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DISHONESTY, LORD: Files reveal Lord Carloway misled Holyrood Committee on involvement of judges’ relative in Court of Session claim – witness statement exposes direct role of Ewen Campbell in £6M land case heard by his father – judge & privy councillor Lord Malcolm

Lord Carloway misled MSPs on judicial probe. DOCUMENTS released to an ongoing probe of claims made by Scotland’s top judge at Holyrood – now reveal Lord Carloway deliberately misled MSPs in evidence relating to the involvement of a relative of a senior Court of Session judge in a £6million court case.

The files – in the form of a witness statement from Advocate Ewen Campbell – who is Lord Malcolm’s son –  directly contradict statements by Lord Carloway – to the Public Petitions Committee and MSP Alex Neil in a hearing on 29 June 2017.

During the evidence session – Lord Carloway faced questions from Mr Neil on the Court of Session case – where judge & Privy Councillor Lord Malcolm (real name Colin Campbell QC) – heard a land contamination case – up to EIGHT TIMES while his own son represented the defenders – Advance Construction Scotland Ltd in the same court room.

In response to questions from the MSP, Lord Carloway (real name Colin Sutherland) furiously claimed that Lord Malcolm’s son DID NOT have any “active involvement with the case whatsoever.”

However – a witness statement dated May 2013 – signed by Ewen Campbell – covering the time Campbell worked for Glasgow law firm Levy & Mcrae – contains a written admission Mr Campbell confirming he did in-fact represented the construction company, alongside lawyer Peter Black Watson – who was at the time a Sheriff and partner at the same law firm.

During the hearing, Alex Neil – MSP for Airdrie & Shotts – asked Lord Carloway: “If, in any case—without referring to a specific case—a close relative of a judge is participating in the case, rightly or wrongly, the perception is that there may be a degree of prejudice.”

Mr Neil said there were concerns the reputation of the judiciary should be protected and added: “I would argue that, certainly in at least one case recently, which we have referred to briefly, the perception is that there may have been unfairness and prejudice in the way in which the matter was conducted, particularly as the judge concerned was involved in the case not once but on a number of occasions.”

In response – a clearly flustered Lord Carloway claimed no such events had taken place.

Carloway took a strong line against the questions, and replied to the MSP stating: “I disagree entirely with your analysis of that particular case and I repeat what I said earlier. The case that you refer to did not involve the judge’s son having any active involvement with the case whatsoever.”

However – on page one of the released witness statement of Ewen Campbell – Mr Campbell confirms he did work for the defenders – Advance Construction.

Ewen Campbell states: “In September 2011 I was asked by Professor Peter Watson (witness) to assist in a new case in which we were to act for Advance Construction (Scotland) Limited (“Advance”).”

Ewen Campbell goes on to admit he worked on the case for nearly a year: “I assisted with this case until Friday 15th June 2012. At this point I ceased assisting Professor Watson as I was informed by Senior Counsel that I was a potential witness in the matter.”

The exchange between Alex Neil and Lord Carloway can be viewed here:

Alex Neil & Lord Carloway on conflict of interest case Scottish Parliament June 29 2017

The released witness statement of Ewen Campbell – the contents of which call into question the honesty of Lord Carloway’s evidence to MSPs, can be found here: Ewen Campbell – Witness Statement – Nolan v Advance Construction

Within the statement, Lord Malcolm’s son – who Carloway told MSPs had no involvement in the case – goes on at length to document numerous on-site visits he undertook at the behest of Carloway’s then judicial colleague – ex Sheriff Peter Watson, and on behalf of the client – Advance Construction (Scotland) Ltd.

In just one example, Ewen Campbell states: “At approximately 4 p.m. I left Levy and McRae’s offices and attended at Branchal Road. I was driven by Ian Butler, a colleague at Levy Sc McRae. On arrival at the site I observed that a number of vehicles were at the gate of the site. Mr Butler and I therefore parked our vehicle just round the comer from the entrance of the site.”

Ewen Campbell is later forced to account for allegations a Grangemouth based firm – IKM Consulting Ltd – employed by Levy and Mcrae as their ‘experts’ in the case – dumped contaminated materials at a site owned by the pursuer – Mr Nolan.

Despite Lord Carloway’s abrupt statement that Lord Malcolm’s son did not have “any active involvement with the case whatsoever” – Ewen Campbell goes on to say in his witness statement he personally talked to a legal representative of the pursuer – and talked the solicitor down from his client’s initial allegation IKM Consulting Ltd dumped contaminated material during their on-site activities for Levy and Mcrae & Advance Construction (Scotland) Ltd.

Ewen Campbell states: “I contacted [solicitor] regarding this who detailed that his clients had originally stated to him that IKM had dumped contaminated materials on the site but after further questioning reduced the allegation to having dumped soil like materials on site.”

Bizarrely, Lord Malcolm’s son adds within his statement he did not instruct IKM Consulting Ltd to dump any materials during their on-site activities under his supervision.

Campbell also admits to accepting additional instructions to work on the case in which Carloway claimed he played no active role in.

Ewen Campbell further stated: “Before I ceased assisting Professor Peter Watson in relation to this case, I was instructed on a number of occasions to prepare and send letters and emails to those acting on behalf of Mr Nolan.”

It should be noted that despite Ewen Campbell’s ‘account’ of events around the IKM Consulting incident – Advance Construction were subsequently forced to admit in the Court of Session before Lord Woolman that they had in-fact illegally dumped contaminated materials on Mr Nolan’s land.

Melanie Collins, partner of Mr Donal Nolan – who was the pursuer in Nolan v Advance – said: “I found Lord Carloway’s evidence to be entirely dishonest during his responses to out MSP Alex Neil. I was astounded by how he misled Mr Neil and the entire committee on what happened in our case and how we were treated very badly by Lord Malcolm and others.”

Last night, a legal expert who viewed the material and video footage from the Committee hearing, suggested it was difficult to see how Lord Carloway could make such a false statement to the Scottish Parliament and not expect to be asked to explain himself.

Commenting on the new evidence, the legal expert said: “I am concerned Scotland’s top judge feels secure enough in the environment of a Scottish Parliament hearing – and public expectation of transparency – to make such false and egregiously misleading claims.”

He continued: “The written evidence and records of multiple court hearings suggest Lord Carloway is entirely wrong, and is determinedly at odds with the facts of this case, in his account of events to the Public Petitions Committee and Mr Alex Neil.”

Now, Carloway’s account of events to Mr Neil and the Petitions Committee is to be submitted to the Scottish Parliament’s Justice Committee alongside a report on conflicts of interest of key stakeholders in Scotland’s justice system.

A full investigation into Ewen Campbells’s father – Lord Malcolm – and his  role in the Nolan v Advance case – including serious failures to declare conflicts of interest, is reported in further detail here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders.

The further revelations of Lord Carloway’s links to the land contamination case come after an earlier investigation revealed Lord Carloway failed to declare his own son – Alexander Colin Maclean Sutherland – also worked for the merged law firm of Addleshaw Goddard-HBJ Gateley – which was trying to evict a couple at the centre of the case raised by Mr Alex Neil during the Committee hearing in 2017.

Mr Neil was invited to attend Committee hearing to quiz Lord Carloway on what legal experts say is one of the most serious cases of judicial conflict of interest in Scotland’s courts – Nolan v Advance Construction Scotland Ltd [2014] CSOH 4 CA132/11.

In the outburst from the top judge, Lord Carloway said to Mr Neil: “The suggestion is that we should start registering what our relatives are doing, where they are working and matters of that sort, which I suspect would go way beyond even what is expected of politicians.”

Alex Neil replied to Lord Carloway, stating: “No—we have to register what close relatives do.”

Lord Carloway – clearly rattled by questions from Alex Neil and fellow MSPs about another top judge who concealed he heard a case involving his own son – hit out at Mr Neil and members of the Public Petitions Committee in video footage which can be viewed here: Lord Carloway –  Judges should not declare relatives interests   Scottish Parliament 29 June 2017

The terse exchange – one of many in the evidence session – led to material obtained during a probe by journalists which revealed Lord Carloway’s son – Colin Alexander Maclean Sutherland – worked at the time for the merged law firm Addleshaw Goddard & HBJ Gateley – who became key players in the aftermath of Nolan v Advance Construction (Scotland) Ltd.

However – Lord Carloway did not declare this conflict of interest during the Holyrood hearing.

Instead; the top judge went on to attack other Committee members and Mr Neil – over their backing for a cross party supported petition to require judges to declare and register all their interests.

Minutes before the exchange, Carloway had even denied even receiving any communications from the couple at the centre of the case – however records show Carloway’s legal secretary – Roddy Flinn – now himself a Sheriff – sent acknowledgements to the couple on 24 May 2016.

Papers show Addleshaw Goddard & HBJ Gateley were acting on behalf of Kenneth Pattullo of insolvency practitioners Begbies Traynor – who were appointed by Advance Construction’s lawyers – Levy and Mcrae – to seize the home, land, a farm, and all assets of Ms Melanie Collins & retired National Hunt jockey Donal Nolan.

The couple took on Advance Construction (Scotland) Ltd – over a land contamination incident on their land in Wishaw.

The construction company – owned by businessman Seamus Shields was ultimately forced to admit illegal dumping of material in the Court of Session case before judge Lord Woolman.

Roderick William Dunlop QC of Axiom AdvocatesEwen Campbell of Axiom Advocates and Peter Watson – now formerly of Glasgow based Levy & Mcrae – represented Advance Construction (Scotland) Ltd.

It should be noted Peter Watson – who ran the case for Advance Construction (Scotland) Ltd was later suspended for a record three years plus over his links to a £28M writ involving the £400M Heather Capital Hedge Fund collapse – and then resigned in 2019.

An earlier investigation of this case revealed when Lord Woolman (who heard the proof after the case was passed to him by Lord Malcolm) – stated in court papers that Mr Nolan had a case, John Campbell QC removed – without instruction – most of his client’s own case including over £4million and a claim for legal costs – after he had discussions with the current vice dean of the Faculty of Advocates – Roddy Dunlop QC.

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

A full report on Watson’s suspension from the judicial bench can be found here: CAPITAL JUDGE: As top judge suspends sheriff over £28m law firm writ alleging links to £400m Heather Capital collapse, what now for Lord Gill’s battle against a register of interests & transparency for Scotland’s judiciary

Watson’s suspension from the judicial bench lasted for over three years – a record term of suspension of a member of Scotland’s judiciary and ended with Watson’s resignation in 2019, reported in further detail here: SHERIFF WALKS: Scottish Courts confirm lawyer & part-time Sheriff Peter Watson – who was named in £28M Heather Capital writ linked to collapsed £400M hedge fund – resigned from the judiciary in 2018

The full exchange between Lord Carloway (real name Colin Sutherland) and Alex Neil MSP at the Public Petitions Committee can be viewed, with transcript, below:

Alex Neil questions to Lord Carloway Register of Judges interests Scottish Parliament 29 June 2017

Alex Neil (Airdrie and Shotts) (SNP): I apologise for being slightly late. I had to go to the Public Audit and Post-legislative Scrutiny Committee. I apologise in advance if I cover ground that has already been covered.

