Friday, April 17, 2015

MY COURT NOT YOURS: Scotland’s top judge slams politicians and government as “insidious” in law conference attack on transparency & calls to reform secretive judiciary & vested legal interests

Top judge Brian Gill attacks calls for judicial reforms. IN a speech to the Commonwealth Law Conference held in Glasgow SECC last weekend, Scotland’s top judge Lord President Lord Brian Gill accused government, legislators and transparency as being “insidious” threats to his way of doing things and the judiciary at large.

The lengthy speech from Gill (73), supposedly on independence of the judiciary & legal profession ended up as a bitter tirade aimed at politicians and those calling for reform of the secretive world of the nation’s judiciary and the vested interests of those at the top of the justice system.

Launching a fierce attack on calls for judicial transparency, the political process and Holyrood MSPs who are investigating accountability and transparency within the judiciary amid calls for a register of judges interests, Lord Gill told his audience: “The threats to judicial independence do not always come with a knock on the door in the middle of the night.  In a society that prides itself on the  independence  of  its  judiciary,  the  threat  may  come  in  insidious ways, even at the hands of well-meaning governments and legislators, in the name of efficiency and, ironically,  in the name of  transparency.”

And, Gill – Scotland’s longest serving judge - went on to tell his audience of lawyers, judges & academics that protesters he encountered standing on the Heart of Midlothian in Edinburgh’s Royal Mile were lucky they were not dragged off by Police.

In a swipe at unidentified persons who were apparently calling for the top judge’s resignation, Gill told his audience: “Two years ago, I was crossing the square outside my court when I noticed two individuals standing, perhaps appropriately, at the Heart of Midlothian, the scene of public executions in Edinburgh in former times. They were holding a large banner. It caught my eye. It said "Lord Gill - Resign!" I never discovered what their reasons were; but I thought what a privilege it was to be a judge in a society where the public could make a constructive suggestion of that nature without being taken away by the police.”

The barbed comments from the ageing judge against all and sundry come as Gill continues to fight a bitter two year battle against Holyrood msps who overwhelmingly support proposals to establish a register of interests for members of the judiciary as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

Since early 2013 Lord Gill has refused three invitations to appear before the Scottish Parliament’s Public Petitions Committee and be questioned on the issue of judges refusing to declare their interests.

The top judge has instead sent several strongly worded letters to msps warning them they cannot compel a judge to appear at Holyrood. Gill used a loophole in the Scotland Act to dodge questions on his hostility to transparency and also implied in a further letter he may have to reconsider allowing judges to cooperate with the Scottish parliament in the future.

The proposals to create a register of judicial interests envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Faced with investigating the secretive world of judicial vested interests, MSPs who sit on the Scottish Parliament’s Public Petitions Committee instead took evidence from Scotland’s first Judicial Complaints Reviewer (JCR) Moi Ali. During questions at the Scottish Parliament’s Petitions Committee, Moi Ali told msps there was little transparency or accountability in Scotland’s judiciary.

And, despite Scottish Ministers attempt to thwart a debate at Holyrood last October 2014, most msps backed a motion urging the Scottish Government to create a register of judicial interests – reported along with video footage & the official record, here: Debating the Judges

Speech given by Lord Gill to Commonwealth Law Conference Glasgow 2015 Continuing his lengthy seventeen page speech, Gill told his audience of legal professionals that judges lead a lonely life and have no support from anyone else except themselves.

He told his listeners: “The highest priority of judicial education is not to teach judges the law, but to teach them about themselves. The life of a judge is a lonely one where the only support network available is that of one's colleagues.”

However, the sad lonely life of a judge - as Gill would have the public believe - does not appear to preclude the judiciary from becoming involved in tax avoidance schemes, huge movements of wealth around the world, investing in companies who benefit from business in the courts and jet setting around the world at taxpayers expense.

Last year for example, Lord Gill flew off to a five day state visit to Qatar – details of which have been kept mainly hidden from prying eyes.

Gill was later criticised in the Scottish Parliament for attending Qatar and giving a speech on judicial ethics, while refusing to answer questions from msps on judicial ethics, accountability and transparency. MSP Jackson Carlaw even joked the Petition Committee should have gone to Qatar to question the top judge after he refused to show up at Holyrood,

Following Lord Gill’s frequent attacks on “aggressive media” over calls for transparency - and the top judge’s subsequent threat to ban journalists from accessing court documents last year in a highly public fit of pique, Gill launched another broadside against the press for their reporting of cases in the courts.

Gill said: “Criticism of one's judgments in the media is never a pleasant experience; but, as Lord Woolf has commented, we must swallow our pride and be thankful for a free press which stands to safeguard our independence.

Independence relies upon public understanding of our courts and the way in which they should expect our courts to operate. Public awareness breeds public confidence. For most people, newspaper accounts of court cases are the source of their knowledge of our justice system. There is inevitably a tension in the relationship between the judiciary and the media. The court adjudicates on matters involving the media fairly frequently. Therefore, as Lord Woolf rightly observes, we should be circumspect about having a relationship with the media that might cast doubt on judicial independence. It is a fine line to tread.

In modern times, our court systems have a dedicated media team, who liaise with the media to ensure that there is an open and accurate flow of information. For, the media are helpful to our cause only if facts are reported with accuracy. Good communication with the media – at arm's length - is a sign that our court system is in touch with the community and. I would argue, is in itself an important aspect of judicial independence.”

Speaking on his two year consultation to change the rules on judicial discipline and complaints – which ended up with much the same rules as before, Gill said: “A related and more obvious aspect of judicial professionalism is judicial discipline. It is immediately obvious that there is a tension between the concepts of accountability and independence. There must be an effective mechanism in place for investigating and sanctioning misconduct without eroding the independence of the judiciary.”

“Appointment to the bench does not confer immunity from discipline. It is therefore usually suggested that judicial discipline should be left in the hands of the judiciary themselves. That excludes the possibility of interference from the executive, but it does not entirely resolve the independence problem. If the judiciary is essentially self-regulating, the perception of a judiciary driven by self-interest and self-protection, and shrouded in mystery, will do us great damage. It does little to ensure that the public have a satisfactory impression of accountability.”

“In Scotland, this difficulty has been overcome by our adopting two distinct processes, namely, a complaints procedure and a 'fitness for office' procedure. If I were to conclude that a judicial office holder was unfit for office, the matter would be referred to an independent tribunal to investigate and report on whether there was unfitness to hold office by reason of inability, neglect, or misbehaviour. I have never had to take such a step. Disciplinary procedures of this nature are rare. We are fortunate to have a professional and dedicated judiciary. Perhaps, that is a reflection of the fact that we now have a comprehensive Statement of Principles of Judicial Ethics that spells out exactly what conduct we expect of our judiciary.”

