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SUPREME INTERESTS: UK Supreme Court Judge Lord Reed’s undeclared links to Lord Carloway selection panel & appeal review work – will not alter UKSC “unlawful” Parliament suspension ruling – but should feature in register of judges’ interests

UKSC judge Lord Reed linked to Lord Carloway job panel. A POTENTIAL undeclared conflict of interest of the next President of the UK Supreme Court (UKSC) – in relation to a recent ruling on the unlawful suspension of Parliament – has been discovered from documents obtained from the Scottish Government.

Papers obtained via Freedom of Information legislation and published in 2016 reveal that Scottish judge Lord Reed – who has sat on the Supreme Court since 2012 – also sat on the selection panel which recommended the appointment of Lord Carloway (Colin Sutherland) as Lord President in 2015.

The potential conflict of Lord Reed – identified during discussions with legal sources – has a bearing (but no overall effect) on the ruling by eleven Supreme Court justices in relation to the findings of three Scottish appeal court judgesheaded by Lord Carloway – who declared Prime Minister Boris Johnson’s decision to suspend parliament in the run-up to the October Brexit deadline as unlawful.

In that ruling, Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating 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.

However, 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 may have required to have – at the very uleast – 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 Scottish Government documents previously obtained by the media revealed the selection panel for the office of Lord President – of which Lord Reed was a member, along with Sir Muir Russell, Judge Lady Dorrian, and Deirdre Fulton – considered five candidates for the position of Scotland’s top judge.

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 appointmed 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 is 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.

LORD REED BIOGRAPHY:

Robert John Reed, Lord Reed became Deputy President of The Supreme Court on 7 June 2018. He was appointed as a Justice of The Supreme Court in February 2012.

He studied law at Edinburgh University and undertook doctoral research in law at the University of Oxford. He qualified as an advocate in Scotland and as a barrister in England. He practised at the Scottish Bar in a wide range of civil cases, and also prosecuted serious crime.

He served as a senior judge in Scotland for 13 years. From 2008 to 2012 a member of the Inner House of the Court of Session, and from 1998 to 2008 a member of the Outer House of the Court of Session, where he was the Principal Commercial Judge.

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

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

To update readers – on 24 July 2019, the last working day of Prime Minister Theresa May, HM the Queen appointed Lord Reed to serve as the President of the Supreme Court of the United Kingdom and declared her intention to raise him to the peerage.

Lord Reed will take over as President of the United Kingdom Supreme Court from Baroness Hale of Richmond on 11 January 2020.

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

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POLICE STORY: Ex-Lord Advocate linked to Police union complaints lawyers – says Police should continue to investigate themselves, complaints against top cops should be heard by ‘quango style’ panel – headed & appointed by Scotland’s top judge

Police should investigate Police – report. A FORMER Lord Advocate once accused of undermining the judiciary by Scotland’s top judge – has delivered a preliminary report as part of a review on handling of complaints and investigations against officers of Police Scotland.

However, the report from Dame Elish Angiolini on “Independent review of complaints handling, investigations and misconduct issues in relation to policing” – continues to advocate Police should continue to investigate themselves – on the vast majority of complaints.

Angiolini also goes on to outline an eerily familiar procedure where – in the case of complaints against the most senior cops –  a ‘quango’ style panel will be convened and headed by Scotland’s top judge – along with selected ‘independent’ persons from other quangos or organisations – appointed to the panel by – Scotland’s top judge.

The report from Elish Anglioni – who herself is linked to lawyers & law firms which represent Police Officers against complaints – states “The vast bulk of complaints should properly be investigated by the police service itself” and “it is critical that those processes are clear, transparent and trusted”.

As far as the Police Investigations and Review Commissioner is concerned, Angiolini states that “Independent supervision and audit is also critical. In those cases rightly requiring independent investigation the police must also provide the fullest co-operation and assistance to allow timely and effective action.”

In a recommendation linked to deaths in custody, and with relevance to the death of Sheku Bayoh who died in 2015 after being restrained by police in Kirkcaldy.

Angiolini’s report states that Police officers involved in a death in custody should be separated to prevent them conferring and contaminating evidence.

This recommendation comes after what happened following the death of Mr Bayoh, where up to nine officers involved were together in the same room for more than eight hours – which led to allegations the cops conferred with each other in compiling their reports of what happened during their involvement in the incident which ultimately lead to Mr Bayoh’s death.

Angiolini’s report states “Police officers involved in a death in custody or serious incident, whether as principal officers or witnesses to the incident should not confer or speak to each other following that incident.

