POLICE SCOTLAND: Non Disclosure Agreements, whistle-blower witch-hunts, £Ms paid to silence victims, institutionally discriminatory & corrupt – The Scottish Govt Policing PR machine & lawyer-led Scottish National Police service that simply ran out of lies

Outgoing Chief Constable Iain Livingstone. FOR FIVE YEARS and despite publicly aired views of former senior Police officers against his appointment – Scotland’s National Police service has been lawyer-led by a Chief Constable – who was once accused, then ‘cleared’ by a Tribunal composed of male Police colleagues – of FIVE allegations of serious sexual assault made against him by a female Police officer.

On 23 February 2023, just days after Nicola Sturgeon announced her resignation as First Minister on 15 February 2023 – Chief Constable Iain Livingstone announced his own resignation and intention to ‘retire’ from leading Police Scotland – with a lengthy departure date of August 2023.

However, in the weeks which followed the Chief Constable’s long goodbye to Scotland’s decimated national Police service – Mr Livingstone took the opportunity to brand Police Scotland as Institutionally discriminatory, institutionally sexist and instructionally racist.

What followed was a very scripted set of headlines involving public inquiries, SNP politicians praising the outgoing Chief Constable, and gangland representing lawyers seeking their own ego boosting headlines in what many came to realise was a carefully orchestrated exercise in press releases and organised spin.

However – Chief Constable Iain Livingstone was certainly not wrong in his accusations against his own Scottish National Police service.

Indeed, across five years of presiding over Police Scotland, the outgoing Chief Constable – who was branded unfit to lead Police Scotland by former Assistant Chief Constable Angela Wilson, and a host of public critics & campaigners – must shoulder some of the blame for a dysfunctional Police Service which – at low points – assisted the Lord Advocate & Crown Office in fitting up prosecutions against persons whose crimes did not exist – most notably the Administrators & Accountants of Rangers Football Club.

However, fitting up prosecutions on a £100 Million scale with the cooperation, orders even – of Scotland’s top law officers, top prosecutors and even with the evidenced involvement of the judiciary itself in the plot to lock up a few accountants for events which were mostly made-up – are but one entry in a long list of greed, avarice & corruption within Scotland’s National Police service and across key stakeholders in Scotland’s justice system – from the Crown Office to the Scottish Government itself.

But lets not kid ourselves everyone. We knew it all along, right?

The Scottish Government and it’s slavishly political, critic & media hostile – intensive Civil Servant-Special Adviser Policing group – were hell bent on control of almost every facet of Policing in Scotland and were grimly determined to ensure Scotland’s National Police Service drifted into the same chasm of control freakery, public relations and spin as the SNP Scottish Government live by each day and eek out their grim control over public life until the next week and the next scandal.

Few surprises there – as control freakery, PR and spin is so typical of the way the Scottish Government and every public organisation and regulator in Scotland operates – when faced with questions and scrutiny of the level of wrongdoing & dishonesty in whichever public authority is under the microscope that particular day.

To back up Iain Livingstone’s scripted admission of institutionally everything-wrong at his own five year grip on power Police Scotland, a series of senior officers were paraded on television to support the Chief Constable’s claims – with absolutely not one sounding believable in any of their responses.

And, to round off the increasingly diversionary campaign of ruining the reputation of Policing in Scotland to take the cameras and attention away from high profile political resignations and investigations into political funding – which appear to be more focussed on what they cannot prove rather than going after actual events and a rather complicated set of – lets call it “Heather Capital” type activities – the Chief Constable’s sexist, discriminatory & institutionally corrupt Police Service scandals were capped off with an arranged slew of new female officer appointments and the appointment of a female Chief Constable to replace Mr Livingstone.

If only it would be advantageous to publish the chat apps content of senior lawyers, civil servants and others on these few weeks of a dodgy Scottish National Police Service, and the dodgiest of dodgy Scottish Governments, ever.

Lets return to some of those issues in the headlines.

Non Disclosure Agreements at Police Scotland under Chief Constable Iain Livingstone – have seen millions of pounds in public cash paid out to victims of wrongdoing, corruption, sexism and misogyny during Livingstone’s five year grip on power at Scotland’s lawyer-led National Police Service – and millions of pounds more of public cash in the five years preceding Livingstone’s appointment as the preferred Scottish Government candidate of Chief Constable in 2018.

For years – cases of wrongdoing in policing – from the time of Scotland’s eight forces to the creation of Police Scotland by the SNP Scottish Government in 2014 – have been looked at by blog journalists.

The numbers are big, the pay-outs to victims even bigger, the wrongdoing, corruption, sexism, misogyny, vendetta witch-hunts of sources to journalists, pursuit of police officers who lodge legitimate grievances on issues relating to their service – and targeting of whistle-blowers has been – and remains to this day – off the scale.

It should not surprise readers that private law firms, solicitors, ‘leading’ members of the Faculty of Advocates & even some members of Scotland’s judiciary – have also collectively gained millions of pounds of public cash over the past decade in burying scandals for Police Scotland and forcing victims to sign Non Disclosure Agreements to prevent anyone talking to the media, public, their families and friends – or even their elected political representatives and the Scottish Parliament.

Readers can view earlier Freedom of Information disclosures obtained by blog journalists here Police Scotland – Non Disclosure Agreements FOI – 2019 which give some idea of the scale of pay-outs and a very limited understanding of the level of institutional wrongdoing at Police Scotland.

