Tuesday, March 19, 2019

ACCESS DENIED: Senior associate at Turcan Connell accessed confidential file note for ‘no professional reason’– prompting judge to rule law firm cannot act in ex Rangers owner’s divorce case due to conflict of interest

File access & Conflict of interest. CONCERNS of a lack of protection for client files at a top Scottish law firm - prompted a Court of Session judge to ban the Edinburgh based firm of lawyers from acting in a £10 million divorce case.

The ruling  against Turcan Connell - came after it emerged the wife of one of the law firm’s partners had accessed confidential file notes relating to the financial information of Kae Tinto Murray - who had taken on new legal representation in relation to a divorce case involving her husband – ex Rangers FC owner - Sir David Murray.

Details heard in court of the accessing of confidential files was so severe - it prompted Lord Neil Brailsford to issue a damning opinion which barred Edinburgh law firm Turcan Connell from further acting for Sir David Murray in the divorce case.

The application for interdict against Turcan Connell - was brought by Kae Murray - to prevent the law firm from acting further for her husband Sir David Murray, in proceedings she had raised for divorce, with capital and alimentary financial claims, and for the setting aside of a pre-nuptial agreement regulating their financial affairs in the event of divorce.

Ms Murray and Sir David Murray separated on 22 March 2016. A summons in an action of divorce at the instance of the petitioner against Sir David Murray was signeted on 22 May 2018.

At the beginning of June 2018 Mr Littlefield met with the petitioner and advised that he could no longer act for her in relation to her trust and personal affairs.

She was also advised that Turcan Connell were acting for Si David Murray in the divorce proceedings and that, accordingly, Turcan Connell could no longer act for her in relation to the divorce.

On 4 June 2018 SKO Family Law sent a mandate to Turcan Connell requiring them to provide SKO with the petitioner's files. That mandate was complied with. On 18 June 2018 a partner in SKO emailed Mr Littlefield primarily in relation to matters arising out of implementation of the mandate.

The email did however further ask for confirmation of what steps TC had "taken to ensure that any electronic information that you hold on behalf of [the petitioner] cannot be accessed by anybody within the firm who (i) may act for [the petitioner's husband] in the context of the divorce action, and/or (ii) may be a witness in the divorce action to follow."

On 11 September at a By Order hearing in the divorce action the issue of a challenge to Turcan Connell's continued representation of Sir David Murray was raised. The present petition was presented on 18 September 2018. As previously noted the petitioner's electronic file held by the respondents was locked down on 21 September 2018.

Senior Counsel for the petitioner informed the court of two occassions where Yvonne Littlefield accessed files in relation to Kae Murray - after the separation of the petitioner and Sir David Murray,.

On one occasion – Yvonne Littlefield accessed a file note relative to a telephone conversation that Mr Littlefield had with the petitioner on 14 March 2018.

On a second occasion, Yvonne Littlefield - accessed the petitioner's electronic file again on 17 July 2018, being a time both after Turcan Connell had ceased to act for the petitioner and after the summons in the divorce proceedings had been served.

Counsel noted that in her affidavit, the explanation for accessing the petitioner's electronic file on those occasions given by Mrs Littlefield was that she had, in the company of her husband Mr Littlefield, met the petitioner in the company of Sir David Murray at a social occasion.

In the context of a social meeting Yvonne Littlefield deponed in her affidavit that "She [the petitioner] struck me at the time as being the sort of person that I would like to include in future invites and it was my intention to keep in touch with her. I do try when meeting clients to understand what is going on in their lives and believe that such knowledge does enhance the relationship. Obviously all matters relating to clients are confidential but clients do appreciate it when they get a sense that they are genuinely appreciated."

Yvonne Littlefield went on to state further "I have been asked why I have accessed file notes on the file. I would have done so simply for the very purpose of being up-to-date. I don't know now but it may be that I had in mind inviting [the petitioner] to a Turcan Connell event."

Senior counsel for the petitioner submitted that the explanation proffered by Mrs Littlefield was inadequate. The petitioner was not, and had never been, Mrs Littlefield's client.

Mrs Littlefield had never acted for the petitioner nor offered her any professional advice. It was the submission of senior counsel that no proper justification for Mrs Littlefield's access to the files had been tendered and that her ability to do so on the dates that she did "simply demonstrates the extent to which, within the respondent's office, there is scope for information moving within a firm".

The information claimed to be confidential comprised the “retained knowledge” of Mr Noel Ferry – a partner in Turcan Connell, and information in two files compiled by Mr Littlefield, electronic copies of which continued to be held by the firm.

