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JUDICIAL REGISTER: Calls for all UK judges including UK Supreme Court, and Tribunals to declare links to business, wealth, professional & other interests in published registers of interests

All UK Judges & tribunals should declare interests. AS THE Scottish Parliament continues an investigation into proposals calling for members of the Judiciary of Scotland to declare their interests, a call has been made to roll out a publicly available judicial register for all judges & tribunals all across the UK.

Calls to bring all UK judges, including top judges based at the UK Supreme Court, and all tribunal members into line with judicial transparency proposals currently being considered in Scotland – would require those who sit in judgement to declare all interests, professional & personal links, wealth, property and other interests, in a register of interests, similar to disclosures made by politicians and others in public life.

The move comes after a recent development where Scotland’s top judge conceded to calls for full transparency on judicial recusals, reported last week here: 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

Attempts by Scotland’s judiciary to become more transparent and open up the workings of Scotland’s courts and judiciary to the public, have come in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The 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.

The creation of such a register would ensure full transparency for the most powerful people in the justice system – the judiciary.

The resulting publicly available register of judicial interests would contain 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.

A full listing of evidence in support of the petition calling for a register of judicial interests can be found here: JUDICIAL REGISTER: Evidence lodged by Judicial Investigators, campaigners, judges & journalists in four year Holyrood probe on judges’ interests – points to increased public awareness of judiciary, expectation of transparency in court

And, two of Scotland’s recent top judges, former Lord President Lord Brian Gill, and current Lord President Lord Carloway, have testified before the Scottish Parliament on the petition, both failing to prove any case against creating a register of judicial interests.

A report on Lord Brian Gill’s 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”

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

The National reports on recent developments here:

Fresh call for all UK judges to register interests

Campaigner says UKSupreme Court should follow Scotland example on Judicial Recusals

Martin Hannan Journalist 2 August 2017 The National

THE UK Supreme Court and the courts in England and Wales and all tribunals across Britain do not have a system that shows where judges and tribunal members have been forced to step aside from cases due to actual or possible conflicts of interest.

As The National revealed on Monday, Scotland is shortly going to have an expanded register of judicial recusals that records when judges and sheriffs withdraw from cases, but no such register exists for the judiciary south of the Border or for any public tribunal.

Now the legal campaigner who has fought for Scottish judges to declare their interests for more than five years is calling on UK Supreme Court justices, the English and Welsh judiciary and the various tribunals to do the same and keep a register of recusals.

Peter Cherbi’s current petition before the Scottish Parliament is asking that the judiciary in this country declare their financial interests, as US Supreme Court Justices must do.

Cherbi accepts, however, that the Judicial Office in Scotland has already acted to bring in a more details register of recusals. Now he wants the UK Supreme Court to do the same.

Cherbi said: “We have now moved forward in Scotland in terms of judicial transparency with the publication of judicial recusals. If Scotland can do it, so can England and Wales, and the courts in Northern Ireland. The English justice system touts itself worldwide as the law of choice for litigants. If this is truly the case, then it is for the UK judiciary to be as transparent as Scotland and publish their own recusal register, and a register of interests as we are working on here.

“With the recent announcement of Lady Hale being appointed as President of the UK Supreme Court, I will be writing to her, requesting she consider creating a register of recusals for UKSC, as so far, the UK Supreme Court has also been silent on matters of recusals, which the public, court users, and legal representatives have a right to know.

“I shall also be contacting the European Court of Justice and the European Union to ask that courts throughout the EU be encouraged to publish recusal data and more detail on their judges. All EU citizens should have the same entitlements to judicial transparency we are now creating in Scotland.”

Cherbi thinks the Supreme Court and English and Welsh courts can lean learn from the experience here, where a register of recusals has been kept since 2014 and which is to be expanded.

He said: “Our approach in Scotland to improving courtroom and judicial transparency, fuelled by the hard work of cross party MSPs, the Scottish Parliament, fantastic support from Judicial Complaints Reviewers Moi Ali and Gillian Thompson, and backing by the media is a good reminder that team work and cross party support can bring significant change for the good.”

He also wants entities such as employment tribunals to be more open: “My ongoing investigations into tribunals suggests declarations of interests are more often than not concealed, and recusals are few and far between, if ever occurring, and there is little if anything those before tribunals can do about it.

“The public, who are being judged, are entitled to know who their judges are. It is as simple as that.