Lord Carloway, as an issue of principle, do you think that it should be left only to a judge to decide whether they are going to recuse themselves, or should you or the keeper of the rolls be able to insist on recusal if you believe that there is a potential conflict of interest?

Lord Carloway: The short answer is that I do not believe that there is any problem with the current system, which is that the judge, who knows what his connection is to the case or the parties to it, should make the initial decision. That decision is made in open court, when the parties are present, and it is subject to review on appeal. In other words, if somebody is dissatisfied with that decision and if the litigant eventually loses the case, the decision will come before three judges who will review whether it was correct. If it was incorrect, the decision on the case would fall.

Alex Neil: The person bringing the case to court may not be aware of any conflict of interest that the judge may have and may never find out that there was one, but the judge may well have been influenced by a particular interest. Surely that is not right. If there is any potential conflict of interest, surely there should be a declaration or commitment by the judge, making an explicit statement that there is no conflict of interest. People may not have the resources to appeal, for example. Is the system not balanced against people who come to court for justice?

Lord Carloway: No, it is not. I go back to something that I mentioned earlier, which is very important. Scotland does not have a corrupt judiciary. The matter has been examined by independent persons, notably the GRECO anti-corruption body that operates under the auspices of the Council of Europe, which examined the UK judiciary, including the Scottish judiciary. It was clear that, fortunately, we, as distinct from many other countries, do not suffer from corruption in the judiciary. For that reason, it did not consider that a register of interests was necessary. If one introduces such a measure, one has to be satisfied that it is necessary and also that it is proportionate. If one analyses its proportionality, one has to look at what exactly we are guarding against. If the situation were to be that there was corruption in the Scottish judiciary—which we would discover at some point or another—of course we would have to consider measures to prevent that, one of which might be a register of certain interests. Until such time as it is demonstrated that there is corruption in the Scottish judiciary, I am entirely satisfied that there is no requirement for a register of interests and that it would be positively detrimental to the administration of justice, particularly in relation to the recruitment of judges and especially at the higher level of the judiciary.

Alex Neil: I want to draw a parallel with the register of interests that members of the Scottish Parliament have to sign and regularly update. That came about not because of any allegations or belief that the system was corrupt or that members of the Scottish Parliament are corrupt. In the 18 years that we have been here, I have not heard one allegation of corruption. The register is there not because of allegations of corruption but to ensure that there is no prejudice. If I participate in a debate and I have an interest that I have not declared, I will be open to an allegation not of corruption but of prejudice. Because there is a register of interests and because I have to declare interests in a debate or in a committee meeting such as this one, there is a transparency to ensure that I do not act in a prejudicial fashion.

To go back to the case that Mr MacDonald cited as I came in—the case of Advance Construction and Donal Nolan, in which Lord Malcolm’s son was involved as a lawyer for one of the parties—the issue there was not an allegation of corruption but one of possible prejudice or perception of prejudice. That is a very good example of why either a register of interests or a more robust system of recusal—or perhaps both—might serve the judiciary very well.

Lord Carloway: I am satisfied that Lord Malcolm’s actions were entirely honourable and that he acted in accordance with the code of judicial ethics. I am not sure what is—

Alex Neil: Have you investigated it?

Lord Carloway: I am aware of the background to it.

Alex Neil: No, but have you investigated it?

Lord Carloway: I have read the papers that it involves.

Alex Neil: With all due respect, Melanie Collins and Donal Nolan have written to you on numerous occasions, and at no time have you replied to them, let alone met them, so you have not heard the other side of the case.

Lord Carloway: I am sorry, but I am not aware of letters to me by those particular persons.

Alex Neil: Your office—

The Convener: Alex, let us be careful that we do not get into anything specific on that.

Alex Neil: Yes—absolutely. My point is about how Lord Carloway can reach that conclusion if he has not heard the other side.

Lord Carloway: I have read documents emanating from the persons that you have mentioned. As far as I am aware, they were not addressed to me, but I could be wrong about that. The position is that I am aware of the circumstances of the case. I am satisfied that Lord Malcolm’s conduct was entirely correct in the circumstances. That is part of the problem that you have perhaps highlighted. That case has nothing to do with a register of pecuniary interests. The suggestion is that we should start registering what our relatives are doing, where they are working and matters of that sort, which I suspect would go way beyond even what is expected of politicians.

Alex Neil: No—we have to register what close relatives do.

Lord Carloway: Can I deal with the difference between MSPs and the judiciary, which I think I dealt with earlier this morning? It is quite a different function. A politician is by nature someone who is not independent in the sense that the public expect the judiciary to be. That is not a criticism; it is a reality. As a generality, judges do not deal with the type of issues that politicians deal with. Politicians have executive power. They are dealing with major economic interests of one sort or another. As a generality, judges are not dealing with that type of thing. They are dealing with issues that are usually between private individuals but can be between private individuals and Government or others. Judges are not dealing with the type of issues that politicians are dealing with such as planning inquiries and so on at a local level or major economic development in society as a whole.

The need for independence in the judiciary is different from the kind of independence that a politician requires, because with a politician it is primarily, as Alex Neil has pointed out, about issues of a pecuniary nature. Those are not the issues that arise in most of the recusal cases with which we are concerned. What we are concerned with as judges is that we appear to be independent of all connection with the case. It is not a question of having a pecuniary interest.

If one looks at the register of recusals in the past year, I do not think that any of them were to do with pecuniary interest at all. They were to do with social connections with people—whether someone is a friend; whether a party to the litigation is a friend of a friend; and matters of that sort. Those are the types of situations that are raised by people in the practical reality of litigation and those are the issues that are being dealt with. Unless you are suggesting a register of one’s friends—and presumably, therefore, one’s enemies—the real issue with recusal in the judicial system would not be addressed.

The Convener: Last question, please, Mr Neil.

Alex Neil: If I can just finally draw the parallel between our register and what has been talked about in terms of either recusal or financial interest, MSPs—as individuals and collectively—do not have executive power per se unless they are ministers, but what is very important is the perception of fairness and the perception that justice is being carried out.

If, in any case—without referring to a specific case—a close relative of a judge is participating in the case, rightly or wrongly, the perception is that there may be a degree of prejudice. It might be very unfair, but the point is to try to ensure that the excellent reputation of the judiciary down the years in Scotland is retained. That reputation is not just for not being corrupt, which we all accept—we are not accusing anybody of corruption. The perception of fairness and the perception of not being prejudiced are also extremely important. I would argue that, certainly in at least one case recently, which we have referred to briefly, the perception is that there may have been unfairness and prejudice in the way in which the matter was conducted, particularly as the judge concerned was involved in the case not once but on a number of occasions.

Lord Carloway: I disagree entirely with your analysis of that particular case and I repeat what I said earlier. The case that you refer to did not involve the judge’s son having any active involvement with the case whatsoever. We have very clear rules in our statement of principles of judicial ethics on how to deal with such matters and it is made very clear in that statement that if a relative is the advocate in the case before one, the modern approach is that the judge should not hear the case, or one could put it another way round—the relative should not be presenting the case. Whichever way it happens to be put, the situation that we had 20 or 30 years ago, when it was commonplace for the relatives of judges of one sort or another to be advocating the case, no longer exists.

That practice no longer exists not because it was thought that there was any actual problem with the decision making but, as you say, because of a perception of unfairness. There is a clear judicial rule about that and I am not aware of any case in which it has been breached. I myself have been in a situation in which my son was involved in a firm that was litigating before me. In such a case, the judge would be expected to declare it and the parties would then decide whether to take the point. However, if they took the point and the relative just happened to be a member of the same firm operating in a different department, I would not encourage the judge to recuse himself.

The Convener: There are no final questions, so I thank you very much for your evidence. It has been helpful to clarify many of the issues that you presented to us in written evidence and to have an opportunity to explore some of the issues around prejudice, for instance.

An earlier investigation revealed Lord Carloway failed to declare his son was linked to the same case: JUDGE OF CONFLICT: Top judge who attacked MSPs over judicial interests probe – failed to declare relative’s role at law firm targeting MSP’s constituents’ home & farm in £6M court case linked to Lord Malcolm conflict of interest scandal

A report being compiled for an investigation of judges’ conflicts of interest by Holyrood’s Justice Committee –  has revealed Scotland’s top judge – Lord Carloway –  concealed a critical conflict of interest while giving evidence to the Scottish Parliament on a proposal to create a register of judges’ interests.

Lord Carloway’s failure to declare his own link to a case he initially claimed to know little of – while answering questions from MSP Alex Neil – was made all the more serious after the top judge himself openly attacked Mr Neil and other members of a Holyrood committee –  for daring to suggest judges should declare their relatives interests in a planned register of judges’ interests.

The report on Lord Carloway’s testimony to Holryood’s Public Petitions Committee will reveal that Lord Carloway (real name Colin Sutherland) did NOT declare to MSPs that his own son – Alexander Colin Maclean Sutherland – also worked for the merged law firm of Addleshaw Goddard-HBJ Gateley – which was trying to evict a couple at the centre of the case raised by Mr Alex Neil during the Committee hearing in 2017.

The exchange between Lord Carloway and Alex Neil – one of many in the evidence session – led to material obtained during a probe by journalists which revealed Lord Carloway’s son – Colin Alexander Maclean Sutherland – worked at the time for the merged law firm Addleshaw Goddard & HBJ Gateley – who became key players in the aftermath of Nolan v Advance Construction (Scotland) Ltd.

However – Lord Carloway did not declare this conflict of interest during the Holyrood hearing.

Instead; the top judge went on to attack other Committee members and Mr Neil – over their backing for a cross party supported petition to require judges to declare and register all their interests.

Minutes before the exchange, Carloway had even denied even receiving any communications from the couple at the centre of the case – however records show Carloway’s legal secretary – Roddy Flinn – now himself a Sheriff – sent acknowledgements to the couple on 24 May 2016.

Papers show Addleshaw Goddard & HBJ Gateley were acting on behalf of Kenneth Pattullo of insolvancy practitioners Begbies Traynor – who were appointed by Advance Construction’s lawyers – Levy and Mcrae – to seize the home, land, a farm, and all assets of Ms Melanie Collins & retired National Hunt jockey Donal Nolan.