Noel Ferry had earlier represented Kae Murray in the negotiation and preparation of the pre-nuptial agreement with Sir David Murray – while Mr Ferry was Head of Family Law in another firm of solicitors, Maclay Murray & Spens.

In 2013. Noel Ferry joined Turcan Connell initially as a senior associate and from April 2015 as a partner working in that firm’s Glasgow office in the field of family law.

Lord Braisford’s opinion states that “Since joining Turcan Connell, Mr Ferry has not acted for nor had any dealings with the petitioner. Since her marriage to Sir David Murray the petitioner has on a number of occasions instructed and obtained advice from another partner of TC, Mr Peter Littlefield.”

After a consideration of both parties files - Lord Brailsford said “On the basis of the foregoing analysis I form the view that the information contained in Mr Littlefield's files constitutes information which is confidential to the petitioner disclosure of which would be potentially adverse to her interests.”

Lord Brailsford said it was the case an obvious conflict of interest existed from the date of service of the summons.

In his ruling Lord Brailsford went onto say: “I am bound to state that my view is that a conflict, or at least potential conflict, and therefor the need to have an effective information barrier, should have been obvious to TC from the date of the service of the summons in the action of divorce by the petitioner against her husband, a continuing client of the firm, on 22 May 2018.”

Additionally, Turcan Connell had not "provided the assurances necessary to satisfy the court that there was no risk of disclosure of information prejudicial to the petitioner outwith the direct control of those who had thus far given undertakings".

The judge concluded: "Consideration of the line of authority I have been directed to demonstrates that the importance of protecting a client's confidential information is such that professional advisors, in circumstances where they subsequently wish to act for someone with an interest adverse or potentially adverse to the former client, have an onerous burden placed upon them. A consideration of the amount of time that such files might take to investigate is in my view an inadequate reason for failure to consider all material held which might contain information confidential to the former client. I would add that in addition to these eight conclusions on the basis of the information before me, the concerns I expressed at the conclusion of the first hearing appear in large part, to continue to exist.”

“I respectfully agree with the observations of Lord Millet in Bolkiah (supra) that ad hoc arrangements made retrospectively, that is after a potential conflict between existing client and past client have emerged, are unlikely to be as robust as permanent arrangements which operate automatically and are already in place and operative when a conflict emerges. The reason for this is plain, ad hoc arrangements can take time to put into place. During any period before an ad hoc security arrangement or information barrier is erected and is operative there is the potential, by means of either deliberate or inadvertent action for confidential information to leak.”

“In the present case the most important information barrier was the "lock down" system of electronic files. For reasons which, as I have already said, no explanation was forthcoming, lock down did not operate for a period of something in the order of three and a half months after there was an obvious risk created by the petitioner ceasing to instruct TC and that firm correspondingly informing her that they could not act on her behalf in divorce proceedings against her husband.”

“As I have already observed the lack of adequate explanation for that intervention causes me concern. I consider that that fact increases the risk of disclosure of confidential information which is the petitioners concern in this petition. I am also concerned that there has been incomplete examination of all sections of the petitioner's electronic file. This fact leads me to the conclusion that the court is still, notwithstanding that the respondents were given additional time to provide further information, in a position where it cannot be satisfied as to the precise level of any disclosure of confidential information which has occurred.”

Of further note in Lord Braislford’s opinion – “The petitioner's submission was developed to show that any information barrier which existed within TC in the context of the petitioner's file was of an "ad hoc" nature and therefore subject to the general criticism of ad hoc security arrangements made in Bolkiah (supra) and Georgian American Alloys (supra).

In support of the proposition that, in the context of the present case, ad hoc security arrangements were likely to be inadequate three principle factors were advanced. The first was that the petitioner's file was only "locked down" on 21 September 2018. This was three days after the present petition had been served upon TC. It was, further, four months after the summons in the divorce case was signeted and at least three and a half months after TC had ceased to act for the petitioner. This was said to clearly demonstrate that the information barrier being relied upon by TC was ad hoc and merely put in place to deal with contingencies as they arose. I was reminded that in Bolkiah (supra) Lord Millet observed that information barriers need to be "an established part of the organisational structure of the firm, not created ad hoc and dependent upon the acceptance of evidence sworn for the purpose by members of staff engaged on the relevant work".