“Those who judge cannot be judge in their own cause, nor write and approve their own rules, without expectation of full transparency and accountability. Independence of the judiciary is guaranteed, and no one would ever question it. However, those who judge must live by the same laws and expectations of transparency they enforce upon the rest of us.

A spokesman for the UK Supreme Courts said: “Justices are bound by their judicial oath and a code of conduct to declare any relevant interest in a case to the parties, before they consider the matter. There are no current plans to publish a register of recusals.”

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

 

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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

Lord Carloway – judges will not declare interests. SCOTLAND’S top judge has come in for sharp criticism after telling MSPs he is against judicial transparency and the creation of a register of judges’ interests – unless scandal or corruption is discovered by the judiciary within their own ranks.

Yesterday, Lord Carloway (real name Colin Sutherland) appeared before members of Holyrood’s Public Petitions Committee, where in his evidence, the judge blasted transparency, court users, litigants the press, public, the internet and even social media – as reasons judges must be exempt from declaring their interests.

Carloway – who earns over £220,000 a year as Scotland’s ‘top judge’ – even declared to MSPs that creating a register of interests for judges would deter recruitment of ‘talented’ lawyers – reported in more detail by The National

The protests from Scotland’s current top judge are in response to MSPs consideration of judicial transparency proposals contained in 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 short session with Lord Carloway held yesterday, lasted a mere thirty six minutes.

Carloway’s stuttering performance was brought to a swift end by the Convener after detailed lines of questions from Alex Neil MSP saw Scotland’s top judge bounce from subject to subject, unable to offer a single clear reason as to why judges should be treated any differently from others in public life.

The Scottish Sun newspaper reported in today’s edition Alex Neil MSP (SNP Airdrie and Shotts) slammed Lord Carloway’s “extremely unconvincing” argument. He added: “He put no rational case against.”

Lord Carloway’s appearance before MSPs was rated as “poor” by legal insiders, comparing the session to that of his predecessor Lord Brian Gill, who gave evidence to MSPs in November 2015 – after resigning earlier from the post of Lord President in May 2015.

Gill, who had waged a three year battle against the petition, refused to attend the Scottish Parliament on several occasions – a refusal resulting in heavy criticism in the press and from politicians who said Gill had insulted Holyrood.

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.

In a statement issued to the media late yesterday, Moi Ali – Scotland’s first Judicial Complaints Reviewer who gave evidence to the Scottish Parliament in 2013, criticised the stance of the Lord President at today’s hearing.

Moi Ali said: “I hold judges in high esteem for the important work they do, but I regret to say that Lord Carloway did a great disservice to the judiciary in his evidence to the Petitions Committee. He appears to have a very low opinion of users of the Court Service, suggesting that people who do not get the result they want may act with resentful, malicious and hostile intent. This is insulting to the public at large.

“His suggestion that a register of interests would lead to retaliation by unsuccessful litigants in the form of online fraud is frankly ludicrous and deeply offensive. I personally handled complaints reviews by unsuccessful litigants when I was the independent Judicial Complaints Reviewer, without any kind of threat or malicious action – even where I did not find in favour of the complainant.”

“I published a register of interests when in that role, despite not being required to do so. Why? Because it’s a basic expectation that that’s what public servants do in the twenty-first century.”

“The fact is that the judiciary do not wish to be open and transparent in this respect, and choose to present themselves as a special case. It seems to me that if a register is required to be completed by MPs, MSPs and public Board members, then it must also be required of the judiciary.”

“My opinion is not founded on a belief that judges are corrupt; rather, it comes from the view that transparency builds trust and confidence. As a society, we must be able to have complete confidence in our judiciary – and that starts with their openness and transparency.”

In a statement to the media, law blogger & petitioner Peter Cherbi said: “Transparency apparently stops at the doors of our courts and that’s it, Judges are to remain judges in their own cause and we shouldn’t have a register of interests until there is a scandal. Not on in 2017.”

Lord Carloway doesn’t seem to consider the fact these litigants and their legal representatives he holds in such distain – prop up his £220K a year job and our courts in exorbitant fees and hundreds of millions of pounds in publicly funded legal aid.

“And just exactly why does transparency inhibit the recruitment of judges? All other branches of public life have registers of interest and do just fine on recruitment. Lord Carloway is really struggling with this one.”

“Moi Ali was right all along. These people are the most powerful, and require the most transparency. Everyone gets the idea of transparency except the judiciary. Time now for a full register of judicial interests and for Parliament to act where the Lord President has failed.”

“Carloway’s arguments against a register are waffle – look at how the Sunday Times was treated in England over the Cruddas case where judges failed to declare interests in their links to political parties.”

