warrants) digitally; and

disclosure by the COPFS of all evidence to defence agents electronically.

112. The strategy also envisages the police being equipped with body-worn cameras and the integration of all legacy force ICT services within Police Scotland. The Committee notes the potential impact of these objectives on the prosecution of crimes, although they are not within the direct remit of this inquiry. Scrutiny of these issues is within the current work programme of the Justice Sub-Committee on Policing

and on

Evidence and Procedure Review

113. Lord Carloway’s March 2015 Evidence and Procedure Review concluded that the conduct of criminal trials needs to change because the process had not kept pace with entry into a digital age. The main recommendations related to—

child and vulnerable witnesses: as much as possible, taking evidence from them should be removed from the courtroom setting;

digital evidence: audio and video witness statements should ordinarily be admissible. This was seen as paving the way for the elimination of written witness statements, in most cases, in the future;

modernising criminal trial procedures: in essence, shifting the weight of trial preparation to earlier in the process, in part through greater judicial case management. Trial dates should only be fixed when it is clear that the case will be ready to run on the relevant date.

114. This was followed by a February 2016 “next steps” paper, setting out proposals on which the SCTS is currently working.158 These are intended to build on Lord Carloway’s three main recommendations and to align with relevant objectives in the digital strategy. The overall vision is of a more streamlined criminal justice system, with far less evidence having to be led in the courtroom.

115. As set out in the preceding section, the Lord Advocate and Crown Agent both indicated the COPFS’s readiness for reform, and said they saw real opportunities for progress, particularly in relation to the work of the Evidence and Procedure Review.The Crown Agent said the goal was to crystallise as much evidence as possible in advance of the actual trial.160 Amongst other things, this would greatly reduce the need for witnesses to attend trials – and the non-attendance of witnesses is one of the main causes of churn.

116. The Cabinet Secretary also set out his strong support for the Review. However, he referred in addition to a need for a “cultural change” on the part of all stakeholders if the full benefits of the Review were to be realised. He indicated that legislation would be required at some point to implement elements of the Review.

and on ‘Specialist Prosecutions’ MSPs heard evidence from a former COPFS Prosecutor linked to events in the David Goodwillie rape case – where the victim was forced to sue her assailant through the civil courts after the Lord Advocate refused to prosecute the footballer.

Specialist prosecutions

167. The Committee sought views on whether the COPFS had the appropriate skillsets it needed to carry out its prosecutorial role. This includes prosecuting the wide range of different crimes that the COPFS may encounter, ranging from historic child sexual abuse to corporate accounting fraud. As noted elsewhere in the report, the COPFS has moved towards greater specialisation in recent years, setting up offices dealing with sexual offences, serious and organised crime, and international cooperation, amongst others. The Committee notes that, in a relatively small jurisdiction such as Scotland, there are limits to this approach. There may be some types of case that only come before the criminal courts a handful of times in a few years, but which are of a particular complexity. It is hard to build up specialist expertise in such cases. Derek Ogg QC, a former head of the COPFS sexual offences unit told the Committee that, if there is considered to be a lack of in-house specialism to prosecute particularly complex crimes coming before the High Court, this could be addressed by borrowing that expertise; recruiting “locum” advocates depute with experience in that field for the duration of the case.

168. Some submissions expressed the view that the COPFS did not always have the specialist skillsets needed to prosecute certain types of crime as effectively as it should, for instance corporate or regulatory offences.HM Revenue and Customs gave positive evidence about its working relationship with the COPFS in the prosecution of crimes in which it was involved, although it indicated that the COPFS’s relative under-resourcing in some areas, for instance technology, sometimes put it under strain.

Centralised policy-making and local autonomy

184. The COPFS is a national service aspiring to achieve consistently high standards across Scotland. It is in the public interest that both accused and victims should expect the same professional standard of prosecution wherever their case calls. There was a consensus in evidence that the COPFS has become a more centralised organisation in recent years. Some evidence broadly welcomed this, but the Committee also heard views that this process had gone too far; to the point where it was impacting negatively on the COPFS’s effectiveness as a public prosecutor. Whether the COPFS was striking the right balance between pursuing centrally driven policies and letting local prosecutors take their own decisions emerged as one of the key themes of the inquiry.

Specialisation and central case-marking

185. A closely related issue is that of specialisation. In effect, specialisation is a form of centralisation, as it means that a small group of specialist prosecutors will tend to determine national approach to prosecuting particular crimes wherever they occur.

186. Specialisation has included the setting up a case-marking unit around 15 years ago. Local fiscals no longer mark cases at the initial stage of the prosecution. Instead, there are two centres – at Paisley and Stirling – where practically all cases are now marked. As the Committee understands it, the case marking process may involve not only a determination as to whether or not a case should be prosecuted, but further instructions on how to handle the case, for instance whether to accept plea bargains and, if so, on what basis.

Other types of specialisation

187. The setting up of a national sexual crimes unit at the COPFS in 2009 was welcomed by many stakeholders. They thought it had led to such cases (which now constitute around 70% of all High Court cases) being better handled at least at a strategic and policy level, with the views and interests of victims and their advocates better taken account of. This was the view of organisations including Scottish Women’s Aid and Rape Crisis. Susan Gallagher of Victim Support Scotland told the Committee that her organisation’s experience of centralisation – or specialisation – as it applied to victims was largely positive; it was when the Victim Information and Advice service had become more decentralised that inconsistency had crept back in.As noted above, the setting up of a specialist wildlife crime unit was also welcomed by stakeholders as having helped professionalise the COPFS’s approach to these offences.

Views from COPFS representatives

199. The FDA, representing fiscals, took a balanced view of the move towards a more centralised and more specialist service in recent year, recognising that it had its advantages and disadvantages. However, it was overall considered to have been positive. In relation to case-marking, the union’s Rachael Weir told the Committee that she considered it had been beneficial because it had led to greater specialist expertise in case marking being built up.

200. As noted elsewhere in the report, the Lord Advocate publicly affirmed his confidence in COPFS staff as the organisation’s “greatest asset” and expressed his “absolute trust and confidence in the judgment of those who prosecute on my behalf up and down the country”. However, the COPFS also made clear in its evidence to the Committee that one of the drivers of the move towards centralisation had been a desire to achieve greater consistency, and a higher quality public service overall.Overall, nothing in the COPFS’s evidence indicated to the Committee that the COPFS was minded to fundamentally reconsider its approach, in the light of views that had been expressed. The Lord Advocate cited learned authority from the 19th century that it was his role to ensure “the due and equal distribution of criminal justice”, so that all may have equal protection under the law, in order to underline that the concept of achieving consistency in prosecution policy was not a new one. It was his view that the current system did allow for some flexibility—

The system can accommodate matters that are of concern in local areas. Indeed, in their reports, the police might identify a particular issue as being a matter of concern. I can put it in this way: through having a national approach, we can ensure that, where there is justification for a variation from the norm to be applied in a particular locality, that is done consistently and does not depend on the views of a particular individual in a particular local area.

201. The Crown Agent said that previous less centralised models had run into problems of their own, such as some courts sitting until late evening. He said that the current system had brought greater professionalism and consistency. Inasmuch as it had probably brought down the number of court sittings, it may have reduced overall costs, although that was not, he stressed, the main reason behind the policy.In relation to the comments of the GBA and others that the current decision-making approach to individual cases can appear opaque and unnecessarily hierarchical, the Crown Agent acknowledged that there was, or had been an issue, explaining that recent internal reforms had led to the number of “approval levels” for ongoing cases being rationalised, with the grade for approval reduced to a local level.

Diversions and local knowledge

202. The Lord Advocate explained to the Committee that teams at the two central case-marking centres are organised by reference to Scotland’s six sheriffdoms. He argued this helped enable case-markers to develop local knowledge of particular areas. In relation to diversions from prosecution, the Lord Advocate said he had reflected on the evidence and posed an open question as to whether it indicated a lack of consistency across the country on the availability of diversion schemes as much as any perceived lack of local knowledge on the part of case markers.

