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RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

Spotlight on Judiciary brings success on Recusals. SCOTLAND’S top Judge – Lord President Lord Carloway – has conceded to calls to publish full details of cases in the Register of Judicial Recusals – a publicly available register which records  instances where judges step aside in cases due to conflicts of interest.

The improvements to the register of recusals, agreed after lengthy exchanges between the Head of Governance of the Judiciary of Scotland & journalists – acknowledge the woeful lack of detail previously entered on cases, where little was given away about the case subject, litigants, points of law involved or even whether judges had refused to recuse themselves after being asked to do so.

Soon, members of the public, court users and legal representatives will be able to find out much more about why judges have stood aside in cases, the identity (where appropriate) of legal cases, litigants, case reference numbers and legal representatives – which all appear in court opinions published online by the Scottish Courts & Tribunals Service (SCTS).

The move has come about after Lord Caloway was quizzed on Judicial Recusals at a recent meeting of the Scottish Parliament’s Public Petitions Committee – where it became clear recusals of judges which had occurred, were not included on the register for reasons not well explained by Lord Carloway in his responses to former Cabinet Secretary Alex Neil MSP.

Now the register is to be corrected, and all the extra information now agreed to be entered by the Judicial Office will also be backdated to the date the recusals register came into being, in April 2014 – when Lord Brian Gill created the register of recusals in response to the Scottish Parliament’s ongoing consideration of Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The further publication of information revealing the identities of solicitors & law firms bold enough to challenge the judiciary and raise motions for recusals could also significantly benefit members of the public in access to justice issues, enabling clients to select a lawyer who isn’t afraid to raise questions on the appropriateness of a judge to hear a case if there are conflicts of interest which must be raised as matters for recusal.

The extra concessions from the Judicial Office – which go further than Lord Carloway indicated during his meeting with MSPs, come after journalists pursued a Freedom of Information request seeking all information contained in forms submitted in motions from legal teams & litigants for judges to step aside in court hearings.

Initially, the Judicial Office claimed it held no information on recusals other than a form for collecting information on recusals, a blank copy which was provided to journalists, who then sought a review of the refusal to release further information.

Then, writing in response to a request for a review of the Judicial Office’s earlier decision to refuse release of detail on recusals, Mr Steven D’Arcy Head of Strategy & Governance said: “Following the Lord President’s letter to the Petitions Committee, the Register of Recusals will be extended to cover instances when a judge has recused them self and when he or she has declined to do so – a copy of the this letter can be found here. The Judicial Office for Scotland has amended the guidance for SCTS staff and a copy is attached to this letter.”

The Judicial Office does hold copies of submitted recusal forms. However, when a form is submitted the information of the recusal is placed on our website. Therefore this is exempt information as you can reasonably obtain it other than by requesting it (section 25(1) of the Freedom of Information (Scotland) Act 2002)).”

The form now issued by the Judicial Office for Scotland to collect recusal data lists the following information and terms:

Intimation of a Decision of Declinature (Recusal)

Declinature of jurisdiction, also referred to as recusal, refers to the act of a judicial office holder abstaining from participation in legal proceedings due to a conflict of interest or when his or her impartiality might reasonably be impugned.

The attached form  should be completed by clerks of court in the event of a formal motion for recusal being granted or refused in open court and accordingly recorded in an appropriate interlocutor.

The return should only be completed for recusals involving a senator, temporary judge, sheriff principal, sheriff or summary sheriff (this includes fee-paid members of the judiciary). It should not be completed when there has only been an informal administrative decision not to sit in a particular case.

The returns should be completed electronically and emailed to the Judicial Office for Scotland.

This information is being collated on behalf of the Lord President and this requirement should be completed accurately and timeously. Local records should be noted once the return has been submitted.

If you have any questions please contact the Judicial Office for Scotland.

The form of Intimation of a Decision of Declinature of Jurisdiction (Recusal) seeks, and records COURT (Location), DATE, NAME OF JUDGE, CASE NAME & REF, ACTION TYPE, MOTION (please select), GRANTED/REFUSED, REASON (please provide specific reasons), CLERK OF COURT, CONTACT DETAILS.