A recent perusal of Mr Sutherland’s online legal biography at Ampersand Advocates and the Faculty of Advocates – does not mention his time at the merged firm of Addleshaw Goddard-HBJ Gateley in his online legal career:

Alexander Colin MacLean Sutherland BIO:

Year of Call: 2018; Since calling to the Bar in June 2018, Alex has developed a general practice centred on commercial law and public law, including judicial review and planning. He has appeared in the Court of Session, sheriff court and Scottish Solicitors’ Discipline Tribunal. He has also provided Opinions on a wide range of matters, including contractual disputes, insolvency and property.

Before calling to the Bar, Alex trained with a commercial firm in Edinburgh. He completed his LLB at Glasgow University in 2014 and the Diploma in Professional Legal Practice at Edinburgh University in 2015. Before then, he studied German and English Language at Edinburgh University, during which time he spent a year studying in Vienna.

He speaks fluent French and German and is well placed to undertake work involving consideration of documents in those languages.

Selected recent cases: Community Windpower Ltd v Scottish Ministers (ongoing): Inner House, Court of Session; For the appellants. Appeal against a Reporter’s decision. With Ailsa Wilson QC.

Tasmina Ahmed-Sheikh v (1) Scottish Solicitors’ Discipline Tribunal and (2) Council of the Law Society of Scotland [2019] CSOH 104; 2020 SLT 1: Outer House, Court of Session; For the petitioner. Judicial review of the first respondent’s decision on expenses.

Saadi v Whiterock Investments Ltd: Outer House, Court of Session; For the defenders. Pursuer seeking reduction of the decree awarding his sequestration.

Ford v The Firm of W&AS Bruce [2020] SC KIR 9: Kirkcaldy Sheriff Court; For the pursuer. Action of damages against a firm of solicitors for failing to advise the pursuer to include a survivorship destination when disponing half of his property to his partner. Debate on prescription.

NCS Office Services (Scotland) Ltd v Emtelle UK Ltd: Glasgow Sheriff Court (Commercial Action); For the defenders. Proof before answer on whether one of the defenders’ employees had authority to enter into a contract with the pursuers on behalf of the defenders.

Law Society of Scotland v WM: Scottish Solicitors’ Discipline Tribunal; For the respondent. Preliminary hearing on whether the complaint should be dismissed due to excessive delay.

However, when Ampersand Advocates welcomed Alexander Sutherland to their stable in 2018 – Mr Sutherlands spell at Addleshaw Goddard did gain a mention, without reference to his father being Scotland’s top judge – here: Ampersand welcomes Alexander Sutherland

Ampersand is delighted to welcome Alexander Sutherland to the stable who called at the Bar today.

HOLYROOD SUPPORT FOR  REGISTER OF JUDGES’ INTERESTS:

Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally lodged at the Scottish Parliament in 2012 – calls for the creation of a publicly available register of judicial interests – containing information on all judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

 

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JUDGE OF CONFLICT: Top judge who attacked MSPs over judicial interests probe – failed to declare relative’s role at law firm targeting MSP’s constituents’ home & farm in £6M court case linked to Lord Malcolm conflict of interest scandal

Lord Carloway failed to declare link to judicial conflict case. A REPORT being compiled for an investigation of judges’ conflicts of interest by Holyrood’s Justice Committee – will reveal Scotland’s top judge – Lord Carloway –  concealed a critical conflict of interest while giving evidence to the Scottish Parliament on a proposal to create a register of judges’ interests.

Lord Carloway’s failure to declare his own link to a case he initially claimed to know little of – while answering questions from MSP Alex Neil – was made all the more serious after the top judge himself openly attacked Mr Neil and other members of a Holyrood committee –  for daring to suggest judges should declare their relatives interests in a planned register of judges’ interests.

The report on Lord Carloway’s testimony to Holryood’s Public Petitions Committee will reveal that Lord Carloway (real name Colin Sutherland) did NOT declare to MSPs that his own son – Alexander Colin Maclean Sutherland – also worked for the merged law firm of Addleshaw Goddard-HBJ Gateley – which was trying to evict a couple at the centre of the case raised by Mr Alex Neil during the Committee hearing in 2017.

Mr Neil was invited to attend Committee hearing to quiz Lord Carloway on what legal experts say is one of the most serious cases of judicial conflict of interest in Scotland’s courts – Nolan v Advance Construction Scotland Ltd [2014] CSOH 4 CA132/11.

In the outburst from the top judge, Lord Carloway said to Mr Neil: “The suggestion is that we should start registering what our relatives are doing, where they are working and matters of that sort, which I suspect would go way beyond even what is expected of politicians.”

Alex Neil replied to Lord Carloway, stating: “No—we have to register what close relatives do.”

Lord Carloway – clearly rattled by questions from Alex Neil and fellow MSPs about another top judge who concealed he heard a case involving his own son – hit out at Mr Neil and members of the Public Petitions Committee in video footage which can be viewed here:

Lord Carloway –  Judges should not declare relatives interests   Scottish Parliament 29 June 2017

The terse exchange – one of many in the evidence session – led to material obtained during a probe by journalists which revealed Lord Carloway’s son – Colin Alexander Maclean Sutherland – worked at the time for the merged law firm Addleshaw Goddard & HBJ Gateley – who became key players in the aftermath of Nolan v Advance Construction (Scotland) Ltd.

However – Lord Carloway did not declare this conflict of interest during the Holyrood hearing.

Instead; the top judge went on to attack other Committee members and Mr Neil – over their backing for a cross party supported petition to require judges to declare and register all their interests.

Minutes before the exchange, Carloway had even denied even receiving any communications from the couple at the centre of the case – however records show Carloway’s legal secretary – Roddy Flinn – now himself a Sheriff – sent acknowledgements to the couple on 24 May 2016.

Papers show Addleshaw Goddard & HBJ Gateley were acting on behalf of Kenneth Pattullo of insolvancy practitioners Begbies Traynor – who were appointed by Advance Construction’s lawyers – Levy and Mcrae – to seize the home, land, a farm, and all assets of Ms Melanie Collins & retired National Hunt jockey Donal Nolan.

The couple took on Advance Construction (Scotland) Ltd – over a land contamination incident on their land in Wishaw.

The construction company – owned by businessman Seamus Shields was ultimately forced to admit illegal dumping of material in the Court of Session case before judge Lord Woolman.

However – the couple’s £6million damages claim – led by John Campbell QC – ended badly after a series of undeclared conflicts of interest by some of Scotland’s most senior judicial figures, instances where judges were switched from hearing to hearing, a series of refusals of legal costs claims, and denied requests to appeal in Edinburgh, and at the UK Supreme Court in London.

In a sequence of discussions and a meeting between Campbell and defenders counsel Roddy Dunlop QC which took place after Lord Woolman stated in court that Mr Nolan had a valid claim – John Campbell QC embarked on a series of unauthorised actions – and destroyed his own client’s case – by removing most of the financial claim – without consultation or obtaining permission to do so.

A recent probe established John Campbell – who agreed to act on a no-win-no-fee basis in the case – then went on to scam his client Mr Nolan for hundreds of thousands of pounds in unexpected legal fees, while also demanding thousands of pounds at a time – in cash – which the senior QC and now Edinburgh Quaich Project Charity Boss insisted on collecting in person

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

Mr Nolan and his partner remain constituents of MSP Alex Neil – who has followed and supports their efforts to have the case re-opened, as well as an investigation into events.

Since the sequestration of Mr Nolan and his partner took place, after the conclusion of their court case, the couple have been the victim – of what some view as revenge for daring to take on a company with public contracts who illegally dumped hazardous waste on their land, where this same company was and is represented by law firms directly linked to senior figures in Scotland’s judiciary.

Mr Nolan and his partner have been evicted from their own home, lost their farm and land.

And – a deliberate, targeted fire attack on Mr Nolan’s stables at a farm in 2019 which resulted in the death of several horses –  is still under investigation by Police Scotland.

Sources believe the deliberate arson attack on the couple’s Morningside Farm which featured in news reports of the tragic discovery of burned bodies of dead horses – is linked to the couple’s sequestration and setbacks in court.

And, recently, evidence has come to light of burned out vehicles possibly connected to the incident which were photographed located at a premises linked to potential suspects.

Now, there are calls for an independent, public inquiry into events which occurred during the case, the role of Advance Construction, and events in the Court of Session including involvement of certain law firms and members of the judiciary who – according to court files – deliberately concealed conflicts of interest across multiple court hearings in the case.

The case – Nolan v Advance Construction (Scotland) Ltd has attracted significant publicity in the press and is part ongoing probe into judicial conflicts of interest – resulting in the naming of several judges who failed to declare documented conflicts of interest in the case

Holyrood’s Public Petitions Committee, and recently, the Justice Committee have received and considered evidence in relation to the actions of Lord Malcolm (Colin Campbell QC) who himself failed to declare he heard the case up to eight times while his own son – Ewen Campbell – was in the same court, representing the defenders – Advance Construction (Scotland) Ltd.

The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest, is reported in further detail here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders.

Minutes before Lord Carloway hit out at Alex Neil over suggestions judges declare links to their relatives interests, the top judge snapped at the MSP stating: “I am satisfied that Lord Malcolm’s actions were entirely honourable and that he acted in accordance with the code of judicial ethics.”

However, the court record does show Lord Malcolm heard the case on multiple occasions while his son was in court – and new evidence has emerged from witness statements indicating Lord Malcolm’s son had also visited the site of the land contamination incident – which contradicts claims from the top judge & judicial office that Ewen Campbell had nothing to do with the case.

The original papers from Hamilton Sheriff Court in 2011 indicate that when a Sheriff Millar transferred the case to the Court of Session to be heard by Lord Malcolm – Ewen Campbell – Lord Malcolm’s son – was also present at that same hearing on 30 September 2011, along with Gavin Walker – who is a QC at Axiom Advocates.

An ongoing investigation into the case has now revealed Levy and Mcrae, representing Advance Construction in their pursuit of Mr Nolan & his partner – then sought a hearing on 14 April 2015 – to swap the original appointment of the Accountant in Bankruptcy in the sequestration of the elderly couple – to Begbies Traynor and Mr Pattullo.

That hearing took place at Hamilton Sheriff Court before the SAME Sheriff Millar – who heard the couple’s initial claim against Advance Construction in 2011 and then transferred it to be heard by Lord Malcolm in the Court of Session.

However, records show that by the time of this hearing in 2015 – accountants KPMG had already been appointed by the Accountant in Bankruptcy to handle the sequestration of Mr Nolan and his partner Ms Collins – and it can not be easily explained away by the Accountant in Bankruptcy as to why KPMG were swapped out of the sequestration for Levy and Mcrae’s choice of Begbies Traynor and Kenneth Pattullo.

Events around Levy & Mcrae’s motivated appointment of Begbies Traynor and Mr Pattullo – are now the subject of calls for an investigation by the couple’s MSP and legal experts – after it emerged assets owned by the couple which were held by the Clydesdale Bank, were transferred without notification to an offshore vulture fund known as Promantoria Ltd.