“Early separation of officers, other than in pressing operational circumstances, is the best way to ensure non-conferral in practice, give transparency to the process and preserve the integrity of each individual’s evidence.

“This is in the interests of both the individual police officers themselves and the public interest in order to safeguard public confidence in the integrity of their evidence.”

“In any group of people there is a danger of group-think that could contaminate or colour evidence inadvertently or otherwise.”

However, what is not revealed anywher in the report is that Elish Angiolini – has frequently used the legal services of the same lawyer – Peter Black Watson – who also represented Police Officers involved in the same incident which led to the death of Mr Bayoh.

In a BBC Disclosure investigation, it was reported : Days after his death, the Scottish Police Federation (SPF) lawyer Peter Watson told the media that “a petite female police officer was subjected to a violent and unprovoked attack by a very large man who punched, kicked and stamped on her.”

The new evidence obtained by BBC Disclosure casts doubt on this account.

More on the BBC investigation can be read here: Sheku Bayoh: Fresh questions over death in police custody

It was also reported Peter Watson – who represented Angiolini in some high profile cases – had hit out against the family of Mr Bayoh over criticisms relating to the death in custody.

BBC News reported: Peter Watson of PBW Law said: “Comments made by those representing the family of the deceased promote a completely inaccurate and misleading account.”

He added: “The officer injured remains off work, has had several hospital visits and is now in rehabilitation.

“An examination by a leading consultant confirms her injuries were significant. The injuries have been documented and photographed.

“The officers involved have never refused to provide statements. It was agreed at the outset with the Police Investigations and Review Commissioner (PIRC) that they would revert to us when they wanted statements and when they were clear on the basis that statements were to be given.

“PIRC emailed me this morning at 10:46 asking for our assistance to organise interviews and we answered at 11:29 confirming we would be pleased to assist. Those are the facts.”

Peter Watson, and also his former law firm of Levy & Mcrae, both remain as legal service providers to the Scottish Police Federation – and have represented Police Officers facing complaints, and criminal charges – yet neither are identified in Angiolini’s report nor is her use of both Watson and Levy & Mcrae flagged up as a conflict of interest issue.

The report on scrutiny of complaints against the Police comes in a tough year for Police Scotland – after the appointment of Iain Livingstone to the top post of Chief Constable even after questions surfaced over Livingstone’s suitability for the role after he once faced five allegations of serious sexual assault against a female officer.

The allegations against Livingstone – who was demoted over the sexual assault allegations and then reinstated upon appeal after the case was heard by a male-led Police tribunal – resurfaced in the print media earlier in 2019 – and in a BBC Scotland investigation into cover ups and scandals at Police Scotland.

Previous articles reporting the sexual assault allegations against Iain Livingstone are available here: Scotland’s Chief Constable & what happened to five allegations of serious sexual assault against a female officer

Full report available here: Independent review of complaints handling, investigations and misconduct issues in relation to policing

On complaints against top cops – Angiolini’s report on misconduct investigations against senior officers is critical of current procedures, and recommends responsibilities be transferred away from the Scottish Police Authority (SPA) – due to fears of familiarity between top cops and SPA figures, and a perceived lack of impartiality.

The report states: Police Scotland’s senior officers form a small group of 12 officers above the rank of Chief Superintendent. The members of this group are in regular contact with members and officials of the SPA at meetings of the Board of the Authority and its committees. The SPA, by its nature, also consists of a small group of members and executives. Regular engagement is right and proper and an essential part of the current accountability arrangements whereby it is the statutory function of SPA to hold the Chief Constable to account for the policing of Scotland. However, the regularity of that contact and the familiarity of senior police officers with board members and senior officials could lead to actual or perceived partiality, or antipathy, when it comes to disciplinary matters in which any of those same officers might be involved as the officer under complaint, a supporter to a subject, or a witness.

However, Angiolini’s solution to probes involving top cops – is to create a quango style panel of selected individuals – chaired by a very senior member of the judiciary or Scotland’s top judge – the Lord President – who will also appoint every one of the ‘independent’ persons to the quango style panel hearing complaints against senior cops.

From the report: The key stages of the senior officer misconduct proceedings (both misconduct and gross misconduct) should in future be removed from the responsibility of the SPA and made subject to consideration by an independent legally chaired panel appointed by a very senior member of the judiciary such as the Lord President. The Lord President should be consulted on this matter. The other members of the Panel should consist of an expert in senior policing and a lay person.