More than 20 victims of discrimination and wrongdoing who received financial compensation from Police Scotland were gagged from speaking publicly and the FOI material reveals Non-Disclosure Agreements (NDAs) were used in at least 21 cases in which pay-outs totalling £677,389 were made to police officers, civilian staff and members of the public.

At least ten police constables, an inspector, a sergeant and four civilian workers were found to have signed Non Disclosure Agreements, involving a variety of discrimination disputes on the grounds of sex, sexual orientation, disability and age.

Other Non Disclosure Agreements involving Police Scotland related to wrongful arrest, personal injury and unfair dismissal and a whistle-blower was required to sign an NDA.

In the figures which go up to the year 2019 – Scotland’s National Police service paid an additional £203,380 to cover victims’ legal fees – bringing the total cost to taxpayers to £880,769 over six years.

Initially – and as is routine with all Scottish Public Authorities – Police Scotland refused to identify the law firms which received public cash in relation to Non Disclosure Agreements. The data was only obtained after requests for FOI Reviews were lodged – naming the following law firms in figures: Clyde & Co solicitors £50,782.20, Morton Fraser Solicitors £72,162.56, Thorntons Solicitors £4,910.40.

And in an additional refusal by Police Scotland to identify law firms involved in Non Disclosure Agreements – again for figures up to 2019 – the same law firms were again identified in an FOI review disclosure – Morton Fraser Solicitors £22,208.80, Clyde & Co solicitors £41,460.01

Police Scotland’s key role in the malicious prosecution of the Rangers Administrators has been well documented on this blog PROSECUTION ADVOCATE: Conflicts of interest, failure to recuse & judge swapping in court – Rangers Admin malicious prosecution case illustrates why Scotland’s Prosecutors & Judiciary must be required to register, declare & publish all their interests – and publish all details of judges’ recusals from court hearings, and more widely in the media.

There also remains no further disclosure by Police Scotland into the allegations of five serious sexual assaults against the outgoing Chief Constable Iain Livingstone – information which Police Scotland refused to release to Freedom of Information requests by blog journalists in an article reported earlier here: TOP COP SECRETS: Transparency lacking at Police Scotland as spy scandal cops refuse to disclose files on complaints & historical sexual assault case details involving Deputy Chief Constable Iain Livingstone

Curiously, in the past year – several media publications published articles identifying outgoing Chief Constable Iain Livingstone as a “Frontrunner” for the positions of Commissioner of the Metropolitan Police Service for London , and “Frontrunner” for the post of Director of the UK National Crime Agency.

As readers will be well aware – both positions were filled by other candidates.

Interestingly and perhaps coincidentally – INTERPOL – the International Police Agency recently announced – apparently after much lobbying – the annual Interpol General Assembly is to be held next year in Glasgow, 2024.

The choice, which would be as odd as a group of environmental campaigners choosing to hold their gathering in the middle of an oil refinery – is coincidentally slated for the same year to which candidates for the 2025 Interpol Presidency will begin lobbying for their chance to follow several well known – and even some later jailed figures – to become the new Interpol President in 2025.

A previous example of Interpol Presidency candidates cite the following:

https://hansard.parliament.uk/commons/2018-11-20/debates/59705E54-A997-4F64-AFCA-2D4200158A62/InterpolPresidencyElection

The Minister for Africa (Harriett Baldwin)

Interpol is currently holding its general assembly in Dubai, and a UK delegation, led by Lynne Owens, the director general of the National Crime Agency, is there at the moment. Interpol is electing a new president at the general assembly after former Interpol president and Chinese Vice-Minister of Public Security, Meng Hongwei, resigned from the position on Sunday 7 October after Chinese authorities confirmed that he had been detained and is being investigated on anti-corruption charges.

Two candidates have formally declared for the post and remain in the running as candidates. They are current acting president South Korean Kim Jong Yang and Russian vice-president—one of four vice-presidents—Alexander Prokopchuk. Members of Interpol at the general assembly will vote on the next president on Wednesday. We do not speculate on the outcome of the election, but the UK supports the candidacy of acting president Kim Jong Yang.

Sir Vince Cable

Can the Minister confirm that the British Government are doing all they can to campaign against the candidacy of Mr Prokopchuk? Will she confirm that, until recently, he was head of the central bureau in Russia and was directly responsible for the issuing of red notices, which have been abused and used against opponents of the Putin regime—such as Mr Bill Browder, the proponent of the Magnitsky sanctions? Does she not agree that if this Russian gentleman were to become head of Interpol, it would be an absolute insult to the victims of the Salisbury incident?

Will the Minister explain how the Government intend to pursue their own pursuit of red notices in Russia with that gentleman in this post? Does she not accept that, if this gentleman were to succeed in his election, this would be a massive propaganda victory for the Putin regime, just ahead of a vote in the European Union on fresh sanctions? Would it, in effect, not amount to accepting that Interpol has become a branch of the Russian mafia? I use my words carefully when I say that. Finally, does this not underline the absolute folly of undermining in any way Europol at a time when Interpol is becoming totally dysfunctional and potentially corrupted?

Harriett Baldwin

The right hon. Gentleman raises a number of points. The central point is to clarify for the House the role of the secretary general of Interpol, who, of course, is the German Jürgen Stock. He has the executive role of day-to-day responsibility for the conduct of Interpol, and the UK confirms that it has a very good working relationship with him.

