Saturday, April 19, 2014

WIGS TODAY, GONE TOMORROW: Top Judge would rather drop wigs, ermine robes than declare judiciary’s wealth, directorships & links to big business in register of judicial interests proposal

Lord President Lord Brian Gill reckons its easier to drop wigs than declare full interests in public register. LET’S face it, appearing in front of a group of ageing, yet influential, wealthy, secretive, and at times argumentative individuals who wear lengthy grey wigs, are draped ever so self indulgently in red & white ermine robes covered in red crosses, carry what appear to be a variety of implements, and on many occasions appear to have difficulty in operating a laptop, difficulty recalling the names of expert witnesses or referring back to evidence from previous hearings, is an intimidating experience. It certainly is an intimidating experience for many in Scotland.

Even more intimidating if you consider that these same individuals all live more or less in the same affluent areas, move in the same circles, go to the same clubs, have offshore investments,  own swathes of property while avoiding their name appearing on it, refuse to declare their interests or directorships openly, occasionally threaten the Scottish Parliament when it suits, have numerous & serious criminal convictions no one gets to know of, and, not forgetting that some are closely related to each other and switch their names around so you don't know if you have been before one of their parents or siblings in an earlier hearing.

This is not what you really expect to find in a court is it. Not in Scotland, in 2014. Surely not.

However, as we have seen from well over a year of media investigations and headlines of the secrets of Scotland’s judiciary, together with a full year of debate at the Scottish Parliament’s Public Petitions Committee - this is the true state of fact of Scotland’s courts and the judiciary today, and sadly has been for some time. Whether it is a criminal prosecution, or a civil damages case, these are the lives and the undeclared interests of the judges who hear you out.

The judiciary's personal, undeclared wealth including extensive family and business links throughout the legal profession, offshore ‘tax efficient’ trusts, ownership of numerous and high value properties through a variety of interesting arrangements, investments, directorships and shareholdings, collectively generate millions of pounds in earnings for the judges and their families each year – yet no one gets to know about it, because the judges have written their own rules exempting themselves from the same requirements of transparency they enforce against the rest of us.

So, when Scotland’s top judge decides it is time to make an attempt to make judges appear more “human” to the public, (but not more transparent or accountable) it is obviously an exercise in newsworthiness.

To this end, Scotland’s top judge, the Lord President Lord Brian Gill earlier this week declared in an official statement that “From Tuesday 22 April 2014 Senators of the College of Justice sitting in the Inner House will no longer wear formal robes and wigs when hearing civil appeals.”

Following a proposal by the Lord President the judges sitting in the Inner House have endorsed this change.  However, judges will continue to wear formal robes and wigs when hearing criminal appeals.

Eleven judges currently sit in the Inner House, which is the appellate section of the Court of Session.  The Inner House acts as a court of appeal for cases from the Outer House (Court of Session first instance courts) and for appeals in civil cases from the Sheriff Courts, the Court of the Lord Lyon, Scottish Land Court, the Lands Tribunal for Scotland, and other tribunals.

The Lord President has issued a Practice Note that counsel may appear without wig and gown and that solicitors with rights of audience may appear without gowns.

PRACTICE NOTE

No. 1 of 2014 Sittings of the Inner House

1. This Practice Note has effect from 22 April 2014

2. From the abovementioned date, Judges sitting in the Inner House will, ordinarily, no longer wear wigs and judicial robes.  Where this is the case  the court will not insist that counsel should appear with wig and gown or that solicitors with rights of audience should appear with gowns

3. Where the court intends to wear wigs and judicial robes,  for example at ceremonial sittings of the court, practitioners will be informed accordingly.

4. This Practice Note does not affect existing  custom and practice in the Outer House or in the High Court of Justiciary.

Brian Gill Lord President Edinburgh 16 April 2014

Lord Gill said of the changes: “In deciding to sit in civil appeals without robes or wigs the judges of the Inner House are in line with the practice of the United Kingdom Supreme Court. It makes sense in this day and age.”

Yet, it appears that while it is a simple matter for Scotland’s top judge to approve the removal of the judges much coveted symbols of judicial power and vested interests in this day and age, it is not so simple an act nor is it in the judiciary’s best interests to fall into line with the rest of the world in terms of transparency and declare their very much undeclared interests to the Scottish Parliament in connection with calls to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

TOP JUDGE DROPS WIGS, CONTINUES PROTESTS AGAINST TRANSPARENCY REGISTER:

Lord Gill’s first letter to MSPs declared judicial opposition to transparency. In Lord Gill’s opening letter to MSPs on the call for a register of judicial interests, the judge claimed “In practical terms it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case. The terms of the Judicial Oath and the Statement of Principles of Judicial Ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.”

In what was surely a hint of the sheer hostility felt by the judiciary against a call to bring transparency to judges interests, Lord Gill went onto accuse the media, press, litigants, court users and just about everyone else with an interest in transparency of being potentially hostile and aggressive, simply because someone may wish to raise questions of judges interests similar to the same kinds of questions which are raised of interests in other public officials and those in public life, politics & government.

Clearly angered by the call for transparency, Lord Gill’s letter to MSPs stated: “The introduction of such a register could also have unintended consequences. Consideration requires to be given to judges' privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary.”

Top judge Lord Gill refused to go to Holyrood, by letter. In a second reply to the Convener of the PPC, dated 2 April 2013, Lord Gill refused an invitation to attend the Scottish Parliament and face questions from Committee members on issues raised in the petition and to explain his own opposition to the transparency proposal.

Notably, Gill’s second reply did not contain any answers to questions put to him in writing by the Petitions Committee, nor did the judge provide any statistical or analytical evidence on the numbers of recusals which have been undertaken by judges in Scotland’s courts. However, seeking once again to lobby MSPs against any call for transparency of judges interests, the Lord President again referred to the content of an EU report, itself written by judges, who claimed there was no need for a register of judicial interests.

