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REGULATOR SCRUTINY: Scots Legal Complaints Commission cost consumers & taxpayers £30M – rogue lawyers ordered to pay ONLY £963K over TWELVE YEARS, probe reveals law firms buy secrecy from financially ruined clients with Non Disclosure Agreements

Legal services regulator faces scrutiny. SCOTLAND’S legal services regulator – the Scottish Legal Complaints Commission (SLCC) – created in response to evidence of bias by Law Society of Scotland control of solicitors self- regulation – has cost taxpayers & clients a staggering £30 Million since 2008.

And, amid renewed media interest in continuing pro-lawyer bias in the regulation of Scotland’s legal sector – data obtained from the SLCC now reveals pittance levels of compensation paid out to thousands of financially ruined clients – amounting to less than £963,000 over TWELVE years.

Evidence has also emerged that corrupt Scots law firms are using the same Non Disclosure Agreements used by corrupt businessmen and jailed ex-Holyrood moguls such as Harvey Weinstein to buy secrecy from financial scandal which could impact on their business reputation & brand.

Cases brought to the attention of the media indicate several well known law firms, and even High Street solicitors have forced financially ruined clients into accepting pitiful amounts of compensation – while imposing strict secrecy agreements to ensure the details of financial scandals and identity of the law firm will never be revealed.

In response to a Freedom of Information request – the Scottish Legal Complaints Commission admitted at least 377 cases of serious complaints against Scottish lawyers in ONLY three years – were subject to conditions of strict secrecy agreements between mediators, law firms and clients who eventually signed up to Non Disclosure Agreements (NDAs).

FUNDING LEGAL COMPLAINTS:

The cost of funding the Scottish Legal Complaints Commission comes from a general complaints levy – which is funded by legal fees taken from clients.

After the funds are collected from clients, the levy is then is paid to the SLCC by all practising solicitors, advocates, QCs and other legal representatives in Scotland.

The figures from 2008 to 2019 – sourced from the SLCC’s budget reports – list a total of around £27,812,965. collected from the complaints levy since 2009.

A further sum of at least £2million in public cash was paid to the SLCC by the Scottish Government in 2008-2009  – making a total income of around £29,812,965 since the legal regulator began investigating complains against rogue lawyers some twelve years ago.

The SLCC’s accounts from 2008-2019 reveal the following figures: 2008-2009 £2,000,000 (received from Scottish Govt), 2009-2010  £2,142480; 2010-2011 £2,661999 2011-2012  £2,714,918 (actual intake – £1,724,624 after SLCC forced to use £1m cash reserves to reduce levy) 2012-2013 £2,792,779; 2013-2014 £2,889,679; 2014-2015 £2,679,500; 2016-2017 £2,808,300; 2017-2018 £3,163,700; 2018-2019 £3,326,199; 2019-2020 £3,623,705 proposed levy & income.

COMPENSATION DOES NOT COVER ACTUAL CLIENT LOSS:

Confirming the total amount of compensation paid to clients who suffered huge financial losses, the response from the SLCC in relation to an FOI request stated: The total amount of compensation directed by the Scottish Legal Complaints Commission to be paid to complainers since its creation to 31 January 2020 is £963,277.38.”

The response added: “This figure includes compensation awarded for inconvenience and distress and compensation for actual loss.”

However, and importantly – the Scottish Legal Complaints Commission did not provide figures for any actual financial losses suffered by clients – or financial losses quantified by clients.

The FOI disclosure also revealed the Scottish Legal Complaints Complaints Commission does not record actual sums paid to complainants.

And, the legal regulator admitted tens of thousands of pounds in compensation have still not been paid to clients, by solicitors already ordered to do so by the legal regulator.

The SLCC stated in it’s FOI disclosure: “Whilst the SLCC does not record the actual sums paid, we do record where we are notified that compensation is not paid. This figure is currently £41,516.89.”

Additionally, new data recovered via a Freedom of Information request reveals at least 377 cases of serious complaints brought against Scottish lawyers in the past three years – were subject to conditions of secrecy agreements between mediators, law firms and clients who signed up to Non Disclosure Agreements (NDAs)

BUY SECRECY – LAW FIRMS FORCE NON DISCLOSURE AGREEMENTS TO CONCEAL SCANDAL:

On the subject of Non Disclosure Agreements between clients, and their solicitors and law firms who were the subject of complaints – the SLCC stated: “In summary, in the last three operational years (1 July – 30 June) and up to 31 January 2020,
there have been 377 cases which have been subject to such a confidentiality agreement.”


“The SLCC process allows parties to a complaint to resolve matters between themselves at any
point prior to a Final Determination being issued by the SLCC so it possible that such
agreements could be negotiated between parties out with our process to resolve a complaint.”

“It is not within the powers of the SLCC to recommend a NDA or similar as part of a resolution to
a complaint and the SLCC would not enter into such agreements to settle a complaint.”

“This information is provided to the SLCC as part of an informal resolution, and the parties to the
complaints are under no obligation to provide us with such information. Therefore it would not
be recorded in a readily accessible way on the SLCC system. I am unable to provide you with
exact figures in respect of these types of Non-Disclosure Agreements.”

“There have been approximately 2 instances of such agreements being recorded against
complaints settled out with the SLCC process within the last three years to the date of this FOI
request.”

While the SLCC does not itself pay compensation to clients – many of whom have suffered life changing and enormous financial losses at the hands of their own legal representatives – the legal regulator does order law firms to pay compensation and other payments to complainants.

However, in just a small snapshot of cases looked at by journalists – where solicitors helped themselves to their client’s assets, emptied bank accounts, appropriated land titles and property from deceased estates & fleeced millions of pounds from clients in investment scams – there are clear indications the current system to compensate for actual and quantifiable financial losses is still heavily weighted in the solicitor’s favour.

In some instances – the Scottish Legal Complaints Commission, Faculty of Advocates and Law Society of Scotland have clearly, and continually turned a blind eye to multi million pound losses attributed to clear, and documented examples of dishonesty & negligence on the part of legal representatives.

However – Diary of Justice has recently been approached by several clients who were forced to register complaints to the Scottish Legal Complaints Commission after losing considerable sums to rogue solicitors and several well known Scots law firms.

Once complaints were filed with the legal regulator, several clients alleged they felt that they were being intimidated into the mediation process – and forced to accept outcomes and settlements far short of their expectations or actual financial losses.