“We should remember this is not just about protecting court users, a register is about protecting the public and the media who in many cases as we know, advance the cause of transparency and public interest where Governments, the Executive, public bodies and the courts all fail.”

Full report & video footage of Lord Carloway’s evidence to the Public Petitions Committee:

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

As the hearing began, Johann Lamont opened questions to Lord Carloway on arguments he put forward relating to “online fraud” as an inhibition to a register of judicial interests.

Carloway failed to provide any example in response to the questions on his own argument, and then claimed he was unaware of details of any other registers of interest.

The Lord President then turned on court litigants, claiming a register of judicial interests and any attempts to bring transparency to the judicial bench would help “paranoid” litigants take revenge on a judge after losing their cases.

Carloway – who has been a judge for 18 years, then went on to castigate financial declarations of interest, claiming if such a register existed he would not be able to hire “lawyers of excellence” for positions up to £200,000 a year judicial jobs.

The Lord President even complained about the level of judicial salaries and pensions during his evidence to MSPs as yet another reason and “disincentive to lawyers of experience and skill to become members of the judiciary”.

He said: “We have a relatively small pool of lawyers of excellence who are capable of taking on the job of being a member of our senior judiciary.

“We have particular difficulties with recruitment at the moment. If I were to say to senior members of the profession, ‘By the way, if you wish to become a judge you will have to declare all your pecuniary interests and open them to public scrutiny’, I have no doubt whatsoever that that would act as a powerful disincentive for lawyers of experience and skill becoming members of the judiciary.

“I can assure the committee, we need them more than they need us.”

In response to questions from Angus MacDonald on declarations of judicial interests in the United States, Lord Carloway said he was not in a position to comment on the US judicial system as he did not know enough about it.

However, it recently emerged Carloway regularly visits judicial gatherings in North America at taxpayers expense and mingles with judicial groups at plush locations for ‘legal conferences’.

Angus MacDonald then challenged Lord Carloway on recusals, in relation to cases where judges have either concealed conflicts of interest or have refused to stand aside from a case.

Mr MacDonald quizzed the Lord President on omissions in the recusals register – to which Lord Carloway said he was not concerned about.

The Lord President then told MSPs there was only one omission he was aware of in the recusals register.

However in response to a recent DOI investigation into judicial recusals, a number of cases are now being studied by journalists which appear to have been omitted from the recusals register.

And in at least one case, it has been alleged court clerks actively discouraged a motion for recusal, and suspicions are, more cases may fall into this category.

In a question from Rhona Mackay MSP (SNP) who asked Lord Carloway what the Law Society of Scotland’s view was on a register of interests.

Lord Carloway bluntly replied “I don’t know the answer to that”.

Maurice Corry MSP then asked Lord Carloway if he would provide further details to the register of recusals and options to make the recusals register more transparent.

Lord Carloway said it was not particularly required to apply further details to the current register of recusals, which is currently published by the Judicial Office with sparse detail.

Angus MacDonald then asked the top judge if he could be content to see clerical errors corrected in the register with a footnote if applied at a later date. Lord Carloway said yes.

Alex Neil MSP, who attended the Petitions Committee as a guest, then asked Lord Carloway if it should be left up to a judge to decide on an issue of principal if it should be left up to a judge to recuse themselves or should it be for the Lord President or the keeper of the rolls to insist upon if there is a conflict of interest.

Lord Caloway said he was happy with the system as it stood.

However Mr Neil pressed Lord Carloway on the point, saying the system was balanced against people who come to court for justice, particularly if they are under resourced or never find out about conflicts of interest in court.

Responding, Lord Carloway reverted to an obscure report prepared by a group of European judges which said there was no need for a register of judicial interests in the UK.

However, the judges and legal team who prepared the GRECO report referred to by Lord Carloway – are also against the introduction of registers of interests for members of the judiciary in the EU.

Carloway then insisted the Scottish judiciary was “not corrupt”, and said he would not even consider a register of interests until there was evidence of corruption.

The Lord President said: “Until such time as it’s demonstrated that there is corruption within the Scottish judiciary, I’m entirely satisfied that there is no requirement for a register of interests and that it would be positively detrimental to the administration of justice, particularly in relation to the recruitment of judges and especially at the higher level of the judiciary.”

Alex Neil put further questions to Lord Carloway, comparing the existence of the register of interests for MSPs which exists at the Scottish Parliament to ensure transparency.