A further invitation was sent to Lord Gill by the Convener of the Public Petitions Committee, asking for answers to questions and again inviting the Lord President to addend the Scottish Parliament to give evidence on Petition PE1458: Register of Interests for members of Scotland's judiciary

Third letter from top judge refused Holyrood invitation, used Scotland Act loophole. Having received the third letter containing a second invitation to attend Holyrood, Lord Gill wrote back to the Convener of the Public Petitions Committee on the 28 May 2013, again refusing to appear before MSPs to face questions on judges interests and his own opposition to the petition.

However, this time the top judge added a hint that judicial cooperation with Committees of the Scottish Parliament may suffer and must be limited.

In what appears to have been little short of a veiled threat to refuse further judicial cooperation with, and future Committee appearances at the Scottish Parliament, Gill stated: “Judges have from time to time given evidence to committees of the Scottish Parliament on matters that affect the administration of justice in Scotland. I hope that that has been helpful in the legislative process. Judicial participation in the work of the committees must however be kept within prudent limits.”

And, shockingly, Lord Gill then sought to use deficiencies in the Scotland Act to justify his refusal to attend the Public Petitions Committee and answer question from msps.

Gill’s use of Scotland Act against MSPs was reported in the media. Writing in his third letter, Lord Gill said: “Section 23(7) of the Scotland Act provides inter alia that the Parliament may not require a judge to attend its proceedings for the purposes of giving evidence. This is not a loophole. It is a necessary part of the constitutional settlement by which the Parliament is established. Its purpose is to protect the independence of the judiciary, a vital constitutional principle that is declared in section 1 of the Judiciary and Courts (Scotland) Act 2008”

The judge continued: “When a committee invites a judge to give evidence before it, I have to decide whether the subject matter might infringe the principle of judicial independence; and whether the evidence required could be satisfactorily given in writing.”

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, and video footage of debates at the Scottish Parliament’s Public Petitions Committee deliberations on Petition PE1458: Register of Interests for members of Scotland's judiciary can be found here : A Register of Interests for Scotland's Judiciary

Friday, April 18, 2014

Top judge Lord Gill tells lawyers to ‘take opportunity’, says Courts Reform (Scotland) Bill will not reduce access to justice in speech to Law Society vested interests

Top judge reassures lawyers court reforms will not dent their profits or interests. IN a speech to multiple vested interests attending the Law Society of Scotland’s recent Annual General Meeting, Scotland’s top judge, the Lord President Lord Brian Gill has defended proposals contained in the Scottish Government’s Courts Reform (Scotland) Bill, claiming the reforms, based on recommendations of the 2009 Civil Courts Review authored by Gill himself, will not reduce access to justice as some lawyers claim.

The judge went on to tell the audience of those who make billions of pounds out of Scotland’s courts & clients each year that the reforms would instead offer opportunities to the solicitors' profession.

Lord Gill, who has previously addressed the Law Society’s AGM in his capacity as Lord Justice Clerk, most notably when he criticised Scotland’s civil justice system as being unfit for purpose, and “Victorian” in its workings, was speaking as the first Lord President to address the AGM.

The speech “Looking over the horizon – life after the Courts Reform Bill” was intended to allay widespread fears within legal circles that lawyers fees, income and law firm’s profits will be hit by reforms to Scotland’s civil courts which include transferring cases of £150,000 or less to the Sheriff courts, where legal fees are significantly less compared with charges levied by solicitors for attending Scotland’s highest court, the Court of Session based in Edinburgh.

Speaking on the “private jurisdiction of the Court of Session”, Lord Gill said: “It has been recognised from the earliest  days of the  Review, that not all low value cases are straightforward. There can be many complicated issues  in any type of case, regardless of value. It is foolish to suggest that  all low value cases are straightforward. It is foolish likewise to suggest that all claims raised in the Court of Session involved complicated matters of law and procedure. Experience shows  that the  majority  of the low value claims  in the Court of Session  are  straightforward. In any event, the Bill makes  provision for cases to be remitted to the Court of Session in appropriate circumstances (clause 88).”

“Some respondents to the Bill’s consultation have raised concerns that the remit test is too restrictive. In my opinion, it is essential that the remit provisions are necessarily robust.No one wants to see the daily  sheriff  court rolls  or  those of  the Court of Session  clogged with motion after motion  for remits. That  would seriously undermine the principles of the Bill.”

“The increase in the privative jurisdiction and in time, the introduction of the specialist personal injury court should ensure that cases find their appropriate level in the court system. Expenses will be lower for the parties. Cases shall be dealt with more expeditiously than at present. The specialist sheriffs, in partnership with the profession, will  develop a body of specialist and authoritative case law.  A greater emphasis on case management and improved use of IT will  be introduced by way of court rules and  will  promote  a pro-active, front loaded litigation  that reduces the time spent waiting in court for short straightforward hearings.  At the same time efficiencies  will  be improved in the Court of Session.”

“The Court of Session  will continue to be the forum for high value  and  complex cases. Our hope is that these cases can be dealt with greater expediency as a result of the reforms,  so that cancellations of hearings  because of  lack of judges and/or court time  will be a thing of the past.”

“On the subject of the ‘development of Scots law’, Lord Gill claimed: “I do not expect that there shall be any reduction on the quality of decision making or any adverse effect on the development of Scots law.  It is to the credit of our shrieval bench that  the  great  majority of cases do not result  in  an  appeal to the higher courts.”