The second ground was that a necessary implication of the date of lock down was that up to that date there was unrestricted access to the petitioner's file. A corollary of that was that TC required to rely upon "a large number of affidavits in which qualified and support staff set out their best recollection as to why they accessed the file, whether they recall anything about it and whether they would have discussed the contents with anyone."

That consideration increased the level of risk of disclosure of information of a confidential nature whether inadvertently or otherwise. Reliance was made in this respect to observations of Field J in Georgian American Alloys (supra).  It was also observed by counsel for the petitioner at this point that whilst no criticism was made of TC there were three persons who had accessed the file from which affidavits had not been obtained. This was said to demonstrate the difficultly which would arise when ad hoc security arrangements required to be justified. The ad hoc nature of an arrangement meant, as a matter of probability, that no record of access would be kept and therefore attempts to identify potential disclosure at a later stage would be correspondingly difficult.

The third area of criticism was directed at the work done by Turcan Connell in an attempt to demonstrate that there had been no disclosure of confidential information.

Mr Davie had interrogated the correspondence" area of Turcan Connell's electronic file for the petitioner. That exercise had enabled Mr Davie to show who had accessed that part of the file and what documents they had seen. He had not however sought to interrogate those parts of the electronic file relating to "emails", "finance" or "signed documents". That failure necessarily meant that who had accessed those parts of the file and what they may have accessed was unknown. In these circumstances it simply could not be said that there had been no disclosure of confidential information. It was submitted that there were was "no apparent reason why the respondent could not have provided the petitioner with the print offs for the remainder of the documents" which would have at least enabled them to satisfy themselves in relation to those parts of the file.

Having regard to all the foregoing considerations the submission was that it was impossible to know what the extent of the risk of disclosure in the past had been. Whilst it was accepted that the file had been locked down since 21 September it was further submitted that the risk of disclosure was not removed. The submission was developed by stating that the petitioner could see no obvious reason why TC required to retain the petitioner's file within its electronic system at all. It was suggested that if TC had taken the step of removing the information from its system and storing it off-site, a step which was taken in relation to files in Bolkiah (supra) as a matter of example, that could have gone further towards removing risk of future disclosure. In these circumstances it was submitted that TC had not demonstrated to the extent necessary that the level of risk existing was acceptable. The submission was further renewed that the appearance of justice and the broader ground of the need to preserve the administration of justice justified the granting of interdict as craved.

The full opinion is available here: OPINION OF LORD BRAILSFORD In the petition KAE ALEXANDRA TINTO or MURRAY Petitioner for interdict

Clients concerned as to the confidentiality of their files with solicitors should pay particular attention to events in this case, particularly where a solicitor moved between firms (not an uncommon thing) but of course, the implications of such a move on confidentiality and failure to protect it, as revealed in this case.

Interestingly, and of note – the following publicly available biographies of Yvonne Littlefield, and that of her partner – Peter Littlefield  on the Turcan Connell website - make no mention of any marital connection, despite considerable details in other areas.

Bio – Peter Littlefield

Peter works principally in the areas of contentious probate, succession planning, trust law, will drafting, tax planning, asset protection, executry administration and charities. Peter specialises in tax and estate planning for private clients, including entrepreneurs and landowners. His work includes advice in connection with complex issues arising out of estates and post-death tax planning. He also advises a number of major national charities on Scots succession law.

Peter joined Turcan Connell 2002. He is a member of the Society of Trust and Estate Practitioners (STEP). Peter graduated with an MA (Hons) degree in Sociology from the University of Edinburgh before completing his LLB degree and Diploma in Legal Practice. He speaks at seminars and conferences on succession and trust law.

Peter was assumed as a Partner in April 2011. He is married with two children, and enjoys skiing, mountain biking and the occasional triathlon.

Bio: Yvonne Littlefield

After graduating from the University of Edinburgh in 1997 (LLB HONS DipLP), Yvonne trained with a firm of Glasgow Solicitors.  Following qualification as a solicitor in 1999, Yvonne joined Turcan Connell in April 2001 and was promoted to Senior Associate in 2015.

Yvonne advises clients in all areas of asset protection, succession and tax planning during lifetime including in particular, the use of trusts.  She regularly advises on (inheritance) tax efficient Wills, and deals with the executry administration of complex (sometimes contentious) estates.  She is also involved in incapacity planning e.g. Powers of Attorney and, where necessary, guardianship  applications.

Yvonne has been invovled with several clients and their wider families spanning more than a decade, and values the ongoing relationships, and the benefits that can provide when offering advice.

Yvonne is a fully qualified member of STEP (Society of Trust and Estate Practitioners) and a Notary Public. 