203. Supplementary written evidence from the Crown Agent queried SACRO’s evidence that there had been a trend away from referrals to restorative justice schemes, arguing that it was not strongly supported in the follow-up information SACRO had itself provided to the Committee. The COPFS’s own statistics had indicated a gradual rise in the number of diversions from prosecution over the course of the current decade.The Committee notes that it would require further analysis to determine the extent to which diversions by case markers appear to have had outcomes that could be described as successful.

204. The Crown Agent’s written evidence also queried the JPs’ evidence to the Committee, which he interpreted as being to the effect that—

…prosecutors issue direct measures to avoid the expense of prosecuting cases in court. This is inaccurate and contrary to the Lord Advocate’s policies on decision making. The Scottish Parliament has given prosecutors a range of powers to take action against offenders and we seek to make effective use of all these powers.

205. Both the COPFS and the SCTS referred to statistics indicating that around 80% of direct measures consisting of fines or fixed penalties end up being paid.

206. The Committee notes the COPFS’s view that a drive towards increased centralisation and specialisation is likely to have helped it become a more efficient and professional organisation. The setting up of specialist prosecution units (for instance in relation to sexual offences) has been broadly welcomed. However, evidence has made clear that some trade-offs have been involved. It has been concerning to note evidence that local fiscals may sometimes find themselves running cases against their own professional judgment. The Committee also notes views that increased centralisation may have had an effect on morale and job satisfaction in local offices.

207. The Committee seeks clarification from the COPFS that consideration of the autonomy and decision-making capacity of local fiscals is being taken forward in its current “Fair Futures” programme being developed in consultation with its staff.

208. The Committee notes views that the centralisation of case marking has led to an erosion of knowledge as to the availability of local schemes and programmes where case markers are considering alternatives to prosecution. The Committee asks the Scottish Government to consider whether, if these perceptions are valid, Community Justice Scotland could be invited to address them in its ongoing work to develop a new model for community justice delivery.

209. More generally, the Committee asks the COPFS and Scottish Government as to what monitoring there is of the effectiveness of diversion from prosecution and whether and how the results of that monitoring are fed back to the COPFS for continuous improvement purposes.

Now, turning to the recommendations of the Scottish Parliament’s Justice Committee – funding of the Crown Office comes into sharp focus, despite evidence of massive waste of millions of pounds of taxpayers cash on Crown Office staff:

Recommendations: Resources and funding of the COPFS

The COPFS, in common with agencies across the public sector, has faced significant challenges as a result of a prolonged period of flat-lining budgets. This looks set to continue into 2017-18. The Committee notes the Lord Advocate’s remarks that he considered his 2017-18 budget to be a “sound settlement” that will enable him to continue to provide a fundamentally effective prosecution service.

For the most part, the COPFS has coped in this tougher financial environment as well as can be expected, and its frontline staff deserve credit and recognition for their resilience under sometimes difficult circumstances. It would be unreasonable for the COPFS to continue to rely on the resilience of its staff indefinitely. The Committee considers that change is necessary before the risks that are undoubtedly embedded in the prosecution system, as presently constituted, begin to crystallise.

The Committee agrees with evidence from the COPFS and the Cabinet Secretary for Justice that more efficient ways need to be found to manage the whole prosecution process. Whilst the COPFS is the single most important organisation involved in managing the prosecution process, it cannot achieve this reform on its own. The Committee notes that it is expected that change will be primarily driven by the cross-agency Justice Board, on which the COPFS is represented, and expects the Lord Advocate and Cabinet Secretary to provide the necessary backing for the Board as it proceeds in implementing key elements of the Justice Strategy

The Lord Advocate and Crown Agent have acknowledged in evidence that there is a need to address staffing concerns dating back several years. Above average numbers of staff on short-term contracts, on sick leave, or in long-term temporary promotions are danger signs. The Committee is pleased the current leadership appears to recognise this, to be listening to staff, and to be looking for ways to deal with these issues. The Committee will continue to maintain a watching brief on this issue and requests an update on staffing matters from the COPFS when it responds to this report.

In relations to matters such as job satisfaction and work-life balance, returns from staff surveys in recent years have been concerning. The Committee notes some evidence that, in these areas, the organisation might now be making progress. The Committee also notes evidence and public statements from the Lord Advocate that he has confidence in the judgment of his prosecutors and trusts them to take decisions in his name. However, it is still very early days and, in this context, indications that the COPFS may have to shed around 30 staff in 2017-18 to deal with real-terms budget cuts are worrying. It is difficult to see, given the current pressures staff are under, how further losses are sustainable. The Committee seeks clarification from the COPFS on the operational rationale for job losses and where they will fall.

The Committee also warns the COPFS against an over-reliance on digital solutions to deliver greater efficiencies.

Efficiency of the prosecution service

“Churn” – adjournment and delay of cases scheduled for trial – is one of the main sources of frustration for anyone having to engage with the prosecution process. The Committee accepts that a degree of churn is inevitable and unavoidable, but evidence received over the inquiry indicates that it remains unacceptably high.

The Committee accepts that the problem of delay and inefficiency in the prosecution process cannot be solved by the COPFS acting on its own. The Committee also accepts that churn is a part-consequence of the COPFS’s limited staffing resources, but calls on the COPFS to find methods of mitigating it. For instance, it should be within the capacity of the COPFS to develop more efficient and effective means of notifying those whose attendance is no longer required at a trial. The Committee asks the COPFS and the Scottish Government to take this forward within the Justice Digital Strategy.

The Committee notes evidence that 80% of Crown motions to adjourn arise because of the non-attendance of witnesses. Giving evidence in a trial is a civic duty and failure to do so can be deemed a contempt of court. The Committee accepts that there can be understandable reasons why witnesses do not attend a hearing, but seeks clarification from COPFS and Scottish Government as to: what measures are in place to encourage and, if necessary, ensure witness attendance; the extent to which these measures are being used; and whether alternative approaches are being considered over and above whatever may emerge in due course from the Evidence and Procedure Review.

No blame can be attached to witnesses for non-attendance when they have not in fact been cited to attend court. The Committee is concerned by evidence that the process is sometimes unreliable. The Committee asks the Scottish Government, COPFS and SCTS whether it accepts this evidence and, if so, what measures are being considered to address this, including for instance, the Sheriffs’ Association suggestion of a dedicated COPFS unit to issue citations.

Proposals set out in the Evidence and Procedure Review and the Justice Digital Strategy are welcome and, in some cases, long overdue. Aspects of current criminal law procedure could rightly be described as archaic. The Committee notes the potential for considerable savings to be made if far fewer witnesses are required to attend court and are able to give their evidence in other ways.

However, the Committee notes with concern that the timetable for implementation of some aspects of the Digital Strategy has slipped, with some targets already missed. The Committee further notes that there appears to be no public timetable for implementing the Evidence and Procedure Review.

The Committee asks for a progress report from the Scottish Government in respect of each main element of the Review and the Strategy, setting out the timescale, the anticipated effect on the prosecution process, and where possible, the projected cost saving in relation to each such element.

The Committee also asks for an update from the Scottish Government as to what legislative changes it envisages may be required to unlock the full potential of the Evidence and Procedure Review and the Justice Digital Strategy, and what plans it has in respect of these.

The Committee seeks further information from the Scottish Government as to how proposals to encourage increased judicial case management in the context of criminal proceedings will be progressed and what additional support, if any (eg training), it envisages the judiciary may require in this modified role.

The Committee also seeks further information from the Scottish Government as to whether additional funding will be required to fully implement the Digital Strategy and the Evidence and Procedure Review and, if so, whether these have been costed and what proportion of these costs fall on the COPFS.