The process should follow the steps specified: 1) receipt of the complaint/allegations by SPA; 2) meaningful preliminary assessment and scrutiny of the complaint (within a strict deadline) by a senior Director; 3) prompt referral to the PIRC, or in the case of a criminal allegation to COPFS; 4) an independent investigation by the PIRC of the allegations which should remain confidential unless or until a prima facie case is established; 5) referral by the PIRC to an independent legally chaired panel and determination by the panel as to whether, in the light of the PIRC’s report, there is a case to answer of misconduct or gross misconduct; 6) a preliminary independent hearing by an independent, legally chaired panel to identify any evidence that is not in dispute and can be agreed, and any other matter which can be resolved prior to the formal hearing of the misconduct; 7) a hearing by the panel to consider the evidence, to determine the matter and if proven to decide the appropriate disciplinary action; 8) a right of appeal to a further and different legally chaired independent panel; and finally; 9) the implementation of the disciplinary action by the SPA as the “employer” of the senior officer. (Any constable may further appeal to a Police Appeals Tribunal against any decision to dismiss or demote him or her, and that should remain the case.)

The Panel should consist of independent people from other organisations or jurisdictions, and the Lord President should be consulted by the Scottish Government about the proposal that he should appoint suitable individuals. It is suggested that stages 5, 6 and 7 described in the preceding paragraph could be carried out by an independent 3-person panel comprising a legally qualified chair, one member with a senior UK policing background and one lay member; while the role of the SPA would be limited to stages 1, 2, 3 and 9. The appeal stage could also be conducted by a different independent panel appointed by the Lord President. 184. I believe that the principle of having an independent legally qualified chair for a misconduct hearing should also be extended to gross misconduct hearings for non-senior officers, that is, the rank of Chief Superintendents and below.

The Scottish Governemnt’s announcement of Elish Angiolini’s initial report mentions main points, does not allude to any relationships between the report’s author and law firms who have made millions of pounds from defending Police Officers from complaints and associated issues.

Independent review of complaints handling, investigations and misconduct issues in relation to policing: preliminary report Published: 21 Jun 2019

Dame Elish Angiolini’s independent review addresses complaints handling, investigations and misconduct issues in relation to policing in Scotland, in the wake of the Police and Fire Reform (Scotland) Act 2012.

Foreword

In June 2018 Michael Matheson MSP, the then Cabinet Secretary for Justice, and the Lord Advocate, James Wolffe QC, invited me to conduct an independent review on complaints against the police in Scotland. The Review commenced in September 2018. Six years have passed since the creation of radical, new policing structures for Scotland. This is an appropriate juncture to review the effectiveness of the new systems for dealing with complaints against the police in Scotland, how well such complaints are investigated and the processes reviewed. This review also provides a significant opportunity to contribute to work on matters of profound public interest in a key area of human rights.

My mandate from the Ministers is to make recommendations that will help to strengthen public confidence in policing in Scotland. This first report makes recommendations that are preliminary. It will be followed next year by a wide‑ranging report seeking to ensure that the future legislation, regulations, guidance and practice are fit for purpose. It will also examine in detail the structures of the individual organisations charged with dealing with complaints against the police. Despite the very different responsibilities and natural tensions between the four separate organisations involved in the process, it is crucial that relationships are professional, respectful, and focused on continuous improvement of policing in Scotland and securing the rights of those they serve.

In 2017 I was asked by the then Home Secretary to carry out a review of deaths in police custody in England and Wales. In my report of that Review[1] I observed that we ask a lot of those who police us in the 21st century. The need to interact and sometimes intervene in the lives and freedom of members of the public is a daily occurrence for the police. Such duties involve the power to arrest or intervene where criminal conduct is suspected or where the welfare or life of that individual or others is at serious risk, as well as in many other emergency settings. The powers that flow from those duties are immense in their potential impact on citizens and are regulated by a complex framework of laws and regulations to prevent abuse or negligence in the exercise of those powers.

How those powers are exercised is also governed by the competence and integrity of the individual police officer as well as the wider police force within which he or she serves. In addition to law, training and guidance on how officers should approach encounters that may lead to detention, the community relies on the professionalism, wisdom, ethics and courage of police officers to approach incidents which may result in harm to the officers or others. These are often situations from which most in the community would wish to remove themselves immediately for their own personal safety. Where death or serious injury occurs for those detained by the police and, in other cases, where it is alleged the detention is unlawful, human rights considerations come into play and the state is obliged to carry out effective, timeous and independent investigations into those allegations. In those that result in death, the investigation must also be held in public and allow effective participation in the process by the next of kin of the deceased.