Monday, February 04, 2019

JUDICIAL REGISTER - MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

MSPs to consider judicial interests call. A PETITION calling for the creation of a Register of Judges’ Interests in Scotland – which is now in it’s SEVENTH year is to be considered by the Scottish Parliament’s Justice Committee on Tuesday 5 February 2019.

The latest consideration of Petition PE1458: Register of Interests for members of Scotland's judiciary comes after members of the Justice Committee initially heard the petition in late September 2018 – with several MSPs supporting the view the petition should be taken forward.

During the Committee’s meeting, John Finnie MSP of the Scottish Greens said: “Future generations will be surprised that we do not have such a register already.”

Daniel Johnson MSP (Scottish Labour) said: “We all need to be mindful that we have a legal duty to uphold the independence of the judiciary, but transparency enhances independence. I very much support the comments that colleagues have made. We should take the petition forward.”

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

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

The move to create a register of judicial interests enjoys cross party support, backing in the media, and crucial support from two of Scotland’s Judicial Complaints Reviewers – including Moi Ali

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

Video footage of the Scottish Parliament’s Justice Committee’s first consideration of the judciial register petition in September 2018 can be viewed here:

Register of Judicial Interests - Justice Committee Scottish Parliament 25 September 2018

Official Report: Judiciary (Register of Interests) (PE1458)

Margaret Mitchell MSP (Scottish Conservatives) (Convener) : Under item 4, the committee will consider two petitions. I refer members to paper 4, which is a note by the clerk, and paper 5, which is a private paper. The committee is asked to consider and agree what action, if any, it wishes to take in relation to each petition. Possible options are outlined in paragraph 5 of paper 4. I remind members that if they wish to keep a petition open, they should indicate how they would like the committee to take it forward. If they wish to close a petition, they should give reasons. We will consider each petition in the order in which they appear on the agenda.

This is the first time that the committee has considered PE1458. The petition calls on the Scottish Parliament to urge the Scottish Government to introduce a register of pecuniary interests of judges bill, or amend existing legislation, to require all members of the judiciary in Scotland to submit their interests and hospitality received to a publicly available register of interests. Do members have any comments or questions?

John Finnie (Scottish Green Party):  I seem to have mislaid the paper, but from memory there were a number of recommendations around requiring further information. I would support that approach. Future generations will be surprised that we do not have such a register already. We need to be best informed, so I suggest that we get that additional information and consider the petition again.

Rona Mackay (Scottish National Party) :  I agree with my colleague, John Finnie. The Public Petitions Committee believes that a register is not unworkable and recommended it. As John Finnie said, we need to explore the petition further and get as much information as we can so that we can take it forward.

Daniel Johnson (Scottish Labour) : We all need to be mindful that we have a legal duty to uphold the independence of the judiciary, but transparency enhances independence. I very much support the comments that colleagues have made. We should take the petition forward. It makes an awful lot of sense to do exploratory work.

The Convener: Is it the committee’s wish, therefore, that we keep the petition open and seek further information?

Members indicated agreement.

Since the Justice Committee considered the petition last September, there have been explosive revelations in the media in relation to Scottish and UK judges serving in Gulf States regimes and dictatorships, where the same judges are required to swear additional judicial oaths on top of the judicial oaths already sworn in Scotland and the UK.

An exclusive investigation by Investigative Journalist Russell Findlay revealed Scottish judges were serving in Abu Dhabi & UAE courts while serious Human Rights abuses were taking place against British citizens in the same countries.

The report reveals TOP judges are accused of selling the reputation of Scottish justice by working for Middle East countries with toxic human rights records.

Two judges are on the payroll of the United Arab Emirates (UAE) where domestic violence against women is legal and where regime critics are tortured and jailed without trial.

The most senior is Lord Hope of Craighead — Scotland’s former top judge, a member of the House of Lords and ex-deputy president of the UK Supreme Court.

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.

The investigation also reveals how Scottish and UK judges are lured to the UAE, Abu Dhabi, and Qatar with big money salaries are available here: JUDGES FOR SALE: Special investigation into top lawmen being lured with big money jobs in Qatar and the UAE and here: Scottish judges slammed for being on payroll of oppressive regimes abroad

Two weeks ago, the petitioner was contacted and requested to provide a submission for the Justice Committee’s consideration of the petition.