Mr Neil reminded the Lord President the existence of the register of interests for MSPs did not exist due to allegations of corruption, rather to ensure transparency.

Responding to a case quoted by Alex Neil in relation to a construction firm –  Advance Construction Ltd – in which a Court of Session judge & Privy Councillor heard a case eight times which involved his own son – Lord Carloway said he was happy Lord Malcolm acted properly without recusing himself in the case.

Carloway claimed that Lord Malcolm had acted in accordance with the code of judicial ethics.

Carloway was then challenged by Alex Neil on whether the top judge had actually investigated details of the case – to which Carloway initially claimed he was not aware of any documents.

However, pressed on the matter, the judge admitted he had read documents from the individuals named by Mr Neil.

Lord Carloway said “As far as I am aware the documents were not addressed to me, but I could be wrong about that”

An earlier investigation by the media revealed  Lord Malcolm (real name Colin Campbell QC) heard the case in question no less than eight times while his son – Ewen Campbell – worked for Levy & Mcrae  – the Glasgow law firm now subject to multi million pound writs in connection with the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

Ewen Campbell had been appointed to run the case by a judicial colleague of Lord Malcolm & Lord Carloway – Sheriff Peter Watson who was at the time a senior partner of Levy & Mcrae.

Sheriff Watson was since suspended from the judiciary by Lord Brian Gill, who as Lord President in 2015, suspended Watson to protect public confidence in the judiciary – after both Watson and Levy & Mcrae were named in a multi million pound writ relating to the loss of millions of pounds in the collapse of the Heather Capital hedge fund.

Responding to further points raised by Alex Neil, Lord Carloway hit out against suggestions judges should register what their relatives are doing and where they are working.

Carloway said “this was going way beyond I suspect what is expected of politicians in a register of interests”.

However, Alex Neil informed Lord Carloway that MSPs are already required to register what their close relatives do.

In response, Lord Carloway compared politicians to members of the judiciary, and claimed judges require a different type of independence as enjoyed by politicians.

The top judge said interests in the judiciary usually relate to social connections with people rather than pecuniary interests, which do not appear in the register of recusals.

However, as there are no requirements to declare pecuniary interests in the current recusals register, it is of particular note not one financial related recusal has appeared in the register of recusals, which covers 700 members of the judiciary, some of whom are earning up to £220,000 a year, and for many years.

In further points put to Lord Carloway, Mr Neil said that the perception of fairness is not present in the way matters are conducted in court.

In response, Carloway again referred back to the case mentioned by Mr Neil, saying he was happy with the way in which Lord Malcolm, had handled the court correctly.

Carloway claimed there was no active involvement whatsoever by Lord Malcolm’s son – Ewen Campbell – who is now an advocate.

However, Ewen Campbell’s name is listed on court papers from the outset of hearings in the Court of Session in front of his father, Lord Malcolm.

And, it has since emerged a written and signed statement by Ewen Campbell as a witness in the case mentioned by Alex Neil has been provided to journalists, along with a statement signed by suspended sheriff Peter Watson – a judicial colleague of Lord Carloway.

These developments and statements, which are to be published in a further investigation into judicial recusals, now calls into question Lord Carloway’s claims in his evidence to MSPs.

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

 

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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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COPS & JOBBERS: Scotland’s 1,512 ‘Two Job’ Cops required to declare outside business interests – meanwhile 700+ strong Scots judiciary resist Holyrood probe calling for judges’ register of interests

Cops declare business interests, judges conceal their interests. MORE THAN fifteen hundred officers from Police Scotland – Scotland’s single national Police force – supplement their public salaries with second jobs and business interests ranging from entertainment to finance, legal, property letting and private security related businesses.

Police Officers – who as first responders to issues of public safety concerns and reports of criminal activity – are required to declare their interests to Police Scotland. The information is then kept on a database which can be accessed via Freedom of Information legislation.

However, in comparison – members of Scotland’s 700 plus strong judiciary – who take the ultimate decisions on the results of Police detection of crime – do not share any details on their outside interests save a handful of judges who serve on the ruling Board of the Scottish Courts and Tribunals Service (SCTS).

A Freedom of Information request recently published by Police Scotland on the website whatdotheyknow reveals figures of at least 1,512 Police Officers who have business interests outside their main employment in the Police Service for Scotland.

All police officer business interests are granted by the Chief Constable, which are based on their own particular circumstances and review dates are similarly set (based on individual circumstances).

The information relating to business interests of Police Officers is recorded on the HR system (SCOPE).