There is however a much wider set of complaints against the police which may involve other types of allegations of criminality. Serious complaints should also be the subject of independent investigation and consideration by a prosecution service independent of the police, others should be drawn to the attention of the prosecutor as soon as possible to allow the prosecutor to determine who should carry out the investigation. Further, members of the public who interact with the police may have complaints about the conduct or efficiency of officers or the quality of service they have received from the police service as an organisation. These matters represent the vast bulk of complaints and are principally directed at the quality of the service provided including rudeness, delay or ineffectiveness. These complaints are identified for a process which aims to be user friendly and capable of as swift and proportionate a response as possible by the police organisation itself, subject to independent supervision, audit and checks.

It can be seen therefore that the notion of a complaint against the police covers a very wide range of events, behaviours and conduct that can be very distinct from each other in character. There may also be occasions however where a combination of different categories of complaint can arise from any given situation. Similarly, the character of the complaint is not always apparent to those first to receive the intimation and further information needs to be sought or investigation undertaken before decisions are made about the route the complaint should take.

This variation in the nature of, and appropriate response to complaints, presents significant challenges for the police and appropriate agencies charged with supervising or investigating such matters; more so for any member of the public wishing to make a complaint. Any understanding of the operation of the different types of complaint and the complex routes for response flowing from the complaint has been described in another, similar context as displaying “the complexity of a wiring system from the star ship Enterprise”[2] This is certainly also the case in Scotland and it was put to this Review in evidence that “the current arrangements for handling complaints about the police are overly complex, lack clarity and can be open to a range of different interpretations”.

The vast bulk of complaints should properly be investigated by the police service itself but it is critical that those processes are clear, transparent and trusted. Independent supervision and audit is also critical. In those cases rightly requiring independent investigation the police must also provide the fullest co‑operation and assistance to allow timely and effective action. The effectiveness of the relations among and between each of the four organisations charged with these responsibilities in Scotland is also critical to success of the process. While the interaction of these organisations requires a degree of autonomy, and in respect of the COPFS and PIRC, independence from the police, independence does not equate to isolation, which undermines the independence of an organisation. In order for the independence of organisations to be maintained and enhanced, and for checks and balances to be effective, there must be regular and meaningful interaction at all levels of these agencies. There must also be mutual respect and an atmosphere of genuine co‑operation.

This preliminary report identifies and discusses a number of issues about these central matters for immediate consideration and others about which further comment is invited before the full report next year. Elish Angiolini 21 June 2019

Independent Report or Political Interference by Scottish Ministers

After an earlier attempt by Scottish Ministers to interfere in complaints reports from the Police Investigations and Review Commissioner, some see the Angiolini report as a new attempt by Scottish Ministers to control how investigations are handled against Police officers and particularly officers who have shown political support for Scottish Government policies.

The review of Policing complaints handling came after the Police Investigations and Review Commissioner Kate Frame spoke out on the subject of who should investigate the Police in a Sunday Post article, here: So who should police the police? In her first interview in four years, Police Scotland watchdog breaks her silence

In the interview, Kate Frame called on MSPs to review who probes misconduct claims against officers and said whistleblowers should be able to turn to investigators outside the force.

Ms Frame said: “There is a discussion to be had about whether the police should investigate themselves.

“I think that from the public’s position, they would feel an independent investigation which has not been undertaken by the police would be preferable.”

In an earlier article it was revealed Police Complaints watchdog Kate Frame had accused Scottish Ministers of interfering in her functions as Scotland’s independent Police watchdog, reported by the Sunday Post here: Emails reveal police commissioner accused Scottish government of interfering after Justice Secretary’s aide asks her to delay scathing report

In an article featuring Scottish Government interference with PIRC, the Sunday post reported “the Police Investigations and Review Commissioner had to warn one of Justice Secretary Michael Matheson’s senior civil servants to back off after he attempted to persuade her to delay the publication of a damning report.”

”Ms Frame responded to the civil servant’s suggestion that her report might be delayed by writing: “My perception of your remarks is governmental interference with my independence.”


PROBE CONFLICT: Ex Lord Advocate used same lawyers who are paid to defeat complaints by Police Union

A FORMER Lord Advocate who has links to lawyers and a suspended judge who represent the Scottish Police Federation (SPF) and cops facing complaints – has been appointed to review how complaints are handled against cops.