However, on analysing the form provided by the Judicial Office, it was plain there was a significant amount of information gathered by the form which was still to remain unpublished.

A series of discussions then took place between the Head of Governance at the Judicial Office & journalists pursuing the release of recusal information, which ultimately concluded in an agreement to publish all the information where appropriate.

Journalists asked: Just to confirm this information to be published will go right back to the first recusals in 2014 contained in the register of recusal archive?”

Mr D’Arcy responded: “…if it was 2014 then the answer is Yes. All case names/references that we can publish will be added to the list of recusal information on our website.”

A recent investigation by Diary of Injustice revealed instances where senior Court of Session judges have stood aside from cases were not entered into the register of recusals, for up to a year later, and then only after DOI journalists had queried the Judicial Office over the cases.

A full report on investigations into judicial recusals can be found here: 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

During enquiries into failures to record recusals, Elizabeth Cutting, Head of Communications of the Judicial Office stood down from her post, leaving acting head Baktosch Gillan to reply to queries on why a recusal relating to Lord Bracadale had been concealed from the register of recusals for up to a year.

Responses from the Judicial Office claimed there had been a “clerical error”, a claim echoed by Lord Carloway during his attendance at the Petitions Committee where the top judge was widely criticised for his attempts to thwart increases in judicial transparency with the creation of a register of interests for Scotland’s judiciary.

The National reported on the developments to publish full details on judicial recusals in Scotland, here:

More details to be shared about judges recusing themselves from cases

Bridget Morris Journalist 31 July 2017 The National

THE register which shows when judges have stood aside from court cases because of a probable or perceived conflict of interest is to be extended and give more details to the public.

Since the Register of Recusals – the legal term for stepping aside from a case – was started by the Judicial Office for Scotland in 2014, the public has been able to read about the location of the recusal, the reason why sheriff or judges recused themselves and the name of those sheriffs and judges, but not the name of the cases or their reference numbers.

Now, after a Freedom of Information request by the legal blogger and campaigner Peter Cherbi, full details of the cases including names and reference numbers will be added to the Register of Recusals.

The Judicial Office has decided to backdate the information to the start of the register three years ago, though sensitive matters such as child protection cases will not be included in the extended release of details.

The decision, which is understood to have been made or sanctioned by Scotland’s most senior judge, Lord Carloway, the Lord President, will make accessing information on recusals much easier.

Cherbi said: “With the latest concessions offered by the Judicial Office on releasing all information with regard to recusals, this is a tacit acceptance that the content of the recusals register created by Lord Gill in early 2014 has been woefully lacking in critical detail, and has by the very lack of detail led to a register which has omitted key recusals for reasons not well explained by Lord Carloway.

“The release of case references, identities of litigants if appropriate and also, I urge, the identities of legal teams acting in such cases where recusals have been sought, gained or refused could have assisted court users and legal representatives in making a more accurate assessment of how to progress cases before judges who may have conflicts of interest which, as we have seen from recent reports do occur.”

Previous article on Judicial Recusals can be found here:  Judicial Recusals in Scotland – Cases where judges have stood down over conflicts of interest

 

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RECUSALS UNLIMITED: Doubts over credibility of register of judges’ recusals – as Judicial Office admit court clerks failed to add details of senior judges recusals – then silently altered records a year later

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A statement issued by Lord Gill at the time of Watson’s suspension said: “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”

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

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

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

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

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

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

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

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

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

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

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

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

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

DATE COURT (TYPE OF ACTION) NAME REASON FOR RECUSAL

24.3.2014 Livingston Sheriff Court (Civil) Sheriff Edington Sheriff drew to the parties’ attention a possible difficulty, namely the wife of one of the other resident Sheriffs was the author of a report contained with the process. The Sheriff asked parties if they wished him to recuse himself. The defenders, having considered the issue,made a motion for the Sheriff to recuse himself, which he then did.

