Friday, April 22, 2016

One Law for Lawyers: Under the guise of ‘Consumer Protection’ Law Society of Scotland propose new pro-lawyer legislation to maintain control over self regulation of solicitors

Law Society - new powers to look after lawyers. VESTED INTERESTS tend not to remain silent in an election year, and as the May 2016 Holyrood elections approach, the Law Society of Scotland has proposed the Scottish Parliament give the legal profession even more powers to enable lawyers to look after their own.

The Law Society pledges the new legislation – written by the Law Society, amended by the Law Society, and finally, approved for whatever scant debate at Holyrood the Law Society deigns necessary, will enable the Law Society to protect consumers and clients even more so than is currently humanly possible.

The Prospectus for Power - which the Law Society has submitted to Scottish Ministers, sets out the legal profession’s take on a “need for change” including proposals for;

* better regulation of legal firms (‘entity regulation’) in addition to the regulation of individual solicitors to protect consumers,

* new powers to suspend solicitors suspected of serious wrongdoing,

* opening the Law Society’s membership in order to improve standards amongst other legal professionals,

* the ability for the Society to regulate legal work beyond the domestic Scottish jurisdiction in order to provide simpler regulation for cross-border firms,

* more flexible business models which allow legal firms to adapt to market changes.

Better regulation of legal firms - to protect consumers.

This coming just a few short months after Law Society staff were hurriedly arranging press conferences to combat questions over their seedy role in holding down a Crown Office investigation of certain activities carried out by solicitors involved in the Michelle Thomson property scandal – reported in further detail here: CRIME SOCIETY: Law Society of Scotland 'unfit for purpose' as calls grow for Scots solicitors to be stripped of self regulation powers used by lawyers to investigate themselves

Little more has been said of the Crown Office inept handling of the information allegedly passed to it by the Law Society - however, the silence may not be a total surprise, given Scotland’s Crown Office was recently revealed to hold a criminal tendency all of it’s own: CROWN CROOKED: Crown Office crime files reveal Scotland’s Prosecutors & staff charged with Drugs crimes, Police assault, threats & perverting the course of justice

However, we must remember the demands proposals from the Law Society of Scotland should not be taken lightly.

As any experienced Parliament watcher will admit - the Law Society of Scotland have a history of getting what the profession wants at the Scottish Parliament.

Take for instance, the Legal Profession and Legal Aid (Scotland) Act 2007, and the lengthy, at times bitter debate during 2006 - which saw John Swinney call out the Law Society of Scotland’s Master Policy Indemnity Insurance arrangements and the Society’s interference in client compensation claims as dishonest and then some.

The Law Society's then Chief Executive Douglas Mill did not take kindly to the cross examination, and proposals before MSPs to create an independent regulator – the Scottish Legal Complaints Commission (SLCC).

At one point, Mill went so far as to say Holyrood should take a hike – and threated the Parliament with legal action if lawyers were to be robbed of their self given Human Right to look after their own. In the end, it was Douglas Mill who took a hike.

However, in all things legal, nothing is as it seems.

The ‘independent’ Scottish Legal Complaints Commission - created as a result of the 2007 LPLA Act, became little more than a front for the Law Society of Scotland.

The regulator ended up costing clients around £3million a year – paid over and over again out of hikes to legal fees.

As independent regulators go, the SLCC is staffed by former Law Society employees, lawyers, lawyers families, friends, business associates, reported here: 'Independent' Scots legal watchdog consists of solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers.

To crown it all, the Law Society took charge of the ‘independent’ SLCC by appointing one of their own former Directors - Neil Stevenson as the latest Chief Executive of the SLCC.

A truly malevolent definition of ‘independence’ – if ever there was one.

Since the LPLA Act took effect, countless law changes have taken place to allegedly improve the SLCC’s procedures on how it can better regulate the legal profession.

One such change landed Justice Secretary Kenny MacAskill before the Scottish Parliament's Justice Committee to provide Scots legal regulators with similar ‘new powers’ to protect consumers.

Read more on the 2014 legislative effort to create enhanced powers for legal regulators, here: TOXIC LAW: MacAskill gives lawyers ‘right to complain about complaints’

Guess what.The new rules changed nothing. The SLCC is as inept at regulating lawyers in 2016, as it was in 2014 counting backwards to 2008 when the ‘independent’ regulator came into being.

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

Prospectus for Power – Law Society of Scotland.

Now, in 2016, the Law Society of Scotland claims another round of new legislation is needed to better protect consumers and allow the Scottish legal services market to thrive

Publishing a detailed prospectus which it has presented to the Scottish Government on the need for change, the professional body for Scottish solicitors said the current legislative framework was increasingly out of date and unfit for purpose – about as unfit for purpose as self regulation can ever be.