“In the main, the quality of decision making is good, and  is complemented by the Judicial Institute and the excellent  training  and support that  it  provides. The reforms as a whole will bring significant benefits to the quality of decision making in the sheriff courts.  The  introduction of the new tier of ‘summary sheriffs’  will  ensure that  summary crime, housing and low value financial claims are dealt with expeditiously at an appropriate level in the court system.”

“The summary sheriff will possess the same level of qualification and experience as sheriffs proper. The  new tier  will  remove a significant amount of business  from the daily work of the sheriffs, allowing them more time to concentrate on the more difficult cases.”

“The Sheriff Appeal Court will provide increased scrutiny in the decision-making and writing process  than under the present system where the  sheriff principal  sits  alone. It will have a greater understanding and insight into the daily workings of the sheriff court than is enjoyed by the Inner House.”

“When one views these aspects of the reforms together with the fact that at present, many  civil  appeals go no further than the  sheriff  principal, it is hoped that few  appeals  will  have  to  be taken from the Sheriff Appeal Court.”

“What opportunity does it present? It gives to every solicitor in Scotland the opportunity to develop skill in appellate advocacy and to develop an expertise that has hitherto been seen as the exclusive preserve of the Bar.”

On the “Right to Counsel”, Lord Gill said: “I accept that these changes shall impinge on the types of cases in which  counsel may be instructed  without  their fees requiring  sanction from the court. I do not accept however, that the implementation of the Bill  will  remove access to justice.”

“Those pursuers who, at present, choose to litigate in the sheriff court as opposed to the Court of Session have received no lesser  form of  justice. I do not accept that it is a requirement for  ‘access to justice’  that litigants are provided with the choice of litigating in a more expensive forum with the requirement that  counsel has to be instructed to represent their interests. Why?  Firstly, access to justice is inevitably and inextricably linked with affordability.”

Lord Mackay of Clashfern recognised that in address that he made to the Royal Society of Arts on that very subject: “There is no doubt that under our present [justice] system cost is a major barrier to using the law. Reducing costs should not be seen as an end in itself nor as an inevitability leading to a second-rate system of justice. Cost effectiveness pursued  in  the right way will lead to a more affordable system  and to my mind is the only logical way to expect access to justice to be improved. I would like to emphasise that message. Affordability is the key to improved access to justice. Affordability to the taxpayer and to the individual.”

The  changes proposed seek to make the system more affordable for the client consumer.  That improves access to justice. Secondly, litigants are not being denied access to the courts, nor representation.

In conclusion, Lord Gill stated to the audience of solicitors: “The  prospects, in my opinion,  should make us optimistic. Our  civil justice system will be  fit  to serve  the  modern society  in Scotland that the previous generation of lawyers would not have recognised  and  will  promote the fundamental principles that I mentioned at the outset.    I am certain that the Law Society and its members shall not only survive the  legislation,  but shall adapt  to it in its  commitment  to excellence.  The reforms provide an opportunity for the profession to diversify, renew itself and to improve upon the  work already undertaken in the  Review. The opportunity is there for the taking.  I urge you all to embrace it.”

There was no mention in Lord Gill’s speech of transparency regarding judicial interests, an issue currently under consideration at the Scottish Parliament by way of Petition PE1458: Register of Interests for members of Scotland's judiciary.

In terms of the lack of a register of judicial interests, litigants in Scotland’s courts currently have no basis to establish whether the judge hearing their case or even a judge involved in a criminal case, should be asked to recuse themselves or not due to conflicts of interest or financial and other interests that members of the judiciary are not keen on declaring openly. Therefore reforms of the courts as currently proposed do not go far enough to allow the public to determine whether cases are being heard fairly or not.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, and video footage of debates at the Scottish Parliament’s Public Petitions Committee deliberations on Petition PE1458: Register of Interests for members of Scotland's judiciary can be found here : A Register of Interests for Scotland's Judiciary

Wednesday, April 16, 2014

DISHONESTY TRIBUNAL: 35 cases of dodgy lawyers with a mere 9 struck off & 26 slaps on the wrist is a “busy year” claims Scottish Solicitors Discipline Tribunal

Dishonesty among lawyers is tolerated more in Scotland. A SCOTTISH TRIBUNAL tasked with judging corrupt lawyers and applying sanctions from a slap on the wrist to a striking off, is generally viewed as an old pals act back slapping exercise which tolerates dishonesty among the Scottish legal profession much more than it’s English counterpart, say critics & clients who have endured lengthy and in many cases almost pointless hearings of the Scottish Solicitors Discipline Tribunal (SSDT).

The SSDT, who claimed in a recent legal profession internal media story that they had been through a “very busy” year to 31 October 2013, revealed the tribunal heard a less than stellar 35 cases compared to 26 for the previous year. The Tribunal claimed it had a "significant increase in business" in its hearings, which now also include appeals by lay complainers against decisions of the Law Society of Scotland not to make a finding of unsatisfactory professional conduct.

However, out of the 35 cases which actually made it to the tribunal through the usual maze of self protecting self regulation where lawyers regulate themselves, a paltry NINE cases resulted in solicitors being struck off, with the remaining solicitors receiving slaps on the wrist, broken down as three suspended from practice, two had a restriction placed on their practising certificate, four were fined and censured and a further six were censured.

And, while the SSDT claims to take its duties to deal with the worst elements of dodgy lawyers seriously, it has been reported by the legal profession’s internal media that in only two of the cases brought before the tribunal in the past year, undisclosed amounts of compensation were ordered by the tribunal to be paid.

A summary of the cases heard before the tribunal in it’s “busy year” claimed that: “In all, nine cases involved failure to complete conveyancing procedures in a proper manner (with or without other failures), and the same number saw a failure to comply with the accounts rules. Eight cases involved misleading the Law Society of Scotland or other parties, and seven a failure to reply to the Society or others. There were numerous other findings of misconduct including five of dishonesty.”