The right hon. Gentleman also raises the question about the candidacy of the current vice-president of the organisation. The UK, as I said in my opening remarks, will be supporting the candidacy of the acting vice-president, Kim Yong Yang. We always seek to endorse candidates who have a history of observing standards of international behaviour.

With regard to the point that the right hon. Gentleman makes about the potential for misuse of Interpol, red notices are a very important point. He will be aware of the systems that are in place to protect individuals’ rights and, indeed, of article 3 of the Interpol constitution, which forbids any organisation to undertake any intervention or activities of a political, military, religious or racial character. Of course, there need to be safeguards, and this Government take any misuse of Interpol notices very, very seriously.

Interestingly, the lobbying – both at National UK level and in Scotland – for a UK/Scotland candidate to ensnare, be ‘elected to’ or assume the Interpol 2025 Presidency – is highly reminiscent of recent attempts to place certain Scots figures in policing positions outside of Scotland – none of which appear to have succeeded given these individuals pasts.

The lobbying between administrations resorted to embittered strings of emails and Chat app platform communications, including claims several detailed reports in newspapers of officers pasts “had been withdrawn and therefore should be discounted in considering applications” and that “a segment in a television interview was misinformed and contained patently false information”.

The exchanges between advisers, media communications officers & administrations on lobbying attempts, currently cannot be published for legal reasons – however the attempts by some within government, at Scotland & UK level to engineer candidates for jobs without serious interviews, and deploy comms officers, even politicians to brief against the media in what became an increasingly bitter recruitment process and ultimately concluded in all parties engaging in infighting – are certainly of public interest in terms of who is appointed to which role in the UK, and why.

Historically, when it comes to any form of transparency and accountability for Police Scotland and policing organisation in Scotland – every effort appears to be expended to ensure secrecy on all fronts remains the case as this blog has previously reported: FOI PROBE: Holyrood Committee hear Scottish Information Commissioner backed off promise to bring Freedom of Information to Scottish Police Federation – even after Info. Tsar knew England & Wales Police Fed. already complied with FOI legislation

And finally – Three sourced tips in relation to stories being looked into.

An audio file submitted to a number of journalists reveals a recently retired policing figure and frequent user of sauna shops – boasted of holding information in relation to politicians and a financial scandal relating to cash and goods – to which the existence of this information was used to gain political lobbying and favours. A crime journalist confirmed the identity of persons in the audio.

An opportunity for that person or others with knowledge of this matter exists to contact journalists and answer questions on why this policing figure’s organisation felt it could play politics and gain favours – in relation to information clearly accumulated as a result of investigations – and why ageing, named former politicians were paid to lobby for, and attack journalists, critics – on behalf of this policing organisation.

Long running enquiries into court cases and complaints investigations revealed the use of Scotland based Private Investigator firms recruiting former Police Officers to utilise in-person surveillance on litigants, solicitors and journalists. Certain of these cases saw persons working for PI firms gaining entry to offices and litigants homes, images of which were recorded on camera equipment. Blog journalists are open to hear explanations from these firms and any employees in relation to their activities.

A long running investigation of digital surveillance employed by organisations in Scotland – which began with the Emma Caldwell case – turned up evidence of a highly organised cyber-hacking ring – which appears to have involvement of former Police Officers from a UK force other than Scotland, England & Wales which continues to snoop on newsrooms and identified journalists, and others including what appear to be opposition politicians.

Emails between lawyers & identified former officers revealed these ex cops regularly offer their services to law firms and any organisation which will hire then. To put it bluntly, these former officers boast of their technical proficiency in defending against cyber-attacks and taking the surveillance and cyber war back to those who whichever entity or organisation perceive as an enemy.

One of the lawyers boasting to clients of how they can deploy ex Police professionals to hack their way through opposing clients and legal representation’s files – sits on committees formed by Scotland’s current top judge – making the link between the judiciary and this surveillance enterprise as clear as was the case in the Emma Caldwell case. If anyone wants to talk, get in touch.

Lastly – Chose your method of giving tips to journalists carefully. Major social media platforms owned by a variety of anti-transparency vested interests – are a no-go area as your Direct Messages and similar are often read before the intended journalists gain sight of it – as a Digital Media employee from a political party recently confirmed in lengthy chats with example communications provided to journos.

 

FIRST INTERESTS: Judge recommended for judicial role by Nicola Sturgeon – found First Minister committed three counts of professional misconduct – in Law Society probe of Ms Sturgeon’s failure to provide legal service protections for domestic violence victim

First Minister recommended judge role for lawyer – who found her guilty of misconduct. AN INVESTIGATION has established Scotland’s First Minister – Nicola Sturgeon – was found to have committed THREE counts of professional misconduct by a solicitor she later recommended for the position of a Sheriff within Scotland’s powerful judiciary – currently led by Lord President – Lord Carloway.

The findings of professional misconduct by Sheriff Pasportnikov against the First Minister – were the result of a complaint lodged by a client to the law firm where Nicola Sturgeon worked at the time – Bell & Craig solicitors.

The complaint against Nicola Sturgeon involved the currently serving First Minister’s failure to provide adequate legal services to a victim of domestic violence.

And, the issues in relation to Ms Sturgeon’s failure to provide adequate legal services only came to light after Ms Sturgeon suddenly left the law firm = and the client was forced to go to another solicitor – who it was reported – discovered legal aid forms had not been sent to the Scottish Legal Aid Board – despite assurances the legal aid application had been submitted.