Police Officers in Scotland  are required to conform to the provisions of the Police Service of Scotland Regulations 2013 which state: “A constable must not have a business interest without the consent of— (a) the Authority, in the case of a senior officer; (b) the chief constable, in the case of any other constable, provided that, in the case of any such constable in whose case the chief constable has an interest otherwise than as chief constable, the chief constable must refer the matter to the Authority for it to consider whether to consent.”

The FOI request published by Police Scotland which also sought details of Police Officers ‘secondary employment’ drew a response stating the Police Service of Scotland Regulations 2013 does not recognise the term ‘secondary employment’.

The published response from Police Scotland goes on to state: “However, Regulation 5 of the aforesaid regulations outlines the provisions concerning any ‘business interest’ of a police officer.”

An earlier Freedom of Information request to Police Scotland revealed certain business interests of the force’s top cops, :

For Chief Officers, this permission is granted (under Regulation 5 of the Police Service of Scotland Regulations 2013) by the Police Authority. The conditions and circumstances are outlined in this legislation which is available online, therefore section 25(1) of the Freedom of Information (Scotland) Act 2002 applies: information which the applicant can reasonably obtain other than by requesting it under section 1(1) is exempt information.

Information provided by Police Scotland revealed executive members (including the now resigned DCC Neil Richardson) business interests from 1 April 2014-31 March 2015.

Deputy Chief Constable Rose Fitzpatrick: Property letting, Member and Trustee of various Charitable Organisations

Deputy Chief Constable Neil Richardson: Property letting, Board Member for Scottish Institute of Policy Research Trustee/Vice President of various Police Associations

Journalists then requested further details from Police Scotland in a request for review of the FOI disclosure, requesting the organisations referenced in the initial disclosure be identified.

The subsequent response from Police Scotland revealed:

Deputy Chief Constable Neil Richardson: Trustee, The Police Treatment Centres charity; Vice President, Police Mutual Board Member; The Scottish Institute for Policing Research.

Deputy Chief Constable Rose Fitzpatrick: Member, Scottish Chief Police Officers Association; Trustee, The Rank Foundation (Charitable Organisation); Trustee, Salle Ossian Community Sports Club (Charitable Organisation); Advisory Panel Member, Dfuse (Charitable Organisation; Patron, Revolving Doors (Charitable Organisation)

In relation to the numbers of properties rented out by senior Police Officers, Police Scotland refused to release details on the numbers of properties.

Police Scotland said in their response to the Freedom of Information request:  “In relation to the number of properties relating to each Deputy Chief Constable, I have decided not to provide this level of information requested by you as it is considered to be exempt in terms of the Freedom of Information (Scotland) Act 2002 (the Act).”

“The number of properties which the respective Deputy Chief Constables hold as business interests is classed as personal information and as such Police Scotland believes that the disclosure of this information would cause unwarranted prejudice to the rights and freedoms and legitimate interests of the data subjects. Accordingly, release of this  information into the public domain would breach the requirement to process personal data fairly, as laid down by the first data protection principle in Schedule 1 of the Data  Protection Act 1998. This is an absolute exemption and does not require the application of the public interest test”

Police Scotland also refused to provide any values for the properties rented out by senior Police Officers, claiming the force did not hold the information:

Police Scotland said in their response: “Finally, Police Scotland does not hold details on the value of each property, as there is no requirement to do so under Regulation 5 of the Police Service of Scotland Regulations 2013.”

The omission of any property values in the data ‘held’ by Police Scotland make it difficult to determine whether individual officers rent out lower or higher value properties, and  establish a value of property portfolios held by serving public officials such as top cops – who’s counterparts higher up the ladder in the criminal justice system and courts are known to own multi million pound property portfolios.

In comparison – while it is generally known there are Police Officers who own more than one property and those who are involved in multiple property lets, there are also members of the judiciary, Crown Office Prosecutors and their families who own much higher value property portfolios – collectively valued in the tens of millions of pounds.

While there is some information now in the public arena in relation to the letting empires of Police Officers and some other public servants, both the judiciary and Prosecutors are currently running scared from declaring their interests and wealth, using their significant power in the justice system to block release of details of their links to business and values of assets.

Neil Richardson, who left Police Scotland after serving as the force’s number two – to previous Chief Constable Stephen House – was blocked from buying the Audi he used at the single force after an intervention by the chief constable. Richarson was informed by the Scottish Police Authority (SPA) that he could not take the car with him into retirement.