As of today, the 2013 annual report has yet to be published on the tribunal website, which is well known for its lack of information and more often than not publishing of judgements months after they have occurred – a move viewed by many in the media as an attempt to hide the true scale of dishonesty and dodgy lawyers from the public’s attention.

DISHONESTY IS THEIR GAME: The Scottish way of dealing with dishonest lawyers often gives a slap on the wrist whereas solicitors found guilty of dishonesty stand a greater chance of being struck off in the rest of the UK:

Dishonesty in Scots solicitors more common than lawyers would have us believe. SCOTTISH solicitors “make false representations in order to improve their client’s position, not necessarily their own”. This was a claim made by solicitor Alistair Cockburn, Chairman of the Scottish Solicitors Discipline Tribunal (SSDT) in response to key questions raised by BBC Journalist Sam Poling in a recent investigative programme Lawyers Behaving Badly which is no longer available for public viewing.

The claims made by the tribunal Chief led to startling revelations over how the lawyer led discipline tribunal which is charged with making findings against members of Scotland’s legal profession deals with allegations & evidence of dishonesty against rogue solicitors.

Insisting the discipline tribunal was ‘robust’ and had a duty to the public, the Chair of the SSDT went on to justify his position, stating “One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.” Mr Cockburn went onto claim dishonesty is not commonplace and would result in solicitors being struck off. The SSDT Chair told the BBC journalist: “Normally dishonesty will result in striking-off.”

In comparison to the light way in which the Scottish tribunal appears to treat dishonesty among legal colleagues in all its various shades, English legal experts who studied the judgements of the Scottish Solicitors Discipline Tribunal condemned the way dishonest lawyers are more often than not let off the hook in Scotland.

Speaking on a case where a well known Scottish solicitor accused many times before of dishonesty was at it again, English QC Andrew Hopper said on national television: “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”

Andrew Boon, Professor of Law added : “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”

Almost all complaints against solicitors indicate at at one stage or another, the solicitor was dishonest to their client, either by making a false representation to them as to the progress of their case, or making false representations to cover their own positions.

Very few complaints made by clients against Scottish solicitors which involve serious allegations of dishonesty have ever resulted in solicitors being struck off by the Scottish Solicitors Discipline Tribunal, and an ongoing media investigation into judges undeclared earnings from top Scots law firms has turned up links between serving members of Scotland’s judiciary, law firms, and solicitors who have frequently been accused of dishonesty yet never struck off.

Sunday, March 30, 2014

The Judges Ermine Piggy Bank: Scotland’s wealthy judiciary - detached from society and closeted in a rich secretive world of links to big business, undeclared earnings, directorships, offshore trusts & vested interests

Scotland’s rich judges act more like unaccountable directors of a business called justice. SCOTLAND’S judiciary are a group of select, predominantly white, extremely wealthy influential lawyers who have an unelected and almost unchallengeable power to stall or close debate on their own secret vested interests, change any of our lives at the stroke of a pen, or strike down legislation desired by the greater community and voted through by democratically elected politicians in our own Scottish Parliament.

Clearly any group in society which has this almost limitless power, must above all, be as transparent as other branches of government and society to which it applies its rulings. But, as we have found out during a full year of debate at the Scottish Parliament’s Public Petitions Committee, if anything, the judges are even more secret than the secret service itself when it comes to the thorny question of judges pecuniary and other interests.

Their personal, undeclared wealth including extensive family and business links throughout the legal profession, offshore ‘tax efficient’ trusts, ownership of numerous and high value properties through a variety of interesting arrangements, investments, directorships and shareholdings, collectively generate millions of pounds in earnings for the judges and their families each year.

Yet, to-date, not one court user, not one member of the public, not one accused person, nor the media or even our own members of the Scottish parliament have had the chance to scrutinise and question judges about their vested financial interests, as there is no register of judicial interests or any effective method of ensuring the judiciary declare their positions, connections and interests in a publicly available document as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

You will never see a judge come out of a food bank, even though at least one judge was charged with cheating the benefits system and others regularly claim poverty when faced with the prospect of investigations into their tax affairs, civil litigation or even seizure of their assets.

You will never see a judge on the homeless register – even though it turns out a good few of them curiously appear to own no property at all – preferring instead to rely on “creative property owning solutions” carefully constructed by their chosen law firms who create tax dodging trusts to get round inheritance taxes & capital gains taxes while the rest of the country are required to pay up, on penalty of the prospect of appearing before these same tax dodging judges who fail to recuse themselves over their own dodgy financial arrangements.

And, its not just the judges. Their families often share in this wealthy backslapping system where spouses, children and relatives end up in law firms, investment houses, banks and other professions and yet nothing, not a hint is ever declared when one of them or their firm ends up in front of their relatives on the bench.

In one example known to journalists, the son of one Scottish judge was given a prestigious job in a London based bank, simply because his father is a judge. Yet this individual, like another famous name who is generally considered to have ruined the UK’s biggest bank, had no qualifications necessary to undertake financial transactions of a scale entrusted to him, and thus went on to lose clients hundreds of thousands of pounds while fiddling his commissions and expenses claims.

Senior staff at this well known bank - which received massive financial bailouts from taxpayers after the banking crash of 2008, felt they could not sack the judge’s son, due to his father’s position on the bench. As losses to clients mounted and he cheated the bank even more, staff just had to wait on him departing of his own accord after “he became bored”.

But, it wasn't all bad news for the bank. In all of the cases in which this bank and other financial institutions linked to it or owned by it have appeared as a litigant in Scotland’s courts, not one recusal by the judge, or a number of his judicial colleagues who also have links to, and investments in the same bank, has ever taken place or been recorded in any document or even in published court opinions on cases which the bank won.