The submission to the Justice Committee took the following form:

Submission re Petition PE1458 – A Register of Interests for Members of Scotland’s Judiciary

In response to the Justice Committee’s initial consideration of this petition, I agree with the decision by members to seek further and additional information to take the petition forward and create a Register of Judicial Interests for members of Scotland’s Judiciary.

I would also like to submit further developments since members last considered the petition, where reports in the media have revealed senior members of Scotland’s judiciary serving in overseas courts, particularly in the Gulf States such as UAE, Abu Dhabi, Qatar, and others.

It should be of interest to members that in the case of Lord McGhie, who is currently listed on the Judiciary of Scotland’s website as Chairman of the Scottish Land Court and President of the Lands Tribunal for Scotland, the biography of Lord McGhie’s interests does not mention the fact he also serves on the Abu Dhabi Global Market Courts.

Of note, the ADGM Court does list Lord McGhie’s service in Scotland as a member of the judiciary, however the Judiciary of Scotland omit all details of Lord McGhie’s overseas judicial service, as can be noted from the two separate judicial biographies forwarded to the Justice Committee,

An investigation by the Sunday Mail newspaper revealed 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 – yet given there is clearly no mention of his service abroad, and the fact Lord McGhie will be subject to a judicial oath in the UAE as well as adhere to his judicial oath in Scotland, clearly a register of Judicial Interests would require information such as this to be published, while currently, the Judicial Office for Scotland does not publish such information.

It would be useful for the Justice Committee to make enquiries as to the two separate judicial oaths and terms of service which Lord McGhie is subject to, here in Scotland, and in the United Arab Emirates, as clearly, such information should be present in a publicly available Register of Judicial Interests.

The dual service of Scottish judges in overseas jurisdictions, including the Gulf States should be further examined, in the light of the published reports and significant public interest in the cases of lawyer David Haigh, where a Scottish Sheriff accepted Mr Haigh’s account of Human Rights abuses, and torture in Dubai, and the case of Matthew Hedges – held for five months without explanation, then charged with, and found guilty on allegations of espionage.

In recent enquiries with the Judicial Office for Scotland, I have noted there are no recusals by Justices of the Peace since the guidance on recusals was extended to JPs as of January 2018.

However, since Tribunal members interests were added to the recusals register, recusals jumped from around 20 a year to 49 in the past year.

The lack of recusals for Justices of the Peace, who number around 450 and comprise the highest proportion in terms of numbers of Scotland’s judiciary, are worthy of scrutiny, particularly as the Scottish Justices Association have expressed negative sentiments towards reform and transparency in the past, notably in the case of media reports in relation to overseas trips by Justices of the Peace, which are covered in a Sunday Herald investigation forwarded with this submission.

As part of the further information which the Justice Committee may wish to seek on judicial conflicts of interest, I would suggest making enquiries to the Judicial Office on how the guidance on recusals is being implemented, and how far down the line it goes, for instance, in selection and subsequent training of judicial office holders prior to their service on the bench and how such guidance plays a role in every day court proceedings.

The Register of Recusals is available for inspection online http://www.scotland-judiciary.org.uk/68/0/Judicial-Recusals

I also suggest members study the Norway model of a register of judicial interests https://www.domstol.no/en/The-Courts-of-Justice/The-ordinary-courts-of-Norway/Dommeres-sidegjoremal/ and how such a model, with enhancements could be created for Scotland’s judiciary.

From the report of the Justice Committee’s initial consideration of the petition, I agree with the support expressed by members for progressing the petition from Rona Mackay, Daniel Johnson, and John Finnie MSP who stated “Future generations will be surprised that we do not have such a register already.”

The Scottish Parliament, by way of the Public Petitions Committee, MSPs during the full debate in October 2014 and now the Justice Committee have amassed a level of information and submissions on this petition which should go forward in the public interest to create a Registrar of Judicial Interests - and apply the same level of transparency for members of the judiciary, which already exists for all other branches of the Executive and those in public life.

However, the above submission was initially rejected, by a Scottish Parliament clerk – who claimed there was no existing biography for Lord McGhie on the Judiciary of Scotland’s website, and that Lord McGhie was in-fact retired.

The clerk was challenged on his claims after journalists confirmed the existence of the biography for Lord McGhie remained on the Judicial Office website – and that Lord McGhie had in-fact sat as recently as 2018 on cases in the Court of Session, sitting alongside Lady Paton and Lord Drummond Young.