However, details released of the review fail to mention that Dame Elish Angiolini (nee McPhilomy) – hired Levy and Mcrae – who have been paid hundreds of thousands of pounds by Police Scotland & the Scottish Police Authority (SPA) – to get cops off the hook from complaints – including probes into deaths.

One of the lawyers linked to ex Lord Advocate Elish Angiolini – is Sheriff Peter Watson –  who was suspended from the judicial bench by  Lord Brian Gill in 2015, after being named in a £28m writ linked to bust hedge fund Heather Capital.

Watson represents Police officers facing complaints and investigations by the Police Investigations and Review Commissioner.

More on Elish Angiolini’s connections to law firms representing Police Officers facing complaints, and an investigation revealing she earned over £600K on inquiry appointments can be found here: PROBE CONFLICT: £604K public cash inquiry magnate Ex Lord Advocate appointed to investigate Police complaints – linked to lawyers representing cops facing complaints

The Scottish Parliament’s Justice Committee is due to hear evidence on Monday 24 June 2019 from Elish Angiolini on the Independent review of complaints handling, investigations and misconduct issues in relation to policing.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Bracadale recusal issue was reported in greater detail here: RECUSALS UNLIMITED: Doubts over credibility of register of judges’ recusals – as Judicial Office admit court clerks failed to add details of senior judges recusals – then silently altered records a year later.

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

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

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

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

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

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

Judicial Recusals 2014

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

SCS/2014-011055

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

P1769/08

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

Judicial Recusals 2014

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

SCS/2014-011055

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

P1769/08

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

Judicial Recusals 2015

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

Judicial Recusals 2016

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

SCS/2015-137949

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

AB15009178/SCS – 2015 – 1552552

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

000548/GR16001177

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

(Manufacturing) Ltd v Musgrave Generators Ltd A103/16

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

Judicial Recusals 2017

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

(KIL-PD55-14)

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

Pasportnikov

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

(Ayr Sheriff Court)

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

(Inverness Sheriff Court)

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

(Court of Session)

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

(Mental Health Tribunal for Scotland)

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

(Dundee Sheriff Court)

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

(Mental Health Tribunal for Scotland)

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

(Housing and Property Chamber)

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

(Mental Health Tribunal for Scotland)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Mental Health Tribunal for Scotland)

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

(Housing and Property Chamber)

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

(Mental Health Tribunal for Scotland)

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

(Sheriff Appeal Court)

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

(Glasgow Sheriff Court)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Inverness Sheriff Court)

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

(Court of Session)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Falkirk Sheriff Court)

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

(Housing and Property Chamber)

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

(Inverness Sheriff Court)

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

(Housing and Property) Chamber

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Housing and Property Chember)

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

(Housing and Property Chember)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Edinburgh Sheriff Court)

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

(Court of Session)

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

(Additional Support Needs Tribunal)

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

(Dunoon Sheriff Court)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Glasgow Sheriff Court)

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

(Dumbarton Sheriff Court)

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

(Housing and Property Chamber)

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

(Tain Sheriff Court)

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

(Housing and Property Chamber)

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

(Glasgow High Court)

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

(Wick Sheriff Court)

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

(Mental Health Tribunal for Scotland)

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

(Mental Health Tribunal for Scotland)

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

(Court of Session)

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

(Court of Session)

Agilisys Ltd

v

CGI IT UK Ltd

(CA 55/17)

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

(Aberdeen Sheriff

Court)

Blair Nimmo

v

Richard Dennis

(SQ60-18)

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

(Glasgow Sheriff

Court)

David Grier

v

Chief Constable,

Police Scotland

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

(Housing and Property Chamber)

EV/18/3486

and

CV/18/3487

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

(Mental Health Tribunal for Scotland)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

Dunoon Sheriff Court

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

(Housing and Property Chamber)

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

(Housing and Property Chamber)

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

Inverness Sheriff Court

Caroline Brown

v Strathearn Stabling

SG2/19

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

 

 

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

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

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

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

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

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

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

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

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

The submission from Moi Ali reads as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When responses are received, MSPs will consider further action.

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

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

Judiciary (Register of Interests) (PE1458):

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

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

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

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

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

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

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

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

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

Members indicated agreement.