Some clients who entered the SLCC’s mediation process have also alleged they were denied the right to seek independent advice on mediation and settlement offers – which in some cases were time barred to ensure clients were forced to accept little or nothing in return for – in some cases – hundreds of thousands of pounds in actual financial losses.

The Scottish Legal Complaints Commission has so far not listed actual financial losses or financial losses quantified by clients in any statement from it’s creation in 2008 to publication of this article.

In response to queries from a DOJ journalist, the Scottish Legal Complaints Commission released a copy of their Agreement to Mediate.

The Agreement to Mediate – contains contains numerous conditions, including strict terms of confidentiality – for mediation to occur between clients, mediators & lawyers accused of wrongdoing.

On the issue of Settlements, the SLCC’s Agreement to Mediate states the following:

SETTLEMENT

11. When/if the Participants agree on how to resolve the dispute, the Participants will draw up a Settlement Agreement with the assistance of the Mediator, for the Participants to sign and date. The Settlement Agreement will be legally binding when it is in writing and executed by the Participants. The Participants will be legally bound by the Settlement Agreement once executed and undertake to give effect to the Settlement Agreement.

12. In the event that the Settlement involve actions by one Participant over a period of time, the other Participant will inform the SLCC’s Mediation Co-ordinator when all terms have been met.

13. In the event that a Participant does not fulfil the terms of the Settlement Agreement, the other Participant:

a) may be released from the Settlement terms if they so wish, by giving written notice to that effect to the other Participant; and

b) shall inform the SLCC of the failure to fulfil the terms of the Settlement Agreement.

14. All Participants to the dispute reserve their respective rights should a Settlement not be reached through mediation.

CONFIDENTIALITY

15. The Participants, the Mediator and the SLCC agree that the discussions at mediation will be kept confidential, including the terms of any settlement Agreement.

This paragraph shall not apply where:

i) The Participants consent to specific disclosure;

ii) Disclosure is necessary to implement and enforce the Settlement Agreement;

iii) The Participants are, or any other person is, required by law to make disclosure;

iv) The Mediator reasonably considers that there is serious risk to the safety of any person if the Mediator does not make such a disclosure;

v) There is any allegation of a breach of the Settlement Agreement and disclosure is required for the purposes of taking further action.

16. A Participant may disclose information or documents obtained during the mediation to a person not present at the mediation where that Participant needs to do so in order to obtain professional advice or where the person is within that party’s legitimate field of intimacy. A Participant disclosing information or documents in these circumstances must inform the professional advisor or any such person that the information or documents are confidential.

17. In the event of breach of the obligations contained in paragraph 15 of this Agreement by any Participant, the Mediators, the SLCC and the Participant(s) who have not caused the breach shall no longer be bound by the terms of this paragraph but their rights to take further action in respect of any such breach of this Agreement shall be preserved.

18. Neither Participant may have access to the Mediator’s notes nor SLCC Mediator Review Form nor call the Mediator nor the SLCCas a witness in any proceedings related to any of the issues between them. The Mediator’s opinion will be inadmissible in any subsequent proceedings, which may take place between the Participants concerning the subject matter of the mediation.

The SLCC Agreement to Mediate also contains a key section which removes any liability from mediators should they be considered to have acted negligently or omit to consider issues within the scope of the mediation.

EXCLUSION OF LIABILITY

20. Neither the SLCC nor any Mediator, nor any body with whom the Mediator is professionally associated, shall be liable to the Participants for any act or omission, whether negligently or otherwise, in connection with the performance or purported performance of any of the services provided by them or the obligations arising under this Agreement. This Agreement may be produced and relied upon as a defence to any claim made by a Participant against the SLCC, any mediator or body with whom the Mediator is professionally associated.

Commenting on issues relating to mediation, a spokesperson for the SLCC provided the following statement: “We know that mediation is an unfamiliar process for some parties, but our experience is that, once people take part, it has very high resolution rates, receives higher customer satisfaction scores from both lawyers and complainers, and is more efficient. It allows both parties to take control of the outcome of the complaint, and find an agreed solution that resolves the complaint to both parties’ satisfaction, is often quicker than a full investigation, and is less costly to administer.”

“Of course, not all cases will be suitable for mediation, and mediation only proceeds where both parties agree to attend. Where mediation does not help parties reach an agreed outcome, or where it is not appropriate, cases progress to investigation.”

“We do ask for feedback from everyone who takes part in mediation, and we use this to take action on any concerns raised, and to consider what improvements we might be able to make to our processes.”

The SLCC also provided the following information:

These figures are from our last annual report year (2018-19): Outcomes at mediation: Before we start investigating a service complaint, we give the complainer and the lawyer or firm an opportunity to attend a mediation meeting, led by an independent external mediator.

Number of complaints resolved by mediation: 65

Agreed to mediation when offered: 39% (both parties need to agree to participate for mediation to proceed – if one party does not wish mediation then the matter is progressed to investigation instead)

Mediation was successful: 71% (mediation does have a high success rate in delivering agreed outcomes, but in 29% of cases parties either did not reach or accept an outcome, which they are entitled to do, and so the case proceeded to formal investigation and, if required, determination).

We have a page on our public facing website devoted to mediation (https://www.scottishlegalcomplaints.org.uk/your-complaint/our-process/mediation/), which explains the process for both complainers and lawyers, and includes an information booklet and a video featuring some of our mediators, to help people understand what mediation is and how it might help them to reach a consensual resolution.”

“The Legal Profession and Legal Aid (Scotland) Act 2007 provides that the SLCC may offer mediation as way of resolving service complaints.  This is set out in section 8 of the Act. The objective of mediation is to enable the parties to resolve the service issues complained about quickly, if they choose.

Mediation can be offered at any stage after a service issue is deemed an eligible complaint (mediation is not considered appropriate where there is an eligible conduct issue to be investigated).  It is voluntary, and requires the acceptance of both parties. Mediation is a confidential process which gives the complainer and the firm the opportunity to meet together with an independent third-party so they can both decide how to sort out the service complaint.  The mediator is a neutral person who helps them talk through the problem to see if they can agree a fair and reasonable solution.

If the parties reach an agreement at mediation and if all the settlement terms are fulfilled, that is the end of the complaint process. If the parties reach an agreement but for whatever reason, the settlement terms are not fulfilled, the complaint may proceed to Investigation, after the nature of the alleged breach has been considered by the SLCC. If the complainer alleges that the solicitor breached the terms of the Settlement Agreement, they can submit a new complaint to the SLCC about this. If the parties do not reach an agreement at mediation, the complaint moves to Investigation. Mediation is confidential to the parties of the mediation, the mediator and the SLCC.