Journalist Peter Cherbi tweeted out the sequence of his findings on twitter, here: Twitter - Content of Judicial Service Bio of Lord McGhie questioned

The clerk, who has since been identified as Seán Wixted – did not reply to the petitioner’s information confirming the existence of the biography of Lord McGhie, nor was any response given as to why court opinions also show Lord McGhie sitting in court, despite the clerk’s claim the judge was retired.

A revised submission to the Scottish Parliament’s Justice Committee contained the following substitute paragraphs:

It would be useful for the Justice Committee to make enquiries in relation to members of Scotland’s judiciary who serve in overseas jurisdictions and details in relation to the two separate judicial oaths and terms of service which judges swear to, in jurisdictions such as the United Arab Emirates and here in Scotland, as clearly, such information should be present in a publicly available Register of Judicial Interests.

The dual service of Scottish judges in overseas jurisdictions, including the Gulf States should be further examined, in the light recent media coverage of the dual service of Scottish judges and significant public interest in such cases.

and added the following suggestion MSPs experienced in the petition should be asked for evidence:

Lastly, and noting the recommendations listed in papers for members consideration of this petition on Tuesday 5 February 2019, I would like to request the Justice Committee invite members of the Public Petitions Committee to give evidence to the Justice Committee on this petition, given the PPC’s six years of experience, dedication and exceptional work on this petition, which has accumulated significant evidence, testimony and backing from all sections of the community in favour of creating a Register of Judicial Interests for members of Scotland’s judiciary.

It was further noted in emails provided to the media the petitioner was not allowed to inform MSPs of the clerk’s demand the submission was edited at the request of the Committee’s own clerk, Mr Wixted.

Previously, on the Register of Judicial Interests Petition -

A video report of the Public Petitions Committee backing for the petition can be viewed online here: Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

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

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

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

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.

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

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.

Monday, January 28, 2019

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

Justices of the Peace listed no recusals in court. CONCERNS are being expressed that Justices of the Peace are unwilling to declare conflicts of interest in court proceedings - after it emerged NOT ONE of Scotland’s Four Hundred and Fifty Justices of the Peace recused themselves from court proceedings in the past year – according to

The revelation comes after the Judicial Office for Scotland was quizzed on the lack of any registered recusal by a Justice of the Peace in the published Register of Recusals available on the Judiciary of Scotland website here: Judicial Recusals - Judiciary of Scotland.

In response to media enquiries the Judicial Office admitted 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 enquries for information relationg 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.”

The worrying admission from Scotland’s top judges of their lower ranking colleagues failure to declare any conflicts of interest - comes after a solicitor suggested Justices of the Peace are unwilling or are refusing to declare what are known to be numerous conflicts of interest.

The statistics of not one single recusal by Justices of the Peace – who vastly outnumber Sheriffs, Judges of the High Court and Court of Session – have raised eyebrows in legal circles – after the steep increase in published judicial recusals from around 20 a year to 49 resulted after a change in recusal guidance last year - which saw requirements placed on tribunal members to register conflicts of interest.

Further enqiuries to legal sources have established there is some reticence on the part of Justices of the Peace to comply with the new guidance on recusals.

Speaking on condition of anonymity - a solicitor who has represented clients in relation to cases with troubling outcomes - heard by a Justice of the Peace with a known history of failing to address issues in the JP court – commented that he felt Justices of the Peace were not respecting requirements to list or declare their conflicts of interest.

The solicitor added that - particularly if someone is unrepresented before a JP court, there is little incentive for court clerks or the Justice of the Peace themselves to recuse themselves – given there is currently no fully published Register of Judicial Interests in Scotland.

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 reports on Diary of Injustice 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.

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.

The remainder of Scotland’s judiciary – currently headed by Lord Carloway (Colin Sutherland) – have been required from April 2014 to recuse themselves from court hearings in which a potential conflict of interest may emerge, the Register of Recusals.

However, and curiously - the numerically superior force of Justices of the Peace were excluded from the Register of Recusals, created by Lord Brian Gill in April 2014 as a response to a probe by the Scottish Parliament into a petition calling for a fully published Register of Judicial Interests:

There has never been an explanation offered by Lord Gill, or his successor Lord Carloway – for the exclusion of Justices of the Peace from the Register of Recusals when it was created five years ago after the then Lord President Brian Gill, attempted to thwart what became a six year Parliamentary probe by the Public Petitions Committee into Judicial Interests - 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.

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

The petition has generated over sixty two submissions of evidence, twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate.

The investigation by MSPs of the proposal to create a Register of Judicial Interests – now in it’s seventh year - has since been taken over by the Scottish Parliament’s Justice Committee - and is due to be heard again on 5 February 2019.