And – information has now come to light that land and assets formerly owned by the couple which were seized by Mr Pattullo & Begbies Traynor on behalf of Advance Construction (Scotland) Ltd – are now in the ownership of several persons of interest in relation to ongoing investigations of events which have occurred around Mr Nolan and his partner as a result of the collapse of their valid Court of Session claim.

The Judicial Office for Scotland were asked for comment on the following media enquiry:

“In relation to claims made by Lord Carloway to MSP Alex Neil at yesterday’s Public Petitions Committee in relation to declaring the interests of close relatives, and Lord Carloway’s mention of a son in the legal profession, can the Judicial Office confirm if Lord Carloway’s son currently works at Addleshaw Goddard LLP which has merged with HBJ Gateley.”

“On being provided with information HBJ Gateley is a pursuer in relation to obtaining decree with a view to evicting a Ms Melanie Collins & a Mr Donal Nolan from properties in Wishaw, does the Judicial Office or Lord President wish to comment on Lord Carloway’s testimony yesterday that entering the details of close relatives work in a register is going way beyond what is being proposed in terms of a register of interests for members of Scotland’s Judiciary.”

“And, in view of the claims made in relation to above, does the Judicial Office or Lord President see this as a matter which should be made clearer to the Petitions Committee after yesterday’s mention of the case during open session and Lord Carloway’s comments?”

“Finally, does the Judicial Office or Lord President have any further comment on Lord Carloway’s evidence to the Petitions Committee, and any further comment on the Petition itself?

Baktosch Gillan, who was the Acting Head of Judicial Communications at the time, gave the following reply: “In relation to your first question, the Judicial Office does not hold that information.”

Mr Gillan added: “We have nothing further to add to the Lord President’s evidence to the committee.”

To confirm Mr Sutherland’s position at Addleshaw Goddard during the time Lord Carloway gave his evidence to Holyrood in 2017, a search of the Law Society of Scotland’s online database of solicitors was made.

Days before the query to the Judicial Office in relation to Lord Carloway’s son – the name of Alexander Sutherland appeared in the Law Society of Scotland’s online search results.

However, some time after the Judicial Office issued the statement denying they held any information on the Lord President’s son’s involvement with HBJ Gateley & Addleshaw Goddard, and a potential conflict of interest – a new search of the Law Society of Scotland’s database revealed they had removed the name of Alexander Sutherland and references to his service at Addleshaw Goddard from their online database search results – which are now published as part of this report here:

The full exchange between Carloway (real name Colin Sutherland) and Alex Neil MSP at the Public Petitions Committee can be viewed, with transcript, below:

Alex Neil questions to Lord Carloway Register of Judges interests Scottish Parliament 29 June 2017

Alex Neil (Airdrie and Shotts) (SNP): I apologise for being slightly late. I had to go to the Public Audit and Post-legislative Scrutiny Committee. I apologise in advance if I cover ground that has already been covered.

Lord Carloway, as an issue of principle, do you think that it should be left only to a judge to decide whether they are going to recuse themselves, or should you or the keeper of the rolls be able to insist on recusal if you believe that there is a potential conflict of interest?

Lord Carloway: The short answer is that I do not believe that there is any problem with the current system, which is that the judge, who knows what his connection is to the case or the parties to it, should make the initial decision. That decision is made in open court, when the parties are present, and it is subject to review on appeal. In other words, if somebody is dissatisfied with that decision and if the litigant eventually loses the case, the decision will come before three judges who will review whether it was correct. If it was incorrect, the decision on the case would fall.

Alex Neil: The person bringing the case to court may not be aware of any conflict of interest that the judge may have and may never find out that there was one, but the judge may well have been influenced by a particular interest. Surely that is not right. If there is any potential conflict of interest, surely there should be a declaration or commitment by the judge, making an explicit statement that there is no conflict of interest. People may not have the resources to appeal, for example. Is the system not balanced against people who come to court for justice?

Lord Carloway: No, it is not. I go back to something that I mentioned earlier, which is very important. Scotland does not have a corrupt judiciary. The matter has been examined by independent persons, notably the GRECO anti-corruption body that operates under the auspices of the Council of Europe, which examined the UK judiciary, including the Scottish judiciary. It was clear that, fortunately, we, as distinct from many other countries, do not suffer from corruption in the judiciary. For that reason, it did not consider that a register of interests was necessary. If one introduces such a measure, one has to be satisfied that it is necessary and also that it is proportionate. If one analyses its proportionality, one has to look at what exactly we are guarding against. If the situation were to be that there was corruption in the Scottish judiciary—which we would discover at some point or another—of course we would have to consider measures to prevent that, one of which might be a register of certain interests. Until such time as it is demonstrated that there is corruption in the Scottish judiciary, I am entirely satisfied that there is no requirement for a register of interests and that it would be positively detrimental to the administration of justice, particularly in relation to the recruitment of judges and especially at the higher level of the judiciary.

Alex Neil: I want to draw a parallel with the register of interests that members of the Scottish Parliament have to sign and regularly update. That came about not because of any allegations or belief that the system was corrupt or that members of the Scottish Parliament are corrupt. In the 18 years that we have been here, I have not heard one allegation of corruption. The register is there not because of allegations of corruption but to ensure that there is no prejudice. If I participate in a debate and I have an interest that I have not declared, I will be open to an allegation not of corruption but of prejudice. Because there is a register of interests and because I have to declare interests in a debate or in a committee meeting such as this one, there is a transparency to ensure that I do not act in a prejudicial fashion.

To go back to the case that Mr MacDonald cited as I came in—the case of Advance Construction and Donal Nolan, in which Lord Malcolm’s son was involved as a lawyer for one of the parties—the issue there was not an allegation of corruption but one of possible prejudice or perception of prejudice. That is a very good example of why either a register of interests or a more robust system of recusal—or perhaps both—might serve the judiciary very well.

Lord Carloway: I am satisfied that Lord Malcolm’s actions were entirely honourable and that he acted in accordance with the code of judicial ethics. I am not sure what is—

Alex Neil: Have you investigated it?

Lord Carloway: I am aware of the background to it.

Alex Neil: No, but have you investigated it?

Lord Carloway: I have read the papers that it involves.

Alex Neil: With all due respect, Melanie Collins and Donal Nolan have written to you on numerous occasions, and at no time have you replied to them, let alone met them, so you have not heard the other side of the case.

Lord Carloway: I am sorry, but I am not aware of letters to me by those particular persons.

Alex Neil: Your office—

The Convener: Alex, let us be careful that we do not get into anything specific on that.

Alex Neil: Yes—absolutely. My point is about how Lord Carloway can reach that conclusion if he has not heard the other side.

Lord Carloway: I have read documents emanating from the persons that you have mentioned. As far as I am aware, they were not addressed to me, but I could be wrong about that. The position is that I am aware of the circumstances of the case. I am satisfied that Lord Malcolm’s conduct was entirely correct in the circumstances. That is part of the problem that you have perhaps highlighted. That case has nothing to do with a register of pecuniary interests. The suggestion is that we should start registering what our relatives are doing, where they are working and matters of that sort, which I suspect would go way beyond even what is expected of politicians.

Alex Neil: No—we have to register what close relatives do.

Lord Carloway: Can I deal with the difference between MSPs and the judiciary, which I think I dealt with earlier this morning? It is quite a different function. A politician is by nature someone who is not independent in the sense that the public expect the judiciary to be. That is not a criticism; it is a reality. As a generality, judges do not deal with the type of issues that politicians deal with. Politicians have executive power. They are dealing with major economic interests of one sort or another. As a generality, judges are not dealing with that type of thing. They are dealing with issues that are usually between private individuals but can be between private individuals and Government or others. Judges are not dealing with the type of issues that politicians are dealing with such as planning inquiries and so on at a local level or major economic development in society as a whole.

The need for independence in the judiciary is different from the kind of independence that a politician requires, because with a politician it is primarily, as Alex Neil has pointed out, about issues of a pecuniary nature. Those are not the issues that arise in most of the recusal cases with which we are concerned. What we are concerned with as judges is that we appear to be independent of all connection with the case. It is not a question of having a pecuniary interest.

If one looks at the register of recusals in the past year, I do not think that any of them were to do with pecuniary interest at all. They were to do with social connections with people—whether someone is a friend; whether a party to the litigation is a friend of a friend; and matters of that sort. Those are the types of situations that are raised by people in the practical reality of litigation and those are the issues that are being dealt with. Unless you are suggesting a register of one’s friends—and presumably, therefore, one’s enemies—the real issue with recusal in the judicial system would not be addressed.

The Convener: Last question, please, Mr Neil.

Alex Neil: If I can just finally draw the parallel between our register and what has been talked about in terms of either recusal or financial interest, MSPs—as individuals and collectively—do not have executive power per se unless they are ministers, but what is very important is the perception of fairness and the perception that justice is being carried out.

If, in any case—without referring to a specific case—a close relative of a judge is participating in the case, rightly or wrongly, the perception is that there may be a degree of prejudice. It might be very unfair, but the point is to try to ensure that the excellent reputation of the judiciary down the years in Scotland is retained. That reputation is not just for not being corrupt, which we all accept—we are not accusing anybody of corruption. The perception of fairness and the perception of not being prejudiced are also extremely important. I would argue that, certainly in at least one case recently, which we have referred to briefly, the perception is that there may have been unfairness and prejudice in the way in which the matter was conducted, particularly as the judge concerned was involved in the case not once but on a number of occasions.

Lord Carloway: I disagree entirely with your analysis of that particular case and I repeat what I said earlier. The case that you refer to did not involve the judge’s son having any active involvement with the case whatsoever. We have very clear rules in our statement of principles of judicial ethics on how to deal with such matters and it is made very clear in that statement that if a relative is the advocate in the case before one, the modern approach is that the judge should not hear the case, or one could put it another way round—the relative should not be presenting the case. Whichever way it happens to be put, the situation that we had 20 or 30 years ago, when it was commonplace for the relatives of judges of one sort or another to be advocating the case, no longer exists.

That practice no longer exists not because it was thought that there was any actual problem with the decision making but, as you say, because of a perception of unfairness. There is a clear judicial rule about that and I am not aware of any case in which it has been breached. I myself have been in a situation in which my son was involved in a firm that was litigating before me. In such a case, the judge would be expected to declare it and the parties would then decide whether to take the point. However, if they took the point and the relative just happened to be a member of the same firm operating in a different department, I would not encourage the judge to recuse himself.

The Convener: There are no final questions, so I thank you very much for your evidence. It has been helpful to clarify many of the issues that you presented to us in written evidence and to have an opportunity to explore some of the issues around prejudice, for instance.