In response to the complaint – the Law Society of Scotland appointed a case manager – a solicitor, and now Sheriff – Olga Pasportnikov – to investigate.

In a five-page report, dated Dec 1998, Olga Passportnikov said: “The complaint in this case has been identified as professional misconduct by breach of code of conduct and conduct unbecoming a solicitor.”

Pasportnikov identified three counts ‘of professional misconduct by breach of code of conduct and conduct unbecoming a solicitor’.

They were: failing to raise interdict, misleading client about legal aid application & failing to properly consider her financial circumstances

Among ‘circumstances which have been ascertained during the course of the enquiry’ were the legal aid form had been completed and signed by the client and the client’s employers but not sent.

Despite the findings of Sheriff Pasportnikov, and her identification of multiple serious issues where she concluded Ms Sturgeon’s failure to provide competent legal services qualified as professional misconduct – the Law Society of Scotland concluded there should be no further action and Nicola Sturgeon left the legal profession.

It is important to note – the Law Society of Scotland cleared Nicola Sturgeon even after their case manager Ms Pasportnikov identified various breaches of professional misconduct by Nicola Sturgeon – and that Ms Sturgeon – who then ‘stood down’ from the legal profession – to contest a seat for the Scottish National Party – then entered politics without an on the record finding of professional misconduct by the Law Society of Scotland.

Records show from announcements in the legal profession’s press, and Scottish Government news postings –  Announced on 31 July 2015 – Olga Pasportnikov was appointed by the Queen following a report to the First Minister Nicola Sturgeon – by the Judicial Appointments Board for Scotland.

Ms Pasportnikov, a University of Dundee graduate, was admitted as a solicitor in 1991. She worked mainly in private practice before joining the Law Society of Scotland in 1998. She has been with the Crown Office & Procurator Fiscal Service since 2003, and is also current convener of the Fife Young Carers Management Committee.

The First Minister has statutory responsibility for making recommendations to Her Majesty the Queen and is required by statute to consult the Lord President of the Court of Session before making her recommendation.

The Judicial Appointments Board for Scotland is an ‘independent’ advisory public body with the role of recommending individuals for appointment to judicial offices within the Board’s remit including judge of the Court of Session, chair of the Scottish Land Court, sheriff principal, sheriff, and summary sheriff.

It has since come to light this story was filed with a Scottish newspaper for publication in June 2018 – after several other newspapers refused to publish the story.

According to now deleted tweets from a former journalist which have now been widely published online – a story on the complaint regarding Nicola Sturgeon’s failure to provide adequate legal services to a victim of domestic violence, and the identification of several counts of professional misconduct against Ms Sturgeon by currently serving Sheriff Olga Pasportnikov – had support from one editor to be published – until a ‘Political editor’ at the same newspaper voted the story down.

The deleted tweet goes on to allege that some weeks later, the same newspaper which did not publish the story on Nicola Sturgeon – was leaked details of the harassment complaints against Alex Salmond and the investigation by Police Scotland – which subsequently led to Mr Salmond being charged with 14 offences, including two counts of attempted rape, nine of sexual assault, two of indecent assault, and one of breach of the peace.

Mr Salmond appeared in court on 21 November 2019 and entered a plea of “not guilty”.

At the subsequent trial, Mr Salmond was cleared by a jury trial – heard by Scotland’s Lord Justice Clerk – Lady Dorrian.

The information came to light after Justice Committee Convener Adam Tomkins (Scottish Conservative) & former Scottish Government Legal Affairs Minister Annabelle Ewing (Scottish National Party) made a motivated and concerted effort to close down the same Judicial Interests Register petition which Nicola Sturgeon has opposed and sought to close – throughout her term as First Minister.

The Justice Committee hearing of 2 March 2021 can be viewed here: Register of Judges Interests Petition PE 1458 Scottish Parliament Justice Committee 2 March 2021

This is the same Judicial Interests Register petition the First Minister has tried to undermine and block since Ms Sturgeon became First Minister.

If a Register of Judges’ Interests did become a requirement – Sheriff Pasportnikov who found Nicola Sturgeon guilty of professional misconduct may be forced to list that fact and other details of her service to the Law Society of Scotland.

On Wednesday 3 March 2021 – the Judicial Office for Scotland were asked the following questions:

A currently serving Sheriff – Olga Pasportnikov – conducted an investigation of complaints lodged about Scotland’s current First Minister Nicola Sturgeon while she was a solicitor at a law firm identified as Bell & Craig

Ms Pasportnikov was, as the Judicial Office will be aware – a case manager for the Law Society of Scotland from September 1998 to March 2003

In a five-page report released in December 1998, Olga Pasportnikov said: “The complaint in this case has been identified as professional misconduct by breach of code of conduct and conduct unbecoming a solicitor.”

Olga Pasportnikov found Ms Sturgeon guilty of 3 identifyable counts of professional misconduct:

They were: failing to raise interdict as instructed, misleading client about legal aid application, failing to properly consider the client’s financial circumstances

Events then saw the Law Society clear Ms Sturgeon, who quickly left the legal profession.

Noting Ms Pasportnikov currently declares her time at the Law Society of Scotland on her Linkedin page as a “case manager” – along with other career attributes including a term at the Crown Office as a Procurator Fiscal Depute, and her current role as a serving Sheriff

– does Sheriff Pasportnikov have any comment onthe following questions:

why she does not list her role of investigating complaints against solicitors?

why she found Ms Sturgeon guilty of 3 identifyable issues of professional misconduct?

why no regulatory punishment took place upon Sheriff Pasportnikov’s findings?