Interests and business links of Police Scotland officers who leave the force have come under further scrutiny, where in one recent case the Sunday Herald newspaper reported a former detective who played a key role in the failed £60m Police Scotland computer project now works in IT for the Scottish Government.

Alec Hippman, who was responsible for briefing MSPs about the troubled i6 scheme, landed a role in the Scottish Government in January 2016 after leaving the single force.

And in January 2916, the Sunday Herald newspaper revealed the then Chief Constable of Police Scotland Sir Stephen House set up his own company in the final weeks of his job as Chief Constable.

House formed Sarantium Solutions Ltd in October 2015 when he was heading towards the exit door of the single force.

Police Service of Scotland Regulations 2013 – Business interests:

5.—(1) A constable must not have a business interest without the consent of— (a) the Authority, in the case of a senior officer; (b) the chief constable, in the case of any other constable, provided that, in the case of any such constable in whose case the chief constable has an interest otherwise than as chief constable, the chief constable must refer the matter to the Authority for it to consider whether to consent.

(2) If a constable acquires or is likely to acquire a business interest, the constable must forthwith give written notice of that interest to the chief constable or, in the case of a senior officer, the Authority.

(3) If a constable has a business interest and is appointed to the office of chief constable, deputy chief constable or assistant chief constable, the constable must forthwith give written notice of that interest to the Authority unless the constable has previously disclosed that interest to the Authority.

(4) An individual applying for appointment to the Police Service, other than an individual referred to in paragraph (5), must give written notice to the chief constable of any business interest which that individual has or is likely to acquire after appointment.

(5) An individual applying for appointment to the office of chief constable, deputy chief constable or assistant chief constable must give written notice to the Authority of any business interest which that individual has or is likely to acquire after appointment.

(6) An individual or constable is regarded as having a business interest if— (a) that individual or constable carries on any business or holds any office or employment for hire or gain (otherwise than as a constable) in the United Kingdom; (b) that individual or constable resides at any premises where any member of that individual’s or constable’s family keeps a shop or carries on any like business in Scotland; (c) that individual or constable holds, or any member of that individual’s or constable’s family living with that individual or constable holds, any licence, certificate or permit granted in pursuance of the laws relating to liquor licensing or betting and gaming or regulation of places of public entertainment in Scotland or has any pecuniary interest in such licence, certificate or permit; or (d) that individual’s or constable’s spouse (not being separated from that individual or constable), civil partner (not being separated from that individual or constable) or cohabitant (not being separated from that individual or constable) keeps a shop or carries on any like business in Scotland.

(7) For the purposes of this regulation— (a) “member of that individual’s or constable’s family” includes parent, son, daughter, dependant, brother, sister, spouse (not being separated from that individual or constable), civil partner (not being separated from that individual or constable) or cohabitant (not being separated from that individual or constable); and (b) “cohabitant” means a member of a couple consisting of— (i) a man and a woman who are living together as if they were husband and wife; or (ii) two individuals of the same sex who are living together as if they were civil partners.

COPS DECLARE, JUDGES CONCEAL:

Members of Scotland’s judiciary continue to wage a bitter five year campaign against proposals to require members of Scotland’s judiciary to declare their interests, and links to big business.

The salary scales of officers in Police Scotland – where all officers are required to declare their interests – show a Police Scotland constable can expect £24,204 per annum going up to £83,925 for a Chief Superintendent with 3 years experience to Assistant Chief Constables: £115,000, Deputy Chief Constables: £169,600 and the Chief Constable: £212,280

However – Scotland;s judges have no such requirement to declare interests, despite their huge  judicial salaries skyrocketing from Sheriffs on £144,172 a year up to Sheriff Principals on £155,706 a year while judges of the Outer House of the Court of Session earn £179,768 a year, Inner House judges earning £204,695. The Lord Justice Clerk (currently Lady Dorrian) earns £215,695 a year, and the Lord President (currently Lord Carloway, aka Colin Sutherland) earns £222,862 a year.

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.

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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LORD TO PARLY: Top judge Lord Carloway to face Parliament probe on register of judges’ interests, former Cabinet Minister Alex Neil MSP also to be heard on judicial transparency proposals

Lord Carloway – offer to give evidence accepted by MSPs. SCOTLAND’S top judge is set to appear before the Scottish Parliament’s Public Petitions Committee after MSPs accepted an offer he made to give evidence in connection with calls to create a register of judicial interests contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Lord President Lord Carloway – who earns £220,655 a year and counts among his titles that of “Lord Justice General”  as head of Scotland’s judiciary – made the offer in a detailed letter offering some concessions to MSPs which has now been published by the Scottish Parliament.