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

 

 

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JUDICIAL REGISTER: Top judge failed to provide convincing argument against register of judges’ interests, Justice Committee evidence calls into question Justice Secretary’s misleading explanation of Scottish judges serving in Scotland and Gulf States courts

Lord Carloway failed to provide convincing reason against judicial register. EVIDENCE heard by the Scottish Parliament’s Justice Committee during MSPs recent consideration of a cross party plan to create a register of judges’ interests – reveals Scotland’s top judge again failed to provide any convincing arguments against a proposal to require Scotland’s judges to declare all their interests.

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

A Register of Judicial Recusals was created in April 2014 by now former Lord President – Lord Brian Gill – in an attempt to persuade to drop their investigation of a proposal to create a fully published register of judges interests.

However, after eight years of investigation by the Public Petitions Committee and now the Justice Committee – the proposal – which has cross party backing, media support, support from independent former Judicial regulators and has sparked wide public debate on the state of Scotland’s judiciary – has now earned the backing of Justice Committee MSPs who believe the proposal should go forward to create a full register of interests – putting judges on the same level of transparency as elected members of the Scottish Parliament.

During the hearing, John Finnie MSP said: “The debate seems to be polarised. The petition has been open for a considerable number of years, and an issue remains. The public would expect some measure of accountability.”

James Kelly MSP said: “Over the period for which the committee has been examining the issue, I have become convinced by the case for a register of interests for the judiciary.”

“I note the responses from the cabinet secretary and Lord Carloway; there is clearly a bit of a stand-off here. Members’ suggestions of taking additional evidence to take the issue forward are sensible. We should not park the issue; it is important and we should continue to press it.”

Upon consideration of written evidence and material provided by the Petitioner in response to: letter from Lord Carloway, letter from Justice Secretary Humza Yousaf and letter from Scottish Justices Association – members of the Justice Committee decided to seek evidence from constitutional and academic witnesses – and briefings on the extent of conflicts of interest relating to key stakeholders in the Scottish justice system. Video footage of the hearing can be viewed here: Register of Judges Interests Petition PE1458 Justice Committee 10 March 2020

Minutes of the meeting concluded with the following decision: Public petition PE1458: The Committee considered various pieces of correspondence received in relation to its ongoing consideration of the petition. The Committee agreed to keep the petition open and to seek further oral evidence in due course, in round-table formal, from constitutional and academic witnesses.

The Committee also agreed to seek further written briefings from the Scottish Parliament Information Centre (SPICe) in relation to other potential conflicts of interests relating to key stakeholders in the Scottish judicial system. The Committee will consider the scheduling of this work as part of its work programming up to spring 2021.

Response to Lord Carloway’s letter of 29 January 2020 – The letter from Scotland’s top judge – Lord Carloway to the Justice Committee in which Lord Carloway refused for the second time to give evidence to MSPs on the petition, was reported in further detail here: JUDGE JUDGES: Scotland’s top judge refuses to face MSPs on judiciary’s EIGHT YEAR battle against register of judges’ interests – Lord Carloway says he will not attend Holyrood to ‘rehearse the same arguments which have not apparently found favour’

Responding to Lord Carloway’s letter of 29 January 2020 – evidence submitted in written form by the petitioner to the Justice Committee stated:

Noting the terms of Lord Carloway’s letter, the Lord President’s earlier evidence to the Petitions Committee on 29 June 2017 is available in video format here Lord Carloway evidence on Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017 for members interest.

I would encourage the Justice Committee to engage with Alex Neil MSP, who attended that hearing and asked pertinent questions of the Lord President. I believe the Committee could gain further insight into the issue of judicial interests, and failures of judges to declare recusals, by hearing from Mr Neil.

Lord Carloway states in his letter that “Elected office and judicial office are not comparable”

I believe anyone watching the evidence session where Lord Carloway faced questions from Mr Neil, would disagree with the Lord President’s statement.

Transparency is, a public expectation of public office. A necessary guardian of fair hearing, truth, and a form which holds everyone accountable. Transparency can many times, be the foundation of public trust in politics, public life, and even the courts – where – without transparency, where would justice be?

The judiciary are the most powerful branch of the executive and therefore must be held to be the most accountable and adhere to the same level of transparency which applies to all other branches of public service.

Importantly, transparency does not impede independence of the judiciary, or even any other branch of the Executive. Rather transparency enhances public trust, and adherence to public service.

Lord Carloway states the following:I remain of the view that, from the constitutional perspective, the extent of any monitoring of judicial conduct, including judges’ interests relative to the performance of their duties, should remain a matter for the Judiciary and not for Government or Parliament.”

The policy adopted by the judiciary of ‘judges judging judges’ is what ended up blunting any meaningful powers to the office of the Judicial Complaints Reviewer to oversee judicial complaints in Scotland.

These issues involving a lack of oversight of judicial complaints powers have been widely reported in the media: My position is window-dressing, says legal watchdog with budget of £2000

Judicial Conduct, judicial interests and related issues are certainly a matter for primary legislation, and it is worth noting the office of the Judicial Complaints Reviewer was established by Section 30 of the Judiciary and Courts (Scotland) Act 2008

In terms of a failure to declare interests or to maintain a register of interests, I draw to the attention of members – the issue of Lord Hoffmann’s failure to declare interests in Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (1999), commonly referenced as “Hoffmann/Pinochet”

Hoffmann/Pinochet tainted the Law Lords over the question of declarations of interest despite their requirement to declare in a register, and subsequently the UK Supreme Court was created in the Constitution Reform Act 2005 Part 3 Section 23

Importantly the previous requirements of Law Lords to declare interests when they sat as Law Lords in the House of Lords, was omitted from the 2005 Uk legislation and set the stage where to this day – the Justices of UKSC have stated they themselves judge they do not require to declare their interests.

The UKSC’s position on judicial interests UKSC Judges Expenses and Interests

The statement from the UKSC justices which has been quoted by two Lord Presidents previously, reads as follows: “Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading.”

Lord Hoffmann’s failure to declare his interests and the impact of such on public confidence could be summarised by Lord Hutton in his ruling on Hoffmann/Pinochet:

Lord Hutton said: ‘there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.’