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

The judicial interests petition – filed at Holyrood in October 2012 and first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

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

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

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

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

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013, giving early backing to the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

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

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

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

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

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

Dear Lord Carloway,

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

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

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

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

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

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

Register of recusals

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

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

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

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

Register of financial interests

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

These arguments have included—

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

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

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

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

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

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

Yours sincerely: Johann Lamont MSP Convener

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

Judges register backed by MSPs to become law

Martin Hannan Journalist 23 March 2018

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

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

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

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

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

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

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

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

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

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

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

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

BATTLE TO BRING IN JUDGES’ REGISTER

Sunday Mail 25 March 2018

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

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

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

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

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

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

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

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

JUDGE LIST IS BACKED

Scottish Sun 23 March 2018

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

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

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

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

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

A further report in The National newspaper:

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

Martin Hannan Journalist 22 March 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament

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

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

 

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

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

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

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

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

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

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

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

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

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

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

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

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

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

Professor Alan Paterson Petitions Committee PE1458 19th Jan 2017

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

PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

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

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

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

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

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

 

 

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JUDGE SCANDAL: Dark side of Scotland’s judiciary reveals how judges & courts covered up scandal hit judges – from fraud, tax avoidance, alcohol related violence to the wife-beating Sheriff – who all avoided action from Crown Office & Police

Judiciary, Police & prosecutors failed to act on retired scandal Sheriff. THE WAY in which the Judiciary of Scotland deal with allegations against their own members, was never more evident, and in remiss than when the wife of a now deceased Sheriff tried in vain to report her judge husband to Police and prosecutors.

The late Sheriff Lothian, who it turns out – was well known to judicial figures and even Scottish Court Service staff – for his visits to sauna parlours, rumours of mistreatment of his family and use of prostitutes – is one of the dark, yet not so far away chapters of Scotland’s legal circuit.

Yet to this day, snippets of similar behaviour by sheriffs & senior legal figures from unpublished court documents, hearings in chambers,quietly arranged divorces and even missing Police reports – is as shielded from the public today, as it was during Lothian’s reign in the Sheriff courts.

Far from the image of judicial figures cosying up to First Ministers, Lord Advocates and the reluctant ex top judges lecturing politicians and the public on morality, transparency and accountability – members of the judiciary have recently been caught up in all kinds of seedy accusations, ranging from mega millions in hedge fund linked financial impropriety, to carefully concealed court cases and even divorce, where allegations against judges range from wife battering to drunken rages and smashing objects.

Yet, the public learn very little, if usually nothing of these events – and mysteriously, the courts, prosecutors, even Police, all comply with a very judicial silence.

The “me too” #metoo movement – a campaign to denounce sexual assault and harassment – which has somehow mysteriously skipped Scotland under First Minister Nicola Sturgeon – certainly stands no chance against angry, embittered & wife beating members of the judiciary.

Nor does “me too” stand a chance against shady senior figures in Police Scotland– who support each other when reports of sexual assault or harassment end up buried with a ‘no action’ ticket at the Policeman’s ball.

The history of the demise of Sheriff Lothian – who died in 2016 – is well known.

However, the cover up by colleagues on the bench, who knew of Lothian (and other judicial figures) associations with prostitutes, sauna bars, and the attempts by Lothian’s wife to report her husband to the Police & Crown Office – stands to this day as an example of the dark side of Scotland’s judiciary.

A carefully crafted system of cover up, denial and protection of a 500 year old white male dominated judiciary – which runs from the lowly Justices of the Peace who have criminal records for shop lifting & assault, to the most senior levels of the bench where tax avoidance, failures to declare interests, wife beating & carefully denied allegations of sexual misconduct in the workplace never see the inside of a court, the pages of a recusal register or the ink of a charge sheet.

It is also worth noting, many of Scotland’s current senior judges were on the judicial bench during Sheriff Lothian (among others) penchant for boozing, sexual assault, use of prostitutes & reign of terror at home. Yet, to this day, not one judge ever spoke out.

Sheriff Lothian quietly retired on a pension of £7,000 a month.

A Freedom of Information disclosure from the Scottish Government to DOI Journalists also revealed Sheriff Lothian received substantial payments from the Scottish Government & service awards.

Documents within the FOI disclosure reveal that under the Judicial Pensions Act 1981, Sheriff Lothian was entitled to a pension of £63,200.00 per annum and a lump sum of £84,547.00 and in addition Lothian would receive a service award of £50,560.00, based on a salary of £126,400.

Additionally, under the Judicial Pensions and Retirement Act 1993, Sheriff Lothian was entitled to a pension of £62,627.00 per annum, and a lump sum of £84,547.00 together with a net service award of £52,920.00 – based on his pensionable pay of £125,253.33.

Exchanges within the documents disclosed by the Scottish Government also reveal the then Justice Secretary – Kenny MacAskill – was not informed of Sheriff Lothian’s sudden decision to quit the bench, and further emails between heads of the justice department show concern at enquiries from newspapers as to the conduct & status of Sheriff Lothian.