Another Scottish bank, well known for sponsoring events held by the Law Society of Scotland has relied on millions of pounds of business from many of Scotland’s law firms who have banked their client fund accounts there. These same law firms have employed some of our current judges in speaking events and other business.

But whenever questions arise over missing client funds involving solicitors and this same bank or its subsidiaries, and these cases eventually get to court and in front of a judge, don’t expect a recusal or anyone to bother asking, as there have been none.

Renewable energy. Yes. Members of Scotland’s judiciary were quick to spot the earnings potential of windmills, wave power and tree hugging. Yet while many judges have chose to invest in renewables, as well as adding a few of their siblings to the companies they invest in, there have been no recorded recusals when any renewable energy firms or their business ventures have appeared before our judges in Scotland’s highest courts.

Insurance. Members of Scotland’s judiciary on £150K plus a year have always viewed the insurance industry as a great little earner, yet when things go wrong, a few of the judges have suddenly claimed poverty to evade paying out rather than their investments paying them. Ever so dishonest, although it appears no action against any of the judicial dodgers was ever taken.

Its not all just about interests and money. Persons accused of criminal offences and their legal teams are not able to consult any register of interests to decide if the judge hearing the case may be required to recuse themselves.

A high profile case involving William Beck, who was wrongfully convicted of an offence saw Mr Beck appeal against his conviction only to be denied by the son of the judge who sent him to jail in the first place.

And then at a further appeal, Mr Beck encounter another judge who had prosecuted him and sent him to jail. The judge, Lord Osborne, claimed he had forgot and would have recused himself if he had remembered – yet his explanation has been rubbished by papers submitted to the court in which Osborne’s name as prosecutor appeared. Read more on this here: Failure to Recuse : Evidence handed to MSPs in judicial register of interests proposal reveals judges who blocked injustice appeal failed to declare interests in court

It is not so difficult to understand why a register of judicial interests is required.

When taxpayers throw massive £150K-£250K salaries and million pound plus pensions at what is ostensibly a former solicitor who sits in a court for a few hours a day looking old, bored & snored because he knows exactly how he is going to rule from the very outset, it should come as no surprise these same judges make sure their salaries and other undeclared earnings are dealt with in as tax efficient and income generating a way as possible. After all, they are in a position to ensure this, they have the influence to do this and they have written their own rules so no one can view this.

Indeed, such are the scale of the judges financial interests and undeclared earnings, it is little wonder Lord Gill felt safe enough to tell msps on the Scottish Parliament’s Petitions Committee that it would be almost impossible for judges to detail all their interests .. because if they did, there is a good chance hardly any case in Scotland’s courts could ever again be viewed as honest.

And even without all these revelations, the reasons why the judiciary should be required to comply with a register of interests are very simple to understand.

As serving members of the judiciary who claim to be bound by oaths and rules which now appear to have little credibility, these same judges have confirmed there is something to hide. It simply cannot be that the entire class of judiciary are exempt from the same levels of transparency as other branches of government and civil servants are required to follow. There is no excuse, no legitimate exemption.

The judiciary, and the Lord President himself, by opposing transparency to the point of threatening the foundations of the Scottish Parliament itself, have all lost sight of their service to the wider community, their obligations to the same levels of transparency they enforce in their own courts, and the needs of transparency in all branches of government in Scotland and the rest of the country.

If Scotland’s justice system is to be trusted, a fully transparent and detailed register of judicial interests with rules and guidance policed by an independent authority not connected to the judiciary, must be created.

Otherwise, litigants, court users, accused persons and even those solicitors who do try for their clients, are simply attending what is little more than a board meeting of a bunch of directors who more often than not have a vested interest in YOUR access to justice being denied.

HOW TOP JUDGE PROTESTED AGAINST TRANSPARENCY REGISTER:

Lord Gill’s first letter to MSPs voiced vociferous opposition to transparency. In Lord Gill’s opening letter to MSPs on the call for a register of judicial interests, the judge claimed “In practical terms it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case. The terms of the Judicial Oath and the Statement of Principles of Judicial Ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.”

In what was surely a hint of the sheer hostility felt by the judiciary against a call to bring transparency to judges interests, Lord Gill went onto accuse the media, press, litigants, court users and just about everyone else with an interest in transparency of being potentially hostile and aggressive, simply because someone may wish to raise questions of judges interests similar to the same kinds of questions which are raised of interests in other public officials and those in public life, politics & government.

Clearly angered by the call for transparency, Lord Gill’s letter to MSPs stated: “The introduction of such a register could also have unintended consequences. Consideration requires to be given to judges' privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary.”

Top judge Lord Gill refused to go to Holyrood, by letter. In a second reply to the Convener of the PPC, dated 2 April 2013, Lord Gill refused an invitation to attend the Scottish Parliament and face questions from Committee members on issues raised in the petition and to explain his own opposition to the transparency proposal.

Notably, Gill’s second reply did not contain any answers to questions put to him in writing by the Petitions Committee, nor did the judge provide any statistical or analytical evidence on the numbers of recusals which have been undertaken by judges in Scotland’s courts. However, seeking once again to lobby MSPs against any call for transparency of judges interests, the Lord President again referred to the content of an EU report, itself written by judges, who claimed there was no need for a register of judicial interests.

A further invitation was sent to Lord Gill by the Convener of the Public Petitions Committee, asking for answers to questions and again inviting the Lord President to addend the Scottish Parliament to give evidence on Petition PE1458: Register of Interests for members of Scotland's judiciary

Third letter from top judge refused Holyrood invitation, used Scotland Act loophole. Having received the third letter containing a second invitation to attend Holyrood, Lord Gill wrote back to the Convener of the Public Petitions Committee on the 28 May 2013, again refusing to appear before MSPs to face questions on judges interests and his own opposition to the petition.