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

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

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

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

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

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

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

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

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

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

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

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

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

22.10.2014 Aberdeen Sheriff Court (Criminal) Sheriff Cowan Sheriff drew to parties’ attention that she was a member of the RSPB before commencement of a trial as the case involved an investigation carried out by the RSPB and many witnesses were RSPB officers. She invited parties to consider whether she should take the trial. The defenders, having considered the issue, made a motion for the Sheriff to recuse herself, which she then did.

8.12.2014 Alloa Sheriff Court (Civil) Sheriff Mackie Contemporaneous and overlapping proceedings comprising an appeal and a referral from the children’s hearing relating to children from the same family

16.12.2014 Court of Session (Civil) Lady Clark of Calton Senator personally known to parties of the action.

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

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

09.02.2015 Glasgow High Court (Criminal) Lady Scott Due to a previous ruling made by the Senator in relation to a separate indictment against the accused

10.02.2015 Court of Session (Civil) Lord Jones Due to a previous finding by the Senator in relation to an expert witness whose evidence is crucial to the pursuer’s case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Writing to the Petitions Committee, the petitioner said:

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

——————————

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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CONFLICTING INTERESTS: Solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers revealed in register of interests of ‘independent’ Scottish Legal Complaints Commission

‘Independent’ regulator of solicitors reveals vested interests. SOLICITORS, solicitors’ families, solicitors’ colleagues, solicitors’ friends, and possibly even solicitors pets – are the best placed solicitors to investigate rogue solicitors – according to the register of interests of the ‘independent’ regulator of solicitors – Scottish Legal Complaints Commission (SLCC).

The latest register of interests released by the Scottish Legal Complaints Commission reveals many of it’s staff are, lawyers, former lawyers, friends of lawyers, family of lawyers, former business partners, former employees of the Law Society of Scotland and members of Law Society committees, and former members of other unidentified legal bodies with a vested interest.

Impartiality is not a strong point of self regulation.

And when it comes to self regulation of the legal profession, impartiality is, almost non existent.

In response to a Freedom of Information request, the SLCC released the following information on how connected its staff are to the legal profession:

Six members of staff are currently on the roll of solicitors with the Law Society of Scotland, of which one member of staff holds a practising certificate.

Seventeen members of staff have previously held positions in law firms in Scotland.

Seven members of staff have previously held positions with the Law Society of Scotland.

Ten members of staff have previously held positions with legal related bodies in Scotland.

The SLCC also released their equivalent of staff recusals on investigations – a database of measures required, or taken to mitigate conflicts of interest.

For consumers expecting a fair hearing by the SLCC of a complaint about a solicitor, the fact SLCC staff are having to recuse time & again in complaints investigations connected to law firms and the Law Society of Scotland makes grim reading..

A selection of examples of conflict of interest from the Scottish Legal Complaints Commission – Register of Recusals 2013-2015

Friend and former colleague – Could not investigate a complaint against any of these individuals

Acquaintance and former professional connection – Could not investigate a complaint against any of these individuals

Close family friend – Will advise if come across any files relating to these individuals

Personal friend – Will avoid getting involved with any complaints concerning the named people/organisations should these arise.

Personal friend and connection – Will avoid getting involved with any complaints concerning the named people/organisations should these arise

University and subsequent music activities – Will avoid getting involved with any complaints concerning the named people/organisations should these arise.

Previous employers – Will avoid getting involved with any complaints/mediations concerning the organisation should these arise

Worked for []  from August 2Qu3 until January 2004 – Should not deal with any complaint against

Involved in an action where were the instructed solicitors – Not to deal with investigation of complaints relating to this firm

Currently a client of the firm – Line manager will not allocate any complaints against the firm to

daughter – will not deal directly with cases or collection of levies etc

Son in-law – will not deal directly with cases or collection of levies etc

Cousin – will not deal directly with cases or collection of levies etc

Cousin-in-law – will not deal directly with cases or collection of levies etc

Niece – Not to deal with investigation of complaints relating to this firm

Wife – avoid any involvement of any kind in outstanding complaint and no discussion of complaint with colleagues

Wife’s employers – avoid any involvement of any kind and no discussion of any arising complaints with colleagues

Personal friend and solicitor – Will not deal with any complaint associated to any of the above

Niece’s husband – Will not deal with any complaint associated to any of the above

Cousin – Will not deal with any complaint associated to any of the above

Husband – Complaints involving the parties will not be allocated to her.