A recent perusal of Mr Sutherland’s online legal biography at Ampersand Advocates and the Faculty of Advocates – does not mention his time at the merged firm of Addleshaw Goddard-HBJ Gateley in his online legal career:

Alexander Colin MacLean Sutherland BIO:

Year of Call: 2018; Since calling to the Bar in June 2018, Alex has developed a general practice centred on commercial law and public law, including judicial review and planning. He has appeared in the Court of Session, sheriff court and Scottish Solicitors’ Discipline Tribunal. He has also provided Opinions on a wide range of matters, including contractual disputes, insolvency and property.

Before calling to the Bar, Alex trained with a commercial firm in Edinburgh. He completed his LLB at Glasgow University in 2014 and the Diploma in Professional Legal Practice at Edinburgh University in 2015. Before then, he studied German and English Language at Edinburgh University, during which time he spent a year studying in Vienna.

He speaks fluent French and German and is well placed to undertake work involving consideration of documents in those languages.

Selected recent cases:
Community Windpower Ltd v Scottish Ministers (ongoing):
Inner House, Court of Session;
For the appellants. Appeal against a Reporter’s decision. With Ailsa Wilson QC.

Tasmina Ahmed-Sheikh v (1) Scottish Solicitors’ Discipline Tribunal and (2) Council of the Law Society of Scotland [2019] CSOH 104; 2020 SLT 1:
Outer House, Court of Session;
For the petitioner. Judicial review of the first respondent’s decision on expenses.

Saadi v Whiterock Investments Ltd:
Outer House, Court of Session;
For the defenders. Pursuer seeking reduction of the decree awarding his sequestration.

Ford v The Firm of W&AS Bruce [2020] SC KIR 9:
Kirkcaldy Sheriff Court;
For the pursuer. Action of damages against a firm of solicitors for failing to advise the pursuer to include a survivorship destination when disponing half of his property to his partner. Debate on prescription.

NCS Office Services (Scotland) Ltd v Emtelle UK Ltd:
Glasgow Sheriff Court (Commercial Action);
For the defenders. Proof before answer on whether one of the defenders’ employees had authority to enter into a contract with the pursuers on behalf of the defenders.

Law Society of Scotland v WM:
Scottish Solicitors’ Discipline Tribunal;
For the respondent. Preliminary hearing on whether the complaint should be dismissed due to excessive delay.

However, when Ampersand Advocates welcomed Alexander Sutherland to their stable in 2018 – Mr Sutherlands spell at Addleshaw Goddard did gain a mention, without reference to his father being Scotland’s top judge – here: Ampersand welcomes Alexander Sutherland

Ampersand is delighted to welcome Alexander Sutherland to the stable who called at the Bar today.

Before calling to the Bar, Alex trained with Addleshaw Goddard LLP, formerly HBJ Gateley. During his seat in the firm’s dispute resolution department, he gained experience of a wide range of litigation in both the Court of Session and the sheriff court, including real estate and insolvency litigation. He also had seats in the real estate and corporate recovery departments.

Alex completed his LLB at Glasgow University in 2014 and the Diploma in Professional Legal Practice at Edinburgh University in 2015. Before then, he studied German and English Language at Edinburgh University, during which time he spent a year studying in Vienna.

Alex’s interests lie primarily in the fields of commercial and public law. As a devil he also gained experience of planning. His principal devilmaster was Ampersand’s Laura-Anne van der Westhuizen.

He speaks fluent French and German and is well placed to undertake work involving consideration of documents in those languages.

On Alex’s arrival, Head Clerk Alan Moffat said “I am delighted that Alex has joined us. He comes with a great reputation from his time at a top firm and has been highly praised during his time on the devils course. I am very sure he will continue to impress at the Bar and expect him to be a great addition to the stable.”

In the first part of the time-honoured two-stage admission ceremony, the Dean of Faculty, Gordon Jackson, QC, said the public office of advocate carried real privileges and corresponding responsibilities.

“You have become part of a great national institution which has played, throughout its existence, a very significant role in the legal and cultural life of this nation. As a member of Faculty you will play your own particular part in the future of that institution,” he added.

In the second part of the ceremony, before Lord Clark in the Court of Session, Alex along with 6 other new calls made the declaration of allegiance.

Lord Clark said: “It is a genuine pleasure and a privilege to welcome you as members of the Faculty of Advocates and to congratulate you on this great achievement. The Faculty has long been an important and distinguished organisation. It has commonly attracted some of the ablest minds of each generation, and it continues to thrive.

“It is truly one of the great features of our society that the general public, businesses and other organisations have at their disposal people like you – independently-minded advocates who will take on and fight their causes.

“I very much hope that you thoroughly enjoy your work at the Bar and the camaraderie of your colleagues.”

Alex is a welcome addition to the depth of counsel on offer at Ampersand.

HOLYROOD QUEST FOR A REGISTER OF JUDGES’ INTERESTS

Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally lodged at the Scottish Parliament in 2012 – calls for the creation of a publicly available register of judicial interests – containing information on all judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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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TOP JUDGE – SCRAP JURIES: Scottish Government’s attempt to abolish jury trials during coronavirus outbreak put on hold after outcry from legal profession & politicians

Lord Carloway – scrap most juries during virus outbreak. AN ATTEMPT by Scotland’s top judge and the Scottish Government to ‘temporarily’ axe jury trials as part of emergency Coronavirus legislation – was withdrawn from legislation passing Holyrood today – after the legal profession & politicians criticised the move.

However – the plan to axe juries in many trials – which Scotland’s Lord Justice General Lord Carloway attempted to justify as a method of ‘speeding up’ justice – has not been totally dropped by the Scottish Government.

Constitutional Relations Secretary Michael Russell told the Scottish Parliament that Ministers will revisit the issue of pushing through emergency reforms of the justice system at a later date.

Mr Russell  said further discussions would “allow an intensive and wide-ranging discussion by all interested parties, including victims, whose voice has not yet been fully heard, about the right way to ensure that justice continues to be done in Scotland”.

The emergency legislation being heard today (Wednesday) at Holyrood had proposed allowing judge-only trials for the most serious charges to “ensure that criminal justice systems can continue to operate during the coronavirus restrictions”.

Scotland’s top judge – Lord Carloway (real name Colin Sutherland) claimed axing juries would speed up justice and prevent a “monumental backlog”.

Lord Carloway said in a statement: “We will be facing a monumental backlog of solemn criminal trials once the current restrictions are lifted and trials can recommence. Unless action is taken to mitigate the impact of this, there will be substantial delays in bringing accused persons to trial. These are likely to stretch into years rather than months. The delays will be unprecedented in Scottish legal history. This will have many adverse impacts, including uncertainty for the accused, complainers and witnesses. Such delays will have a highly disruptive effect on their lives, and potentially on the wider system.”

However, the plan drew ire from many quarters, including even SNP politicians where Justice spokeswoman Joanna Cherry criticised the plan in a tweet – stating: “I don’t believe this is necessary. Trials being delayed is enough. This is the obvious compromise. The reality is that life is on hold for everyone.”

Last night, John Mulholland, President of the Law Society of Scotland said: “We respect the fact that the public health threat posed by Covid-19 has presented government with an unprecedented challenge. However, it should not limit our responsibility for ensuring proper scrutiny of measures proposed and an understanding of the impact they may have.

“Juries have been an important principle of the Scottish Criminal Justice system for hundreds of years. To remove this provision for the most serious of crimes would be a significant step and have major implications. We fully appreciate the desire to avoid any backlog in cases which might interfere with the proper administration of justice. However, we have not reached that point and so there is not sufficient justification to warrant trials without jury for serious criminal offences. We believe the case for taking such an extraordinary measure has not been made.

“We have taken this view after consulting with many of the most experienced solicitors in criminal law and those with direct experience of serious criminal cases. There is deep concern, right across the legal profession, at the reform being proposed.

“We want to continue to work positively with the Scottish Government around the changes which are necessary to our justice system to deal with the spread of Covid-19. The past few weeks have proved that we need to be flexible and responsive to emerging situations and creative in our solutions. There are provisions within current legislation which allow flexibility and it is important that these are explored fully before additional measures are introduced.”

And in an updated statement today, the Law Society of Scotland President said: “I am reassured that the Scottish Government has listened to the concerns raised by the Law Society on behalf of our members about the possibility of allowing trials to take place without a jury in the most serious of cases. I would like to thank all our members who took the time to provide their views on this fundamental issue. We look forward to engaging positively with the Scottish Government and partners as they investigate practical ways to ensure that justice can continue to be carried out effectively during the outbreak.”

responded to the withdrawal of the jury axe proposal, saying: “I am reassured that the Scottish Government has listened to the concerns raised by the Law Society on behalf of our members about the possibility of allowing trials to take place without a jury in the most serious of cases.”

The Scottish Government also took the opportunity to use the Coronavirus bill to extend deadlines for Freedom of Information responses – from 20 days to 60 days – however in another concession from the Scottish Government after criticism from the Libdems & Scottish Greens – Europe minister Jenny Gilruth announced amendments will be tabled to address concerns over the extension of the deadline for FOI requests.

The ‘temporary’ nature of the measures announced today can be legally enforced for the next 18 months, a term that would include the need for Parliament to agree to two separate six-month extensions.

Lord Carloway’s proposal to axe juries in most trials can be read in full, below: LJG response to Coronavirus Bill

The Lord Justice General has made a statement in response to the Coronavirus (Scotland) Bill introduced in the Scottish Parliament today.

In his statement, the Lord Justice General said: “The Coronavirus (Scotland) Bill introduced in the Scottish Parliament today contains provisions relating to the justice system. Some of these measures impact on long-standing and well-established elements of the system designed, in normal times, to form part of a suite of protections and safeguards for all those participating in, or affected by, the administration of justice. They are not to be altered lightly.

“These are not normal times. My overriding concern is to ensure that, in these extreme circumstances, we can continue to preserve the fair, effective, and efficient administration of justice, in the hope that we can facilitate the return to normal operations as early as is possible.

“The most noteworthy proposal in the Bill is that which would allow for solemn trials to be heard without a jury; with the verdict determined instead by a judge or sheriff. This would represent a significant, if temporary, change to the way the courts conduct business.

“I would like to set out the rationale for this, from the perspective of the judiciary and courts. We will be facing a monumental backlog of solemn criminal trials once the current restrictions are lifted and trials can recommence. Unless action is taken to mitigate the impact of this, there will be substantial delays in bringing accused persons to trial. These are likely to stretch into years rather than months. The delays will be unprecedented in Scottish legal history. This will have many adverse impacts, including uncertainty for the accused, complainers and witnesses. Such delays will have a highly disruptive effect on their lives, and potentially on the wider system.