In relation to the allegations against Sheriff Lothian of wife beating and other reports to Police – no action was ever taken against him by the Crown Office or Lothian & Borders Police.

A report on the allegations against Sheriff Lothian and the suffering of his wife, which exposed brutality at a judicial level, featured in the former News of the World newspaper.

It may be a grim read for some, but a necessary read for all – and much further afield than Scotland:

SICK SECRETS OF SAUNA SHERIFF

Ex-missus claims Lothian’s obsession with vice girls and booze destroyed their marriage  Downed sprits daily  Begged for 3-way sex  Hit wife at Christmas

By MARCELLO MEGA News of the World 15 March 2009

SLEAZY sheriff Andrew Lothian is a wife-beating drunk who’s obsessed with prostitutes, his ex-wife reveals today.

The shamed 66-year-old was forced to quit the bench after claims he paid for spanking and whipping sessions with an Edinburgh hooker.

But today the News of the World can expose the SHOCKING secrets of his sordid private life.

According to long-suffering ex-wife Harriet Lothian, the twisted beak TRIED to make her have sex with strangers while he watched

ADMITTED using prostitutes during their marriage

DOWNED at least a bottle of spirits every day, and BATTERED her while their unsuspecting kids slept upstairs.

Speaking at length for the first time since her ex-husband’s sauna shame, disgusted Harriet, 57, said: “I’m surprised it took so long for his activities to be exposed.

“I tried repeatedly to alert the police and the Crown to his unsuitability for office because of his behaviour, but to no avail.

“I suffered greatly at his hands, both during our marriage and for many years after I divorced him.”

We told last November how Lothian quit his £125,000-a-year job after Crown Office bosses confronted him about allegations over his private life.

But, according to Harriet his obsession with sordid sex had been going on for YEARS.

Lothian’s wife of 19 years said: “Sexually, there were problems from an early stage in the marriage.

“I found it so unsettling that I sought advice from my father, who was a doctor, and who I could talk to about anything.

“Andrew was into kinky but fairly inadequate sex. He also had fantasies about introducing third parties, men or women, into the bedroom.

“I had no interest, but he kept asking me to do it to please him.

Repugnant

“I refused because I found the idea repulsive. He said he could pay people to make his fantasies come true.” Harriet suspected her hubby was using hookers DURING their marriage.

And she told how her elderly father was forced to confront Lothian about the sleazy claims.

Harriet said: “He confessed without any shame. He told me he had lost his virginity at 16 to a prostitute, and that he’d always been turned on by them.

“I was devastated. I told him I’d never have unprotected sex with him again but he was totally unrepentant.

“Once his obsession was out in the open, he became more demanding. If he was out at a dinner, he would bring men home and want me to have sex with them while he watched.

“I would have to throw them out, which was embarrassing. I found the idea repugnant. Apart from anything else, I had children in the house.

“My father was 68, but was very close to me and he had no hesitation in speaking to Andrew and telling him to shape up.”

The couple had married on December 28, 1983, after a whirlwind romance.

Lothian already had a son, also Andrew, from the first of two previous marriages, and Harriet had a young son, James, from a previous relationship.

Two years after their wedding, Harriet gave birth to their son Robert, but already the foundations of the marriage were beginning to crumble.

She says: “By the time Robert came along, I had serious concerns about his father’s alcoholism and how terribly ill it was making him.

“He was drinking at least a bottle of spirits a day, and that was just what I was witnessing. He was in a mess.

“I went home with Robert on New Year’s Day 1986 and Andrew was in such a terrible state that he became abusive. I threw a milk bottle at him and hit him on the side of the head.

“The next day, I insisted he saw a doctor, and he agreed because his mother was in the house.

Harriet tried to alert senior legal officals to her husband’s alcohol abuse but was snubbed at every turn.

Things spiralled further out of control and by Christmas 1996 Harriet demanded Lothian move out.

She said: “His language became more abusive. There were implied threats of violence and the odd punch to the side of the head where no visible marks were left, but I was still shocked by what happened then.”

Harriet told how their sons, James, now 27, and Robert, now 23, were in their bedrooms when a huge row erupted on Christmas Eve that year.

She claims Lothian slapped her hard in the face, before punching her full on the nose.

As their shocked mother took refuge in the bathroom, where she tried to stem the flow of blood, both sons plucked up the courage to leave their rooms and go to her aid.