However, this time the top judge added a hint that judicial cooperation with Committees of the Scottish Parliament may suffer and must be limited.

In what appears to have been little short of a veiled threat to refuse further judicial cooperation with, and future Committee appearances at the Scottish Parliament, Gill stated: “Judges have from time to time given evidence to committees of the Scottish Parliament on matters that affect the administration of justice in Scotland. I hope that that has been helpful in the legislative process. Judicial participation in the work of the committees must however be kept within prudent limits.”

And, shockingly, Lord Gill then sought to use deficiencies in the Scotland Act to justify his refusal to attend the Public Petitions Committee and answer question from msps.

Gill’s use of Scotland Act against MSPs was reported in the media. Writing in his third letter, Lord Gill said: “Section 23(7) of the Scotland Act provides inter alia that the Parliament may not require a judge to attend its proceedings for the purposes of giving evidence. This is not a loophole. It is a necessary part of the constitutional settlement by which the Parliament is established. Its purpose is to protect the independence of the judiciary, a vital constitutional principle that is declared in section 1 of the Judiciary and Courts (Scotland) Act 2008”

The judge continued: “When a committee invites a judge to give evidence before it, I have to decide whether the subject matter might infringe the principle of judicial independence; and whether the evidence required could be satisfactorily given in writing.”

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, and video footage of debates at the Scottish Parliament’s Public Petitions Committee deliberations on Petition PE1458: Register of Interests for members of Scotland's judiciary can be found here : A Register of Interests for Scotland's Judiciary

Thursday, March 27, 2014

Fees please, not Justice: Courts Reform (Scotland) Bill encounters more opposition from lawyers vested interests in hearings at Scottish Parliament

Reforming Scotland’s courts for easier public access is opposed by legal profession. SCOTLAND’S “Victorian” civil justice system will be turned into even more of a train wreck” than it currently is, by the Scottish Government’s proposed Courts Reform (Scotland) Bill, according to representatives of the Association of Personal Injury Lawyers who faced the Scottish Parliament’s Justice Committee earlier this week. The proposals to slightly widen Scots access to justice which are currently under consideration by the Scottish Parliament's Justice Committee were originally recommended by the current Lord President, Lord Brian Gill in his 2009 Scottish Civil Courts Review.

The latest opposition from the vested interests of the legal profession to the planned changes to Scotland’s inaccessible courts come after last week’s evidence from the Law Society of Scotland and the Faculty of Advocates who are both traditionally opposed to any reforms to the courts which allow the public greater and easier access to justice without having to go through expensive solicitors and QCs.

The overall tone of all opposition currently put before msps against the planned changes to the courts boils down to this – don’t allow people to access justice on the cheap, or do it themselves without a battalion of expensive lawyers and other so-called legal professionals.

The coverage from Tuesday’s session of the Scottish Parliament’s Justice Committee is available here :

Courts Reform (Scotland) Bill Justice Committee - Scottish Parliament: 25th March 2014

One of the more controversial aspects of the Courts Reform bill, that of transferring most of the Court of Session's existing workload to the sheriff court by allowing sheriff courts to hear cases up to the value of £150,000, has drawn special ire from lawyers and advocates who claim the sheriff courts are currently overwhelmed with work and cannot cope with the increased workload.

However, the more obvious factor in many from the legal profession opposing the switch from Scotland’s Court of Session to the sheriff courts is that of fees.

It is well known solicitors, law firms and advocates, both junior & senior counsel would rather operate in the expensive exclusive and tightly controlled environment of the Court of Session in Edinburgh rather than scuttle around Scotland having to attend cases and possibly pick up a lot less in fees.

The Scottish Government have included in the bill plans for a specialist personal injury court which would take many of the cases being transferred from the Court of Session. However, msps heard more from lawyers who attacked this plan as being "seriously underfunded".

In further evidence, Mr Ronnie Conway, who is the Scottish co-ordinator of the Association of Personal Injury Lawyers also maintained that projected savings to the legal aid fund were "illusory" because 85% of legally aided cases were successful and costs were recovered from the defender.

Laughably, Alan Rogerson of the Forum of Scottish Claims Managers, told msps that insurers wanted cases to settle rather than ending up in litigation. Not really. Not if it the claim has anything to do with the Master Policy or is a negligence case involving a lengthening list of professions and public bodies.

The Law Society of Scotland and Faculty of Advocates have previously given evidence against the reforms, which are also opposed by trade unions for the effect they are said to be likely to have on damages claims brought by their members. Typically, the legal profession has come out against the court reforms, with both the Law Society of Scotland & Faculty of Advocates opposing the changes. However, Citizens Advice Scotland and the consumer body Which? are among those who support the plans, on the ground that they would simplify the process of litigation.

The Scottish Government issued a Press Release earlier this week showing that while the number of civil cases being heard at sheriff court level has been declining – down 10 per cent between 2011-12 and 2012-13, a 43 per cent drop since 2008-09, the number of civil cases being heard at the Court of Session has remained steady. Personal injury cases accounted for 79 per cent of cases raised in the General Department of Court of Session .

Cabinet Secretary for Justice, Kenny MacAskill said: “The latest civil law statistics underline why we need to reform Scotland’s courts and in particular ensure that the right cases are heard in the right courts, at the right time. As highlighted by Lord Gill, our civil justice courts have remained relatively unchanged for more than a generation and need to be made more effective and efficient.”

“At present too many cases, particularly lower value personal injury cases, are being raised in the Court of Session – clogging up the system and resulting in higher costs and delays for the parties involved. Through our court reforms we will ensure such cases can be heard at a new, national specialist personal injury court, where they can be dealt with more swiftly at a lower cost. This will have little impact on the sheriff courts themselves – representing only a three per cent transfer of civil cases – but will have a considerable impact on the Court of Session, enabling it to focus on more complex cases.”