“The scale of the potential backlog is very daunting. At a conservative estimate, the backlog will be over 1000 trials, on the optimistic assumption that the restrictions are lifted by the start of the summer. Before the current crisis began, measures were already being put in place to help the High Court process an unprecedented number of new indictments each year. The increasing levels of prosecution would have stretched the Court’s capacity to its limits. This new challenge threatens to overwhelm the system. Jury citation will prove difficult and take longer, in a country recovering from high sickness rates, schools and public services re-commencing, business recovering after lengthy staff absences and people taking missed holidays after lengthy restrictions.

“Anything that can be done, therefore, to address the forthcoming backlog will help avert a critical logjam in the system in the period of recovery once restrictions are lifted. Of course some form of time limitation on this measure is required, although it would be needed for all of the period during which the country recovers from the full effects of the current suspension of trial business in the courts.

“Ultimately, Parliament must decide how it wishes to maintain public confidence in our justice system and allows the courts to continue to administer justice effectively. This means balancing the legitimate concerns about removing juries for a time-limited period against the potential for excessive delay and disruption of the system that the backlog will cause. My concern is that the potential delay and disruption, if mitigatory measures are not taken, may be so severe that it will compromise the effective administration of justice for some years to come.”

Media Notes:

This is a Parliamentary Bill introduced by the Scottish Ministers and it will be for them to draft any regulations further to the Bill’s passage, including when and how the measure discussed in the statement might be used.

The Lord Justice General has explained that “ultimately Parliament must decide how it wishes to maintain public confidence in our justice system and allows the courts to continue to administer justice effectively”.

 

 

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JUDGES MUST DECLARE: Holyrood Justice Committee back cross party supported proposal to require Scotland’s judges to declare all financial interests and other links in a publicly available register of judicial interests

Justice Committee issues backing for Judicial Register. A CROSS-PARTY supported proposal to require all members of Scotland’s near 700 strong judiciary to declare and register their financial interests, links to big business and other connections has moved a step closer after MSPs declared their support for Petition PE1458: Register of Interests for members of Scotland’s judiciary

The Justice Committee published a letter from Margaret Mitchell MSP, Convener of Holyrood’s powerful Justice Committee to Scotland’s top judge Lord Carloway – in which Ms Mitchell states: “After this evidence session and a previous one, the Committee is minded to support the principle behind the petition of a judicial register of interests as it has yet to hear a convincing case against.”

The cross party backed judicial register petition 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.

Support from the Justice Committee to advance the judicial transparency proposal – comes after six years of investigation by the Scottish Parliament’s Public Petitions Committee – who unanimously backed the petition in the face of strong resistance from Scotland’s judiciary, and two years of work by the Justice Committee – who have now gone on the record with their support for a publicly available register requiring all judges in Scotland to declare their interests – in the same way all members of the Scottish Parliament declare their interests.

While in theory, all UK judges including Scotland’s judiciary have a duty to declare all relevant interests in cases they hear in court, a number of serious cases have come to light via media investigations – revealing judges are routinely failing to declare key interests – even when their own family members are before them in court.

In one serious example of a failure to declare interests, Lord Malcolm (real name Colin Campbell QC) heard a damages claim EIGHT TIMES while his own son – Ewen Campbell – represented the defenders in the same court.

The case involving Lord Malcolm generated significant interest as it was not just any ordinary case – it was an appeal linked to a multi million pound damages claim involving defenders represented by a then serving member of the judiciary – (now former Sheriff) Peter Watson – who was later suspended for a record three years plus over his links to a £28M writ involving the £400M Heather Capital Hedge Fund collapse – and then resigned in 2019.

The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest,  is reprinted here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders

A number of other cases where judges failed to recuse have also come to light, and cases where the Judicial Office failed to publish recusals – including at least one hearing involving Lord Bracadale (real name Alistair Campbell) – were drawn to the attention of the Public Petitions Committee during their long six year investigation of the proposal calling for a register of judicial interests.

An investigation revealing the Judicial Office altered the Register of Judicial Recusals – one year after Lord Bracadale recused from a case – and only after journalists questioned the Judicial Office on the omission, can be found here: RECUSALS UNLIMITED: Doubts over credibility of register of judges’ recusals – as Judicial Office admit court clerks failed to add details of senior judges recusals – then silently altered records a year later

The full letter from Margaret Mitchell, Convener of the Justice Committee – to Lord Carloway – was published by the Justice Committee as follows:

Dear Lord President,

Petition 1458 – Proposal to establish a register of judicial interests

I write regarding the above Petition which the Justice Committee considered on 19 November. After this evidence session and a previous one, the Committee is minded to support the principle behind the petition of a judicial register of interests as it has yet to hear a convincing case against.

The Committee thanks you for your letter of 23 August 2019 on this subject. However in light of the above, members agreed it wanted to give you the opportunity to relate your views, in person, as to why a register of judicial interests should not be established.

I should be grateful, therefore, if you would indicate whether you, or a representative of the Judicial Office, would be willing to give oral evidence on the petition in the New Year. If so, in order to move forward. I would be grateful if your officials would contact the Justice clerks to discuss a mutually convenient date.

Finally it would be extremely helpful if you would provide further details on your views of what would be involved in establishing such a register and whether this would require primary legislation or could be achieved by some other means through the powers that you have as Lord President.

I look forward to your response. Best wishes,

Margaret Mitchell MSP Convener, Justice Committee

While Scotland’s judiciary have conducted an eight year resistance to proposals to make the judiciary as transparent as elected politicians, other jurisdictions such as Norway, the USA, and other countries have oeprated registers of judicial interests and requirements on judges to publish their financial reports without any issues.

In Norway, judges must complete a register of interests listing honorary posts, investments, memberships of political parties, companies, religious communities and charities among others.

The Norwegian model of judicial interest disclosure was hailed by the Public Petitions Committee as model for Scotland’s judges to follow.

More on Norway’s register of judges’ interests can be found here: NORWAY, M’LORD: Judicial interests register of Norway cited as example to follow for Holyrood MSPs six year investigation to create a register of judges’ interests in Scotland

After hearing evidence from Scotland’s first Judicial Complaints Reviewer (JCR) – Moi Ali in a hearing last November, the Justice Committee have also invited Lord Carloway to attend Holyrood to face further questions on his opposition to judicial transparency.

During that hearing in November, and in response to a question from MSP Shona Robinson on concerns raised by Lord Carloway of difficulties in hiring judges – Moi Ali said: “If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary.”

Video Footage of this exchange can be found here:

Moi Ali – Judicial interests register will not deter judicial candidates – Justice Committee 19 November 2019

A full report on the Justice Committee evidence hearing with Moi Ali on 19 november 2019 can be found here: JUDICIAL REGISTER: Ex-Judicial Investigator responds to top judge’s claims a register of judges’ interests may affect judicial recruitment – “If a lawyer were put off by having to be open and transparent it does raise questions about their suitability to be members of the judiciary”

Earlier, in September 2013, and during the term of her office as Judicial Complaints Reviewer – Moi Ali gave evidence to the Scottish Parliament’s Public Petitions Committee, and supported calls for the creation of a register of judicial interests. The hearing is reported in more detail along with video footage of the 2013 evidence session here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

EIGHT YEAR JUDICIAL INTERESTS PROBE:

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

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

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

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

The Scottish Parliament’s Justice Committee has backed calls for further work on the judicial interests register during at least THREE further Holyrood hearings, including the latest hearing from June 2019, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

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

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 can be found here: JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

TWO TOP SCOTS JUDGES FAIL IN HOLYROOD JUDICIAL TRANSPARENCY PROBE:

Both of Scotland’s recent top judges failed to convince MSPs that a register of interests is not required for judges – even after both Lord Presidents attempted to press home the existence of judicial oaths and ethics – which are both written, and approved by – judges.

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

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

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

 

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JUDICIAL REGISTER: Evidence to MSPs urges probe of Scots Judges in Gulf States – Scottish Parliament Justice Committee urged to move forward on EIGHT YEAR cross party backed petition to create a Register of judges’ interests

MSPs consider evidence on judicial register. THE Scottish Parliament’s Justice Committee have been urged to progress a cross party backed eight year petition calling for the creation of a Register of judges’ interests Petition PE1458: Register of Interests for members of Scotland’s judiciary

A submission of evidence from the petitioner – published by the Justice Committee – also reveals there are questions over the lack of recusals by Justices of the Peace – who were deliberately excluded from a Register of Recusals created in 2014 as a result of the Public Petitions Committee’s hearings on the petition.

Responding to an earlier letter from Scotland’s top judge – Lord Carloway – the petitioner highlighted the Lord President’s inability to address issues of Scottish judges serving in the Gulf States – a subject which drew harsh criticism from Justice Committee members at an earlier meeting – reported here: JUDGE THE JUDGES: Seven years, and one year on from petition passed to Justice Committee, questions on judicial conflicts of interest & Scots judges swearing dual judicial oaths in Gulf States – time to move forward on legislation for register of judges’ interests

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

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

The letter from Scotland’s top judge – Lord Carloway (real name Colin Sutherland) to the Justice Committee – also revealed the Lord President had refused to appear before the Justice Committee to give evidence, and went on to demand he be told of any questions in advance before he even consider the issue.

Lord Carloway’s letter to MSPs was reported in further detail here: Scotland’s top judge complains Holyrood judicial transparency probe prevents him recruiting judges – refuses Justice Committee invitation to give evidence in cross-party backed Eight year register of judges’ interests investigation

Petition PE1458 Register of Interests for Scotland’s Judiciary

Given the submission from Lord Carloway dated 23 August 2019 has only recently been published, I would like to name a number of observations in this submission to the Justice Committee.

I would observe Lord Carloway does not address important issues raised with the Justice Committee in relation to serving members of Scotland’s judiciary holding judicial positions in the UAE and other States with poor Human Rights records.

Noting comments from member John Finnie MSP in relation to this matter, and the facts presented to the Committee in my previous submissions along with media coverage, I recommend members pursue this matter to the fullest extent, given this is a very clear issue where a register of judicial interests would, and should include such service – where members of Scotland’s judiciary are swearing judicial oaths in countries condemned by rights organisations for multiple Human Rights abuses.

To address the remaining points in Lord Carloway’s letter, the Justice Committee will be aware from previous work and evidence taken by the Public Petitions Committee that former Lord President refused at least two invitations to give evidence to MSPs, and only attended the Petitions Committee on November 2015, some six months after his retirement as Lord President.

Lord Carloway’s evidence to the Public Petitions Committee took place on 29 June 2017. I would highlight my previous submission to the Petitions Committee of 4 September 2017  and media coverage provided to the Petitions Committee in relation to that hearing.