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

However, while Lord Carloway (real name Colin Sutherland) gave concessions to calls for expanding an existing “register of recusals” in which judges are now required to publish details of cases in which they step aside, the top judge maintained his grim opposition to judicial transparency and the creation of a register of judges’ interests for members of Scotland’s elite, wealthy judiciary.

Lord Carloway’s offer to attend the Petitions Committee was welcomed by the petitioner, reported earlier here: TO PARLY, M’LORD: Scotland’s top judge Lord Carloway finally offers to give evidence to Scottish Parliament probe on register of judges’ interests.

Carloway’s offer to give evidence was further welcomed by Angus MacDonald MSP (SNP, Falkirk East) – who proposed taking up Lord Carloway’s offer to give evidence to the long running, and widely supported proposal to create a register of judicial interests.

Mr MacDonald said: “I have followed this petition from day 1 – I think that it was lodged in December 2012 – and have deliberated on it for more than four years. It is encouraging and refreshing to note that the Lord President has offered to provide oral evidence to the committee, given the difficulties that we had with arranging for the previous Lord President to give evidence to us. We should take up Lord Carloway’s offer.”

Members of the Committee  unanimously backed Mr MacDonald’s proposal to call in the top judge.

The Public Petitions Committee has since indicated an invitation will be issued to Lord Carloway to attend a future hearing to give evidence.

At the same meeting, the Committee Convener Johann Lamont MSP (Scottish Labour, Glasgow)  informed members the Committee had received a request from former Cabinet Secretary Alex Neil MSP (SNP, Airdrie & Shotts) to appear before the Committee.

Ms Lamont and members of the Committee backed the request from Alex Neil, who will join the hearing when Lord Carloway attends the Petitions Committee at a date to be decided.

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

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

The meeting of the Scottish Parliament’s Public Petitions Committee is reported, with video footage here:

Register of Judicial Interests PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

 Judiciary (Register of Interests) (PE1458)

The Convener: The next petition is PE1458, by Peter Cherbi, which calls for the introduction of a register of interests for members of Scotland’s judiciary. When we last considered the petition, we agreed to seek further information from the Lord President and the Judicial Complaints Reviewer. Responses have been received from both and we also have submissions from the petitioner and a member of the public, Melanie Collins.

Members will recall that, when we wrote to the Lord President, we repeated our invitation to him to provide oral evidence, which he has now indicated that he would be willing to do. We express our gratitude for that.

Do members have any comments on further action to take on the petition?

Brian Whittle: I am glad that the Lord President has agreed to give evidence. That seems like what we should do next.

Angus MacDonald: I have followed this petition from day 1—I think that it was lodged in December 2012—and have deliberated on it for more than four years. It is encouraging and refreshing to note that the Lord President has offered to provide oral evidence to the committee, given the difficulties that we had with arranging for the previous Lord President to give evidence to us. We should take up Lord Carloway’s offer.

The Convener: We should also note that Alex Neil MSP has expressed an interest in speaking to this petition but is unable to be here today. It might be that he could attend the meeting with the Lord President. Angus MacDonald is right that this is a step forward.

Do we agree to invite the Lord President to give evidence at a future meeting, and see what comes out of that?

Members indicated agreement.

Lord Carloway’s impending attendance at the Public Petitions Committee was featured in “The National” newspaper.

The report also carried concerns from members of the legal profession they may be next in having to fill out registers of interest for clients to inspect.

 Judiciary chief to face MSPs over register of interests

Martin Hannan, Journalist

SCOTLAND’S most senior judge Lord Carloway, the Lord President of the Court of Session and Lord Justice General, is to be quizzed in public by MSPs for the first time on the issue of a register of interests for judges.

The head of the Scottish judiciary will appear at a future meeting of the Public Petitions Committee which has been investigating the matter since December 2012 after legal campaigner Peter Cherbi called for a public register of judges’ interests.

Also appearing before the committee will be Alex Neil MSP, the former Scottish Government minister who recently told The National: “I don’t see why judges should be operating to a standard that’s inferior to that which MSPs have to follow.”

Previous Lord President Lord Gill refused to appear in public before the committee, but did give evidence later, arguing against a register.

At the latest committee meeting, deputy convener Angus MacDonald, SNP MSP for Falkirk East, said: “Having followed this petition from day one and having deliberated on it for over four years, it’s encouraging and refreshing to know that the Lord President has offered to provide oral evidence to the committee, given the difficulties that we had with the previous Lord President.”