Gill ended his speech describing his idea of the “ideal judge”, notably leaving out transparency as a requirement for those on the bench.

Gill told his audience: “So, what kind of judge do we wish to have? First and foremost a judge who is appointed fairly and publicly. Every decision to appoint is made ad hoc. Therefore we should not be excessively prescriptive lest we fail to allow for the unforeseen. But certain general priorities are there for your consideration. It is surely desirable that our ideal judge should be one who has experienced the true meaning of an independent profession and who exemplifies excellence allied to good judgment. A judge who is willing to learn and to be accountable. A judge who has self-knowledge, humility, and an understanding of the nobility of the office to which he has been called.”

Judges, lawyers and academics from many Commonwealth nations attended the conference at the Scottish Exhibition & Conference Centre (SECC). Those organising the conference claimed the gathering of legal eagles generated an economic boost in the region of £1.4m for the city.

The conference - last held in 2013 in Cape Town, South Africa – which Lord Gill jetted to at taxpayers expense has been brought to Glasgow in partnership between the Law Society of Scotland, Glasgow City Marketing Bureau (GCMB) and the SECC. It is officially the conference of the Commonwealth Lawyers Association, which works to promote human rights and the rule of law across the Commonwealth, and to support lawyers in countries where their work may incur sanctions from the authorities.

Just prior to the start of the event, it was revealed Wikileaks founder Julian Assange was booked to speak to the conference via video link.

During his speech, Mr Assange suggested communications were being monitored between legal professionals and the wikileaks team.

However, when judges discovered the Assange booking, several judicial figures including Lord Gill and also Lord Neuberger & Lord Hodge of the UK Supreme Court among others - walked out of the conference.

A spokesperson for the Judicial Office for Scotland said: “The conference programme was changed to include Mr Assange’s participation at short notice and without consultation. Mr Assange is, as a matter of law, currently a fugitive from justice and it would therefore not be appropriate for judges to be addressed by him.Under these circumstances the Lord President, Lord Gill and the other Scottish judicial office holders in attendance have withdrawn from the conference.”

A spokesman for the UK Supreme Court said: “Lord Neuberger and Lord Hodge share the concerns expressed by Lord Gill and his fellow senior Scottish judges regarding the late addition of Mr Assange to the conference programme. As a result of this unfortunate development, they trust that delegates will understand their decision to withdraw from the conference.The justices took this action regretfully, as they value greatly the work of the Commonwealth Lawyers Association and the role of the conference as an important forum for sharing experiences and good practice across the legal profession.”

The Judicial Office have offered no further comment on Lord Gill’s remarks.

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

Thursday, April 09, 2015

THE LORD'S RULES: Top judge's two year consultation & tweaks to rules allowing judges to investigate themselves is 'missed opportunity' says former Judicial Complaints Reviewer

Lord Gill’s new rules more like old - says former JCR. A TWO YEAR consultation held by Scotland’s top judge Lord President Lord Brian Gill on proposed updates to rules governing complaints about judges has been criticised by Scotland’s first Judicial Complaints Reviewer (JCR) as an “opportunity missed”.

Moi Ali – who stood down from the post of JCR last year after telling msps her role to review judicial complaints was “window dressing”, said: “The Lord Presidents’ consultation ended in 2013 and I am surprised that it has taken until now to come up with what appear to be largely the same rules, albeit with a few small tweaks.”

The proposed rules on judicial complaints, published by the Judiciary of Scotland only last week - coming two weeks after an investigation revealed the lack of activity by Lord Gill on the promised changes to judicial rules – bring little comfort for those seeking transparency and accountability in Scotland’s judiciary.

Lord Gill (73) also sent a copy of the consultation and rules changes to members of the Scottish Parliament’s Public Petitions Committee - who are investigating calls to create a register of judicial interests as proposed in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The Judicial Office claim the new rules and guidance for complainers simplify and streamline the process for dealing with complaints and make clear the matters that can properly be investigated.

However, there is in fact little in the changes proposed by Gill which satisfy falls for increased transparency and accountability in the judiciary.

Consultation & rule changes feature in letter to MSPs scrutinising judicial interests register petition. The proposals – which took the top judge an incredible two years to consider - in between international trips & ‘diplomatic commitments’ – do not include the creation of a register of judicial interests - which court users & legal teams could use to require judges to recuse themselves from hearing a case – rather than as the rules prefer – complain about matters to a judge up to three months after the event took place.

While serving as Judicial Complaints Reviewer, Moi Ali launched her own consultation on judicial complaints procedures.

Commenting on the results of her own consultation, Moi Ali said: “I conducted a detailed consultation of my own when I was Judicial Complaints Reviewer, speaking with those who had used the complaints process. They deemed it unfit for purpose at that time.”

Ms Ali continued: “I am disappointed that the thrust of my response to the Lord President, based on that feedback from ordinary Scots, has not been incorporated. I asked for more user-friendly, plain English Rules, but this has not happened. I also hoped that a mindset that welcomed complaints and recognised the genuine value of encouraging complaints would have shaped the new Rules, but instead the inbuilt deterrent to complainers remains. The new Rules are an opportunity missed.”

Among the small changes to the rules announced by Lord Gill, is a proposal to publish details of those who make complaints about a judge – as well as revealing the identity of the judge involved in the complaint.

However, Gill’s idea to out members of the public in a bid to deter them from complaining about poor or dodgy judges may fall foul of data protection laws.

Speaking on the Lord President’s idea to publish, former JCR Moi Ali said: “I note that the Lord President has included a new Rule which allows the publication of complaints cases. If this is a bid to increase transparency and to bring Scotland into line with England and Wales, where details of upheld complaints  are published on the internet, then I welcome the move. However, I am concerned that the details of the complainer may also be published, as I fear that this may deter people from making legitimate complaints. Entirely innocent parties should have their confidentiality protected."

The Judicial Office refused to make further comment on the small changes to the rules announced by Lord Gill.

At a date yet to be decided in May 2015, the Scottish Parliament’s Public Petitions Committee will consider the rule changes proposed by Lord Gill - who has so far refused three invitations to appear before msps to answer questions on his hostility to judicial transparency and the creation of a register of judicial interests.