Given acknowledged difficulties with the delivery of major IT projects in the public sector, the Committee is concerned that there should not be an over-reliance on information technology to drive reform in the criminal justice system.

Proposals set out in the Evidence and Procedure Review and the Justice Digital Strategy are welcome and, in some cases, long overdue. Aspects of current criminal law procedure could rightly be described as archaic. The Committee notes the potential for considerable savings to be made if far fewer witnesses are required to attend court and are able to give their evidence in other ways.

However, the Committee notes with concern that the timetable for implementation of some aspects of the Digital Strategy has slipped, with some targets already missed. The Committee further notes that there appears to be no public timetable for implementing the Evidence and Procedure Review.

The Committee asks for a progress report from the Scottish Government in respect of each main element of the Review and the Strategy, setting out the timescale, the anticipated effect on the prosecution process, and where possible, the projected cost saving in relation to each such element.

The Committee also asks for an update from the Scottish Government as to what legislative changes it envisages may be required to unlock the full potential of the Evidence and Procedure Review and the Justice Digital Strategy, and what plans it has in respect of these.

The Committee seeks further information from the Scottish Government as to how proposals to encourage increased judicial case management in the context of criminal proceedings will be progressed and what additional support, if any (eg training), it envisages the judiciary may require in this modified role.

The Committee also seeks further information from the Scottish Government as to whether additional funding will be required to fully implement the Digital Strategy and the Evidence and Procedure Review and, if so, whether these have been costed and what proportion of these costs fall on the COPFS.

Given acknowledged difficulties with the delivery of major IT projects in the public sector, the Committee is concerned that there should not be an over-reliance on information technology to drive reform in the criminal justice system.

Effectiveness of the prosecution service

The Committee agrees with the Lord Advocate that the COPFS is, overall, “effective, rigorous, fair and independent” in the prosecution of crime. The evidence received indicates that, in general, Scotland is fundamentally well served by the COPFS in its core role as public prosecutor. However, the same evidence also makes clear that there should be no room for complacency and that the various shortcomings stakeholders have identified must be addressed.

The Committee acknowledges that the criminal justice system has not always prioritised domestic abuse as it should have or treated it with the seriousness it deserves. It was necessary for a clear message to be sent by public agencies working in the system that domestic abuse is unacceptable and would be tackled robustly, in order to give victims confidence that their case would be taken seriously. The COPFS/Police Scotland Joint Protocol on domestic violence has played an important role in that process. The Committee notes the differing views it has received during this inquiry as to the COPFS’s application of the protocol, notes the Lord Advocate’s response to it, and asks the COPFS and the Scottish Government to reflect further on the views that the Committee heard.

The Committee calls on the COPFS and Scottish Government to note evidence as to the quality and consistency of prosecution of those summary cases in relation to which special considerations do not apply by way of Lord Advocate’s guidelines to prosecutors or in the Joint Protocol on domestic abuse. Such cases include instances of antisocial behaviour, crimes of dishonesty or less serious violent crimes. The evidence suggests that these are sometimes under-prioritised.

The Committee acknowledges the COPFS’s evidence that it intends to build stronger relationships with third sector stakeholders in the prosecution of wildlife or environmental crime. The Committee asks the COPFS to respond to views heard in evidence that recommendations in the Scottish Government’s 2008 report Natural Justice, particularly in relation to post-prosecution debriefings, have not been fully implemented, and to set out its plans to address this.

The Committee is concerned by evidence of very low prosecution rates for failure to hold employer’s liability insurance, noting that the consequences of failing to be properly insured can be devastating for individuals and families. The Committee welcomes the COPFS’s commitment to explore the reasons behind the low number of referrals with relevant reporting agencies and requests an update from the COPFS.

The Committee seeks the COPFS’s view on whether there is merit in recruiting locum prosecutors to prosecute High Court cases turning on complex and specialist aspects of criminal law such as corporate fraud or health and safety breaches and, if so, whether this is part of its current practice.

The Committee is concerned by evidence that the courts are sometimes being asked to take decisions on bail without access to the full range of relevant information. This may lead to decisions being made that are not necessarily in the public interest, for instance to refuse bail on the basis of the accused’s homelessness. Whilst the safety of the public and the integrity of the prosecution process must be the paramount considerations, the public interest is not served by individuals being remanded when more suitable alternatives may be available. The Committee asks the COPFS and Scottish Government, on behalf of the Scottish Prison Service, to respond to this evidence.

The Committee notes the COPFS’s view that a drive towards increased centralisation and specialisation is likely to have helped it become a more efficient and professional organisation. The setting up of specialist prosecution units (for instance in relation to sexual offences) has been broadly welcomed. However, evidence has made clear that some trade-offs have been involved. It has been concerning to note evidence that local fiscals may sometimes find themselves running cases against their own professional judgment. The Committee also notes views that increased centralisation may have had an effect on morale and job satisfaction in local offices.

The Committee seeks clarification from the COPFS that consideration of the autonomy and decision-making capacity of local fiscals is being taken forward in its current “Fair Futures” programme being developed in consultation with its staff.

The Committee notes views that the centralisation of case marking has led to an erosion of knowledge as to the availability of local schemes and programmes where case markers are considering alternatives to prosecution. The Committee asks the Scottish Government to consider whether, if these perceptions are valid, Community Justice Scotland could be invited to address them in its ongoing work to develop a new model for community justice delivery.

More generally, the Committee asks the COPFS and Scottish Government as to what monitoring there is of the effectiveness of diversion from prosecution and whether and how the results of that monitoring are fed back to the COPFS for continuous improvement purposes.

Victims and witnesses and the COPFS

The Committee supports the principle that the COPFS prosecutes in the public interest and not directly in the interests of individual victims of crime: it is not “the victim’s lawyer”. The Committee understands that this may sometimes lead to difficult decisions being made that victims find painful. However, the Committee considers that the principle is key to protecting the independence and integrity of the prosecution service.

The Committee considers that there is no inherent contradiction between putting the public interest first during the prosecution process and putting victim care at the heart of criminal justice system, In particular, victims have a right to be listened to and to be treated with respect and sensitivity. Their views matter and they should be consulted, whenever possible, at appropriate points in the prosecution process.

The Committee considers that an effective, efficient and fair COPFS in everyone’s interests; accused, victims and witnesses alike. The Committee is therefore concerned by evidence that a lack of preparation time means that time limits in solemn trials are being “routinely” exceeded and seeks the COPFS’s response.

The Committee also asks the COPFS to respond to evidence that its general policy is not to seek the withdrawal of warrants for arrest of an accused for non-attendance, even where there may be exculpatory or mitigating factors. The Committee accepts that non-appearance for a court hearing is a serious matter but asks the COPFS to respond to concerns that, if this is its policy, it may impact disproportionately on vulnerable people.

The Committee asks the COPFS and Scottish Government to clarify what information (if any) public agencies must provide to families and dependents of accused people and what measures are in place to ensure that the information is provided. The Committee seeks clarification from the COPFS and Scottish Government as to what measures are in place to ensure that family members or vulnerable adults accused or convicted of a crime are contacted and notified.

The Committee considers that the safety and mental welfare of victims, balanced against the accused’s right to a fair trial, should be at the forefront of consideration during the prosecution process. The Committee asks the COPFS and Scottish Government to confirm whether it is their understanding that Victims and Witnesses (Scotland) Act 2014 imposes legal duties on the COPFS, and other agencies, in relation to the hostile cross-examination of witnesses during a criminal trial and, if so, to clarify what practices and policies are in place to ensure that relevant legal requirements are met.

The Committee welcomes the Victims’ Code for Scotland and considers that the pamphlet should be available to all victims at their first point of contact with the criminal justice system. The Committee seeks clarification from the COPFS and Scottish Government as to current practices in relation to making the Code available.