While no one has been willing to discuss exactly why UKSC judges lost the previous Law Lords requirement to declare and register interests – Lord Hoffmann’s failure to declare his interests in the Pinochet case, set a standard for judges to declare interests – which even Professor Paterson in his testimony to the Public Petitions Committee agreed with.

The judiciary’s position on declarations of interests and creating a register of judicial interests, is contrary to the wider public interest and expectation of transparency – especially in our courts.

While noting the Lord President’s repeat of his earlier comments in relation to issues involving the Council of Europe, and the Judicial Council in Scotland, Lord Carloway has not provided any convincing argument against creating a register of judicial interests.

It is also very clear from Lord Carloway’s letter, the judiciary continue to maintain resistance to the very notion of a register of judicial interests, and will not create one on their own.

As the Public Petitions Committee have already found the petition’s proposal of a Register of Judicial Interests to be “workable”, and there has been consistent support including media and public interest and for the petition since it was filed in 2012 – and given the Justice Committee are minded to advance this matter as no convincing argument against this proposal has been made, I urge members to take the petition forward and advance PE1458 to primary legislation, to ensure all members of Scotland’s judiciary declare and register their interests, in the same way as all others in public life, including all 129 MSPs of the Scottish Parliament register and declare their interests.

Further evidence submitted to the Justice Committee in response to the Justice Secretary’s continuing opposition to the creation of a register of judges’ interests, noted serious discrepancies in the Justice Secretary’s claims regarding Scottish judges serving in middle east Gulf States – reported in an earlier article here: NO, MINISTER: Justice Secretary claims Holyrood transparency legislation for register of judges’ interests – would undermine top judge who refused to meet Justice Committee on EIGHT YEAR judicial register petition

The Justice Committee have previously heard and viewed detailed evidence identifying several Scottish judges who served in Scottish courts while also serving in the Gulf States. MSP John Finnie made several observations on this in an earlier Justice Committee hearing here: John Finnie MSP – Scots Judges serving in Gulf States – Justice Committee 28 May 2019

Responding to the Cabinet Secretary’s letter of 7 February 2020 – evidence submitted in written form by the petitioner to the Justice Committee stated:

Noting the Cabinet Secretary’s response, I wish to point out one of the two Scottish judges in articles submitted to the Justice Committee, was indeed serving in Scotland at the time of his service in the UAE, – dates on court opinions delivered by Lord McGhie in Scotland and previously provided to the Justice Committee show this to be the case.7

The newspaper investigation stated “Our investigation found that Lord McGhie has been registered to sit in the UAE for the past two years while he was also dispensing justice at the Court of Session in Edinburgh.” – This was accurately reported in the media: Scottish judges slammed for being on payroll of oppressive regimes abroad

Regarding Lord Hope of Craighead, members will be aware Lord Hope serves in the UAE and has done for some time, while also remaining a cross bench peer in the House of Lords, and therefore being required to declare his interests: Lord Hope of Craighead Register of Interests

As well as having a continuing effect on public life in the UK and Scotland as a peer, Lord Hope’s House of Lords register of interests list “Chief Justice of the Abu Dhabi Global Market Courts (commercial court system in Abu Dhabi)” – necessitating the swearing of a judicial oath in Abu Dhabi, Council Member and Trustee, Commonwealth Magistrates’ and Judges’ Association” & “Door Tenant, Brick Court Chambers, London, as an arbitrator”.

Members of the Justice Committee will be aware many retired Scottish judges are brought back into service in the Scottish Courts, or for the purposes of heading inquiries and other public service roles – such as Lord Bracadale , and others such as retired Lord President Brian Gill, who is also listed as working as a Judicial Commissioner (along Lord Bracadale) for the UK Surveillance Commissioner: Appointment of 13 Judicial Commissioners

Lord Gill is also involved in calling for a major inquiry into the land tenure system in Scotland – and therefore still maintains an influence on legislation and public life in Scotland.

Clearly, where retired judges are brought back into service, for court duty or inquiries, the Judiciary of Scotland should maintain their register of interests, given these judges are again, serving either the courts or the Scottish Government, and therefore contributing to public life in Scotland.

On the issue of recusals – in relation to financial interests (although the petition does seek to include all interests & links of members of the judiciary) for some reason there have never been any requirements for judges to disclose financial links which may result in a recusal published in the register of recusals.

And, I would draw to the attention of the Justice Committee – reports of a Sheriff heard a case involving a supermarket in which he had shareholdings, and then refused to recuse himself from the case – reported by the Herald newspaper: Pressure grows for register of judges’ interests as sheriff hears Tesco case while holding shares in company

A further report on the same Sheriff revealed he also held shares in a company which was the subject of Scotland’s biggest Proceeds of Crime order in connection with activities in Iraq, reported by the Scottish Sun: Judge has Shares in Bribe Firm

I have previously drawn members attention to the promotion of former top prosecutor Lord Advocate Frank Mulholland to the position of a Senator of the Court of Session. It is a matter of record Lord Mulholland supported Lord Carloway’s review to abolish corroboration and previously appeared before the Justice Committee as Lord Advocate, as a witness expressing such support.

The fact Scotland’s top prosecutor was given a position as a top judge in the Court of Session, is a matter of public interest, and as anyone may conclude, could create multiple conflicts of interest particularly given the short gap between Lord Mulholland’s retirement as Lord Advocate and elevation to the judiciary.

These are issues which are clearly of relevance to a register of judges interests and should be included in such a register, given there are clear examples of cases in the past where prosecutors, promoted to members of the judiciary have heard cases and appeals by persons they previously prosecuted, but failed to declare any interest in court.

Over the course of six years of investigation and consideration by the Public Petitions Committee of evidence and hearings, every opportunity was given to myself and others, to respond to hearings, evidence and submissions from others in relation to Petition PE1458.

There is a stark contrast in these submissions, where only the judiciary and vested legal interests have taken an opposite view to transparency and declarations of interest – to the point Lord Gill refused twice to appear before the Petitions Committee, and now Lord Carloway has refused to appear before the Justice Committee on this petition.

Everyone else, and including two Judicial Complaints Reviewers who filed submissions with the Public Petitions Committee, and the Justice Committee, support the creation of a register of judicial interests.

Given the Cabinet Secretary’s comments and the lack of any further arguments advanced by the Scottish Government and Lord President against the creation of a register of judicial interests, I would urge the Justice Committee to move forward and advance the petition to primary legislation.