Does the Judicial Office have any comment on the above events and any comment on the impact of a currently serving Sheriff with a long history as a solicitor, prosecutor and now a judge – having found Scotland’s current First Minister Nicola Sturgeon guilty of three counts of professional misconduct to which no sanction was ever applied by legal regulators and never declared in any register of interests?

On Friday 5 March 2021 – the Judicial Office for Scotland (JOFS) issued a statement to the media.

The Judicial Office claimed Sheriff Pasportnikov had forgotten she had investigated a complaint case involving the current First Minister Nicola Sturgeon,

A spokesperson for the Judicial Office said:

“The Sheriff was one of a number of case managers working on the Law Society for Scotland’s Client Relations Team from 1998 – 2003. Her role was limited to that of gathering and categorising information as a first step in a much longer process. She did not produce any reports or make any findings. Covering a volume of work, she would not remember specific names in routine cases, including where a solicitor was cleared entirely.”

“In Scotland, sheriffs are appointed by Her Majesty on the recommendation of the First Minister, who makes their recommendation on the basis of a report by the Judicial Appointments Board for Scotland (JABS). The First Minister has statutory responsibility for making recommendations to Her Majesty and is required by statute to consult the Lord President of the Court of Session before making their recommendation.”

“JABS is an independent advisory public body with the role of recommending individuals for appointment to judicial offices within the Board’s remit including judge of the Court of Session, chair of the Scottish Land Court, sheriff principal, sheriff, and summary sheriff.”

A response to the Judicial Office statement was submitted – querying the JOFS claim, and confirming – that material now in the public domain – does confirm Sheriff Pasportnikov did in-fact – investigate a complaint against Nicola Sturgeon and that Sheriff Pasportnikov identified several breaches of professional misconduct by Ms Sturgeon.

No reply to the additional query has been received, nor has the Judicial Office disputed the terms of questions & information supplied to JOFS staff.

It would be difficult to believe a case relevant to the current First Minister was forgotten about by the investigating reporter – Sheriff Pasportnikov – as there is obviously only one Nicola Sturgeon in Scotland – the current First Minister.

Earlier today, a legal expert assessed the material now in the public domain and deleted tweets from a former journalist which names a Scottish newspaper and a ‘spiked’ story on Ms Sturgeon.

The legal expert said he hoped the Committee on the Scottish Government Handling of Harassment Complaints would now scrutinise the information available and ask further questions of the First Minister.

He said: “In view of suggestions on social media platforms – a former journalist held this information for a number of years, and approached several newspapers seemingly without success – people may reasonably expect questions to be asked of why this story has not come to light until now and the method of travel to the media.”

He added: “Was there motive in withholding this story involving Scotland’s First Minister, either by a newspaper, a political party or a journalist? I am curious to find out. However, I am also curious as to why no one with the information offered the material in evidence to the long running Scottish Parliament investigation of issues involving Alex Salmond.”

“Given the First Minister responded to questions on what appear to be references to the investigation of Ms Sturgeon and a newspaper deal –  MSPs should ask rigorous questions of anyone involved in this matter given the situation we face where information now exists alleging the Sheriff complaint probe of Scotland’s First Minister was allegedly swapped for a story on harassment complaints and a Police investigation of Alex Salmond in the summer of 2018”

In discussions late this afternoon – others have come forward to confirm they were aware of this story for some time, but were unable to obtain any answers from Ms Sturgeon on these events.

JUDICIAL INTERESTS REGISTER – would have required declaration of Sheriff’s role in FM Complaint:

It has been previously reported Nicola Sturgeon personally intervened to block the Judicial Register petition – during a long running investigation by the Scottish Parliament’s Public Petitions Committee

The surprise intervention by the First Minister in the bid to bring transparency to Scotland’s secretive judges came to light after a failed attempt by her then Legal Affairs Minister – Paul Wheelhouse – to overturn the petition with claims that ‘gangsters’ could misuse information in a judges register.

In the letter – dated 30 March 2015 – Nicola Sturgeon also revealed Legal Affairs Minister Paul Wheelhouse had a secret meeting in February 2015 with Lord Gill to discuss the petition and the Judiciary & Scottish Government’s concerted opposition to creating the Judicial Register.

Writing in the letter to John Pentland MSP, Convener of the Public Petitions Committee, the First Minister said: “This petition calls on the Scottish Government to create a Register of Interests for the Judiciary. The Scottish Government considers that such a register of judicial interests is not necessary and that the existing safeguards – the Judicial Oath, the Statement of Principles of Judicial Ethics and the system for complaints against the judiciary – are sufficient. These safeguards, together with the register of judicial recusals, are sufficient to protect individuals from judicial bias.”

Further to the evidence that the Minister for Community Safety and Legal Affairs, Mr Wheelhouse, gave to the Committee on 9 December 2014, he discussed this petition when he met the Lord President in February. The Minister acknowledged the Lord President’s concerns about the introduction of a register of judicial interests. The breadth of such a register would make it virtually unworkable. It would need to cover not only financial interests, but also memberships of groups and associations and familial and social relationships. Even so, such a register might not capture relevant issues that could arise.”

“The position of the judiciary is different from that of MSPs and others who hold public office. The judiciary cannot publicly defend themselves. The Lord President has cautioned that such a register could also have unintended consequences. Consideration requires to be given to judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. In addition, there is currently no evidence that judges who should have recused themselves from cases have not done so.”