The Committee welcomes ongoing work under the Evidence and Procedure Review to reform the way in which children give evidence during a trial but repeats its earlier concern that there is no publication date for the review’s findings.

The Committee notes that the aspiration is to make taking evidence from children in a courtroom setting the exception rather than the norm. Any reforms must continue to allow the defence to challenge and test the evidence. The Committee looks forwards to considering detailed proposals as they emerge.

The Committee welcomes the additional funding that the Cabinet Secretary provided for the victim fund, which assists families of murder victims, in the 2016-17 financial year. The Committee asks the Scottish Government to keep the fund under review to ensure that it is adequate.

The Committee considers that the evidence taken from victims of crime set out serious failings by the criminal justice system, of which the COPFS is a key component, to provide the confidence necessary for these victims to participate in court proceedings. These failings including a lack of communications, misinformation, delays and adjournments, have resulted in some of these victims concluding that they would never have reported the crime in the first place. The Committee considers that this is unacceptable and must be addressed as a priority, and repeats its view that it is imperative that the COPFS finds more effective methods for passing on accurate up-to-date information about trials in real time to all stakeholders, victims especially. The Committee acknowledges that the reasons for adjournments in criminal trials are complex and that the COPFS bears only partial responsibility for them.

The Committee asks the COPFS to clarify the extent to which it takes into account the vulnerability of victims and witnesses, and the risk to them of a prolonged or delayed prosecution process, in determining the prioritisation of cases, in the light of evidence that delays in hearing cases can disproportionately damage the mental welfare of vulnerable adults.

The Committee recognises the valuable role played by the Victim Information and Advice Service, and that there has been praise for the contribution of VIA staff members in evidence. The Committee recognises that the COPFS’s resources are finite and limited and prevent it providing as much assistance as it would like. At the same time, there are lessons for the COPFS as a whole to learn as to the way it sometimes communicates with victims of crime and with other prosecution witnesses.

Reforms under the Victims and Witnesses (Scotland) Act 2014 have significantly widened the duties owed to victims and witnesses and have been widely welcomed. The COPFS, in common with other public agencies, is still adjusting to these changes. The Committee is concerned by evidence appearing to indicate that some of the key rights secured by that legislation are not yet a reality for victims and witnesses in their journey through the criminal justice system. The Committee asks the COPFS and Scottish Government to respond to this evidence, and to evidence that victims and witnesses are not always aware of their rights.

The Committee welcomes the Lord Advocate’s acknowledgement that the COPFS might benefit from examining the process of giving evidence from the victim’s perspective in order to see whether it could be improved.

The Committee is concerned by evidence that vulnerable witnesses did not always obtain the special measures that they had requested and that where some special measures (for instance, screens) were provided, they were not always adequate. Evidence that victims and witnesses did not always feel secure outwith the courtroom setting during the trial process is also concerning. The Committee notes that, as well as potentially affecting victims’ and witnesses’ mental welfare, this might affect the evidence they give, or in extreme cases lead them not to give evidence at all.

The Committee recommends that the COPFS carry out an audit of victims and witnesses entitled to special measures in order to determine (a) whether they are aware of their rights to ask for special measures, (b) whether reasonable requests for non-standard special measures are being met, and (c) the extent to which the provision of special measures actually assisted the individual in providing evidence and, if not, what lessons could be learned from this.

Under the Victims and Witnesses (Scotland) Act 2014, the COPFS is required to take reasonable steps to enable victims and their families to avoid the accused during a trial. The Committee seeks clarification from the COPFS as to how it exercises that duty in practice and whether it makes victims and their families aware of its existence.

The Committee was concerned by evidence as to the lack of contact between victims and prosecutors during trial preparation, leading in some cases to a perception from victims that the Crown was not well prepared when it came to the trial. The Committee notes the explanation provided by the COPFS as to why, in the vast majority of cases, it is no longer considered appropriate to precognose victims and witnesses. However, the Committee also notes evidence that precognition by the Crown, amongst other things, may help evidence be agreed earlier, and thus help cases resolve more quickly, which is one of the main aims of the Evidence and Procedure Review. The Committee asks the COPFS to respond to this evidence.

Evidence received over the course of this inquiry shows a divergence between the intentions of the COPFS and the experience of many victims. Victims can be re-traumatised by what can come across as a mechanistic process that does not always appear to have their interests at heart. Victims and witnesses are sometimes made to feel like an afterthought. This is a system-wide problem but the COPFS, as the key organisation within the prosecution process, bears its share of responsibility. Any comprehensive solution must also be system-wide.

The Committee notes Dr Lesley Thomson’s Review of Victim Care in the Justice Sector in Scotland. Whilst welcoming the Review as a valuable contribution to the current debate as to how best to cater for victims within the prosecution process, the Committee considers that many of its conclusions have been voiced before but not acted upon.

The Committee requests a detailed response from the COPFS and the Scottish Government as to the main conclusions in the Review, including which recommendations they propose to accept, and what legislative reforms may be necessary in the light of this. The Committee further requests from the COPFS and Scottish Government a timetable for implementing recommendations in the Review. The Committee also seeks their views on the Review’s proposal that victims should have access to a single point of contact providing advice and support during their journey through the criminal justice process.

The Committee notes that the number of referrals to the VIA service has risen sharply (by around 45% in seven years) and that the Thomson Review estimates an additional 4000 referrals per annum in future thanks to recent legislative reforms. The Committee considers that without additional resource for VIA, there will almost certainly be adverse consequences for its ability to work effectively.

The Committee calls for the COPFS to audit the work VIA currently undertakes in order to come to a view on where the main demands on its services come from and whether there are areas of unmet need.

The Committee makes these recommendations in the context of what it recognises as an ongoing debate as to the future role of the VIA service. The Committee considers that obtaining more information on VIA’s current workload and on unmet need may help clarify next steps in relation to that debate.

The Inspectorate of Prosecutions

The Inspectorate of Prosecutions in Scotland has an important role to play in ensuring the effectiveness and efficiency of the prosecution system and the Committee supports its work. The inquiry has laid bare the Inspectorate’s very low public profile, even amongst criminal justice stakeholders. Whilst the Inspectorate is not a public-facing complaints-handling organisation or an advocacy body, it requires the input of informed experts and stakeholders to add value to its scrutiny work.

The Committee is therefore concerned at the lack of stakeholder awareness of the Inspectorate’s output, given that its reports have touched on matters of genuine public interest.

The Committee notes the Inspectorate’s assurances that it recognises its low profile as a concern and proposes to address it. The Committee requests an update from the Inspectorate as to what work is planned and would welcome the Scottish Government’s view on what the Inspectorate proposes.

The Committee notes that it helps the Inspectorate to have ex-COPFS staff working on its investigations. They bring with them a wealth of knowledge about how the service works that is likely to add to the quality of its output. However, the Committee considers that the Inspectorate has not currently got the balance quite right. This applies particularly to the practice of recruiting most assistant inspectors from the COPFS on secondment.

The Committee notes the Inspector’s assurances that she has never been influenced to change a recommendation in her reports. However, perceptions matter, and current arrangements contribute to a perception that the Inspectorate may not be as independent from the COPFS as it was intended to be. The Committee requests the Scottish Government to reflect on these views and to respond to them.

Finally, the Committee asks the Inspector to take into account conclusions and recommendations about the COPFS made elsewhere in this report when considering her next programme of inspections.

LET’S DO JUSTICE DIFFERENTLY – JAMES WOLFFE QC

At a meeting on 17 January 2017, MSPs on the Scottish Parliament’s Justice Committee took evidence from Lord Advocate James Wolffe QC – who told MSPs ongoing reviews suggested a “need to do criminal justice in really quite a different way”.