Justices of the Peace resited scrutiny of junkets – demanded cull of whistleblowers:

It has also emerged that bitter divisions within the Scottish Justices Association – which saw ‘hysteria’ by senior figures in the Justice of the Peace courts against the Sunday Herald – after the paperreported on numerous publicly funded junkets for Justices of the Peace to New Zealand  and around the world – have similarly been expressed in private against the  new requirements of Justices of the Peace to reveal their conflicts of interest.

The Sunday Herald reported on the junkets for Justices of the Peace here: Justices of the Peace group under fire for latest 'junket' 

A further article in the Sunday Herald in relation to troubles at the Scottish Justices Association – after the Sunday Herald exposed the JP junkets - is reprinted below:

Mole-hunts and mass culls ... justices of the peace accused of 'borderline hysteria' after junket exposé

By TOM GORDON Sunday Herald 1 November 2015

THE Scottish Justices Association has been accused of "borderline hysteria" after proposing a mass cull of potential whistleblowers after being repeatedly criticised for overseas junkets.

The taxpayer-funded justice quango, which represents the country's 400 justices of the peace, is considering axing its entire board as part of an extreme mole-hunt.

The idea was proposed after the Sunday Herald revealed SJA chair John Lawless was going on a five-day, £3,500 conference trip to New Zealand in September.

The Glasgow and Strathkelvin JP had previously been to conferences in Malaysia and Uganda in 2011 and 2012 at a total cost of £3,800.

When the Sunday Herald enquired about his latest jaunt, outgoing SJA secretary Keith Parkes sent a furious email to the organisation's executive committee.

"The leak to the press should be considered a very serious breach of judicial ethics," he said, recommending an immediate report to a senior judge."

Parkes, who sits as a JP in Perth, suggested a complete clear-out of the SJA hierarchy.

"I consider that … the whole of the SJA executive committee should resign with immediate effect with new elections … where no current members would be allowed to stand."

Parkes is expected to raise the matter at the SJA's annual general meeting later this month.

Last year, the Sunday Herald revealed how Parkes, a former RAF pilot, sparked a row inside the SJA by going on a £3,000, five-day justice conference to Zambia.

Even some of his fellow SJA board members denounced the Commonwealth Magistrates' and Judges' Association (CMJA) event as a "junket" and a "gross misuse of public funds".

Held at the opulent Zambezi Sun Hotel next to Victoria Falls, the conference's entire last day was set aside for sightseeing.

This year's CMJA conference in the New Zealand capital Wellington, which Lawless attended, included two evening receptions, a "gala dinner", and another full day's sightseeing.

Although SJA bosses attending conferences are expected to write reports to enlighten their fellow JPs about the discussions, these have often been minimal in the past.

In 2008, two JPs at a CMJA conference in South Africa costing £4,227 produced "rather short reports that concentrated on their personal impressions of Nelson Mandela rather than what had been said at the conference", according to a leak - one report was just 250 words long.

Lawless's reports on his Malaysia and Uganda trips ran to 700 and 600 words respectively.

The SJA, which has a budget of around £18,000 a year, is entirely funded by the public purse.

Independent MSP John Wilson, who has previously queried the SJA's spending priorities, said the idea of replacing the entire executive was "borderline hysteria".

"This is a complete over-reaction," he said. "It's just because they've been named and shamed. The issue is not moles. It's junkets when the court service is underfunded and overworked." Lawless declined to comment.

The issue is not moles. It's junkets when the court service is underfunded and overworked;



Justices of the peace are lay magistrates who sit with a legally qualified adviser to deal with summary criminal cases.

There are around 450 justices, who are drawn from all walks of life.

Justices sit either alone or on a treble bench and deal with many driving offences such as speeding, careless driving, tachograph offences and driving without insurance.

They also deal with less serious assault, breach of the peace, theft and other less serious crimes. Their powers of punishment are limited to 60 days’ imprisonment or a fine of up to £2,500 or both and to disqualify drivers on a discretionary basis.

The office of Justice of the Peace dates back to 1609, originally involving administrative, policing and judicial functions. The current justice of the peace courts were created in 2007 to replace district courts, which were operated by local authorities.

The Scottish Courts and Tribunals Service is now responsible for the administration of Justice of the Peace courts, which are organised by sheriffdom rather than local authority area. Throughout their history, justices have remained lay people, dispensing criminal justice on a local basis.