The Sunday Herald newspaper reported on First Minister Nicola Sturgeon’s intervention on behalf of the judiciary and her opposition to the judicial transparency proposal:

First Minister rejects call for register of judges’ interests

Paul Hutcheon Investigations Editor Sunday 10 May 2015

NICOLA Sturgeon has rejected calls for judges to declare details of their finances in a register of interest. The First Minister said the proposal, lodged by justice campaigner Peter Cherbi, was “not necessary” and claimed existing rules were “sufficient”.

Holyrood’s Public Petitions Committee is in the middle of a long-term probe into whether judges, sheriffs and justices of the peace should be brought into line with other senior public sector figures.
MSPs, MPs, councillors and board members of public bodies are all required to register their outside financial interests.

A petition lodged with the Scottish Parliament in 2012 called for members of the judiciary to declare their “pecuniary” interests, which would include shareholdings, directorships and membership of external bodies.

Judicial officer holders can recuse – or remove – themselves if a conflict of interest arises during a case, but nothing more is required.

The plan was met with hostility by the country’s top judge, Lord Gill, who repeatedly snubbed calls by the committee to give oral evidence. He relied on written testimony to blast a proposal he said could compromise judges’ privacy by encouraging “aggressive media or hostile individuals”.

Lord Gill concluded: “The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the judiciary.”

The issue has now reached the desk of the First Minister, who has backed Lord Gill.

In a letter to John Pentland MSP, the Committee convener, she supported the status quo: “The Scottish Government considers that such a register of judicial interests is not necessary and that the existing safeguards – the Judicial Oath, the Statement of Principles of Judicial Ethics and the system for complaints against the judiciary – are sufficient.

“These safeguards, together with the register of judicial recusals, are sufficient to protect individuals from judicial bias.”

She also repeated Lord Gill’s fear about “aggressive media” and noted: “The position of the judiciary is different from that of MSPs and others who hold public office. The judiciary cannot publicly defend themselves.”

The First Minister also revealed that Paul Wheelhouse, her Minister for Community Safety and Legal Affairs, met Lord Gill in December to discuss the petition.

In his evidence to the Committee, Wheelhouse said he feared a register could leave judges open to “threats or intimidation”, adding that colleagues at an environment quango had already been threatened by organised criminals. However, emails between the Government and Scottish Environment Protection Agency revealed no link to organised crime.

Cherbi said: “I am surprised Nicola Sturgeon supports a judicial ban on transparency just because judges have been asked to declare their substantial interests. “We are always told if you have got nothing to hide you have nothing to fear. What are the judges hiding and what do they fear? “There cannot be one set of rules for judges and another for everyone else. A register of interests will enhance public trust in the justice system, not detract from it.”

A Scottish Government spokesperson said: “The Scottish Government considers that a specific register of interests is not needed. Existing safeguards, including the Judicial Oath, the Statement of Principles of Judicial Interests and the system of complaints against the judiciary, are sufficient to ensure the impartiality of the judiciary in Scotland.”

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Media Notes:

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

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

 

 

NO, MINISTER: Justice Secretary claims Holyrood transparency legislation for register of judges’ interests – would undermine top judge who refused to meet Justice Committee on EIGHT YEAR judicial register petition

Justice Sec. Humza Yousaf opposes judicial transparency. SCOTLAND’S Justice Secretary has attempted to block further action in an EIGHT YEAR Holyrood judicial transparency probe – by claiming any primary legislation created by MSPs to require judges to declare their interests – could undermine Scotland’s top judge – who is also opposed to Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Writing in a letter to Margaret Mitchell MSP – Convener of the Scottish Parliament’s Justice Committee – Justice Secretary Humza Housaf claimed: “I would caution however that if such a register were to be established by way of legislation, rather than through the powers of the Lord President, this may be perceived as undermining the principle of judicial independence and the separation of powers between the judiciary and other branches of government.”

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

Mr Yousaf also told the Justice Committee that recent details of Scottish judges working in the Gulf States while serving in Scotland were not relevant because since the judge was allegedly acting as a judge on a temporary basis – the rules did not apply to him.

However court opinions previously provided to MSPs confirm Scottish judges heard cases in the Court of Session while also working in the United Arab Emirates.

The Justice Committee previously considered material in relation to Scottish judges serving in the Gulf States & United Arab Emirates – reported in further detail here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

John Finnie MSP – Scots Judges serving in Gulf States – Justice Committee 28 May 2019

During a hearing on 28 May 2019, Justice Committee member John Finnie MSP said “I do not agree with the idea that anyone connected with the Scottish judiciary could have any role whatsoever in the United Arab Emirates.”

“I looked yesterday at the Human Rights Watch world report, which does a country by country breakdown. The United Arab Emirates is a country that is intolerant of criticism, which has played a leading role in unlawful acts in Yemen, and whose treatment of migrant workers’ rights and women’s rights is shocking. It is a country that permits domestic violence.”

I do not think that any reasonable examination of the role of a public official—and I get the point about the separation of the judiciary—would say that involvement in such a country is acceptable.”

“I believe that we need to do something and I am not content with the cabinet secretary’s response, which is just playing out the same line as before—that there is nothing to see here and we should move on.”

“I do not think that this issue will move on until we have the openness and transparency that people rightly expect of public office.”