The National understands the main fear among senior legal figures is that the register would eventually be extended to advocates and possibly even solicitors, and that judges would also have to declare their shareholdings in companies, thereby indicating their personal wealth.

In a letter to the committee, Lord Carloway stated: “One possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these if that requires the disclosure of financial interests.

“In the same way, a register of judicial interests may have a damaging effect on judicial recruitment. You may be aware that, partly because of major changes to pension arrangements, difficulties have arisen in the recruitment of the senior judiciary. Revealing personal financial information is likely to act as a further powerful disincentive.”

He added: “I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that.”

However, the official Judicial Complaints Reviewer, Gillian Thompson, wrote to the committee saying: “I recognise that every judicial decision leaves a party that is dissatisfied and that a complainant may feel he or she did not get a fair hearing because the decision went against them.

“Although I have no evidence to support my view I do believe that if court users felt that judges were transparent in their publication of interests there might be a drop in such complaints.”

Petitioner Peter Cherbi said: “I am delighted MSPs have taken up Lord Carloway’s offer to give evidence on the widely supported proposal to create a register of judicial interests.

“As the Petitions Committee have also decided to invite Alex Neil MSP to the same meeting, I am hopeful of significant lines of questions being put to the Lord President on failures within the judiciary to recuse themselves and declare interests when it counts in court.

“Perhaps, if Lord Carloway realised the extent of support for the register, and the public’s expectation of transparency within the judiciary as well as all other branches of government, he will do the right thing and create the register of interests using his power as Lord President, giving Scotland a chance to teach the rest of the UK a thing or two in judicial transparency and declarations of interest.”

The Sunday Herald reports:

 Top judge to reform judicial conflict of interest rules after Holyrood scrutiny

Paul Hutcheon, Investigations Editor

SCOTLAND’s top judge has said he will strengthen the rules on judicial ethics amid concerns over the system for declaring conflicts of interest.

Lord Carloway has agreed that publishing details of when judges and sheriffs have declined to “recuse” themselves [stand down] from cases may provide “additional transparency”.

However, he has stopped short of supporting a full register of interest on the grounds that criminals could use the information to target his colleagues.

Holyrood’s Public Petitions Committee has for four years been considering whether judicial office holders should be compelled to publish details of their outside interests.

Under the plan, judges would be required to declare details of shareholdings, directorships and membership of bodies.

The previous Lord President, Lord Gill, was against the proposals as he feared judges’ privacy could be compromised by “aggressive media or hostile individuals including dissatisfied litigants”.

He also initially refused to give oral evidence in front of MSPs – citing a legal exemption – before eventually appearing after he left office.

However, on Gill’s watch, the Judicial Office for Scotland (JOFS) introduced a register of recusals which reveals when judges and sheriffs came off a case due to a potential conflict of interest.

Since 2014, there have been over 70 instances declared on the JOFS website, but campaigners believe the disclosure requirements do not go far enough and want a mandatory register of interest.

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

He has also agreed to provide oral evidence to MSPs, if they still feel it is necessary, but he stepped up his criticism of a register of interest.

He wrote: “All senators and all sheriffs exercise a civil and criminal jurisdiction. I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that.”

He added: “One possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these, if that requires the disclosure of financial interests. In the same way, a register of judicial interests may have a damaging effect on judicial recruitment.”

Peter Cherbi, the campaigner who introduced the petition to Holyrood, said: “I welcome Lord Carloway’s agreement to my earlier suggestions to MSPs to include further details on recusals and whether a judge recuses themselves or not.”

However, he added: “A register of interest for Scotland’s judges would be a significant step forward in helping court users and legal teams ensure fair hearings of cases in our justice system. Lord Carloway could take the next step and authorise the creation of such a register.”

Tory MSP Jackson Carlaw said: “It seems that the judiciary may now be ready to respond to the calls made for some time and come into line with other elements of public life when it comes to declaring interests. It’s a move that’s been resisted for too long, and people are growing impatient about the ongoing prevarication.

“We want Scotland to be as transparent a place as possible and, while progress has been made in areas like politics, it’s essential that is matched elsewhere.”

A spokesperson for the Judicial Office for Scotland said: “The Lord President intends to amend the register of recusals to include details of cases where a judge has declined to recuse, and this change will be implemented as soon as the necessary guidance is drafted and issued”.

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Writing to the Petitions Committee, the petitioner said:

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

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

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

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

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

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

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

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

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

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

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

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

 

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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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