Charade

With her face badly marked and her eyes beginning to blacken, the family went through the motions the next day, exchanging presents and eating dinner — but the mood was understandably bleak.

Harriet said: “Until that point, I’d been trying to hold things together for my sons, but I couldn’t go on with the charade.

No child should have to see their mother pouring with blood from a blow their father has struck.

It was a total nightmare.” Robert said: “I remember clearly what happened that night and it sickens me the way he behaved. It is more than ten years since I have spoken to him.

“When I was 12 I wrote him a letter telling him I wanted nothing to do with him.” Following the attack Harriet demanded that Lothian move out of the family home in Lauder, Berwickshire.

She wept: “I feared for the safety of our sons. I had no choice.”

But in SLEAZE: summer 2001 Lothian — then living in Edinburgh — launched a court bid to SELL the house.

She said: “The move was especially hurtful as Robert was about to start his Higher courses.

“It was also difficult to understand as Andrew had inherited a six-figure sum the previous year when his mother died.”

Lothian’s partner at that time, Eleanor Burns, daughter of Sir John and Lady Eleanor Burns, had also inherited a substantial sum on the death of her mother, just a week before Catriona Lothian’s death.

By 2002, when they finally divorced, Harriet claims exclusive that Lothian enjoyed a six-figure salary whilst Harriet took care of their children and could only work part-time as a rape crisis counsellor.

In the end she had to pay Lothian £28,000 to buy him out of the family home and finish the marriage.

Assault

Lothian and his brother Murdoch were subject to an Inland Revenue investigation in 2000 after claiming the contents of their late mother’s Stirling home were worth a mere £5,000.

This included antique furniture, jewellery, silver, paintings and pottery.

It’s understood the Inland Revenue later valued the list at £300,000.

But Harriet still wishes justice had been done for the assault she endured in 1996. She said: “Successive governments on both sides of the border have claimed to wage war on domestic violence.

“There was an opportunity for the Scottish establishment to show there was substance behind the platitudes by taking action against a senior lawyer. But typically, they covered his back.” Now self-employed in horticulture, Harriet added: “I have to work extremely hard to make a living.

Andrew’s disgrace has not made life any easier, but I feel vindicated.”

Lothian served on the Glasgow bench from 1979 to 1992 before moving to Edinburgh. He’s expected to keep his £7,000-a-month pension.

He was unavailable to comment on the allegations.

Read more articles about the Judiciary of Scotland here : Judiciary of Scotland – Previous articles

 

 

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JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

MSPs support creation of Judicial Register. A SIX YEAR Scottish Parliament investigation of a petition calling for the creation of a register of interests for judges has received the backing of a powerful Holyrood Committee – who have concluded the proposal to increase judicial transparency – should become law.

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

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

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

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

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

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

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

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

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

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

When responses are received, MSPs will consider further action.

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

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

Judiciary (Register of Interests) (PE1458):

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

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

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

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

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

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

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

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

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

Members indicated agreement.

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

The judicial interests petition – filed at Holyrood in October 2012 and first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

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

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

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

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

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013, giving early backing to the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

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

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

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

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

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

Dear Lord Carloway,

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

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

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

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

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

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

Register of recusals

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

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

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

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

Register of financial interests

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

These arguments have included—

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

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

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

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

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

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

Yours sincerely: Johann Lamont MSP Convener

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

Judges register backed by MSPs to become law

Martin Hannan Journalist 23 March 2018

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

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

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

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

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

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

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

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

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

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

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

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

BATTLE TO BRING IN JUDGES’ REGISTER

Sunday Mail 25 March 2018

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

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

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

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

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

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

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

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

JUDGE LIST IS BACKED

Scottish Sun 23 March 2018

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

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

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

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

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

A further report in The National newspaper:

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

Martin Hannan Journalist 22 March 2018

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The judicial interests petition – filed at Holyrood in October 2012 and first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

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

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

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

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

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

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013, giving early backing to the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

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

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

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

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

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

THE COURTS OF NORWAY:

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

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

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

What is registered?

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

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

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

  • One-off lectures and the like.

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

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

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

  • Employment in private or public sector companies.

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

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

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

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

How Norway’s Judiciary works:

Background:

Independence of the Courts

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

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

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

How independence is guaranteed

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

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

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

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

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

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

Judges cannot be dismissed

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

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

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

The Courts must have the people’s confidence

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

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

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

A brief history of the Norwegian courts

The Viking Age

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

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

The High Middle Ages

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

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

The Union period

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

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

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

The separation of powers and the Norwegian Constitution

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

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

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

 

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