Earlier in April 2019, Mr Yousaf wrote to the Justice Committee, claiming ““no further evidence has been provided to the Justice Committee that strengthens the arguments already put forward in favour of the introduction of the register.”

However, the 2019 letter from the Justice Secretary was found to have copied much of it’s content from a letter dated April 2014 – from the then Justice Secretary Kenny MacAskill to the Public Petitions Committee – reported in more detail here: COPY MINISTER: ‘Copied’ content from ex Minister sent by Justice Secretary Humza Yousaf to Holyrood MSPs – Public must rely on judges judging judges for transparency, Scottish Government will not create register of judges’ interests

The latest attempt by the Scottish Government to scupper the eight year probe of a cross party supported petition to create a register of judges’ interests comes after a previous Minister for Legal Affairs – Paul Wheelhouse told the Public Petitions Committee in 2014 the judiciary were concerned gangsters could see their interests.

It later transpired Mr Wheelhouse was accused of misleading MSPs after files obtained via Freedom of Information revealed there was no basis for such claims, and Ministerial advisers had attempted to hunt down any leads to back up Mr Wheelhouse – without success.

And, despite Mr Wheelhouse misleading claims of gangsters & judges – a probe by journalists uncovered instances of members of Scotland’s judiciary representing some of the country’s top gangsters in the same courts in which they serve as judges.

Former Legal Affairs Minister Paul Wheelhouse evidence to the Public Petitions Committee can be found here: TOO MANY SECRETS: Legal Affairs Minister ‘anti-transparency’ evidence to MSPs a ‘poor substitute for top judge’ as Scottish Parliament Petitions Committee consider next move on proposal to create a register of interests for judges

Mr Wheelhouse’ evidence to MSPs came during a concerted attempt by Scotland’s then top judge – Brian Gill – to block MSPs from continuing to investigate plans to create a register of judges’ interests – which – later in October 2014 – saw a full debate at the Scottish Parliament, resulting in cross party support for Petition PE1458.

In 2015, First Minister Nicola Sturgeon also intervened in the petition, demanding the petition be closed due to the judiciary’s concerns of media and public scrutiny of judges interests – reported in further detail here: INTERESTS INTERVENE: First Minister joins top judge in bid to block register of judicial interests as MSPs consider recalling Legal Affairs Minister over dodgy evidence & private meeting with Lord Gill

Despite a barrage of opposition from Scotland’s judiciary and vested legal interests, the Public Petitions Committee continued work on Petition Pe1458 for a number of years, concluding a register of judges’ interests could, and should be created.

The decision by the Public Petitions Committee to endorse the petition was reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

MSPs on the Public Petitions Committee also looked at a model used by Norway for declarations of judges’ interests, supporting the introduction of a similar register in Scotland.

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

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

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

And in November 2019, the Convener of the Justice Committee wrote to Lord Carloway informing the top judge MSPs were minded to support the petition as the judiciary had not put forward any convincing arguments against the creation of a register of judges’ interests p reported here: JUDGES MUST DECLARE: Holyrood Justice Committee back cross party supported proposal to require Scotland’s judges to declare all financial interests and other links in a publicly available register of judicial interests

Scotland’s top judge Lord Carloway also wrote to the Justice Committee in late January, refusing a second request from the Justice Committee to face questions on his opposition to the creation of a register of judicial interests.

Lord Carloway’s most recent refusal to give evidence and his letter are reported in further detail here: JUDGE JUDGES: Scotland’s top judge refuses to face MSPs on judiciary’s EIGHT YEAR battle against register of judges’ interests – Lord Carloway says he will not attend Holyrood to ‘rehearse the same arguments which have not apparently found favour’

Letter from Justice Secretary Humza Yousaf to Margaret Mitchell, Convener Justice Committee 07 February 2020

Public Petition PE 1458: Register of interests for members of Scotland’s judiciary

Thank you for your letter of 22 November asking me to review the evidence you heard on 19 November and the previous evidence taken regarding this petition and to then set out in detail why I do not think it is necessary to establish a register.

The evidence of 19 November: Written Evidence

On the 19 November, the Committee considered written evidence in the form of a letter from the petitioner. I think it is important to address a number of issues with the evidence contained in his letter. The Lord President does not appoint judges or sheriffs to the bench. Judicial appointments are made by the Scottish Ministers on the recommendation of the Judicial Appointments Board for Scotland (JABS). JABS are an independent statutory body and carry out a rigorous recruitment process which involves written application, tests, interview, references and background checks carried out before recommendations are made based on merit from candidates who meet statutory criteria.

The petitioner highlights the press coverage of two former Scottish judges sitting in other jurisdictions. One of these judges was retired, the other was still a temporary judge at the relevant time. Once a member of the judiciary has retired, the individual would not be included in any proposed register of interests. Temporary judges are not full time salaried judiciary. These are judges who can be called on to cover gaps in the court rota and therefore not covered by the restrictions on other employment which full time judiciary are. Whilst a register of interests would have disclosed this additional work, it would not have prevented it being carried out.

Since the Petition was originally introduced to the Parliament, a register of recusals was introduced in 2014 and, I understand, is being used by both the judiciary and those appearing in court. From 1 February 2018, the register was extended to also include members of the Scottish Tribunals. The reasons for recusal tend to relate to personal knowledge of a litigant or witness or previous involvement in another relevant case. The register of recusals does not appear to have highlighted the sort of problems with conflicts of interest of the nature that the petitioner is concerned about. For clarification also, there are 277 justices of the peace, rather than 450.