Husband’s stables – Complaints involving the parties will not be allocated to her.

Acted for opponent in litigation – Not to deal with investigation of complaints relating to this firm

Senior partners are former colleagues – Not to deal with investigation of complaints relating to this firm

Personal friendship with partners and formerly advised on employment matters – Not to deal with investigation of complaints relating to this firm

Client Relations partner was on Client Relations Committee I ran at Law Society – Will not investigate complaints instigated by or made against firms outlined.

[] was a party to a mediation I managed at Edinburgh Sheriff Court – I have advised both and the practitioner that I will not be the mediator for this complaint.

Personal solicitor and LSS Convenor – No complaints to be allocated to

Personal solicitor and LSS Committee Member – No complaints to be allocated to

Family member is senior partner – Discussed with and no files from the above firms will be allocated to me. Agreed any files from these firms allocated to me in error will be passed back to for re-allocation. Agreed to ensure that if carrying out holiday/sickness cover – not to deal with complaints files against these firms and let know so they can be re-allocated

Traineeship with firm, still in contact, use as personal solicitors sometimes – Will not investigate complaints instigated by or made against firms outlined.

Worked for this firm – Will not investigate complaints instigated by or made against firms outlined.

Best friend works for this small firm – Will not investigate complaints instigated by or made against firms outlined.

Was the convenor – of my Committee for 2 years as LSS – Will not investigate complaints instigated by or made against firms outlined.

Was on my –  Committee at LSS for 2 years and Convenor when required – Will not investigate complaints instigated by or made against firms outlined.

[] is the tutor of my Open University course – Agreed with line manager that 1 will not deal with any complaints about which may be received by the SLCC

I  have instructed the solicitor on a  couple of occasions to carry out work on my behalf – Could not investigate a complaint against any of these individuals

Still expecting a fair hearing at the Scottish Legal Complaints Commission ?

Well, now you have read how recusals work at the SLCC, those of you who are in the unenviable position of making a complaint to the Scottish Legal Complaints Commission now know to ask if investigators or staff dealing with your case have any conflicts of interest.

You can then ask for the details of those conflicts – in writing –  just to keep things even, and … you know … ‘independent’.

And, don’t forget, earlier this year, the Scottish Legal Complaints Commission appointed a new Chief Executive – a former employee of eleven years with the Law Society of Scotland.

Today, the SLCC still claim to be independent. Just, not very independent.

 

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THE RECUSED: Scotland’s £30.6m a year judges refuse to declare financial links in first year of recusal register as new details reveal former Lord Advocate who prosecuted Lockerbie case steps down in court hearing

Questions of judicial integrity as former top prosecutor steps aside in case THE FORMER Lord Advocate who prosecuted two Libyans for the bombing of Pan Am flight 103 over Lockerbie, Scotland in December 1988 now features among a list of judges who have been required to step aside (recuse) in cases where conflicts of interest have come to light.

Lord Colin Boyd – who was Scotland’s top law officer from February 2000 to October 2006 and is now a Court of Session judge – recused – or- stood down from a civil case earlier this month due to the fact one of the respondents involved was convicted of offences while Lord Boyd was Lord Advocate.

The term “recusal” relates to where a judge can or should be disqualified from participation in the decision in a case, for reasons such as a conflict of interest such as a link to any party involved in a court hearing, or a financial or personal interest in the outcome of a court case.

The details – minus any actual reference to the case itself – came to light in recent additions to the ‘recusal register’ – now required to be published by the Scottish judiciary after undertakings were given by outgoing top judge Lord Gill to msps who are investigating calls for a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The proposals under investigation by the Scottish Parliament call for the creation of a single independently regulated register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

However – despite the fact Scotland’s judges take home a whopping £30.6 million pounds a year in judicial salaries and other perks – not one judge has revealed or declared a financial related conflict of interest.