I feel it appropriate to request members of the Justice Committee watch the video coverage of Lord Carloway’s evidence of 29 June 2017 to the Public Petitions Committee, and pay particular attention to Lord Carloway’s responses to MSP Alex Neil – Lord Carloway evidence on Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017

I note Lord Carloway states it is unfortunate this issue is being raised by the Justice Committee at a time during which he is seeking to recruit more members of the judiciary.

The statistics of Scotland’s judiciary, often difficult to obtain and varying, depending on what the Judicial Office publish, indicate there are currently between 650 – 700 members of the judiciary in Scotland.

A handful of judges, around seven – are already required to declare their interests in the standing register of interests for the Scottish Courts & Tribunal Service Board.

The limited disclosure of the seven judges, and non-judicial members are included in the SCTS Annual report, published each year.

A further limited disclosure of financial shareholdings of SCTS Board members, is available via a Freedom of Information request, which I have submitted to the Justice Committee along with this written submission.

This leaves the bulk of Scotland’s judiciary who are not declaring anything, no interests, no financial disclosures, nothing – other than a short biography for a select few judges.

As a result of this petition there is now a Register of Recusals – which has existed since April 2014 and now holds over 180 recusals of members of the judiciary and tribunal members – on varying grounds which in itself, does confirm and bolster the need for a full register of judicial interests.

There are however, problems with the Register of Recusals – as some recusals are not being made and some are not being listed. Notably, Lord Carloway’s explanation to the Public Petitions Committee in regard to unpublished and omitted recusals should be looked at further.

I also ask Committee members to note – there is not one recusal from a Justice of the Peace in the entire Register of Recusals.

Given there are some 450 Justices of the Peace in Scotland, and taking into account the recusal statistics from other branches of the judiciary – from Sheriffs, to Court of Session Senators and Tribunal members, the lack of recusals from JPs are a matter of concern and should be investigated further.

I recommend members of the Justice Committee read my submission of 29 November 2017 to the Public Petitions Committee, which contains important information on the Register of Recusals.

On a further matter of judicial appointments to which Lord Carloway raises, I would recommend members of the Committee read published revelations in the book “Acid Attack” @acid_book by journalist Russell Findlay @RussellFindlay1

In one example of a judicial appointment, contained in the Acid Attack book, are substantiated references to Lord Carloway’s appointment of a full-time sheriff – a year after the Sheriff’s troubling conduct in relation to organised crime criminal clients.

I recommend the Justice Committee request evidence from journalist Russell Findlay, who has written extensively on matters related to the judiciary and justice issues in Scotland.

Of further note to the Justice Committee should be Lord Carloway’s swift appointment of former Lord Advocate Frank Mulholland – direct from the position of Lord Advocate to the judicial bench, and a position as a Senator of the Court of Session.

Clearly, in anyone’s mind – making a top prosecutor a top judge in an instant – creates the possibility of voluminous conflicts of interest – particularly in the instance of Mr Mulholland – who stood with Lord Carloway on the Scottish Government’s move to remove the use of “corroboration” from Scots Law – the instance where evidence must be validated by two independent sources. It is of note the Justice Committee heard evidence from both Lord Carloway & former Lord Advocate Mulholland on this issue, and concluded it should not go ahead.

However, we are now in a situation where Scotland’s former top prosecutor is a top judge. Clearly yet another example of why a register of judicial interests for all members of the judiciary – should exist.

I previously provided evidence to the Public Petitions Committee of the instance where, as members will be aware from media coverage – the Lord Advocate’s wife – who is also a judge – was scheduled to hear a damages claim involving her husband – the Lord Advocate.

Clearly, a register of judicial interests for all members of the judiciary would help to inform litigants, court users, legal representatives and the public of such clear conflicts of interest, rather than leaving it to the last minute in a court hearing to realise the judge is related to one of those being sued in court.

I also recommend members of the Justice Committee read two fresh reports in relation to the petition’s aim of creating a register of judicial interests, and – reports of Scottish judges serving in the UAE – which have been previously commented upon by Committee members prior to publication of these news reports on Scottish Television (STV), here: Judging for ourselves if conflict of interest in courts  and here Scots judges facing pressure to declare their interests

A 75 second Video report relevant to this petition, and information of interest to the Justice Committee can be found on STV Twitter feed here: STV News – Register of Judges Interests

This petition is now in its eighth year, and has been with the Justice Committee for over a year, after the Public Petitions Committee agreed to support the petition in May 2018 after six years of evidence.

The evidence accumulated by the Public Petitions Committee, and the hard work of MSP members past and present of the Public Petitions Committee is as fresh today as when it was taken during the PPC’s extensive deliberations on this petition.

That work, including the evidence of all who gave it, and Public Petitions Committee members efforts to keep this issue alive, in the realisation members of the judiciary should declare their interests, and that there is no valid argument against a register of judicial interests, is to be commended, and therefore should be carried through to the creation of a register of interests for all members of Scotland’s judiciary.

A list of evidence accumulated by the Public Petitions can be found on the Public Petitions Committee link here Public Petitions Committee – Register of Judicial Interests  and within the files of the Petitions Committee in relation to copies of media coverage & related issues brought to the attention of it’s members.

Evidence gathered by the Public Petitions Committee includes:

Extensive written submissions of evidence (over 62 written submissions) across 25 hearings of the Public Petitions Committee,

Evidence from Cabinet Secretaries,

Evidence from one Lord President and one retired Lord President,

Key evidence from Scotland’s first Judicial Complaints Reviewer Moi Ali, and supporting evidence from Judicial Complaints Reviewer Gillian Thompson.

Evidence from law academics,

A full debate which took place in the Scottish Parliament in October 2014 – which concluded with members from all parties supporting the petition,

Multiple media reports on the petition and reports in relation to the judiciary – including undeclared conflicts of interest –

And a clear public interest and public expectation of transparency in court in this petition being brought into legislation to enable court users, the public, legal representatives of litigants, the media and politicians to see that the judiciary is held to the same levels of transparency as all others in public life.

It is now time, after eight years – for the Scottish Parliament to move ahead with this volume of evidence, the vast majority of which supports bringing transparency to the judiciary, and create a register of interests for all members of Scotland’s judiciary

Peter Cherbi, Petitioner PE1458

EIGHT YEAR JUDICIAL INTERESTS PROBE:

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

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

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

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

The Scottish Parliament’s Justice Committee has backed calls for further work on the judicial interests register during at least THREE further Holyrood hearings, including the latest hearing from June 2019, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

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

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 can be found here: JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

TWO TOP SCOTS JUDGES FAIL IN HOLYROOD JUDICIAL TRANSPARENCY PROBE:

Both of Scotland’s recent top judges failed to convince MSPs that a register of interests is not required for judges – even after both Lord Presidents attempted to press home the existence of judicial oaths and ethics – which are both written, and approved by – judges.

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

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

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

 

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CONFLICT OF JUSTICE: Deputy President of UK Supreme Court Lord Hodge blocked appeal to UKSC on damages case he previously heard 16 times – where fellow judge Lord Malcolm failed to declare his own son represented defenders in same court

Lord Hodge heard case 16 times, then blocked appeal. PAPERS from a UKSC case file – reveal top judge Lord Hodge – who has today been appointed as Deputy President of the UK Supreme Court (UKSC) – blocked an appeal to the Supreme Court on a case he failed to declare he heard up to SIXTEEN TIMES when he sat as a judge in the Court of Session.

BUT, the case was not just any ordinary case – it was an appeal linked to a multi million pound damages claim involving defenders represented by a then serving member of the judiciary – (now former Sheriff) Peter Watson – who was later suspended for a record three years plus over his links to a £28M writ involving the £400M Heather Capital Hedge Fund collapse – and then resigned in 2019.

AND – in the SAME case representing the SAME defenders – was solicitor Ewen Campbell – the son of another Court of Session judge – Lord Malcolm (real name Colin Campbell QC) – who, like Lord Hodge – is also a Privy Councillor.

However, as DOJ has previously investigated and reported – Lord Malcolm ruled on the same case up to EIGHT TIMES – while failing to declare his own son – Ewen Campbell – acted for the defenders in the same court before his own father – Lord Malcolm.

The information revealing Lord Hodge blocked the appeal to the UK Supreme Court – came to light in a letter from UKSC Registrar – Louise Di Mambro.

The brief letter from the Registrar of the Supreme Court reveals no court procedure for any UKSC appeal was followed, and that simply – the Registrar had shown the papers to Lord Hodge who had claimed the UKSC had no jurisdiction over the case.

In fact – so confident was Loise Di Mambro and Lord Hodge of blocking the appeal – they sent a copy of their letter to solicitor Richard Cullen at the respondent’s law firm – Levy and McRae – where Ewen Campbell & Peter Watson had represented the defenders – Advance Construction Ltd.

When enquiries were made of UKSC media after the papers were discovered in case files some time ago – a long and protracted debate took place over the validity of an appeal, and counter claims were received in response to media queries on the case and how Lord Hodge came to a conclusion the Supreme Court had no jurisdiction.

However when the existence of the Registrar’s letter and it was pointed out – Lord Hodge had failed to declare he had heard the case up to sixteen times in the Court of Session – a different tone was struck from UKSC media chiefs in emails now being studied for further publication.

It should be noted the pursuer and his legal backers contended at the time – the UK Supreme Court did have jurisdiction over how badly the case had been manipulated in the Court of Session – however a noticeable and deliberate effort by the judiciary to put the case to one side, and even reopen hearings to channel funds to the defenders – struck a bad chord in Scotland’s courts – particularly with the background of what many connected to the case was a judge deliberately concealing his links to family members in court.

AND – there are significant grounds for a re-examination of the case – and other cases heard by Lord Malcolm – given the inescapable conclusion the judge could not have forgotten over eight hearings – that his own son was a legal representative of the pursuers in the exact same courtroom.

Bio: Justice of The Supreme Court, The Right Hon Lord Hodge

Patrick Stewart Hodge, Lord Hodge became a Justice of The Supreme Court in October 2013.

Lord Hodge was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. From 1997 – 2003, he was a part time Law Commissioner at the Scottish Law Commission.

Prior to his appointment to the Supreme Court in April 2013, Lord Hodge was the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He was also a Judge in the Lands Valuation Appeal Court and a Commercial Judge.

Lord Hodge is one of the two Scottish Justices of The Supreme Court.

Bio: Louise di Mambro Registrar

Louise has been Registrar of The Supreme Court since 1 October 2009 and Registrar of the Privy Council since 1 April 2011.

As Registrar, she exercises judicial and administrative functions under the two sets of Rules and Practice Directions which provide the procedure for these Courts.

From June 2008 until September 2009, Louise was Deputy Head of the Judicial Office of the House of Lords, supporting the Law Lords in their judicial functions. Before that, Louise was a deputy master in the Court of Appeal, Civil Division, working in the Royal Courts of Justice from December 1997 to May 2008.