Gillian Thompson – who took over from Moi Ali as Judicial Complaints Reviewer recently told msps she also supports the creation of a register of judicial interests – reported here: New Judicial Complaints Reviewer supports proposal to Scottish Parliament to create a register of interests for judges

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

JUDGES WHO WRITE THEIR OWN COMPLAINTS RULES:

How YOUR complaint against a judge ends up in a tangle of judicial gobbledygook. As head of the Scottish Judiciary, the Lord President is responsible for making and maintaining appropriate arrangements for investigating and determining matters concerning the conduct of judicial office holders. The Judiciary and Courts (Scotland) Act 2008 makes provision for the Lord President to make rules in connection with these matters.

The previous Lord President made the Complaints about the Judiciary (Scotland) Rules in 2011. After two years of administering the Rules, some administrative issues had been noted and it was agreed that a review of the Rules should be undertaken. The Judicial Office for Scotland (JOS), on behalf of the Lord President ran a consultation for 12 weeks in 2013. The consultation document sought views on several matters relating to proposals for revised Complaints about the Judiciary (Scotland) Rules and included draft rules.

The Judicial Office proposed rules on what can and cannot be investigated state: “We can only investigate complaints about a judge’s personal conduct. We cannot consider complaints about judicial decisions or the way a case has been managed. These matters can only be challenged by appeal. The definition of personal conduct covers a wide range of behaviour both in and outside of court. However, you should understand that on occasions a judge may have to be firm, direct or assertive in his or her management of a case. A complaint must be made within 3 months of the incident you wish to complain about.”

Listed among examples for complaints are: Use of racist, sexist or offensive language, Falling asleep in court, Misusing judicial status for personal gain or advantage, Conflict of interest.

Examples of what cannot be investigated include judges accused of criminal behaviour : A judgment, verdict or order, Sentencing decisions, What evidence should be, or has been considered, The award of costs and damages, Whose attendance is required at court,  Who should be allowed to participate in a hearing, Allegations of criminal activity (criminal allegations should be directed to the police)

Monday, March 30, 2015

GIFT HORSE: Secret gifts register reveals rogue lawyers & law firms using hospitality relationships with Scottish Court Service staff to increase legal aid business, poach clients from rival solicitors

Legal Aid client poaching & hospitality racket in Scots Courts. LAWYERS accused of making suspicious, erroneous or fraudulent legal aid claims appear among a list of high earning legal aid law firms in a register of gifts & ‘hospitality’ received by staff at the Scottish Court Service (SCS).

The documents, finally disclosed to journalists after court bosses failed to convince the Scottish Information Commissioner it should remain secret – identify ‘significant’ hospitality relationships between law firms who have received tens of millions of pounds of legal aid, local courts and court employees right across Scotland.

And it has emerged the extent of ‘hospitality’ to court staff is so great - some local courts have been the scene of ‘gift wars’ between law firms – with solicitors raising the stakes over rivals using hospitality to ensure business came their way at the expense of competitors.

The extent of gift giving in exchange for business referrals - raises questions over whether it is appropriate for court staff – who run the courts at taxpayers expense - to enter into hospitality relationships  with solicitors who have a stake in dragging on court cases to beef up their fees and claims for legal aid.

And, some law firms on the list have been implicated in allegations of questionable legal aid claims. In other cases, law firms , activity resulting in criminal charges against staff.

In one case, the law firm of NS Lockharts Solicitors – run by Niels S Lockhart - a sole practitioner in Kilmarnock who was the subject of a Scottish Legal Aid Board investigation into huge sums of legal aid claims of over £600,000 in three years also appears in the list. NS Lockharts Solicitors are identified as providing hospitality to local court staff in Ayr Sheriff Court.

Lockhart ‘withdrew’ from the legal aid register after an investigation by the Scottish Legal Aid Board.

In another case of gift giving between lawyers on the legal aid ticket and court staff - the law firm of Bell & Co Solicitors are also identified as hospitality providers to staff at Kilmarnock Sheriff Court. However, Bell & Co hit the headlines two years ago when one of their Paralegals – Arlene Reid - was jailed for two years - for embezzlement and mortgage fraud totalling £87K after Reid defrauded her own employers and the Alliance & Leicester Building Society.

Gifts Register identifies Scots law firms ‘hospitality’ to court employees The list of law firms, together with a list of hospitality released by the Scottish Court Service identifies law firms who receive millions in taxpayer funded legal aid every year.

Hospitality on the list ranges from boxes of chocolates, alcohol, invitations to dinners with the ‘vested interests club’ - top lawyers, law firms, the Faculty of Advocates & the Law Society of Scotland,  big business hosts & even “Royal Garden Parties”. Other hospitality include trips on boats, gift vouchers for high street stores, dinner parties with Police, and - bunches of flowers.

The extent of hospitality relationships between court staff and law firms have raised suspicions SCS staff are providing lawyers & law firms with personal favours in return, which in some instances are leading to criminal cases ‘taking their time’ through the courts owing to overly friendly relationships with local law firms & local court staff.

Information has also been provided to journalists – alleging undeclared financial relationships between court staff and law firms, in relation to the purchase of properties & land, provision of free or discounted legal services to SCS staff in their personal legal affairs, and instances of SCS staff providing return favours for solicitors when asked to do so.

Speaking to Diary of Injustice earlier today, a solicitor from a law firm which has provided small amounts of hospitality as a matter of courtesy and thanks to local court staff, said he was aware some law firms were offering additional gifts to SCS staff as a way of drawing in business. He described the situation as “unfair practice”.

The solicitor told DOI he was aware of several cases where court staff received discounted or free legal services – from law firms who were taking clients from others including his own firm.

Asked if he believed all hospitality provided to court staff was being declared, the solicitor replied: “No, it is not.”

And. in an example of law firms poaching each other’s clients using hospitality to court staff – DOI uncovered a case where ‘regular’ criminal legal aid clients of one law firm - were allegedly directed to another law firm by a court clerk in receipt of ‘hospitality’.

However, the switch did not result in a good move for the clients -  who ended up jailed for minor criminal offences after a trainee solicitor from the law firm they were sent to – messed up their defences and pleadings.

Commenting on the documents, the Scottish Legal Aid Board said: “If there was ever any evidence that a solicitor providing legal aid had acted in an inappropriate manner in relation to the provision of legal aid we would investigate and, if appropriate, use the sanctions available to us under the legal aid legislation.”

In an earlier investigation by DOI, it was revealed Gillian Thompson OBE – now the Judicial Complaints Reviewer (JCR) – authored a report on undeclared relationships between employees of the Scottish Court Service, law firms, and other vested interests. The report, published by DOI – revealed court staff are making money on the side via relationships with law firms.

Diary of Injustice reported on concerns regarding hospitality involving Scottish Court Service employees where Ms Thompson was asked by the Scottish Court Service to investigate reports of irregularities in hospitality given to court staff. The request for the investigation came after the SCS received Freedom of Information requests regarding hospitality in the courts, prompting concerns some staff may have accepted gifts or hospitality but failed to register.