In the months since James Wolffe made this statement to MSPs, Wolffe has embarked on a public relations offensive in order to bring the thorny question of the removal of corroboration – a safeguard against miscarriage of justice – from Scotland’s criminal justice system – in order to secure what COPFS agents believe would be a vastly higher conviction rate – if the requirement of two independent sources of verification for evidence was dropped.

Appearing in sympathetic press, Wolffe has made known he now sides with the abolishment of corroboration and a wholesale change of the way criminal prosecutions are handled in Scotland.

However, critics say the Crown Office cannot be trusted with such radical alterations to Scots Criminal law – pointing to high levels of corruption at the Crown Office including staff who themselves hold criminal records for serious offences, and the widely known fact COPFS is heavily compromised by criminal informants, as well as legal staff who have tipped off other crooks including lawyers & financiers linked to major criminal investigations.

And – moves to drop corroboration in the past have been condemned as little more than a policy move to allow Prosecutors to make up evidence as they go along in Criminal Trials.

Legal figures from across Scotland have indicated it is their view that if  corroboration were removed from the Criminal justice system, trials would be likely to see an increase in all kinds of dodgy statements & evidence used by desperate prosecutors out for a conviction at any cost.

Evidence from Police Officers too has been widely criticised by several members of the judiciary who contend officers have knowingly given false, and at times corrupt evidence in  Scotland’s Sheriff and High Courts of Justiciary.

Legal insiders have since tipped off the media the Crown Office has conducted an internal consultation on how to ‘reinvigorate’ moves to abolish corroboration and return the issue to the Scottish Parliament’s Justice Committee – where MSPS previously concluded only two years ago that corroboration must remain as part of Scotland’s justice system.

The Justice Committee’s decision came from an impassioned address by Lord Brian Gill, who rightly supported the retention of corroboration as a safeguard to ensure the right to a fair trial across the spectrum of Scotland’s criminal justice system.

The Justice Committee – then under the chair of MSP Christine Grahame MSP, had previously heard from anti-corroboration protagonists Lord Carloway – who is now Scotland’s top judge, and the then Lord Advocate Frank Mulholland – who Carloway has since appointed to a £180k judicial post at the Court of Session.

The Justice Committee remained unconvinced of the merits of abolishing corroboration after hearing from Carloway, Mulholland and a plethora of other groups & vested interests.

Lord Advocate James Wolffe is also facing serious questions to answer over his role in a growing scandal around cash bungs and payments to members of the Faculty of Advocates – while Wolffe was Dean of Faculty.

An ongoing media investigation into a case in which a judge & privy councillor failed to declare links to his son – who was at the time representing a construction company which admitted an incident of unlawfully dumping contaminated waste – has established a QC representing the pursuer was paid large sums of cash after he demanded the payments “in any form except beads”.

An investigation into the payments – which breach Faculty rules -, and evidence of alleged malpractice by the QC was covered up while Wolffe was Dean of Faculty.

Now, the case has re-entered the headlines as calls grow for a full investigation into legal regulators including Wolffe’s Faculty of Advocates – who dismissed the complaint without even looking at it.

Video footage of two appearances by Crown Office agents including the Lord Advocate – James Wolffe QC, follow:

Scottish Parliament Justice Committee 17 January 2017 – COPFS Inquiry & other business

Committee convener Margaret Mitchell said the probe had “unearthed some serious concerns”.

She said: “From the amount of time wasted through trials not proceeding on schedule, to the workload of prosecutors and the support offered to the victims and witnesses who appear at court. “The justice committee will publish its conclusions in due course, but we hope that the Lord Advocate will have listened to the legitimate concerns raised so far.”

Conservative justice spokesman Douglas Ross pressed the Lord Advocate on whether there would be “an overhaul of the justice system” in light of concerns raised.

Mr Wolffe said he acknowledged the challenges COPFS faces, saying “significant reform” was ongoing, with a process review suggesting “the need to do criminal justice in really quite a different way”.

Crown Agent David Harvie, the professional head of the service, said there was a “very strong argument for system change” within the justice system, and “a need and an opportunity for transformational change”.

Staff surveys have noted that 40% of Crown Office staff don’t wish to stay in the service in the long term – although Mr Wolffe argued that this is “considerably higher” than the average in the civil service, saying things were moving in the right direction. He also argued that there should be no lack of confidence in the fundamental work of COPFS, with a conviction rate of 80% in cases prosecuted.

Mr Harvie said the “vast majority” of individuals were provided with a good service, although he said he “accepts and regrets” that some had been failed.

In response to further questions about staff issues, Mr Wolffe said “we are not complacent about it”, but added that “there is encouragement to be taken” from staff surveys. He said the service had “come a remarkable distance” in his lifetime, from a position where the criminal justice system paid no regard to the needs of witnesses.

The Lord Advocate highlighted communication and support for victims and vulnerable witnesses as a particular area of focus for ongoing improvements, with ambition to deal with evidence from children and vulnerable people in a different way.

Ms Mitchell said there was a “fundamental problem” over communications with victims of sexual assault in particular, with Mr Harvie agreeing this was an issue worthy of “significant reflection” and further work.

Under the current budget draft, the Crown Office budget is maintained in cash terms, which equates to a real-terms cut.

Mr Harvie told members that £1.5m of savings had been targeted, with half of the sum coming from staff costs.

He said “probably around 30” jobs would be cut, by not replacing staff who leave or retire. The other half of the savings will come from areas like expert witness costs and pathology, although Mr Harvie conceded there was a “risk” that some could also come from staffing – albeit “not a significant risk”.

Mr Wolffe previously appeared at Holyrood to give evidence about the draft budget, at which point he argued the Crown Office had adequate resources to fulfil its role.

Scottish Parliament Justice Committee 20 December 2016 COPFS Inquiry & other business

Concluding MSPs probe of the Crown Office, Justice Committee convener Margaret Mitchell said: “An effective Crown Office is fundamental to an effective criminal justice system in Scotland.The committee heard many concerns during our inquiry. Across the board, witnesses identified possible improvements which could be made to how COPFS works – and better-serve justice and the public. These findings must be taken into account by COPFS management and the Scottish government.”

Lord Advocate James Wolffe QC said: “It is gratifying that the committee has concluded that COPFS is an effective, rigorous, fair and independent public prosecutor.It states that, in general, the public in Scotland is fundamentally well-served by the COPFS in that core role. That is, in large part, a tribute to the professionalism and commitment of the staff of the service. The committee has made a number of recommendations and I will wish to take time to reflect on all of those recommendations.”

For a more substantive reporting on the Crown Office, read previously articles here: Scotland’s Crown Office & Procurator Fiscal Service – previous reports and on the office of Lord Advocate here: Scotland’s Lord Advocate – Top crime officer leaves much doubt on justice.

Have a problem with the Crown Office & Procurator Fiscal Service? Tips to tell on cases, prosecutions or presentation of dodgy evidence? Tell us more about it in confidence, by email to scottishlawreporters@gmail.com

 

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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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IT’S DUBLIN, M’LADY: FOI probe results in Judicial Office adding Lady Dorrian to Lord Carloway’s ‘research’ junket on Ireland’s criminal justice system

Court staff add second judge to Ireland judicial junket. THE SECOND most powerful judge in Scotland – Lady Dorrian – the first ever female judge serving as Lord Justice Clerk, has been added to a 2014 judicial junket to Dublin – in which court staff initially claimed was solely attended by Scotland’s current Lord President – Lord Carloway.

And, new details since released for the ‘fact finding’ judicial junket – also reveal Lord Carloway met two Irish senior judges in a Chinese restaurant – to discuss ‘efficiencies in the courts’.

The addition of Lady Dorrian to Lord Carloway’s ‘fact finding’ trip only came about after the Scottish Information Commissioner (SIC) became involved in a dispute over the determined efforts of the Judiciary of Scotland and Scottish Courts and Tribunals Service (SCTS) to conceal details, destinations and the costs of UK & judicial overseas travel junkets from Freedom of Information enquiries.