An earlier article featured new material presented to the Justice Committee on the issue of how Justices of the Peace were deliberately excluded from the recusals register created by Lord Gill in April 2014 – reported in further detail here: INJUSTICE OF THE PEACE: Judge admits Scottish Courts concealed conflict of interest recusals – Justices of the Peace were told by Court staff any cases where JP judges decided to step down from court hearings – would NOT be recorded in official register of judicial 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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TOP JUDGE – SCRAP JURIES: Scottish Government’s attempt to abolish jury trials during coronavirus outbreak put on hold after outcry from legal profession & politicians

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Media Notes:

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

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

 

 

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JUDICIAL REGISTER: Holyrood Justice Committee to continue work on register of judges’ interests – MSPs to seek evidence from constitutional experts & info on conflicts of interest of key stakeholders in the justice system

MSPs to continue work on judicial register. THE Scottish Parliament’s Justice Committee will continue work on a cross-party backed petition calling for the creation of a register of interests for all Scottish judges: Petition PE1458: Register of Interests for members of Scotland’s judiciary.

On Tuesday, members of the Justice Committee voiced their support for the plan to create a judges’ register of interests – despite intense opposition from Scotland’s top judge Lord Carloway – who refused to face questions from MSPs on judges’ interests .

Justice Committee members also decided to seek evidence from constitutional and academic witnesses – and briefings on the extent of conflicts of interest relating to key stakeholders in the Scottish justice system.

During the hearing, John Finnie MSP said: “The debate seems to be polarised. The petition has been open for a considerable number of years, and an issue remains. The public would expect some measure of accountability.”

“I note the comments about intrusion into the independence of the judiciary, and I wonder if there is any opportunity to investigate that further as a way forward. I am conscious that the petition has been around for a long time.”

James Kelly MSP said: “Over the period for which the committee has been examining the issue, I have become convinced by the case for a register of interests for the judiciary.”

“I note the responses from the cabinet secretary and Lord Carloway; there is clearly a bit of a stand-off here. Members’ suggestions of taking additional evidence to take the issue forward are sensible. We should not park the issue; it is important and we should continue to press it.”

Rona Mackay MSP said: “It is a very important issue, and it will not just disappear. As a committee, we should investigate it further and take some wider evidence to inform our views. I would be in favour of doing that at this stage. Albeit that we have—as John Finnie says—reached an impasse, it is incumbent on us to take a wider look.”

The move by the Justice Committee comes amid strong and continued opposition to the judicial transparency proposal from Scotland’s top judge – Lord Carloway, and Justice Secretary Humza Yousaf who both oppose any moves to require judges to disclose their interests in the same way others in branches of government, boards and all 129 MSPs disclose and register their interests.

Earlier this week, MSPs were provided with evidence from a senior Justice of the Peace that the official Register of Judicial Recusals – created by former Lord President Lord Brian Gill – was an incomplete record of conflicts of interest in Scotland’s courts.

Writing in a letter to the Justice Committee Convener, Justice of the Peace Dennis Barr said: “We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.”

The startling admission from Mr Barr – that judges were told by Scottish Courts and Tribunals Service (SCTS) staff – that any cases where Justices of the Peace stood down from a court case due to conflict of interest – would NOT be recorded – completely undermines assurances to MSPs from retired top judge Brian Gill, and current Lord President Lord Carloway – that the recusals register was an accurate register of Scottish judges standing aside from cases due to conflicts of interest.

Mr Barr’s evidence to the Justice Committee was reported in further detail here: INJUSTICE OF THE PEACE: Judge admits Scottish Courts concealed conflict of interest recusals – Justices of the Peace were told by Court staff any cases where JP judges decided to step down from court hearings – would NOT be recorded in official register of judicial recusals

Continued opposition from the Scottish Government to the judicial transparency proposal – in the form of a letter from Justice Secretary Humza Yousaf to the Justice Committee, is reported in further detail here: NO, MINISTER: Justice Secretary claims Holyrood transparency legislation for register of judges’ interests – would undermine top judge who refused to meet Justice Committee on EIGHT YEAR judicial register petition

The Justice Secretary claimed that adding the requirement of judges to declare their interests could undermine Scotland’s top judge and intrude on the judiciary’s independence – similar arguments which have been constantly put forward by the Scottish Government & judiciary to the Public Petitions Committee – who investigated the petition for over six years and backed the plan to create the judicial register.

Further reporting on the register of judges’ interests petition and conflicts of interest of Scottish judges can be found on STV News here: Judging for ourselves if conflict of interest in courts and here: Scots judges facing pressure to declare their interests

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

Minutes of the meeting of Tuesday’s Justice Committee reveal the following decision:

Public petition PE1458: The Committee considered various pieces of correspondence received in relation to its ongoing consideration of the petition. The Committee agreed to keep the petition open and to seek further oral evidence in due course, in round-table formal, from constitutional and academic witnesses.

The Committee also agreed to seek further written briefings from the Scottish Parliament Information Centre (SPICe) in relation to other potential conflicts of interests relating to key stakeholders in the Scottish judicial system. The Committee will consider the scheduling of this work as part of its work programming up to spring 2021.

Video footage of Tuesday’s hearing can be viewed here:

Register of Judges Interests Petition PE1458 Justice Committee 10 March 2020

Judiciary (Register of Interests) (PE1458)

Margaret Mitchell (Central Scotland) (Conservative) Convener:  Agenda item 7 is consideration of petition PE1458, which is a proposal to establish a register of judicial interests. I refer members to paper 4, which is a note by the clerk. Do members have any questions or comments?

John Finnie (Highlands and Islands) (Green): We have had some very interesting contributions from the Cabinet Secretary for Justice and from various representatives of the judiciary, as well as comments on each of those from the petitioner.

The debate seems to be polarised. The petition has been open for a considerable number of years, and an issue remains. The public would expect some measure of accountability. I note the comments about intrusion into the independence of the judiciary, and I wonder if there is any opportunity to investigate that further as a way forward. I am conscious that the petition has been around for a long time.

I am supportive of the principle, and I note everything that has been said. However, we seem to have hit an impasse. I am keen to hear the views of different people—constitutional lawyers, for example.

Liam McArthur (Orkney Islands) (LD): I agree with John Finnie. Intuitively, I am supportive of the idea of a register. However, I do not underestimate some of the concerns that have been raised by the cabinet secretary and representatives of the judiciary—particularly on the independence of the judiciary.