Report said SCS Registers were insufficient, and Court staff involved in private gain failed to declare. Gillian Thompson’s Report on Hospitality & Gifts in the SCS stated:  “The information currently captured on the registers is insufficient to provide assurance that staff are using their common sense and considering issues such as conflict of interest.

Ms Thompson went on to recommend the “SCS should revise the Policy on Acceptance of Gifts, Rewards and Hospitality to ensure that it is fit for purpose for all staff, taking account of the various roles performed within SCS. It may also be time to revisit the levels of value for gifts and hospitality.”

The former AIB’s report also revealed court staff were using their positions to earn money privately from their links with lawyers and law firms operating in courts, stating “Several staff raised the issue of sheriff clerks who carry out extrajudicial taxations and private assessments and who personally benefit financially from these activities.”

Ms Thompson’s report roundly condemned this practice, stating: “Not only is it inappropriate in terms of the civil service code requirements for staff who are public servants to be able to receive private gain from their employment it is also highly divisive when other staff see such benefits being derived from simply being in the right post of Auditor of Court within the Sheriff Courts.”

Ms Thompson recommended in her report the “SCS should bring the practice of sheriff clerks profiting privately from their employment by SCS to an end as quickly as possible”.

HOW COURT CHIEFS LOST HOSPITALITY INFORMATION BATTLE

The Scottish Court Service initially refused to release the gift register, claiming “the names of the gift or hospitality provider would be deemed as personal information” and “as the provider of the gift or hospitality was not made aware at the time that their name may be released, we consider disclosure of such is likely to bring the Scottish Court Service into conflict with the data protection principles.”

However, the request – from DOI – triggered a review of hospitality policy at the Scottish Court Service, leading to names of ‘'hospitality’ providers being added to the register.

Richard Warner of the SCS said: “I can advise you that due to your request for this information, the Scottish Court Service has changed the policy covering hospitality and gifts to ensure that the provider of any hospitality or gift are made aware that their name shall be entered on to our register and may be disclosed if requested in any future information request. This policy change shall take effect as from 1 January 2014 so the release of names may be considered in any future request for gifts or hospitality offered from this date. The policy also states that if the provider does not consent to their name being considered for release then the gift or hospitality cannot be accepted by a member of staff.”

After a request for review of refusal to disclose the information, the SCS again refused - this time around, claiming it would cost them too much to contact each law firm to ask permission to disclose their ‘hospitality’ to court employees. The SCS claimed they would have to contact every lawyer who gave a gift and this would cost too much to provide the information.

DOI journalists took the matter up with the Scottish Information Commissioner – who requested Courts Chief Eric McQueen provide an explanation as to why the courts were blocking release of information on hospitality relationships between the legal profession and court staff.

John Kelly, Freedom of Information Officer at the SIC said: “Having written to and discussed the matter with the SCS, without being required to do so by way of a formal Decision Notice, the SCS has agreed to provide you with the information requested, subject to redactions in terms of section 38(1)(b) of FOISA on the basis that to disclose some of the names of individuals would breach the first data protection principle of the Data Protection Act 1998 (the DPA). I understand that the names of Solicitor and Law Firms will be provided.”

After the intervention of the Scottish Information Commissioner, the SCS subsequently released the hospitality list to DOI.

Richard Warner for the SCS said: “Having reconsidered your request, and the SCS response, I now attach a list which indicates law firms where this information has been recorded.  For the reasons stated in our earlier response this does not include the names of any individuals concerned as there could have been no expectation on their part that this information would be circulated or published widely.  As indicated previously, steps are being taken to ensure that individual persons are made aware at the relevant time that their details made be released as a result of an information request.”

Wednesday, March 25, 2015

GOOD LORD, RULES? Scotland’s top judge keeps MSPs next move on register of judges interests on hold - as files reveal two year consultation on judicial complaints rules is exercise in ‘perception’

Top judge Lord Gill & the two year rules consultation. TWO YEARS after Scotland’s top judge Lord Brian Gill launched a ‘consultation’ on amending rules governing complaints about the judiciary, documents obtained from the Judicial Office appear to suggest the entire exercise is little more than an attempt to delay calls for greater judicial accountability.

The development comes as legal observers await the next move by members of the Scottish Parliament’s Public Petitions Committee in their two year investigation of judicial transparency and proposals to create a register of interests for judges - Petition PE1458: Register of Interests for members of Scotland's judiciary.

In cryptic exchanges between staff of the Scottish Court Service, a short series of emails reveal the consultation exercise on amending complaints rules is seeking to create a process where there is a ‘perception’ complaints about the conduct of judicial figures are being more fully investigated and dealt with than under the current regime of judicial self regulation – where Lord Gill decides the fate of each complaint himself – usually resulting in the dismissal of a complaint.

And despite calls for Gill (73) to update members of Holyrood’s Public Petitions Committee on the rules consultation, over four months since the last exchange from Scotland’s longest serving judge – dubbed Lord NO-NO for his refusal to face MSPs questions at Holyrood – the Lord President has yet to report back to the Public Petitions Committee on his intentions to ‘improve’ the process by which court users, litigants, legal agents and the public can make complaints about judges.

In the documents released by the Scottish Court Service in response to a Freedom of Information request, it is clear little activity with a motive to create fair rules around judicial accountability has taken place on the ‘consultation’ which began in early 2013.

In one poorly edited email, the true nature of the consultation emerges –  a staff member at the Scottish Courts Service states: “… it has to be agreed to - and perception about this being a process for the complainer to be satisfied? However, I might be remembering incorrectly - let me know.”

Two years of silence & secrecy ensue, while Lord Gill and his colleagues on the bench fly around the world to posh meetings with big business, vested legal interests, and lavish state visits to Qatar.

Then, finally in mid January of this year, court staff again discuss the rules which are yet to be implemented, two years on.

An email dated 15 January 2015 from the “Head of Strategy for the Judicial Office” states: We discussed and you agreed to prepare a response to the consultation on the Complaints About the Judiciary (Scotland) Rules. Firstly, I attach:

1. Consultation document.
2. Consultation responses.
3. Consultation response analysis.
4. Minute from to the Lord President setting out draft new rules.
5. Copy of draft guidance - this will need further amendments depending on what you determine.
6. Current rules and guidance which are all online:
Complaints about the Judiciary

What needs done:
• Review the documentation.
• Consider the draft new rules, 'minute and the report on the complaint rules consultation.