In October 2014, DOI reported that an investigation by the Information Commissioner received evidence court officials hurriedly switched the travel destinations of Scotland’s second most powerful judge – the Lord Justice Clerk Lord Carloway, after journalists queried an FOI disclosure, asking for further details of a journey.

Lord Carloway – who was at the time Lord Justice Clerk and has since been elevated to the top post of Lord President earning £222,862.00 a year, was listed in a 2014 FOI disclosure by the Scottish Court Service: Overseas Travel of Scotland’s Judges 2013-2014 as having taken three taxpayer funded trips – a six day trip to Vancouver, Canada costing £5,820.16, a two day trip to Dijon, France, with a claimed cost of £59.15 and a two day trip initially listed as Evidence & Procedure Review Study Visit costing £232.93.

The Scottish Court Service was then contacted by journalists who asked officials to provide a destination of Lord Carloway’s Evidence & Procedure Review Study Visit. In response, a senior SCS official said “Lord Carloway attended the event in Bristol.”

When journalists again contacted the Scottish Court Service asking why one domestic UK trip had seemingly been disclosed when court officials claimed it was too expensive to publish the UK only trips, the same official replied “I queried this with the Judicial Office for Scotland who have asked me to pass on their apologies.  Lord Carloway actually attended the event in Dublin and not in Bristol.

The Judicial Office for Scotland ended further enquiries at the time with the statement “We have checked the information that we provided and we have nothing further to add.”

The switch of Lord Carloway’s destination during a trip taken in March 2014 – from Bristol to Dublin only came about after court staff realised they had previously claimed to journalists, and more recently to the Scottish Information Commissioner, the SCS did not hold data on judges trips inside the UK.

Since the probe by the Scottish Information Commissioner, new documents issued to journalists after a probe lasting several weeks finally revealed: “Lord Carloway and Lady Dorrian visited Dublin to research the Irish criminal justice system to inform the on-going SCS review of evidence and procedure in Scotland, and were accompanied by an SCS Director with lead responsibility for this review work. They flew from Edinburgh to Dublin on the evening of Monday 24 March, and returned on the evening of Wednesday 26 March. They stayed at the Ashling Hotel, Parkgate Street, Dublin on the nights of 24 and 25 March.”

The ‘omission’ of Lady Dorrian from initial documents released in 2014 was blamed by court staff on murky arrangements for judicial air travel which allowed judges to book air tickets at public expense at their own discretion.

However, claims by the Judicial Office that new travel rules introduced by former Lord President Lord Brian Gill put an end to judges helping themselves to tens of thousands of pounds of air flights and trips have since been proved wrong – after continuing investigations revealed further international air junkets, reported here: LORDING IT MORE OPENLY: Scotland’s obsessively secretive judiciary reveal overseas junkets.

The latest crop of jet set junkets for judges reinforce suspicions highly paid Scottish judges on up to £220K a year are spending more time in the air and abroad, than attending to their judicial duties in the courts.

Challenged on the switch of destinations and the addition of Lady Dorrian to Lord Carloway’s ‘fact finding’ trip, a spokesperson for the Judicial Office said: “I have now had the opportunity to look into this.  The error you have highlighted occurred because the booking was not made by the Judicial Office.  We have now amended our records.”

“As you are aware, the Lord President issued new guidance to all judiciary earlier this year in respect of international travel and attendance at conferences.  All requests for funding should be sought only from the Judicial Office.  This will help ensure such errors do not occur in the future.”

Asked to confirm which trip was not booked by the judicial office – Lady Dorrian or Lord Carloway (or both), a spokesperson for the Judicial Office said: “Both. To be clear‎ the costs of the trip (flights, hotel) for both Lady Dorrian and Lord Carloway did not come out of the Judicial Office budget. The costs associated with travel and subsistence do. Therefore we knew about Lord Carloway’s trip but incorrectly recorded that information.

A programme for the visit, issued after the addition of Lady Dorrian to the trip, reveals Lord Carloway met up with two senior Irish judges in a Chinese takeaway to discuss the efficiencies of courts.

An entry in the programme for Tuesday 25 March 2014 states: 7:30pm – Meeting with The Hon. Mr. Justice Peter Charleton and His Honour Judge Tony Hunt  to discuss  “The Working Group to Identify and Report on Efficiencies in the Criminal Justice System of the Courts” Venue: Good World Chinese Restaurant, 18 South Great Georges Street, Dublin 2.

However, Lady Dorrian’s name does not appear anywhere in the issued documents for the trip to Dublin.

Evidence and Procedure Review – visit to Dublin, 25-26 March 2014 Programme Date: Tuesday 25thMarch 2014

Arrive to be met by Ms. Elisha D’Arcy, Protocol Officer, Courts Service Venue: Great Hall, Criminal Courts of Justice Parkgate Street, Dublin 8

Tour of Criminal Courts of Justice with Ms. Lisa Scott and Ms. Kelly Mackey, Judicial Researchers

Discussion with Ms. Kelly Mackey & Ms. Lisa Scott, Judicial Researchers working on analysis of relevant Legislation and Law Reform documents Venue: Court No. 13, 4 th Floor, Criminal Courts of Justice

Meeting with The Hon. Mr. Justice Peter Charleton, High Court, The Hon. Mr. Justice Patrick McCarthy, High Court, His Honour Judge Patrick McCartan, Circuit Court, Judge Patricia McNamara, District Court and Ms. Elisha D’Arcy to discuss, inter alia, case management, how the volume of cases is managed, any difficulties in ensuring cases are processed in good time – problems with “churn” in the system, with hearings having to be adjourned/continued etc Venue: Conference room, 9th Floor, Criminal Courts of Justice

Meeting with Mr. Noel Rubotham, Head of Reform and Development, Courts Service to discuss relevant initiatives in the area of criminal procedure reform, including pre-trial case management Venue: Conference room, 9 th Floor, Criminal Courts of Justice

Meeting with Ms. Geraldine Hurley, Principal Officer, Courts Service to discuss the practicalities of giving Video Link evidence and observe/demonstrate Video Link evidence procedure/facilities Venue: 9 th Floor Conference room, Criminal Courts of Justice

Observation of Central Criminal Court in session, The Hon. Mr. Justice Patrick McCarthy presiding Venue: Court No. 10, Criminal Courts of Justice

Observation of Circuit Criminal Court in session, His Honour Judge Patrick McCartan presiding Venue: Court No. 12, Criminal Courts of Justice

Observation of District Criminal Court in session, Judge Patricia McNamara presiding Venue: Court No. 2, Criminal Courts of Justice

Working Lunch hosted by: The Hon. Mrs. Justice Susan Denham, Chief Justice In attendance: The Hon. Mr. Justice Peter Charleton, The Hon. Mr. Justice Patrick McCarthy, His Honour Judge Patrick McCartan, Judge Patricia McNamara, Mr. Brendan Ryan, CEO, Courts Service, Registrar, Ms. Elisha D’Arcy Venue: Conference Room 9 thFloor, Criminal Courts of Justice

Depart for Children Court Observation of Children Court in session, Judge John O’Connor presiding Venue: Children Court, Smithfield, Dublin 7

Depart for Child Care/ Family Law Court Observation of Child Care Courts in session, Judge Brendan Toale and Judge Colin Daly and Her Honour Judge Rosemary Horgan, President of the District Court presiding Venue: Court No. 20, 40 and 49 Child Care Courts, Dolphin House, East Essex Street, Dublin 2

Observation of Family Law Courts in session, Judge Marie Quirke and Judge Deirdre Gearty presiding Venue: Court No. 41 and 47 Family Law Courts, Dolphin House, East Essex Street

16.00p.m. – 17.00p.m. Discussion on Child Care Court and Family Law Court with Her Honour Judge Rosemary Horgan, President of the District Court Judge Marie Quirke, Judge Brendan Toale, Judge Colin Daly and Judge Deirdre Gearty with particular emphasis on interviewing children and taking evidence from children Venue: 3rd Floor conference room, Dolphin House

19.30p.m. Meeting with The Hon. Mr. Justice Peter Charleton and His Honour Judge Tony Hunt to discuss “The Working Group to Identify and Report on Efficiencies in the Criminal Justice System of the Courts” Venue: Good World Chinese Restaurant, 18 South Great Georges Street, Dublin 2.