The debate is rather polarised, and it is difficult to see where compromise might be possible. However, I wonder whether we might proactively elicit views from academics in the area, with a view to testing some of the arguments that they made to us in their helpful evidence.

Rona Mackay (Strathkelvin and Bearsden) (SNP): It is a very important issue, and it will not just disappear. As a committee, we should investigate it further and take some wider evidence to inform our views. I would be in favour of doing that at this stage. Albeit that we have—as John Finnie says—reached an impasse, it is incumbent on us to take a wider look.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP): It is clearly an important issue, which merits our having a conversation or a discussion about it in the committee.

On principle, as the petition has been in the system for eight years, we should take evidence with a view to bringing the matter to a conclusion. It is not fair to have petitions in the system for that length of time without bringing them to some kind of conclusion. However, I would be happy to hear evidence on it.

James Kelly (Glasgow) (Lab): Over the period for which the committee has been examining the issue, I have become convinced by the case for a register of interests for the judiciary. I note the responses from the cabinet secretary and Lord Carloway; there is clearly a bit of a stand-off here. Members’ suggestions of taking additional evidence to take the issue forward are sensible. We should not park the issue; it is important and we should continue to press it.

The Convener: I should note that there is a petition that we have been dealing with for in excess of eight years—the Megrahi case petition. However, as members have said, it is not an ideal situation. Given the impasse and the diametrically opposed views, does the committee wish to seek further information on the record in a formal meeting with constitutional lawyers and others, in an effort to move forward and with a view to looking at the pros and cons of the petition? We could then take a formal decision on it. We could also ask the Scottish Parliament information centre and the clerks for a note on the wider issues, perhaps even taking into account any conflict-of-interest issues that might have a bearing on how court decisions are taken.

Liam McArthur: I agree with that. Such an evidence session might be better using a round-table format, rather than having a more traditional evidence session. Due to the fact that the cabinet secretary and, previously, the petitioner referred to the situation in New Zealand, which has now taken a different course, it would certainly be useful in the information that is to be provided by SPICe to have an understanding of the thought process that the New Zealand Parliament went through to arrive at the decision that it reached in relation to the same issue.

The Convener: Are we all agreed that that is the way forward?

Members indicated agreement.

The National reported on developments at the Justice Committee here:

 Scottish judges and government on collision course over interests register

By Martin Hannan The National 11 March 2020

THE Justice Committee of the Scottish Parliament is on a collision course with the Scottish Government and leading Scottish judges after the Committee voted to continue its inquiries into the possibility of legislation to set up a register of the financial and other interests of judges.

Lord Carloway, Scotland’s senior judge, and justice secretary Humza Yousaf both told the committee by letter yesterday that they were opposed to such a register, indicating that the petition for such a register raised in 2012 by journalist and law blogger Peter Cherbi should now be dropped.

The Committee decided otherwise, however, and agreed to keep the petition open and to “seek further oral evidence in due course, in round-table formal, from constitutional and academic witnesses”.

The Committee also agreed to seek further written briefings from the Scottish Parliament Information Centre (Spice) in relation to “other potential conflicts of interests relating to key stakeholders in the Scottish judicial system”.

In a surprise move directly against the wishes of Yousaf and Carloway, the Committee agreed to consider the scheduling of this work as part of its work programming up to spring 2021.

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

Yet Carloway, the Lord President and Lord Justice General, has long made known his opposition to such a register, and he told the Committee in his letter that he would not be attending to give his views.

Speaking at yesterday’s meeting, John Finnie MSP said the debate on the issue had become “polarised”.

He said: “There is an issue here that remains to be dealt with and I think the public would anticipate that there is some measure of accountability.”

Peter Cherbi told The National: “Noting the Justice Committee meeting today I am grateful to those MSPs who declared their support for the register of judicial interests – and all the MSPs who have previously worked on this petition to support it and advance the issue of judicial transparency

“Clearly the debate has become very polarised as John Finnie said during the hearing. This polarisation has come about because the judiciary are entrenched in their opposition to the same level of transparency which applies to all other branches of the executive.

“It is no accident this petition has lasted eight long years, where at every turn the judiciary have sought to undermine the petition at every hearing, invoke anyone, from government ministers to vested legal interests in an effort to shut down the petition and any debate on judicial transparency.

Sadly, the effort expended by judges against this petition, is an indication judges have something to hide and fear disclosure.”

UNCONVINCING TOP  SCOTS JUDGES WHO REFUSED TO BE TRANSPARENT:

Scotland’s recent two top judges failed to convince MSPs that a register of interests is not required for Scotland’s judiciary

Former Lord President Brian Gill, and current Lord President Lord Carloway consistently argued the existence of judicial oaths and ethics – which are both written, and approved by  judges negate any requirement for further transparency in the judiciary.

However, both the Scottish Parliament’s Public Petitions Committee – who investigated the judicial interests petition for six years, and the Justice Committee – who have considered the petition since 2018, found the judiciary’s arguments against transparency to be “unconvincing”.

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

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

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

 

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INJUSTICE OF THE PEACE: Judge admits Scottish Courts concealed conflict of interest recusals – Justices of the Peace were told by Court staff any cases where JP judges decided to step down from court hearings – would NOT be recorded in official register of judicial recusals

Court staff concealed judges’ recusals from register. AN ENTIRE TIER of Scotland’s judiciary were told by Scottish Courts and Tribunals Service (SCTS) staff that any cases where Justices of the Peace stood down from a court case due to conflict of interest – would NOT be recorded in an official Register of Judicial Recusals – according to papers released by Holyrood’s Justice Committee in relation to Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The recusals register – set up by a former top judge to record conflicts of interest leading to judges standing aside in court hearings – has until this year failed to publish recusals by Justices of the Peace – according to an admission by the Secretary of the the Scottish Justices Association (SJA) to Holyrood’s Justice Committee.

Writing in a letter to the Justice Committee Convener, Mr Barr – who is also a Justice of the Peace – admitted to unrecorded instances where he personally has stood aside in court cases – said “We have established that recusals by JPs do happen occasionally, but to date all such instances have been initiated by the JP themselves.”

Mr Barr also claimed in his letter Court staff had informed the Scottish Justices Association that any recusals by Justices of the Peace in cases of conflicts of interest – would not be recorded.

Mr Barr said: “If I may use myself as an example, I have recused myself on three separate occasions, sitting in the JP Courts in Glasgow over the past ten years, as I have personally known the accused. We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.”