Friday, March 21, 2014

Courts Reform (Scotland) Bill v Vested Interests: Law Society warns against taking £150K claims away from ‘Victorian’ Court of Session’s stranglehold on Scots access to justice

Can a Sheriff tell the difference between £5K & £150K? Law Society thinks not. REFORMING Scotland’s Courts is never going to be an easy task when the judiciary, the legal profession and some of the people who actually run the courts system have vested significant financial interests in maintaining the current way of how things are done in our expensive, mostly out of reach and much derided justice system.

When a business is highly profitable, closed shop and draws in billions for lawyers, law firms, judges, their relatives, and anyone else who earns their keep from Scotland’s justice system, then why change it? - the Law Society of Scotland told msps earlier this week in their submissions to the Scottish Parliament’s Justice Committee who are considering the Courts Reform (Scotland) Bill

After all, the poor little Scots client and their family, matters little to lawyers with pound signs in their eyes and the wealthy, secretive judges clinging desperately to their hidden interests and fat Fred Goodwin style pension books.

Unless by chance, that same poor little Scots client and their hard working family has a legal case, a family tragedy, or a damages claim which can be milked for fees right up to the last minute before the lawyer walks off into the sunset, leaving the client unrepresented on the steps of Scotland’s ‘highest court’ – the Court of Session – also known as the worst, most abrasive, most intimidating and most expensive highest court in the entire European Union.

And then, lets not forget those hard working Scots clients who happen to have a property or land which a solicitor works out could be his at the end of the case, leading to a not too lengthy repossession to pay extortionate legal fees, handed over to the solicitor in a wink by some smiling happy judge who fails to disclose his own wife runs the very same law firm who are also known to fiddle their fee notes on a regular basis.

Then of course, there are the criminal cases where, if there is a prospect of extorting a few more million from Scotland’s publicly funded annual £150 Million legal aid budget, it’s full steam ahead for lawyers and the legal aid board have to fork out or else.

So you just know when the idea of reforming Scotland’s courts comes along to the Scottish Parliament, the vested interests crowd will be there protesting about tweaks, turns and a lot of what is effectively window dressing, because fiddling about with the current stitch up may impinge on lawyers profits. Easy to spot, about as easy to spot as a judge lifting his tax dodging offshore trust from one island and making off with it to another.

This week, a number of vested interests published their submissions to the Scottish Parliament’s Justice Committee on the Courts Reform (Scotland) Bill. Unsurprisingly, the Law Society, Faculty of Advocates and the Solicitor Advocates all came out against many of the key proposals in the Courts Reform (Scotland) Bill.

Courts Reform (Scotland) Bill 18 March evidence session at Justice Committee, Scottish Parliament

The Law Society of Scotland said in it’s own submission that the proposals contained in the bill could adversely affect access to justice due to the insufficient resources being allocated to implement the major reforms.

The Law Society went on to express concern at the dramatic increase in the threshold for cases to be heard in the Court of Session (up to £150,000 from £5,000) and warned that this will result in a large transfer of cases from the Court of Session (where no one without a deep pocket and a bent brief obtains justice) to the sheriff courts – without a matching increasing in the number of sheriffs.

The Law Society also expressed concern about the proposed changes to judicial review in Scotland, which will introduce a three month time limit on judicial review cases. The Law Society has already warned that this will restrict access to justice, although anyone who actually bothers to read some of the Judicial Reviews handed down by the Court of Session may well wonder why anyone bothers asking help from what is effectively a wave through for injustice and the vested interests of big business.

Adding to the profession’s mission to keep the money rolling in, the Faculty of Advocates claimed the reforms will put the best legal representation out of reach for ordinary men and women and favour those with deep pockets – as if it doesn't already. Ever heard the one about the QC, the bung and the ruined client? It’s a common joke around Parliament Square …

The Faculty went on to claim that one reason litigants pursue their cases in the Court of Session is because of the right to instruct counsel, who often act for pursuers on a no win no fee basis in personal injury cases. However, the Faculty forgot to explain to msps some of the other less professional ways in which Advocates end up very much in pocket even after allegedly representing someone on a no win no fee case.

In the Sheriff court, the Faculty said, use of counsel has to be sanctioned. Raising the threshold to £150,000 would therefore make it more difficult to instruct counsel, which the Faculty of Advocates claimed would reduce choice.

The Society of Solicitor Advocates also queried the impact of the Bill on access to justice, especially in relation to the lack of automatic sanction for counsel. It also warned that any financial savings that may be brought in by the changes will be “small and disproportionate to the detriment the changes will bring about,” and that the proposals will not make the justice system any more efficient, faster or less costly.

As usual, party litigants, those with out legal representation and anyone with a case which does not draw in big numbers, fails to get any mention.

All submissions of evidence for the Courts Reform (Scotland) Bill can be read here: Submissions received on the Courts Reform (Scotland) Bill

Wednesday, March 19, 2014

If the judge has nothing to hide, the judge has nothing to fear: Transparency of interests must apply to all in court, including the wealthy, vested interests of the judiciary

Judges are not accountable without a register of judicial interests. IN the wake of the latest revelations of a further two Scottish judges dodging criminal prosecutions in front of their own colleagues and in their own courts, this time for serious motoring offences, there are growing calls for a much wider scope of judges background, character & now records of criminal activity to be added to a proposal for a judicial interests register being considered by the Scottish Parliament’s Petitions Committee: Petition PE1458: Register of Interests for members of Scotland's judiciary.