What have we:
a. Accepted and included in the new rules;
b. Needs to go into guidance; and
c. Consider what needs to be published in response to the consultation.
• Once the above is done we should discuss your findings and then consider next steps

The Scottish Court Service refused to identify the authors of, or release any of the consultation responses or any further material on the discussions relating to proposed new rules on judicial complaints.

The existing rules on judicial complaints - in force since 2013 - were condemned by Moi Ali - Scotland’s first Judicial Complaints Reviewer as ““window dressing” during an evidence session at the Scottish Parliament’s Public Petitions Committee in September 2013, reported here: As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

Coverage of a full debate on the creation of a register of interests for Scotland’s judiciary – held at the Scottish Parliament on 7 October 2014 - where MSPs overwhelmingly backed a motion urging the Scottish Government to create a register of judicial interests was reported here: Debating the Judges

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

JUDICIAL COMPLAINTS – NO INDEPENDENT ELEMENT

JCR should have more powers – Moi Ali. In the second annual report as Judicial Complaints Reviewer, Moi Ali called for the Scottish Government to give more powers to the JCR’s office to deal with errant judges. Ms Ali said: “I think fundamentally the problem is the legislation. “The way it’s created, it’s about self- regulation so you have judges judging judges’ conduct. There isn’t really an independent element.“I’m presented as the independent element but, without the powers, I can’t be independent. We have the appearance of independent oversight but not the reality.”

After Scottish Ministers refused to give the JCR role a wider remit in 2014, Moi Ali stepped down from the position, citing she had no power and the role was "tokenistic".

Moi Ali’s third and final report as JCR : Report of the Judicial Complaints Reviewer 2013-2014 - details complaints of alleged racial bigotry, bullying, lying, conflicts of interest and making secret recordings of meetings.

Commenting on the attitude of the judiciary, Moi Ali said: "Unfortunately, there has been little interest in the positive difference that the JCR could make.Although I have had a good working relationship with the judicial office, I have met the Lord President just once in three years.”

"My interactions with both the Lord President's office and the judicial office have focused more on what I cannot do rather than what I can do and as such, an opportunity for whole system improvement has been lost.

In an earlier letter to MSPs, Moi Ali wrote of her support for the creation of a register of judicial interests and an increase in judicial accountability & transparency.

Ms Ali told MSPs: “The position of the judiciary is incredibly powerful. They have the power to take away people’s assets, to separate families, to lock people away for years. Some of these people will not have committed a crime. They may be women who want protection from abusing partners, fathers who want access to their children, or people whose home is at stake due to various legal or family wrangles. People going through the court system face stress and anxiety, perhaps financial pressures, and fear about the future. Their perspective is important and must be a consideration in this matter.

Given the position of power held by the judiciary, it is essential not only that they have absolute integrity but crucially, that they are seen to have absolute integrity. Again, a register of interests is a way of demonstrating that a judicial office holder is impartial and has no vested interest in a case –financially, through family connections, club/society membership or in any other way. Conversely, the refusal to institute a register of interests creates suspicion that in turn undermines judicial credibility. So once more, a register of interests is good for the judiciary and good for the public.”

Thursday, March 19, 2015

WOLFFE HALL: As Edinburgh City Council demand return of Parliament House land titles, papers reveal Scottish Ministers refused to help recover ‘gift’ of Scotland’s top court buildings to Faculty of Advocates

Court battle looms over Scotland’s top court buildings swiped by legal fraternity AS LAND GRABS go, the Faculty of Advocates ‘assuming title’ to parts of the nation’s top court buildings – Parliament House in Edinburgh - must rank pretty high on the list of Scottish land swindles.

Even more so if you take into account the land grabbers in this case – highly paid advocates clad in Victorian robes – who appoint each other as judges, prosecutors and the like, and debate ordinary folk’s lives, loves & rights as if they did not even exist – have the last say and last word on ‘justice’ and many aspects of politics and public life in what passes for ‘modern day’ Scotland.

The great Parliament Hall land title swindle – revealed by land reform campaigner Andy Wightman - where land titles to the buildings of Scotland’s top courts were ‘gifted’ by Scottish Ministers to the Faculty of Advocates - has now prompted Edinburgh City Council to demand the return of what is, common good property – our top courts – which clearly have significant interest to the nation.

However, Scottish Ministers – including the First Minister, lawyers and other Govt. advisers, appear to feel otherwise.

A trove of eighty eight pages of documents  released to DOI under Freedom of Information legislation reveal the Scottish Government plan to do nothing over their handing over of the Parliament Hall land titles to the Faculty of Advocates.

And, throughout the documents – which contain communications between civil servants, briefings to Ministers, land reports and letters from Edinburgh City Council asking for meetings, it is clear Scottish Ministers favour leaving the titles to the nation’s top courts with the vested interests of the legal profession.

The titles to the Laigh Hall – Parliament House – Queen Street - currently stand in the name of “SIDNEY NEIL BRAILSFORD Queen's Counsel, Treasurer of HONOURABLE THE FACULTY OF ADVOCATES Edinburgh, as Trustee and in Trust for said Faculty”. Sidney Brailsford is none other than High Court Judge Lord Brailsford.

Scottish Government files reveal how court titles were handed over to advocates After a series of briefings with Ministers – involving everyone from the Lord Advocate & Solicitor General to the Cabinet Secretary for Justice, Minister for Legal Affairs and others, a position was adopted by Scottish Ministers “That we confirm to Council officials that it is the Scottish Government's position that title to Parliament Hall was taken by Scottish Ministers in good faith and with the full knowledge and consent of the Council. The Scottish Court Service and Faculty of Advocates therefore have good title to the property and Ministers propose no further action.”

Lawyers for the Scottish Government also sought to distance themselves from the huge £58 million taxpayer funded spend on the Scottish Court buildings – long after titles were handed over to the advocates.

One lawyer stated in an email: “Was the PH [Parliament Hall] refurb about £60m? It went over in the SCS [Scottish Court Service] budgets I think but from my recollection of briefing on their budget it is not easily identifiable within their budget lines. So SCS [Scottish Court Service] spent the money not SG [Scottish Government]?”

In another memo, it is revealed Edinburgh City Council may be compelled to take legal action to recover the titles and details an example of how Common Good land disputes have affected legislation in the past.

“The City of Edinburgh Council has intimated to the Scottish Government that it considers that it is the rightful heritable proprietor of both Parliament House and the Laigh Hall. It contends that the property was part of the Common Good Fund which is made up of grants of land owned by the Council. Consequently it maintains that Scottish Ministers should never have taken title to it. Representatives of the Council have asked that the position be rectified and the property returned to the Council. Scottish Government officials have met with Council officials and suggested to them that their remedy lies with the Keeper.