The admission from the Scottish Justices Association comes amid an EIGHT YEAR probe by the Scottish Parliament in moves to create a register of judges’ interests.

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

The Register of Judicial Recusals was created in April 2014 by the then Lord President – Brian Gill – in an attempt to persuade to drop their investigation of a proposal to create a fully published register of judges interests.

However, Lord Gill deliberately excluded all Justices of the Peace (numbering around 300 judges) from the recusals register in 2014.

To this day, no convincing explanation has been offered as to why a significant number of members of Scotland’s judiciary were allowed to keep all their conflicts of interest secret from the public during court hearings.

And – only one recusal by a Justice of the Peace has since been recorded – coincidentally, just after the date of the Scottish Justices Association letter to Holyrood’s Justice Committee.

The recusal is listed as occurring on 04 February 2020 at Dumfries JP Court as “Of member’s own accord – accused’s family are known to the Justice”

The Scottish Parliament’s Justice Committee will hear Petition PE 1458 on Tuesday 10 March 2020, and will consider evidence submitted from the Scottish Justices Association.

Letter from the Scottish Justices Association to Margaret Mitchell MSP, Convener, Scottish Parliament Justice Committee

Dear Ms Mitchell,

Petition 1458 – Proposal to establish a register of judicial interests

With reference to both your letter to Mr Gordon Hunter, the Chair of the Scottish Justices Association, on 22nd November 2019, and his reply dated 24th November 2019 on the matter of Justice of the Peace (JP) recusals, I can now advise that we have investigated this matter further.

We have established that recusals by JPs do happen occasionally, but to date all such instances have been initiated by the JP themselves. If I may use myself as an example, I have recused myself on three separate occasions, sitting in the JP Courts in Glasgow over the past ten years, as I have personally known the accused. We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.

If, however, the court receives a formal motion from either the Procurator-fiscal or the defence agent then it must be recorded by the Clerk of the Court and details must be sent to the Judicial Office, where the information is collated on behalf of the Lord President. This formal notification is recorded irrespective of whether the motion for the recusal was granted or refused. This arrangement has been in place in the JP Courts since 2018.

It is evident from the pro-forma used by SCTS staff acting as Clerk of the Court, for recording such motions, that use of the pro-forma applies to all levels of the Judiciary in Scotland, including JPs. In discussions with SCTS in each of the six Sheriffdoms it became clear that nobody could recall the use of the pro-forma in any Scottish JP Court over the past two years.

I do think it important to stress that in principle JPs do consider themselves to be fully integrated members of the Scottish Judiciary and would seek to be subject to the same processes and procedures as other members. The lack of formal motions for the recusal of JPs is, we believe, more reflective of the fact that JPs are representative members of the community they live within and serve; and clearly wish to demonstrate their impartiality in the cases that come before them. The relative minor nature of the criminal cases heard by JPs may also be a factor, notwithstanding the fact that some cases may have a relatively high public profile.

I can assure you that all of the Sheriffdom Legal Advisors (SLAs), who sit alongside JPs in court, are aware of the requirement to use the standard pro-forma when a formal motion for a recusal is made. I am not aware of any formal recording of instances where a JP has recused themselves from a case, and thereby it would not be possible to provide the public with such details.

As far as the S JA believe, this policy of regarding self-recusals as informal administrative decisions, and thus not recorded, applies to all levels of the Judiciary in Scotland. To this extent we understand that we are treated in the same manner as Sheriffs, and indeed Senators, and it is an approach that we would vigorously support.

I hope that this clarifies the position, but if you do require any further information then I and all other members of the SJA Executive Committee would be very happy to assist.

Yours sincerely Dennis W Barr

Responding to Mr Barr’s letter to the Justice Committee, the petitioner provided further information to MSPs of the variance in how recusals of Justices of the Peace have not been recorded – and evidence where senior figures at the Judicial Office had misled enquiries on the issue of Justice of the Peace recusals.

Response to letter from Scottish Justices Association 27 January 2020

The Scottish Justice Association’s view of how Justices of the Peace recuse themselves and how recusals are recorded, appears to contradict information previously provided on recusals by Justices of the Peace – by the Head of Strategy and Governance for the Judicial Office in material which I have previously provided to the Public Petitions Committee, and which has also been reported in the media.

In a query to the Judicial Office, I was informed on 21/12/2017:

“The JP courts will start reporting any recusals to us (Judicial Office) come January.  When we may see the first we don’t know until we get one of course.  But January we have asked them to start sending us any notes of recusals and that will be reported on our website.

I am in touch with the tribunal presidents but don’t yet know when we will be able to start reporting in this area.  I’ll hopefully have an update for you re timescales come mid-January on tribunals”

There are admissions in the SJA response of Justices of the Peace, including the author of the letter Mr Dennis Barr – recusing themselves from cases.

In the case of Mr Barr – he states “If I may use myself as an example, I have recused myself on three separate occasions, sitting in the JP Courts in Glasgow over the past ten years, as I have personally known the accused”

Mr Barr goes on to state: “We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.”

I draw members attention to my submission of 29 November 2017 – PE1458/JJJ to the Public Petitions Committee on the issue of Justice of the Peace which refer to communications between myself and the Judicial Office on JPs recusals. The Justice of the Peace issue was also reported in the media: Campaigner calls on Scotland’s top judge to extend register of recusals

Justices of the Peace were excluded from the creation of the Register of Recusals in 2014 – despite making up the largest membership of Scotland’s judiciary. No reason has been given for their exclusion.

Successive hearings by the Public Petitions Committee and requests for my response to Committee hearings, improved the coverage and content of the Register of Recusals over the course of this petition, however, not until 2018 and after communications with the Judicial Office were Justices of the Peace included in the recusals register,

There is only one single published recusal of a Justice of the Peace – coincidentally – which was published in the recusals register at Judicial-Recusals – Judiciary of Scotland after the SJA’s letter to the Justice Committee of 27 January.

The recusal is listed as occurring on 04 February 2020 at Dumfries JP Court as “Of member’s own accord – accused’s family are known to the Justice”

Mr Barr states in his response to the Justice Committee: “I do think it important to stress that in principle JPs do consider themselves to be fully integrated members of the Scottish Judiciary and would seek to be subject to the same processes and procedures as other members.”

I feel the time has come to ensure JPs recusals are formalised and properly published in the same way as recusals of other members of the judiciary which have been published since April 2014..

Justices of the Peace – who comprise a significant number in the total membership of Scotland’s judiciary, should be included in a publicly available register of judicial interests.