Date: Wednesday 26thMarch 2014: 09.00 a.m. – 11.30 a.m. Meeting with Members of An Garda Siochana, led by Chief Superintendent Patrick Leahy, Dublin Metropolitan Region, North Central Division – Powerpoint Presentations

11.40a.m. Meeting with Ms. Clare Loftus, Director of Public Prosecutions, accompanied by Ms. Liz Howlin, Head of the Directing Division and Mr. Peter Mullan, Chief Prosecution Solicitor –
Venue: Office of the DPP, Infirmary Road, Dublin 7

13.00p.m. Working lunch with The Hon. Mr. Justice Peter Charleton, The Hon. Mr. Justice John Edwards, High Court, His Honour Judge Martin Nolan, Circuit Court, Judge John O’Connor, District Court and Ms. Elisha D’Arcy Venue: Conference Room 9thFloor, Criminal Courts of Justice

14. 00p. m. Meeting with Law Reform Commission Commissioners Ms. Finola Flanagan and Tom O’Malley, BL, Law Reform Commission – Venue: Criminal Courts of Justice, Parkgate Street, 5th floor (Room 503.6)

15.15p.m. Meeting with Mr. Jimmy Martin, Assistant Secretary, Criminal Law Reform Division, Department of Justice & Law Reform to discuss the Department’s planned legislative initiatives in this area in particular the development of a Criminal Procedure Bill dealing with certain pre-trial procedures, video link hearings and certain other matters. Venue: Criminal Courts of Justice, Parkgate Street, 5th floor (Room 503.6)

16.15 p.m. – 17.00p.m Meeting with Mr. Ken Murphy, Director General and Members of the Criminal Law Committee of the Law Society of Ireland, Shalom Binchy (Committee Chair), James MacGuill (former Committee Chair and former President of the Law Society), Dara Robinson (another former Committee Chair) and Robert Purcell Venue: Criminal Courts of Justice, Parkgate Street, 5th floor (Room 503.6)

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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PUBLISH & BE JUDGED: As Lord President, Lord Hamilton gave nod to transparency after media interest prompted decision to publish judges’ expenses claims

Former Lord President Lord Hamilton, now of Qatar court. TRANSPARENCY has not always been the perceived sworn & deadly enemy of Scotland’s jet setting, boozing, partying, public-funds-cheating & tax avoiding-island-hopping-bank-fiddling Judiciary of Scotland  – as one former Lord President proved when confronted by journalists investigating the veil of secrecy around our ermine clad public servants.

For the story of how Scotland’s judiciary finally surrendered details of their own cash splurging expenses claims – began with an investigation by Diary of Injustice during 2010 – prompting a decision by the then Lord President – Lord Arthur Hamilton – to publish judges expenses claims on a quarterly basis ever since.

The task – to break the secrecy around how much public cash our judges were burning up for junkets here, there and everywhere – was admittedly difficult.

The Scottish Government – initially claimed they held no such figures – and none existed.

The same was true of the Scottish Courts Service – eager to keep the open wallet policy of throwing cash at the judiciary out of the headlines.

But, there was Freedom of Information – a tool to be used by all – media and public alike – to break the secrecy of our public institutions no matter how high up the ladder they regard themselves.

Compared to England & Wales – where the judiciary were required to publish their expenses claims and had done so for many years, going that little bit further in Scotland appeared almost impossible, with the resistance encountered from public bodies responsible for  the figures.

The more resistance, the more suspicion there was … something to hide.

On top of judicial salaries in 2010 – around £6.1 million, the judges were topping up their positions with cumulative expenses claims of £200K.

Admittedly perhaps not in the Westminster Parliament’s expenses fiddling league – but getting there – if left secretive and unchecked.

However, once told of the queries – Lord Hamilton – the top man – was having none of it – and the Scottish Courts Service were ordered to make the figures public on a rolling basis – every quarter.

And since 2010, on a more often than not regular basis, the public are able to read up on how much Scotland’s eerily secretive, not-very-diverse-or-representative-of-the-wider-community judges plunder from the public purse by clicking here: Judiciary of Scotland – Judicial Expenses Claims

In one quarter alone this year – from 1 April to 31 June, our Court of Session Senators on salaries of up to £225K a year – claimed a whopping £17,331.57 extra in expenses.

Lord Carloway – who is otherwise occupied in fighting proposals before the Scottish Parliament to create an even greater and more effective level of transparency – Petition PE1458: Register of Interests for members of Scotland’s judiciary – claimed £1315.66 expenses in the last quarter available.

Lady Dorrian – The Lord Justice Clerk – claimed a mere £338, Lady Smith – £176.55. Lady A Carmichael- £121. Lord Kinclaven claimed a whopping £6,195.35 – most of which falls under the heading of “accommodation and subsistence”. Lord Brailsford required £14.85 from the public purse – the same judge whose name appears on the title deeds of the Laigh Hall – as a “trustee” for the Faculty of Advocates who swiped it from public ownership. Lord Matthews claimed £308.70. Lord Pentland claimed £385.86. Lady Stacey claimed £741.50. Lord Tyree claimed £490.52. Lord Stewart claimed £3,990.75. Lord Burns claimed £103.80.Lord Armstrong claimed £2,709.50. and Lady Rae claimed £439.53. Bringing a grand total of £17,331.57 for a mere three months work for a handful of judges.

It’s a tough life being a Senator of the Court of Session.

All that jet setting, sitting in court, gatherings with the legal crowd at taxpayers expense. resisting declaring their interests.

A tough life indeed – but at least Lord Hamilton allowed the media and the public the chance to peer a little deeper into how our cash flowed out on judicial jet set junkets and judicial expenses claims.

Since retiring as Lord President, Lord Hamilton now serves on the supplementary panel of the United Kingdom Supreme Court (UKSC).

Additionally, from April 2015 – the former Lord President now holds a position on the Qatar International Court and Dispute Resolution Centre – where big business can confront each other over – as the title suggests – disputes.

The Qatar International Court (QIC) is based in Doha, Qatar. The Court’s mission statement from their website states: “To provide a world-class international court and dispute resolution Centre that will maintain the highest ethical standards, act in accordance with internationally recognized best practices and deliver justice fairly and efficiently with a firm commitment to upholding the Rule of Law.”

The court is led by QIC President, The Rt. Hon. The Lord Phillips of Worth Matravers – former Lord Chief Justice of England and Wales who served as President of the Supreme Court of the UK from 2009 to 2012.

Appointed along with Lord Hamilton was Edwin Glasgow QC from England, Gopal Subramaniam from India and Justice Laurence Li, a former supplementary judge of the Qatar International Court, from Hong Kong.

The QIC comprises the QFC Civil and Commercial Court and the QFC Regulatory Tribunal established pursuant to QFC Law No 7 of 2005, as amended by QFC Law No 14 of 2009. The QIC has internationally renowned judges with expertise in complex commercial disputes and serves to uphold the rule of law, applying the highest quality international legal standards to civil and commercial disputes between individuals and business entities operating both in and outside the QFC.

Readers will be familiar with Lord Brian Gill’s five day state visit to Qatar LORD JET SET: Scotland’s top judge Lord Gill takes 5 day STATE VISIT to Qatar as investigation reveals judiciary’s international travel junkets spree.