The lack of financial related recusals has raised questions as to whether judges are telling the truth in court after details have emerged over the past two years of staggering wealth, secretive links to big business, judicial participation in offshore tax avoidance schemes and property empires – all leading back to the judiciary.

Among those in the judiciary snared on the year old list of recusals  – outgoing Lord President Lord Brian Gill was forced to step aside in a case after his own son – Brian Gill junior appeared in the Court of Session representing one side in a civil case.

An example of where a failure by a judge to recuse himself from a miscarriage of justice appeal reported Mr William Beck – who was convicted of an armed robbery in 1982 and has been fighting a long battle to clear his name since, had his appeal against conviction thrown out by Lord Osborne.

Lord Osborne failed to declare in court he prosecuted him in the original cases all those years ago while working for the Crown Office.

A letter containing evidence provided by Mr William Beck to the Scottish Parliament reveals how one judge, Lord Johnston, failed to declare any interest or recuse himself from an appeal by Mr Beck against a wrongful conviction & sentence handed down by Lord Dunpark – who was Lord Johnston’s father.

Mr Beck’s submission to MSPs also revealed, Lord Osborne, who sat with two other judges and rejected another appeal by Mr Beck against his wrongful conviction, failed to disclose that he was the prosecutor in the original trial of Mr Beck.

When asked by the Sunday Mail newspaper why he did not recuse himself at the time, Lord Osborne claimed he forgot.

No action has been taken against Lord Osborne over his failure to recuse in the Beck case, and a number of other cases in Scotland’s courts are now coming under suspicion of being ruled upon by judges with vested interests in the outcomes of cases.

And, earlier this year, a sheriff was suspended by Scotland’s top judge after the Scottish Sun newspaper reported details of a multi million pound writ against Glasgow law firm Levy & Mcrae in connection with the collapse of a £400 million hedge fund.

However, it emerged the suspension of Sheriff Peter Black Watson – formerly of Glasgow based law firm Levy and McRae – only came about after journalists from the Sun newspaper contacted the Lord President Lord Gill’s office and queried him about the writ – which Gill had allegedly not heard of until the media drew it to his attention.

A few days later, Lord Gill suspended Sheriff Peter Watson after concluding Watson’s offer to voluntarily step aside was “not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary”.

The full statement from the Judicial Office for Scotland on Watson’s suspension announced:

Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.  Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

The Scottish Sun previously reported on a dossier handed to prosecutors which focussed on Glasgow-based Mathon Ltd – which Watson was a director of – from 2007 to 2011.

Mathon was linked to the failed £400m Heather Capital hedge fund run by Gregory King.

The collapsed hedge fund Heather Capital – run by lawyer Gregory King is now the subject of a Police Scotland investigation and reports to the Crown Office. Gregory King is named along with three others – lawyer Andrew Sobolewski, accountant Andrew Millar and property expert Scott Carmichael in a police report.

The Gibraltar-based investment scheme was launched in 2004 and some of the cash was loaned by Mathon to bankroll developments across Scotland. But many of the Mathon-funded plans did not happen — and some of the cash was never repaid.

A judge in the Isle of Man has said it is likely that “fraudulent conduct exists”.

Proposals currently under investigation by the Scottish Parliament call for the creation of a single independently regulated register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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 current list of recusals published by the Judiciary of Scotland website : Judicial-Recusals – Judiciary of Scotland

24.3.2014   Livingston Sheriff Court (Civil) Sheriff Edington:

Sheriff drew to the parties’ attention a possible difficulty, namely the wife of one of the other resident Sheriffs was the author of a report contained with the process. The Sheriff asked parties if they wished him to recuse himself. The defenders, having considered the issue, made a motion for the Sheriff to recuse himself, which he then did.