The Council may feel compelled to take action because, in their view,the property may have been part of the Common Good. Ministers, will be aware of disputes over Common Good land in the past. For example, when the Long Leases (Scotland) Act 2012, which converts ultra-long leases to ownership, was going through Parliament [redacted] land reform campaigner argued that the Waverley Market in Edinburgh was part of the common good. Edinburgh City Council said it was not part of the common good but still argued that the Waverley Market should not convert to full ownership under the Bill, so that the Council would remain the landlord in the lease over the property. In the end, the Bill was amended so that commercial leases with less than 175 years to run were not covered, which had the effect of excluding the Waverley Market from the Bill.”

An internal Scottish Government briefing of the meeting which took place between Edinburgh City Council and the Scottish Government makes for grim reading at the Council after Scottish Government civil servants stated the Council’s claim for a return of the titles may rest on moral rather than any legal right:

“Parliament House - Meeting With City of Edinburgh Council - 3 Dec. 2014 - - Main Points

SG - this was a courtesy meeting to hear what the concerns of CEC were as they had had difficulty finding somebody in central government to engage with.

CEC - an elected member had triggered an examination of the Parliament House non domino title and CEC officials concluded that the title trail was mistaken and CEC had an interest still. They had examined titles from the 1550s, 19th century, 1905 Common good records, 1925 entry in registers etc.

They were unhappy with the Scottish Ministers title and the subsequent transfer to the advocates and the SCS. It seemed that their case rested on a perceived moral right, rather than any legal titular right.

SG emphasised that it had no locus because:
• Questions about land registered titles are for the Keeper and the Keeper's indemnity;
• The Scottish Government had transferred the property to the Advocates (Laigh Hall), and the Scottish Courts Service** a judicial led body at arms-length from the SG and so we could not discuss what we did not own.”

A detailed briefing prepared by a civil servant sets out what happened and how the Faculty of Advocates ‘secured’ ownership to parts of the sprawling, highly prized real estate which is Scotland’s top court and symbol of judicial & legal power:

“The position as regards title to the entire property is unclear, however, it would appear that Scottish Ministers (formerly the Secretary of State for the Environment, Transport and the Regions) did own part of it and so steps were taken to register a title in order to remove any uncertainty. Consequently, a voluntary registration was granted in favour of Scottish Ministers on 23/11/2005 with a date of entry of 10/11/2005.

As part of the process of registration the Keeper of the Registers of Scotland received a letter from the City of Edinburgh Council confirming that the Council had no right, title or interest in the property. On that understanding, the Keeper issued Ministers with a Land Certificate without exclusion of indemnity which has the effect of the Keeper having to indemnify a proprietor who suffers a loss as a result of the title being successfully challenged.

Scottish Ministers subsequently made an onward transfer in January 2006 of part of the property, namely Laigh Hall which sits underneath Parliament Hall, to the Faculty of Advocates who now hold a registered title.

When the Scottish Court Service became an independent body corporate on 1 April 2010 title to Parliament House was transferred to it under the Property Transfer Order made under powers in the Judiciary and Courts (Scotland) Act 2008. Scottish Ministers therefore no longer hold a title to either Parliament House or the Laigh Hall.”

At this time Edinburgh City Council is thought to be considering its next move.

If legal action is to take place, the Council will ultimately be represented by top advocates who as members of the Faculty of Advocates will have an interest in ownership in Parliament House. The case will be defended by the Faculty of Advocates and will be heard in a court within Parliament House – partly owned by the Faculty of Advocates and the ‘arms length’ institution of the Scottish Court Service – so ‘arms length’ it squanders £60 million of taxpayers money on buildings not even owned by taxpayers.

As previously reported, Scotland’s First Minister Nicola Sturgeon has already given her blessing to the multi million pound title handover freebie to the Faculty of Advocates. The First Minister claimed there was “no easy solution to the issue of restoring title to the City of Edinburgh Council”. The First Minister’s response to a question from Green Party MSP Alison Johnstone during First Minister’s Questions, follows:

Parliament House handed over to Faculty of Advocates FMQ's Nicola Sturgeon 19 February 2015

Official Report of debate: Alison Johnstone (Lothian) (Green): It transpired this week that the 17th century old Parliament hall in Edinburgh was transferred from the collective ownership of my constituents to Scottish ministers without knowledge or recompense to the common good fund.

The City of Edinburgh Council failed in its role as steward of the fund, but is now seeking to resolve the situation. Can the First Minister assure my constituents that any requests from the council to restore ownership of that common good asset to the council will be considered seriously and favourably?

The First Minister - Nicola Sturgeon: I will briefly state the background to this issue, of which I am sure that Alison Johnstone is aware.

The Scottish Government’s position is that title to Parliament hall was taken by Scottish ministers in good faith, and that that was done with the full knowledge and consent of the council. The Scottish Courts Service and the Faculty of Advocates, therefore, have now got good title to that property.

Of course, I am more than happy to ask the relevant minister, Marco Biagi, to; meet and discuss the matter with the City of Edinburgh Council, but as far as I can see there is no fault here on the part of the Scottish Government.

Further, of course, title has since been passed on, so it may very well be that there is no easy solution to the issue of restoring title to the City of Edinburgh Council. I think that any questions on how the situation has arisen probably have to be directed to the council.

TOP JUDGE SILENT OVER PARLIAMENT TITLE SWAP

In the summer of 2013,  Scotland’s top judge Lord Gill – head of the Scottish Court Service Board, and the Scottish Court Service Chief Executive Eric McQueen appeared before MSPs at the Scottish Parliament’s Justice Committee to give evidence on court closures and the millions spent on Parliament House – yet neither the judge nor the Courts chief mentioned their astonishing secret to the MSPs present – that the title to Scotland’s highest court buildings had been swiped by the Faculty of Advocates in a deal on the sly with Scottish Ministers.

During questions from Justice Committee MSPs, SCS Chief Executive Eric McQueen gave evidence on the massive £60 million taxpayer funded spend on Parliament House.

The Court Service Chief told MSPs: “We are just coming to the end of the Parliament house contract; in total, the budget for it was £65 million and I think that we expect the final spend to be in the low £60 millions. The project has been delivered on budget, on time and on quality. How it has been delivered is a tribute to the Scottish Court Service.

McQueen continued: “I will give a potted history of the Parliament house situation. About 10 years ago, a scheme was in place that was going to run to way over £120 million. That was brought to a stop to allow us to reassess things and to consider the best strategy. At the same time, we looked at a business case for moving away from Parliament house altogether and having a development on a greenfield or brownfield site on the outskirts of Edinburgh. The major problem with Parliament house is that it is a grade A listed building and is a site of special historical interest. It should be a landmark building for the whole of Scotland.”