Gill took the junket in preference to appearing before the Scottish Parliament to give evidence on A Register of Interests for Scotland’s Judiciary

 

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QUESTION TIME, M’LORD: Top judge Lord Carloway to face MSPs on his opposition to judicial transparency & proposal to create a register of judges’ interests

Lord Carloway called to Scottish Parliament on judicial register. SCOTLAND’s top judge – Lord President Lord Carloway has been invited to appear before the Scottish Parliament to face questions on his opposition to proposals requiring the judiciary to declare their interests.

The invitation to the top judge has been issued by the Scottish Parliament’s Public Petitions Committee – who are conducting a four year investigation on a call for full judicial transparency –  contained in the widely backed petition – Petition PE1458: Register of Interests for members of Scotland’s judiciary.

During last Thursday’s meeting of the Public Petitions Committee – Deputy Convener Angus MacDonald MSP (SNP) led calls to keep the petition open and called for Lord Carloway to face questions on his known opposition to the judicial transparency proposals.

Deputy Convener Mr MacDonald – who also chaired the meeting – said “I would be interested to ask if he [Lord Carloway] would be keen to come in and give oral evidence to back up his earlier submission.”

Speaking on the background of the petition, the Deputy Convener said: “I have some background to the issue. There was a debate in the chamber on the matter in the previous session, and the petition received quite a lot of support from members. Also in the previous session, the former Lord President, Lord Gill, appeared before the Public Petitions Committee.”

Mr MacDonald continued: “We have received a submission from the current Lord President, Lord Carloway, who is basically opposed to the suggestion, and I would be interested in asking whether he would be keen to come in and give us oral evidence to back up his earlier submission.”

Angus MacDonald also reiterated his support for the idea of a judicial register – keenly expressed by the SNP MSP during the earlier Holyrood debate in 2014.

The Deputy Convener also called for legal academic Professor Alan Paterson to be invited to give evidence before the committee.

Mr MacDonald said: “I note Professor Alan Paterson’s comments and criticisms in relation to the perceived inadequacies of the current recusals register. It could be helpful to take oral evidence from him, too.”

Earlier this year Professor Paterson – of the University of Strathclyde – provided written evidence to MSPs in which the legal academic issued stinging criticisms of the current “Recusal Register” – set up by Lord Gill as a result of a private meeting with MSPs.

Writing in a letter to the Petitions Committee – Professor Paterson said: “The Public Register of Judicial Recusals is indeed to be welcomed but it only records the cases in which Scottish judges have actually recused themselves, not the cases in which they have been asked to recuse themselves and have declined to do so, far less those in which they might reasonably have been asked to recuse themselves but were not.”

“In short, we cannot always tell if judges are recusing themselves or declining to recuse themselves in the right cases. One measure which might assist with that issue is to ask whether the decision as to recusal should be left to the judge who has been challenged.”

As the meeting continued – Brian Whittle MSP (Scottish Conservatives) added: “I think the petition is not unreasonable. I would be quite keen.”

The committee had earlier heard from MSP Maurice Corry (Scottish Conservatives) – who initially said the judicial register “would be no bad thing” – then moved an unsuccessful motion to close the petition.

After the session ended, the Public Petitions Committee published their decision to call in further witnesses: “PE1458 by Peter Cherbi on register of interests for members of Scotland’s judiciary. The Committee agreed to invite the Lord President and Professor Alan Paterson to give oral evidence at a future meeting.”

However, Carloway – who earns £225K a year as Lord President – along with significant pension perks and jet set junkets – is already on record as being against the judicial transparency proposals

Lord Carloway – who succeeded Lord Brian Gill as Lord President – claimed in written evidence earlier this year to the Petitions Committee the justice system could be brought to a halt if judges were forced to declare their wealth and interests.

Lord Carloway (real name: Colin Sutherland) told MSPs: “The proper administration of justice could be inhibited by the disclosure of the judiciary’s otherwise confidential financial arrangements. In that connection, there is the possibility that an individual judge may be the subject of misconceived criticism, deriving from the disclosure of personal financial information, where those interests are tangential and de minimis.”

If the judicial transparency proposal becomes reality, all members of Scotland’s judiciary – instead of just the elite few who sit on the board of the Scottish Courts – will be required to declare their vast and varied interests including their backgrounds, personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land interests, 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.

More on the full debate in Holyrood’s main chamber is reported with video footage and the official record, here: Debating the Judges

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

Video footage of the meeting & transcript follows:

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

Judiciary (Register of Interests) (PE1458)

The Deputy Convener: PE1458, is by Peter Cherbi and calls for the establishment of a register of interests for members of Scotland’s judiciary. Members will have seen the note by the clerk and submissions from the petitioner and Professor Paterson. Members will also be aware of further information that was provided by Mr Cherbi in respect of the Scottish Courts and Tribunals Service and the Judicial Complaints Reviewer.

The action that is called for in Mr Cherbi’s petition received support from a number of MSPs in the previous session of Parliament, but neither the Scottish Government nor the current or former Lord President supports the introduction of such a register.

Do members have any views on what we should do with the petition?

Maurice Corry: I personally do not think that the proposed register would be the worst thing but, since the views of those who decide on the matter are set, the petition should be closed.

Rona Mackay: I have sympathy with Mr Cherbi and agree that there should be a register. However, I am not sure how much further we can take the petition or what road we could go down to progress it.

The Deputy Convener: I have some background to the issue. There was a debate in the chamber on the matter in the previous session, and the petition received quite a lot of support from members. Also in the previous session, the former Lord President, Lord Gill, appeared before the Public Petitions Committee. We have received a submission from the current Lord President, Lord Carloway, who is basically opposed to the suggestion, and I would be interested in asking whether he would be keen to come in and give us oral evidence to back up his earlier submission.

I note Professor Alan Paterson’s comments and criticisms in relation to the perceived inadequacies of the current recusals register. It could be helpful to take oral evidence from him, too.

I also note Mr Cherbi’s suggestion that we should invite the Judicial Complaints Reviewer, Gillian Thompson, to give her thoughts on the proposal to create a register of judicial interests. However, we took evidence from her on the petition in the previous session and I am unsure whether she has changed her view, which was that there should be a register.

Would members be interested in hearing from Lord Carloway and Professor Paterson?

Maurice Corry: That seems pretty fair.

Brian Whittle:The petition is not unreasonable, and I would be keen to explore the issue further.

Rona Mackay: I agree. I would be happy to hear more evidence, as it is a big subject.

Maurice Corry: I am happy with that.

The Deputy Convener: We can ask the Lord President whether he is prepared to give oral evidence to the committee—there was a difficulty with the previous Lord President agreeing to do that. If he does not agree to do that, we will have to refer to his written submission.

Do we agree to that suggested course of action?

Members indicated agreement.

Today, the Judicial Office for Scotland refused to give any comment on their behalf or from Lord Carloway.

The Sunday Herald newspaper reported on latest developments in the long running petition here: MSPs to grill new Lord President on judicial register of interest

And, the Sunday Mail newspaper reported on the invitation to Lord Carloway here:

 Judge Lord Carloway faces demands from MSPs over judges’ register

2 Oct 2016 By Mark Aitken

THE Lord President has been asked to appear before Holyrood’s petitions committee, who are considering a submission for a judicial register of interests.

JUDGE Lord Carloway is facing demands from MSPs to explain why his colleagues’ business and financial secrets shouldn’t be made public.

The Lord President has been asked to appear before Holyrood’s petitions committee, who are considering a submission by campaigner Peter Cherbi for a judicial register of interests.

Details could include gifts, property, shares and criminal convictions.

Public petitions committee deputy convener Angus MacDonald said: “We’ve had a submission from the Lord President, who is basically opposed to the suggestion.

“However, I would be interested to ask if he would be keen to come in and give oral evidence to back up his earlier submission.”

A Judicial Office spokesman said: “We’re not in a position to comment as the Lord President has not received any such invitation.”

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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