8.4.2014   Forfar Sheriff Court (Criminal) Sheriff Veal:

Sheriff personally known to a witness

10.4.2014  Selkirk Sheriff Court (Civil) Sheriff Paterson:

Sheriff had previously acted for a client in dispute against Pursuer

23.4.2014  High Court (Criminal)  Lady Wise:

Senator had previously acted for a relative of accused

16.4.2014  Glasgow Sheriff Court (Criminal)  Sheriff Cathcart:

Sheriff personally known to a witness

13.5.2014  Haddington Sheriff Court (Civil)  Sheriff Braid:

Known to pursuer’s family

14.5.2014  High Court (Criminal Appeal)  Judge MacIver:

Conflict of Interest

20.5.2014   Court of Session (Civil)  Lord Matthews:

Senator personally known to a witness

19.6.2014   Dingwall Sheriff Court (Criminal)  Sheriff McPartlin:

Sheriff presided over a trial involving the accused, where the issue to which the new case relates was spoken to by a witness

20.6.2014     Elgin Sheriff Court (Criminal)  Sheriff Raeburn QC:

Accused appeared before Sheriff as a witness in recent trial relating to same incident

24.6.2014  Glasgow Sheriff Court (Criminal)  Sheriff Crozier:

Sheriff personally known to proprietor of premises libelled in the charge

26.6.2014   Court of Session (Civil)  Lord President:

Relative of Senator acts for the respondent

27.8.2014   Court of Session (Civil)  Lord Brailsford:

Senator personally known to husband of the pursuer

28.8.2014  Oban Sheriff Court (Civil & Criminal)  Sheriff Small:

Sheriff personally known to a party

22.10.2014  Aberdeen Sheriff Court (Criminal)  Sheriff Cowan:

Sheriff drew to parties’ attention that she was a member of the RSPB before commencement of a trial as the case involved an investigation carried out by the RSPB and many witnesses were RSPB officers. She invited parties to consider whether she should take the trial. The defenders, having considered the issue, made a motion for the Sheriff to recuse herself, which she then did.

8.12.2014  Alloa Sheriff Court (Civil)  Sheriff Mackie:

Contemporaneous and overlapping proceedings comprising an appeal and a referral from the children’s hearing relating to children from the same family.

16.12.2014  Court of Session (Civil)  Lady Clark of Calton:

Senator personally known to parties of the action.

22.01.2015  Edinburgh Sheriff Court (Extradition)  Sheriff MacIver:

Sheriff involved in case at earlier stage of procedure

30.01.2015  Dumfries Sheriff Court (Civil)  Sheriff Jamieson:

Sheriff had previously dealt with the issue under dispute

06.02.2015  Greenock Sheriff Court (Civil)  Sheriff Fleming:

Previous professional relationship between Sheriff’s former firm of solicitors and the defender

09.02.2015  Glasgow High Court (Criminal) Lady Scott:

Due to a previous ruling made by the Senator in relation to a separate indictment against the accused

10.02.2015  Court of Session (Civil)  Lord Jones:

Due to a previous finding by the Senator in relation to an expert witness whose evidence is crucial to the pursuer’s case

13.03.2015  Aberdeen Sheriff Court (Criminal)  Sheriff Cowan:

Accused known by the Sheriff as a regular observer of court proceedings from the public gallery

17.03.2015  Forfar Sheriff Court (Criminal)  Sheriff Di Emidio:

Sheriff personally known to a witness

18.03.2015    Lerwick Sheriff Court (Criminal)   Sheriff Mann:

Circumstances may give rise to a suggestion of bias

16.04.2015   Edinburgh Sheriff Court (Civil)   Sheriff Arthurson QC:

Personally known to a party of the action

12.05.2015   Court of Session (Civil)   Lord Boyd of Duncansby:

Senator was Lord Advocate when a successful prosecution was brought against one of the respondents

4.05.2015   Edinburgh Sheriff Court (Civil)   Sheriff McColl:

Sheriff personally known to a party of the action

 

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RAPTOR RECUSAL: Sheriff with RSPB bird charity link steps down in Bird of Prey poisoning Wildlife Crime case – marks first published ‘detailed’ recusal of Scottish judge

Bird charity link Sheriff stands down in wildlife crime case IN what is the first detailed recusal of a Scottish judge published by the Judiciary of Scotland, a Sheriff has recused herself and stood down from a wildlife crime court case involving a man accused of killing birds of prey – after the sheriff disclosed she is a member of the charity the Royal Society for the Protection of Birds (RSPB).