In an intervention, the Convener of the Justice Committee – Christine Grahame MSP said: “I am glad that you did not move to a greenfield site. It would have been a bit like going to B&Q. I do not mean to malign B&Q, but I like the old Parliament house building.”

Eric McQueen replied : “Had the decision been taken to move out of Parliament house, that asset would have been left with the Scottish Government. The infrastructure and the services were shot, and there was no fire certificate in place for the building. It would have cost as much to move out as to redevelop the building. From the point of view of the benefit to the nation and to the Scottish Government's purse, the investment of the £65 million in Parliament house over that five or six year period was quite a sensible business case decision.”

Sitting beside Eric McQueen was Lord President Brian Gill, who did not at any stage of the meeting volunteer information to the Justice Committee in relation to the titles arrangements of Parliament House, despite the multi million pound taxpayer funded refurbishment.

Pressed for a statement on why Lord Gill or Eric McQueen did not inform the Justice Committee of the fact tens of millions of pounds of taxpayer money had been spent on a building partly owned by the Faculty of Advocates – the Judicial Office refused to give any comment.

Sunday, March 15, 2015

DISHONEST LAW: Latest annual report of discipline tribunal where lawyers appear in front of themselves - reveals pitiful 31 case workload in the fairy tale land of solicitors’ self regulation

Lawyer vs lawyer tribunal protects bad apples, again. AMID the usual claims of client protection while attempting to polish the bad apples from the rotten - the latest annual report of the Scottish Solicitors Discipline Tribunal (SSDT) – the body charged with ‘prosecuting’ rogue solicitors who rip off their clients – details a dry, if ‘increasingly complex’ series of cases where rogue solicitors are hauled before their own colleagues to face the music.

This year’s thirty eight page report from the lawyer vs lawyer tribunal - covering the period 1 November 2013 to 31 October 2014 and only now published in the second week of March 2015 – details the usual, typically less than honest world of self regulation of the legal profession - where lawyers investigate themselves and then recommend their colleagues appear before themselves for a quick slap on the wrist.

The grand workload of the tribunal for the last year has – unsurprisingly – not seen a busy year, with 31 cases taken to the Tribunal during the 12 months, along with another 11 appeals against decisions of the Law Society of Scotland and other miscellaneous applications. The Tribunal managed to break away from the hustle & bustle, and occasional dodgy deals at parties by making findings of professional misconduct in 24 cases.

And – dishonesty – the habitual daily workout of some in Scotland’s legal profession – made famous by Alistair Cockburn’s performance on the BBC Scotland’s investigation Lawyers Behaving Badly – only merits a single mention in the entire report of a year’s worth of prosecuting dodgy solicitors.

2013-2014 SSDT Annual Report – revealing slaps on the wrist dished out to rogue solicitors. In this year’s SSDT Annual report – and like others before it – there is little to show the legal profession have any regard for client protection. Typically, solicitors receive pittance fines – which are usually made up from hikes in legal fees as soon as they get back to work. Along with fines, the traditional slap on the wrist was handed down on several occasions.

Chairman of the legal profession’s in-house tribunal commented: “Details of the Tribunal’s workload over the past 12 months are set out in this report. The Tribunal has continued to be very busy with cases becoming more complex and taking up more Tribunal time.”

The Tribunal is also dealing with a lot of Complaints which involve Secondary Complainers who have made claims for compensation.

There have again been a large number of cases involving the Council on Mortgage Lenders Handbook. It is hoped that members of the profession take time to read these decisions and be reminded of their obligations in terms of the Handbook.

The Tribunal is receiving an increasing number of Appeals under section 42ZA by Lay Complainers who often have difficulty in framing their Appeal in a structured and relevant way. The Tribunal accordingly has prepared guidance for Lay Complainers to try to assist them with this.”

Going on to comment on the state of the tribunal’s online website – which has suspiciously deleted many findings against rogue Scots lawyers, Chairman Cockburn said: “The Tribunal Findings continue to be put on the Tribunal website which can be accessed at www.ssdt.org.uk The Tribunal experienced technical difficulties with its website during the year owing to the age of the website. A temporary website is now in place and the Tribunal is working towards having a new website in operation in 2015.”

“Tribunal hearings continue to be held in public, normally at The Scotsman Hotel in Edinburgh. The diary part of the Tribunal website details the substantive business scheduled to be heard but not procedural business. In certain cases, business is not put into the diary if the hearing is to be held in private.”

DISHONESTY FACTOR:

An investigation by BBC’s Lawyers Behaving Badly featured the case of John O’Donnell, and went on to reveal the startling differences in how dishonesty in the Scottish legal profession is treated lightly compared to England & Wales – where dishonesty is automatically a striking off offence.

Alistair Cockburn, Chair, Scottish Solicitors Discipline Tribunal. Featured in the investigation was the Scottish Solicitors Discipline Tribunal (SSDT) Chairman’s attitude towards solicitors accused of dishonesty in their representation of clients legal affairs. During the programme, it became clear that dishonesty among lawyers in Scotland is treated less severely, compared to how English regulators treat dishonesty.

Sam Poling asks: The Scottish Solicitors’ Discipline Tribunal hears all serious conduct cases against solicitors. Last year they struck off nine of them. But is this robust enough?

Alistair Cockburn Chairman, Scottish solicitors discipline tribunal replies: It is robust in the sense that it doesn’t just give convictions on the basis that somebody’s brought before us charged by the Law Society.  We are mindful, particularly when reminded of the lay members, of a duty to the public.

One is always concerned when there is deception but you can have a situation where solicitors simply lose their place. They make false representations in order to improve their client’s position, not necessarily their own. And you would take that into account in deciding what the penalty was but there’s no suggestion that such conduct wasn’t deemed to be professional as conduct. 

Sam Poling: So there are levels of dishonesty which sit comfortably with you, satisfactorily with you?

Alistair Cockburn: No it’s not a question of saying sitting comfortably with me.  I’ve told you…

Sam Poling: OK that you would accept?

Alistair Cockburn: No I’d be concerned on any occasion that a solicitor was guilty of any form of dishonesty.  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.  But you make it sound as if it’s commonplace.  It isn’t.  Normally dishonesty will result in striking-off.

English QC’s agree ‘dishonesty’ is a striking off offence. The SSDT Chairman’s comments on dishonesty compared starkly with the comments of the English QC’s - who said dishonesty was undoubtedly a striking off offence.

Andrew Hopper QC: “I cant get my head round borrowing in this context. Somebody explain to me how you can borrow something without anyone knowing about it. That’s just taking.”