The proposed reforms to the law of corroboration in Scotland, which the petitioner refers to, were aimed at addressing the difficulty in prosecuting certain types of criminal cases . These proposals were based on detailed research and analysis conducted by Lord Carloway and set out in a published report. It is difficult to see the relevance of this as evidence in support of a register of judicial interests.

The petitioner cites extensive written submissions of evidence in relation to this petition and the Committee have asked that I review all previous evidence. In doing so, I can see that almost half of those submissions are from the petitioner and over one third are either correspondents declining to make a submission or from the Scottish Government, the Scottish Courts and Tribunals Service or the Lord President and present evidence which is not in support of the register. The petitioner’s submissions do not always raise new evidence and cover some matters that would be outwith the scope of this petition.

Oral evidence: In terms of the oral evidence taken, a considerable part of this discussion focussed on the system for complaints about members of the judiciary. I note the point raised that Scotland differs from other jurisdictions in that upheld complaints are not published. I agree that this is a matter that consideration could be given to as it is transparent and consistent with the complaint process for many professions, however complaints against the judiciary are the responsibility of the Lord President and there may be valid reasons why complaints are not published. I also note the distinction that was explained by Ms Ali between judicial decisions and service complaints about the judiciary. This was followed by discussion on independence and accountability.

I have also considered the written and oral submissions from Professor Alan Paterson, the academic who has contributed views on this petition. I note that Professor Paterson told the Public Petitions Committee that he had not reached a concluded opinion on a register of interests for the Scottish judiciary. He explains that this question comes back to the role of the judiciary in a democracy and there is a need to balance judicial independence and accountability. Professor Paterson told the Public Petitions Committee that he considers transparency as part of accountability. I would agree with this point and I’m of the view that the judiciary’s decision making is transparent and subject to appeal.

International factors: At the time the Petition was lodged, and in a number of the petitioner’s subsequent written submissions, reference is made to the New Zealand Parliament’s consideration of a judicial register of interests. By a large majority, the New Zealand Parliament voted down a Bill to create a register after considering the whole issue and its difficulties. Few analogous jurisdictions to Scotland have legislated for a judicial register of interests, and those that have did so in response to evidence of challenges specific to those jurisdictions. South Africa, for example, created one as part of cementing its new democracy.

The Council of Europe Group of States Against Corruption (GRECO) is an independent international body tasked with monitoring and advancing anti-corruption measures in countries across the world. It has examined the need for a judicial register of interests twice in Scotland and the most recent report of the Fourth Evaluation Round concluded that there was no evidence of corruption in relation to the judiciary in Scotland or of judicial decisions being influenced inappropriately. They do not recommend the introduction of an asset declaration scheme.

Ways to introduce a scheme: Your letter also asked for the Scottish Government’s view of what would be involved in establishing such a register and whether this would require primary legislation or could be achieved by some other means.

At present, and in line with the requirement to uphold the continued independence of the judiciary, set out in section 1 of the Judiciary and Courts (Scotland) Act 2008, Scottish Ministers do not have existing powers to establish such a register, whether voluntary or mandatory. Accordingly primary legislation would be required to implement any such register.

I would caution however that if such a register were to be established by way of legislation, rather than through the powers of the Lord President, this may be perceived as undermining the principle of judicial independence and the separation of powers between the judiciary and other branches of government.

Conclusion: My predecessors set out in detail in earlier correspondence the safeguards in place. These safeguards are the judicial oath, the statement of principles of judicial ethics and the various rules made under the Judiciary and Courts (Scotland) Act 2008 which concern complaints about the judiciary and judicial conduct. I would draw particular attention to the statement of principles of judicial ethics. This is some thirty five pages long and sets out clearly the standards judicial office holders are expected to meet. Breach of the ethics can result in serious consequences for a judicial office holder. Having considered the evidence, I share the views of both of my predecessors that there are sufficient safeguards in place to ensure the impartiality of the judiciary.

As mentioned previously, in the time since this petition was lodged with the Parliament, further measures have been introduced for, and by, the judiciary; such as the register of recusals and publication of judicial expenses and overseas travel. I believe that these measures have increased the transparency of the judiciary.

I am also mindful of the statutory requirement within the Judiciary and Courts (Scotland) Act 2008, that Scottish Ministers and Members of the Scottish Parliament must uphold the continued independence of the judiciary.

I have given further consideration to the matter and have considered the evidence before the Justice Committee. I remain of the view that it is not necessary to establish a register of interests. I hope the detail of this letter explains my reasons for that

EIGHT YEAR JUDICIAL INTERESTS PROBE:

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

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

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

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

The Scottish Parliament’s Justice Committee has consistently supported calls for a judicial interests register over multiple hearings – where MSPs have spoken out on Scottish judges involvement in the Gulf States, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

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

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 – where evidence in relation to Scottish judges swearing dual judicial oaths and working for Human Rights abusing Gulf States dictatorships – can be found here: JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

TWO TOP SCOTS JUDGES FAIL IN HOLYROOD JUDICIAL TRANSPARENCY PROBE:

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

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

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

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

 

COURT FRACKING: Scottish Government ban on fracking does not exist says Lord Pentland – Court of Session throws out INEOS challenge as Judge says Ministerial claims “did not accurately express the legal effect of the decisions”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The full statement issued by the Judicial Office for Scotland

Ineos Upstream Ltd and another v Lord Advocate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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