Justices are appointed by Scottish Ministers for five-year periods on the recommendation of Justice of the Peace Advisory Committees.Portree.

Thursday, October 04, 2018

PARTISAN JUDGE: Accused of sexual misconduct, rage unbefitting a judge - Trump’s SCOTUS nomination Brett Kavanaugh still looks likely to succeed amid partisan Republican efforts to load the judicial dice

Partisan politics will probably ensure Kavanaugh nomination succeeds. SCOTLAND’S former top judge once said: “I do not know that we would want to have a judiciary here that is like the one in the United States. It depends on your personal point of view. I do not give you my view, but I am sure that you can guess what it is.”

Those words – of very clear condemnation of how judges are selected in the United States of America - came from Lord Brian Gill – during his testimony to the Scottish Parliament’s Public Petitions Committee in November 2015, reported earlier here: Scotland's former top judge lashes out at America’s justice system, accusing US judges of financial ties to corporations & vested interests

Admittedly, anyone watching last week’s Senate Committee on the Judiciary hearing where Judge Brett Kavanaugh - President Donald Trump’s nomination for the Supreme Court of the United States – responded to allegations from Dr Christine Ford that he attacked her, during their school years – may well think Lord Brian Gill’s comments are a beacon of sanity against Kavanaugh’s now widely mocked beer drinking amid the reporting of further allegations against him by at least two other women.

In some respects, Gill is correct.

Would anyone here want a judge like Brett Kavanaugh sitting in the Court of Session?

Most people, certainly outside the strange, ivory tower world of the judiciary & legal clique, would probably say a resounding “No”.

Yet here is the quandary – The world only found out about Kavanaugh’s temper, anger & rage – amid the accusations against him – because the judicial nomination process in the US is televised and open.

Here in Scotland, and the UK – the process of judicial selection and appointment is a very secretive, closed door affair where only in the past few years – due to the Scottish Parliament probe on judicial interests – has questions of the judiciary’s attitude against transparency revealed case after case where judges are simply not being honest with litigants, the courts, and ultimately the public with regards to their interests, and cases which come before our own judiciary.

So, even though Lord Gill’s disdain for the US system of judicial selection does have it’s merits, we in Scotland, and the UK still deserve to find out much more about our judiciary and how they are appointed, than a few pages of redacted FOI disclosures, and that very judicial anger for anyone asking for transparency.

Video footage of last week’s Senate Judiciary  where Dr Christine Ford and Judge Kavanaugh testified, is well worth a watch:

Professor Christine Blasey Ford & Supreme Court nominee Judge Brett Kavanaugh testify

Developments since the testimony, including details of the allegations by Dr Ford, and others - are widely reported in the US media however, one of the more relevant debates revolves around the tone and demeanour of Brett Kavanaugh during his testimony, revealing a rage from an experienced Judge of 12 years, which the public all across the world should take note of.

A judge and his rage.

The elderly, angry Senate Judiciary members – in their publicly funded jobs, some for up to 40 years, exhibiting the same self centred sense of entitlement exhibited by Judge Kavanaugh - even came out and supported his anger – for reasons they claim that he was unjustly accused.

Yet, if you ever ask a judge to comment on why anyone other than a judge may feel anger at being unjustly accused … you are often met with the same angry response that it is for judges to decide who can and cannot be angry if ‘their court’ convicts the wrong individual for crimes they never comitted.

Indeed, ask a judge why he failed to declare an interest in a multi million pound damages claim, you will often encounter a very rabid response, backed up with the same venom and malignancy we have seen in the Kavanaugh saga.

Quite a thing to see the anger of the judiciary spill out in public, when their sense of entitlement and demand for high office – comes up against scrutiny, and in the case of Kavanaugh – allegations he attacked a woman – Dr Christine Ford – who testified before the same Republican dominated Senate Judiciary Committee which is now hell-bent on sending Judge Kavanaugh to a lifetime appointment on the Supreme Court of the United States (SCOTUS).

And – just like how Justice Kennedy’s retirement came out of the blue - watch out for further sudden retirements from the US Supreme Court, which will enable the Trump administration to stack the court even more in favour of vested interests.

One last thing - Kavanaugh said during his opening statement that he travelled with President Bush  “…from Texas to Pakistan, from Alaska to Australia, from Buckingham Palace to the Vatican”

It would be quite interesting to see how many interactions Judge Kavanaugh had with the UK judiciary and political system … however, in our ever decreasing transparency & growing anti Freedom of Information culture in the UK, you can be sure little, if anything will ever emerge.