Andrew Boon Professor of Law, City University, London: “They actually say in the judgement they would have struck him off but the client hadn't complained.”

Andrew Hopper QC “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: “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.”

As Sam Poling went on to report: “but he [O’Donnell] wasn't stopped. The tribunal simply restricted his license so that he had to work under the supervision of another solicitor.”

LEGAL WORLD’S TRIBUNAL WHERE LAWYERS APPEAR IN FRONT OF THEMSELVES:

Just how complex are the rules around prosecutions of solicitors for ripping off their clients?

Notes from the SSDT report reveal the hurdles put in place by the legal profession to protect their own …

In cases of professional misconduct the Tribunal will receive a Complaint from the Law Society fiscal which will then be served upon the Respondent. The Respondent has three weeks in which to lodge answers (although extension of time for lodging answers requests are often received and are sometimes granted provided there is a valid reason). The matter will then be set down, either for a procedural hearing, a preliminary hearing or a substantive hearing. Procedural hearings are used to clarify whether or not there are any preliminary issues and identify whether evidence is going to be required. Preliminary hearings are set down where there are preliminary points which have to be decided before the Complaint can proceed to a substantive hearing. These usually take place by way of a debate. At a substantive hearing the Tribunal will either proceed to make a finding of professional misconduct, find the Respondent not guilty of professional misconduct or remit the matter to the Law Society under section 53ZA on the basis that the Tribunal considers the Respondent's conduct may amount to unsatisfactory professional conduct.

If there is a Secondary Complainer involved in the Complaint they only become a party to the proceedings after a finding of professional misconduct is made. Prior to any finding of professional misconduct, Secondary Complainers have no direct input into the Tribunal process. If a finding of professional misconduct is made and if the Secondary Complainer has requested compensation, it will be up to the Secondary Complainer to provide the Tribunal with the necessary evidence. The Tribunal will then decide whether or not it is appropriate to make an award of compensation in favour of the Secondary Complainer. There can be cost implications for the Secondary Complainer if additional Tribunal time is required to deal with their claim and an award is not made in their favour.

In relation to section 42ZA Appeals the Tribunal receives the Appeal either from the solicitor, or from a Lay Complainer. Lay Complainers when making an Appeal under section 42ZA often have difficulty in focusing their Appeal and setting out clearly and succinctly what their grounds of Appeal are. The Appeal should identify any error of fact or law made by the Law Society. The Appeal will be served on the Law Society and the Solicitor/ Lay Complainer and three weeks are allowed for the lodging of answers. Again there may be circumstances when an extension of time for lodging answers is given.

The Tribunal cannot give Lay Complainers advice with regard to the making of their Appeals. The Tribunal however does understand that it is difficult for Lay Complainers to deal with the formal Tribunal process and guidance notes have been made available on the Tribunal's website. If Lay Complainers are unable to put their Appeal in the proper form, despite having been given warning in terms of Tribunal rule 23 and being given the opportunity to amend, the Appeal may be struck out as being manifestly unfounded. Procedural hearings are usually held for section 42ZA Appeals so that it can be clarified whether or not the matter is to proceed by way of submissions or whether the facts are in dispute. Sometimes there are three parties to 42ZA Appeals being the Appellant, the Law Society and the solicitor/Lay Complainer, in whose favour the Law Society previously made a Determination.

Friday, March 06, 2015

CAPITAL JUDGE: As top judge suspends sheriff over £28m law firm writ alleging links to £400m Heather Capital collapse, what now for Lord Gill’s battle against a register of interests & transparency for Scotland’s judiciary

Alleged judicial links to collapsed hedge fund force top judge to act. SCOTLAND’S top judge Lord Brian Gill – who has waged a bitter two year battle with the Scottish Parliament over proposals to create a register of judicial interests – has been forced to suspend a judicial colleague after allegations surfaced in a writ concerning links between a serving sheriff and his former law firm to individuals under investigation in connection with the collapse of Heather Capital -  a multi million pound hedge fund.

Lord Gill (73) suspended Sheriff Peter Black Watson (61) after demanding sight of a multi million pound writ against Glasgow law firm Levy & Mcrae – where Watson was formerly a partner.

It has been reported Watson offered to step aside temporarily – while the litigation concluded - however a Judicial Office spokesperson said “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”

Watson’s former law firm -  Levy & McRae, is one of several companies being sued by Heather's liquidator, Ernst & Young, after the fund's collapse in 2010. Watson was a director of a company called Mathon Ltd - a key part of the Heather empire.

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

A statement from the Judicial Office for Scotland issued last week confirms: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

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

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

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

On Monday 16 February the Lord President considered the matter.

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

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

At the Court of Session yesterday (Thursday) judge Lord Woolman heard more details of the summons mentioned by the Judicial Office in their statement relating to the suspension of Sheriff Watson – who was formerly a partner at the Glasgow based law firm of Levy and Mcrae – who are now being sued for £28 million over allegations relating to their involvement in the downfall of Heather Capital.

In CA207/14 Paul Duffy v Levy & McRae &c Shepherd & Wedderburn (Pursuers) Simpson & Marwick (Defenders) - Former Dean of the Faculty of Advocates - Richard Keen QC - who is representing Paul Duffy of Isle of Man based liquidators Ernst & Young - told the court the action proceeded on the basis of "breach of fiduciary duty and dishonest assistance". Keen alleged there had been "a fraud" on Heather Capital. Further details were reported by the Herald newspaper here

The Scottish Sun previously reported on a dossier handed to prosecutors which focussed on Glasgow-based Mathon Ltd. Mathon was linked to the failed £400m Heather Capital hedge fund run by King.

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

Reports in the Scottish Sun revealed liquidator Paul Duffy, of Ernst & Young, has been battling to recover investors' money since being appointed in 2010. They filed a £100million writ in an Isle of Man court against accountancy giants KPMG -  who were Heather's auditors.

In court papers, they claim that the developments were a "fabrication and a sham". And a judge has said it is likely that "fraudulent conduct exists”.

While the Judicial Office have so far refused to give further comment at this time on the allegations linking judges to court litigation involving collapsed hedge funds - the details surrounding directorships  of members of Scotland’s judiciary should now be brought to the attention of the Scottish Parliament’s Public Petitions Committee - who are currently considering proposals to create a full register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The move to bring transparency to judges wealth, links to business & other interests comes after it emerged members of the judiciary have a significant proportion of their undeclared riches in offshore tax havens, arms length trusts, shareholdings in vested interests, energy firms, land ownership, companies linked to public contracts - some within the justice system itself, companies involved in organised crime and secretive links to big business, finance & banking.

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