From September 1977 to December 1997, Louise held various posts as a member of the Government Legal Service in the Treasury Solicitor’s Department and the Lord Chancellor’s Department. Louise was called to the Bar in July 1976.

It should be noted this is the second case of a top UK Supreme Court judge failing to declare their interests in previous cases and hearings.

Last month, Lord Reed – another Scottish judge – assumed the presidency of the UK Supreme Court after his appointment in the last days of Theresa May’s Government.

DOJ reported more on Lord Reed’s undeclared interests in further detail here: SUPREME COURT INTERESTS : Prorogation case judge Lord Reed who failed to declare role in appointment of Scotland’s Prorogation Judicial Review ruling top judge Lord Carloway – takes over as new President of UK Supreme Court

The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest,  is reprinted here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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SUPREME COURT INTERESTS : Prorogation case judge Lord Reed who failed to declare role in appointment of Scotland’s Prorogation Judicial Review ruling top judge Lord Carloway – takes over as new President of UK Supreme Court

President of UK Supreme Court Lord Reed. A TOP JUDGE who failed to declare a potential conflict of interest in relation to last year’s Supreme Court ruling on the unlawful suspension of Parliament – has taken over the role of President of the UK Supreme Court (UKSC) from Lady Brenda Hale.

Amid media plaudits from Lord Hopewho currently serves with other Scottish judges in courts in the United Arab Emirates & Gulf States – where Human Rights abuses, domestic abuse & trafficking in migrant workers lead the order of business –  Lord Reed – Robert John Reed (Baron Reed of Allermuir) – who has previously sat at the European Court of Human Rights and on a string of other appointments – now presides over the UK’s most powerful court.

Prior to his appointment to the Supreme Court in February 2012 – after the death of Lord Rodger, Lord Reed sat in the Outer House of the Court of Session, and became principal commercial judge in 2006.

Lord Reed was then appointed a Privy Councillor – a position enjoyed by other Court of Session judges such as Lord Malcolm (real name Colin Campbell QC) and joined the Inner House of the Court of Session where he sat from 2008 to 2012.

However, in September 2019 – when the UK Supreme Court upheld the prorogation case brought by MSP Joanna Cherry (and others) – documents obtained from the Scottish Government revealed Lord Reed sat on the same appointments panel which recommended Lord Carloway for the position of Lord President – Carloway (real name Colin Sutherland).

Lord Carloway is the same judge who upheld the Judicial Review case brought by the same MSP – Joanna Cherry (and others) in Scotland, against the prorogation of Parliament.

In the findings of three Scottish appeal court judgesheaded by Lord Carloway himself, – Lord Carloway upheld the respondents contention that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

In that ruling, Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogation Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

Scrutiny of Papers obtained via Freedom of Information legislation and published in 2016 from the Scottish Government – revealed the same UKSC judge Lord Reed – also sat on the selection panel which recommended the appointment of Lord Carloway (Colin Sutherland) as Lord President in 2015.

The failure of Lord Reed to declare he sat on the appointments panel which recommended Lord Carloway for the top judicial job in Scotland – is one of two potential conflicts of interest for the Supreme Court judge which should have been aired and debated for recusal – prior to the UKSC hearing on the suspension of the Westminster Parliament.

How judges select Scotland’s judges – in secret Documents obtained from the Scottish Government revealed Lord Reed sat on the selection panel for the office of Lord President – along with Sir Muir Russell, Judge Lady Dorrian, and Deirdre Fulton – considered five candidates for the position of Scotland’s top judge.

This same panel – which included Lord Reed – went on to recommend Lord Carloway for the position as Lord President & Lord Justice General of the Court of Session.

Written exchanges between civil servants and the selection panel which are included in the released papers – reveal a short listing meeting was held on 1 September 2015.

The panel considered that two applicants Lord Carloway [Redacted] merited an interview on the basis of the quality of their applications.

Two emails from Lord Reed, dated 14th ^ 15 October 2015 – released by the Scottish Government in the FOI documents – give a minimal, and heavily redacted description of Lord Reed’s role in the panel’s work, which ultimately recommended Lord Carloway for the position of Scotland’s top judge.

In one email, Lord Reed states: “This strikes me as an excellent report. I have made a few minor suggestions as shown on the attached version. Most of the suggestions are trivial, [redacted]”

In a second email Lord Reed writes “I am content with the amended report. I agree, in particular, with the points which were made by Leeona. The amended version beems to me to present an accurate account, and a fair and balanced assessment [redacted]”

A further potential interest not declared, brought ot the attention of journalists by a legal source, identifies Lord Reed’s work together with Lord Carloway – on a ‘compatibility issues review’ to consider if the High Court of Justiciary in Scotland would still have to give permission for appeals in criminal cases to go forward to the UK Supreme Court.

The review group was itself established by Lord Carloway, with others appointed to the group being Lord Reed (Deputy President of the UKSC), and others – Lady Dorrian (Lord Justice Clerk); David Harvie (Crown Agent); Roddy Dunlop QC (Treasurer of the Faculty of Advocates); and John Scott QC (President of the Society of Solicitor Advocates).

The review concluded – “Appeals to the Supreme Court of the United Kingdom (UKSC) should not require certification by the High Court of Justiciary that the issue raises a point of law of general public importance, a review chaired by the Lord Justice General has concluded.”

Although – it should be pointed out – coincidentally, the review on appeals to the UKSC – limited to appeals in criminal cases – came too late to help in several serious cases of judicial conflicts of interest in Scotland – particularly on a well known case where Court of Session judge & Privy Councillor – Lord Malcolm (Colin Campell QC) heard a case up to eight times – while failing to declare his own son represented the defenders in multi million pound damages action.

A report on the Lord Malcolm conflict of interest case can be found here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders.

The two potential conflicts of interest, not declared by Lord Reed in relation to what was a law changing UKSC ruling of significant impact – again highlight the need for a publicly available Register of judges’ interests – to ensure members of the judiciary do not forget to disclose interests which may have a bearing on cases before them.

The issue also brings into question again, the self imposed secrecy on judicial interests by the judges of the UK Supreme Court and wider UK Judiciary – who have resisted calls to become more transparent and declare their interests in the same way all public servants and elected politicians are required to declare in publicly available registers of interest.

The current stance of UK Supreme Court judges on transparency in relation to declarations of interest, is a point blank refusal by the judiciary to comply with the public expectation of transparency.

The UK Supreme Court’s website states the following in relation to judicial expenses and interests:

Justices’ interests and expenses

Background

Prior to the creation of the Supreme Court of the United Kingdom, the highest court in the UK was the Appellate Committee of the House of Lords. The members of the Committee were Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876. Although those appointments gave them full voting and other rights in the House of Lords, the Law Lords had for some years voluntarily excluded themselves from participating in the legislative work of the House. Notwithstanding that, they were bound by the rules of the House and provided entries for the House of Lords Register of Interests.

On the creation of the Supreme Court the Lords of Appeal in Ordinary became Justices of the Supreme Court. They retain their titles as Peers of the Realm, but are excluded by statute from sitting or voting in the House, for so long as they remain in office as Justices of the Supreme Court. As such, they are treated as Peers on leave of absence; and do not have entries in the House of Lords Register of Interests. Historical information remains accessible via the House of Lords website.

Other judges in the UK, such as the judges of the Court of Appeal and the High Court in England and Wales, and in Northern Ireland, and the Court of Session in Scotland, do not have a Register of Interests. Instead they are under a duty to declare any interest where a case comes before them where this is or might be thought to be the case.

Current position

Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound, and which is now publicly available on the UKSC website.

In addition all the Justices have taken the Judicial Oath – and they all took it again on 1 October 2009 – which obliges them to “do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill will”; and, as is already the practice with all other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves from sitting in that case – whether a substantive hearing, or an application for permission to appeal.

In relation to the UK Supreme Court’s stance on declarations of interests, and declarations of conflicts of interest, Diary of Injustice reported on the issue in detail during 2017, here: SUPREME SECRETS: UK Supreme Court refuses to publish recusal data – Court rejects release of info on UKSC justices’ conflicts of interest in response to Freedom of Information recusals probe on top UK court

During the probe of UKSC recusals and failure to declare interests, a common thread of dishonesty was noted in court staff’s handling of a Freedom of Information request from Scotland – which was only answered after coverage of the issue in The National newspaper, which prompted the Information Commissioner’s Office to order the court to respond to the request.

Lord Reed’s limited biography on the UK Supreme Court website (reprinted below) does not feature either of the issues identified linking the judge to Lord Carloway’s appointment as Lord President nor any mention of review & other work undertaken with Lord Carloway – including the UK Supreme Court sitting in Edinburgh, which included Lord Carloway as a sitting judge on the UKSC panel.

The announcement by 10 Downing Street of Lord Reed’s appointment as President of the UK Supreme Court in July 2019 read as follows:

The Rt Hon Lord Reed will succeed Baroness Hale of Richmond as President of the Supreme Court of the United Kingdom, alongside three additional appointments as Justices.

The Queen has been pleased to confer a peerage of the United Kingdom for Life on Lord Reed upon his appointment as the President of the Supreme Court in recognition of the contribution that he has made to law and justice reform.

Lord Reed will take up the position of President on 11 January 2020. Lord Justice Hamblen, Lord Justice Leggatt and Professor Andrew Burrows will join the Supreme Court as justices on 13 January, 21 April and 2 June 2020 respectively.Her Majesty The Queen made the appointments on the advice of the Prime Minister and Lord Chancellor, following the recommendations of independent selection commissions.

Lord Reed will replace Lady Hale who retires on 10 January 2020 after serving as President of the Supreme Court since September 2017.

LORD REED UKSC BIOGRAPHY:

Lord Reed was appointed as a Justice of the Supreme Court in February 2012 and has served as Deputy President since June 2018. Prior to his appointment to the Supreme Court he served as a judge in Scotland, sitting from 1998 to 2008 in the Outer House of the Court of Session, where he was the Principal Commercial and Companies Judge, and from 2008 to 2012 in the Inner House.

He was educated at the Universities of Edinburgh and Oxford, and qualified as an advocate in Scotland and as a barrister in England and Wales. He practised at the Scottish Bar in a wide range of civil cases and also prosecuted serious crime.

As well as sitting on the Supreme Court and the Judicial Committee of the Privy Council, he is a member of the panel of ad hoc judges of the European Court of Human Rights, and a Non-Permanent Judge of the Hong Kong Court of Final Appeal. He is also the High Steward of Oxford University.

IMPORTANT NOTE: Readers should note this article does not take sides in the brexit debate. This article is a reporting of a failure by a UK Supreme Court judge to declare or discuss relevant interests and a potential failure to recuse – by a senior judge who is the new President of the UK Supreme Court.

 

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