And, while Scotland’s top judge, the Lord President Lord Brian Gill and his judicial colleagues appear to be more concerned with how accountable they are to each other, rather than how accountable they are to the public, the fact is that without a fully transparent and public register of their interests, Scotland’s judiciary are effectively a law unto themselves who can have little claim to public trust or public confidence in their judgements.

If the Lord President has such confidence in his judicial colleagues that they have nothing to hide, then he has nothing to fear.

However when Scotland’s judiciary from the top man down takes a position of such powerful opposition against transparency of judges financial & other interests, and then dares to effectively threaten Scotland's sovereign Parliament with loopholes within the very act of law in the Scotland Act which founded our current Parliament, there is very much something to hide, Lord Gill.

Petition PE1458 calls for a published register of interests documenting full disclosure of judges sizeable financial wealth, hidden family & business connections within the legal profession and controversial topics such as directorships, secret earnings from law firms & big business, criminal records of judges, and offshore ‘tax efficient’ trusts and investments which currently remain secret.

Those who are following the debate on Petition PE1458 will be well aware of support for the petition from Moi Ali, Scotland’s first ever Judicial Complaints Reviewer (JCR).

In a recent letter to the Petitions Committee, the JCR revealed Lord Gill had made some concessions on changes to the way in which complaints are dealt with my his own office.

Lord Gill will now provide the Judicial Complaints Reviewer with information on the ultimate outcome of complaints referrals made by the JCR to the Lord President’s office. And, complainers will now be provided with at least a summary of the investigation report into their complaint, where previously no further information was given out to complainers about what happened to their complaint.

The JCR also revealed to MSPs that, contrary to the Justice Secretary’s comments regarding the status of the Scottish Legal Complaints Commission in providing office space for the Judicial Complaints Reviewer, the SLCC did not believe that they should provide the JCR with any administrative support, given the fact the SLCC is paid for by lawyers (who recoup their subscriptions from hiking client fees).

The full text of the letter to the Public Petitions Committee from JCR Moi Ali is reprinted below:

Judicial Complaints Reviewer wrote to msps expressing view on recusals only data. In a letter to the Petitions Committee, Moi Ali, Scotland’s Judicial Complaints Reviewer said the Lord President’s proposal was “of limited value” The Judicial Complaints Reviewer told MSPs:

Consideration of Petition PE1458

On 9th October 2013 I followed up my evidence to the Petitions Committee with some additional information. I am now in a position to provide a further update which the committee may find helpful in advance of its deliberations this coming Tuesday.

When I wrote in October, it was to inform the Committee that the Lord President had confirmed that he would not be willing to provide me with information on the ultimate outcome of my referrals to him. I am pleased to report that he has since indicated that he recognises that it is helpful for me to be advised of the result of my referrals and that this will now happen. I very much welcome this development.

Another positive development is that the Lord President has agreed to my suggestion that complainers should, as a minimum, be provided with at least a summary of the investigation report into their complaint; previously they received no indication of what investigation had been carried out.

I am also pleased to see that the Lord President intends to publish information on recusals. While this is a step in the right direction towards greater transparency and accountability within the judiciary, regrettably it does not go far enough to address the concerns that complainers raise when they contact me.

As I understand it, the Lord President's proposal is simply to publish recusal information, but what about the occasions where a judicial office holder is unwilling to recuse despite being challenged to do so? Will such cases be reported upon publicly?

Since I gave my evidence to the committee last year, I have reviewed further cases in which conflicts of interest have been at the heart of the complaint. The recusal information the Lord President intends to publish will not help in situations where an alleged conflict of interest only comes to light after a court case is heard. The publication of a register of interest could actually avert the need for such complaints by enabling participants in a court case to challenge perceived conflicts of interest in advance or at the time, rather than after the case is heard. Without the publication of a register of interests, the publication of recusal data, while welcome, is of limited value.

If the issue were solely one of providing public access to recusal data, the Lord President's proposals would be of value. However, the issue from my perspective –as the only individual in Scotland who deals with judicial complaints reviews –is that the concern raised by complainers is failure to recuse; they do not complain about a dearth of recusal data.

It might be helpful if I outlined a typical scenario to help you see how the publication of recusal data alone will fail to address the concerns that those using my service report. Let us say that a defendant appears in court and the case is heard. Later the defendant discovers a potential conflict of interest and makes a complaint about the judge’s conduct. In my experience it is likely that the complaint will be dismissed as being about ‘judicial decision’(a decision that it is for a judge to make). Even if it proceeds to investigation –and most cases that reach me do not get this far –that investigation will be undertaken by a fellow judge. Should the complainer ask me to undertake a review, my hands are tied because all I can do is check that the complaints handling rules were followed. The rules say that a judge can investigate a complaint in whatever way they wish, so there are severely limited grounds on which I can challenge an investigation. Even if I believe that the wrong decision was reached, I cannot overturn that decision or even ask for it to be reinvestigated. Were there to be a register of judicial interests, individuals would be armed with the information to seek a judge’s recusal if necessary, and would not be left having to deal with the matter after the event using the complaints system. This would be in everyone’s interests.

I hope that you find the above helpful in your deliberations.

I also wanted to take the opportunity to respond to the Cabinet Secretary for Justice’s letter of 31st October 2013 to the Petitions Committee in respect of the comment that “Premises within the Scottish Legal Complaints Commission’s offices were secured for the JCR to allow her access to all workplace essentials and some administrative staff support. However, Ms Ali elected to work from home.”

The situation is that I arranged to use a shared ‘hot desk’ at the SLCC, but this was unsuitable as I did not know whether it would be available when I needed it and it was difficult to move files and equipment between my home and the SLCC. The SLCC do not believe that they should provide me with any administrative support, as their service is paid for by the legal profession and not the public purse.

You may know that I will not be seeking reappointment when my term of office ends in August. However, I am happy to provide any further information that the committee requires until that time.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, 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