In January 2019, DOJ reported on the lack of any published recusals involving Justices of the Peace in Scotland, the article can be found here: THE UNRECUSED: Mystery as 450 Justices of the Peace fail to register one single recusal in a full year after conflict of interest rules change for Scotland’s secretive army of lay magistrates

In response to media enquiries last year – the Judicial Office claimed it had not been informed of any recusal motion by any of Scotland’s Justices of the Peace.

The Judicial Office said: “We have received no notification of a JP recusing themselves from a case since the guidance came into force, which was in January 2018”

In response to further enquiries for information relating to any refusals of Justices of the Peace to recuse, the Judicial Office stated: “We are to be informed if a formal motion for recusal is granted or refused, or if the Judicial Office holder decides at their own accord to recuse.  Nothing has yet been reported to us.”

However – the admission in the letter from the Scottish Justices Association to the Justice Committee throw previous claims of not being informed of judicial recusals into doubt.

Guidance requiring Justices of the Peace to declare conflicts of interest and recuse themselves from court hearings came into force in 2018 after calls for JPs to be brought into line with rules of recusals which apply to the remainder of Scotland’s judiciary.

This guidance was created after a report on DOJ here: DECLARE YOUR JUSTICE: Judicial Office consults with Lord Carloway on including Justices of the Peace in Register of Judicial Recusals – as questions surface over Lord Gill’s omission of 500 JPs from judicial transparency probe.

In an UPDATE to this article, the National featured a report on evidence submitted to the Scottish Parliament’s Justice Committee ahead of the hearing on Tuesday 10 March.

Battle for Scottish judges to register interests in court cases

By Martin Hannan The National 10 March 2020

ALMOST eight years since it was registered, a public petition to the Scottish Parliament calling for a system in which judges must register their financial and other interests reaches a crunch point today.

Journalist and law blogger Peter Cherbi first registered his petition in 2012 and it has been supported by both the Petitions and Justice Committees at Holyrood.

It is the latter committee which will meet today to discuss comprehensive refusals to start such a register made by both Justice Secretary Humza Yousaf and Scotland’s most senior judge and head of the judiciary, Lord Carloway, the Lord President of the Court of Session and Lord Justice General.

The latter’s predecessor, Lord Gill, agreed in 2014 that a register of judges’ recusals – when a judge stands aside because of a perceived or actual conflict of interest – would be kept.

The National can reveal, however, that this register has NOT been kept for Scotland’s 250-plus Justices of the Peace (JPs) despite assurance by the Judiciary Office that it would be. According to a leading JP, that’s because they don’t have to.

In a letter to the Justice Committee, Dennis Barr, secretary of the Scottish Justices Association states: “If I may use myself as an example, I have recused myself on three separate occasions sitting in the JP courts in Glasgow over the past ten years, as I have personally known the accused.”

Barr goes on: “We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.”

Peter Cherbi commented: “I was assured in 2017 that such a register would be kept. The register of recusals was created in April 2015 by the then Lord President – Brian Gill – in an attempt to persuade MSPs to drop their investigation of a proposal to create a fully published register of judges interests. However, Lord Gill deliberately excluded all Justices of the Peace.

“To this day, no convincing explanation has been offered as to why a significant number of members of Scotland’s judiciary were allowed to keep all their conflicts of interest secret from the public during court hearings.”

Cherbi is adamant that a register of interests is necessary and is hopeful the committee will carry on with it despite Humza Yousaf ‘s opposition. Yousaf says that it is “not necessary”, while Lord Carloway stated: “I remain of the view that, from the constitutional perspective, the extent of any monitoring of judicial conduct, including judges’ interests relative to the performance of their duties, should remain a matter for the Judiciary and not for Government or Parliament.”

Cherbi told the Committee in a letter: “While noting the Lord President’s repeat of his earlier comments in relation to issues involving the Council of Europe, and the Judicial Council in Scotland, Lord Carloway has not provided any convincing argument against creating a register of judicial interests. It is also very clear from Lord Carloway’s letter, the judiciary continue to maintain resistance to the very notion of a register of judicial interests, and will not create one on their own.

“I urge members to take the petition forward and advance PE1458 to primary legislation, to ensure all members of Scotland’s judiciary declare and register their interests in the same way as all others in public life, including all 129 MSPs of the Scottish Parliament.”

A report in the Scottish National newspaper in 2017 also featured the calls for JPs to register recusals, which can be viewed here:

Campaigner calls on Scotland’s top judge to extend register of recusals

Exclusive by Martin Hannan Journalist The National 3rd October 2017

SCOTLAND’S Justices of the Peace should have to register their recusals when they step aside from cases in their courts due to conflicts of interests, according to the man who is leading a campaign on judges’ interests.

The judicial register of recusals was established by Scotland’s most senior judge in April 2014, former Lord President Lord Gill, and the judiciary website shows all such recusals by judges and sheriffs and the reasons why they stepped away from a case.

Now legal campaigner Peter Cherbi has called for the register to be extended to Justices of the Peace, who are lay magistrates dealing with less serious cases such as breach of the peace or minor driving offences.

For five years Cherbi has been petitioning the Scottish Parliament on the issue of judges’ interests, and he sees a register of recusals as vital for public confidence in all the judiciary.

Cherbi said: “Given there are nearly 500 Justices of the Peace in Scotland who must act in accordance with the same rules laid down for other members of the judiciary, JPs should now be included in the Register of Recusals.

“I am surprised Lord Gill omitted Justices of the Peace when he created the Register of Recusals in April 2014. This was a significant omission, given the numbers of JPs across Scotland, and Lord Gill should have corrected this flaw before he left office in May 2015.

“I note Lord Carloway (left) has not attended to this glaring omission since taking office as Lord President in January 2016 until now being asked to do so.

“The omission of Justices of the Peace from the Register of Recusals has left out a significant portion of the judiciary and therefore concealed a more truer representation of numbers of recusals and interests across Scotland’s judges and courts, which are of significant public interest.

“I shall be informing the Public Petitions Committee of this development and if the need should arise, I will request MSPs write to the Judicial Office and Scottish Justices Association to make enquiries as to when JPs will be added to the Register of Recusals, and to seek an explanation why they were originally left out from the data, despite it being a relatively simple operation to include JPs in the recusals statistics.”

The National contacted the Scottish Justices Association, which represents the Justices of the Peace, but no reply had been received by the time we went to press.

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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