During a pre-trial hearing, Sheriff Annella Cowan mentioned she was a member of the RSPB – an interest which would have to be publicly disclosed in proposals being considered by the Scottish Parliament to create a register of judges interests – Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Details of the case, heard at Aberdeen Sheriff Court last week reveal George Mutch, of Kildrummy, was due to stand trial accused of recklessly killing or injuring two goshawks and a buzzard by using traps. The 48-year-old who denies the offences faces four charges and is claimed to have carried out the offences at Kildrummy Estate, near Alford in Aberdeenshire, between August 6 and September 13 in 2012. The trial was adjourned until later this year.

Representing the accused, Defence counsel Mark Moir argued that Sheriff Annella Cowan should recuse herself from the case because she had mentioned during a pre-trial hearing that she was a member of the RSPB bird charity.

Mr Moir argued that the sheriff should stand down from presiding over the trial because the RSPB had been involved in the criminal investigation against his client.

He said: “Your Ladyship in this specific trial will require to determine whether or not investigators who are members of the RSPB are credible or reliable and you will also have to decide whether Mr Mutch is credible or reliable.”

He added that if it was the case that the sheriff had paid membership fees to the charity the money could have been used to fund criminal investigations of this type.

Mr Moir stressed that he was not suggesting that the sheriff would be biased but said there could be an appearance of bias now that her RSPB membership had been mentioned and the fact was in the public domain.

Sheriff Cowan considered the lawyer’s arguments for her to recuse herself from the case and decided she would stand down. The sheriff said she had taken no offence, insisting that it was more important that justice was seen to be done.

The public petition calling for a register of interests for Scotland’s judiciary, under consideration by msps since early 2013, has brought about a significant change in the justice system where Scotland’s top judge, Lord President & Lord Justice General Brian Gill reached a deal with msps and undertook to publish a list of recusals of Scottish judges as they occurred.

The current publication of recusals can be found on the Judiciary of Scotland’s website here: Judicial Recusals

Sheriff Cowan’s recusal has been published by the Judiciary of Scotland in the following terms: 22 October 2014 Aberdeen Sheriff Court Sheriff Cowan (Criminal) Evidence and witnesses from RSPB, of which Sheriff is a member

Since the publication of recusals began in April of this year, court users and legal agents have became more aware of the significant interests of Scotland’s judges which could conflict with cases heard in courts. Publication of the recusal data has strengthened both litigants and legal representatives resolve to put recusal issues to Scottish judges, who are still left to decide on their own whether they should recuse or not.

Petition PE1458 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

What has not been disclosed so far by Scotland’s judges is their copious involvement with the hunting, shooting & fishing fraternity – an issue which will be of significant interest to those campaigning to conserve wildlife, and ensure wildlife crime cases are correctly taken forward in the courts.

Many members of the Scottish judiciary have memberships of, financial interests in, or other links to local shooting syndicates, shooting estates, fishing rights etc – all issues which would be required to be disclosed in a register of interests for Scotland’s judiciary.

It is also a well known fact others in the justice system frequent estates and stretches of fishing rights such as areas where in one recent case, a family of otters were found dead in a trap, reported by BBC News here Otters found dead in illegal net in River Tyne. While the net in which the otters became trapped is alleged to be designed to catch crayfish, the proximity of salmon rivers and suggestions the otters were eating away at the profits of fishing rights owners cannot be ignored.

Those with an interest in wildlife crime cases involving Birds of Prey can find out more from Raptor Persecution Scotland. Anyone who witnesses incidents of wildlife crime or has knowledge of those involved in it should report the matter to Police Scotland, and the media.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice into the undeclared interests of Scottish judges 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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