Discussions have already taken place between the Law Society and the Scottish Government on the legal profession’s legislation wish list for new powers.

Christine McLintock – President of the Law Society of Scotland admitted: “We have had a number of very useful discussions with the Scottish Government and we are grateful to Ministers and officials for being so open to listening to our ideas. We have also worked hard to engage other bodies in the legal sector as well as consumer groups to ensure we work in partnership to deliver real change.

Ms McLintock added: “We obviously need to see the outcome of the Holyrood elections in May and the shape of the new Scottish Government.  Whatever the outcome, we will be pushing hard for reform to be an early priority in the new parliament.”

The Law Society’s campaign to give the legal profession new powers includes what the profession claims should be ‘Priorities for the Scottish Parliament’.

This campaign includes a call for Scotland’s political parties to commit to a modern, fit-for-purpose framework for legal services in Scotland which;

* Maintains the advantages of the current system, including the independence of the legal profession, a robust system of co-regulation involving strong professional bodies and an independent complaints handling organisation and discipline tribunal

* Provides a more agile system of consumer protection and addresses the rise of the unregulated legal services market

* Allows flexible regulation that reflects the rise of alternative business models, cross-border firms and internationalisation of the sector

* Enables the Law Society to respond to the changing needs of its members and to open up associate forms of membership to other legal professionals, including paralegals and legal executives

President of the Law Society, Christine McLintock added: “The legal services market is a great Scottish success story.  We contribute over £1 billion to the economy each year; account for over 20,000 highly skilled jobs and support many of the other sectors on which Scotland’s economy depends.  We have phenomenal legal talent, thanks to our world class universities and a rigorous programme of training and development to deliver high standards.

“Yet the legal services market is going through a dramatic period of change.  New expectations from clients, new business models, the growth of cross border legal firms and increased technology are all serving to reshape the market.

“Most of the legislation covering the operation and regulation of the legal market is over 35 years old. It is increasingly outdated for modern legal practice.  Whilst some reforms were brought in 2007 and 2010, the whole framework can be confusing and, in some cases, contradictory.

“There are important elements and principles which should be preserved.  The independence of the legal profession.  A single professional body for solicitors.  Independent complaints handling and discipline bodies.  These are important and should be protected.  However, there is a case for new, flexible and enabling legislation which helps the legal services market in Scotland to thrive, which continues to ensure standards remain high and which better protects consumers when things do go wrong.”

The Law Society of Scotland says it now plans to engage with political parties, consumer groups and others in the legal sector to build a consensus in favour of change with an aim of getting a new Bill introduced early in the new term of the Scottish Parliament.

However, in England & Wales, the public mood is for fully independent regulation of the legal profession, as was recently reported here: A QUESTION OF TRUST: Should solicitors be independently regulated? UK public say “Yes” - according to research conducted by the Solicitors Regulation Authority

Remember to add your own voice when any such proposals eventually reach the Scottish Parliament.

Tuesday, April 19, 2016

CRIME SECRET: Crown Office flouting of Freedom of Information laws results in intervention by Information Commissioner - as Police, Prosecutors & Scottish Ministers obstruct public interest disclosures

Crown Office investigated over disclosure delays. PROSECUTORS based at the Crown Office & Procurator Fiscal Service (COPFS) in Edinburgh have become so resistant to Freedom of Information legislation - officials at the £110m a year public body have in some cases, taken up to six months to reply to Freedom of Information requests.

Details of the delays – which some contend were deliberate - came to light in documents disclosed by the Scottish Information Commissioner (SIC) – Rosemary Agnew – who has been forced to conduct a number of ‘interventions’ with public bodies across Scotland after serious failures in adherence to Freedom of Information legislation came to light.

Details released by the SIC - Public bodies subject to interventions by Information Commissioner - reveal in one of the ten interventions conducted by the SIC since September 2015 - the Crown Office was investigated for multiple and lengthy delays of many months per request in responding to Freedom of Information requests.

The secretive, almost unaccountable public body currently run by Lord Advocate Frank Mulholland - which manages criminal prosecutions across Scotland is now subject to monthly monitoring as a result of the SIC’s investigations and meetings between senior staff from the Scottish Information Commissioner’s office and the Crown Office.

A document obtained from the SIC states: “Head of Enforcement (HOE) and Deputy Head of Enforcement (DHOE) met with COPFS 8/1/16 to highlight issues. Agreed to meet in 07/16 to discuss progress. HOE also reviewing COPFS procedures. COPFS subject to monthly performance monitoring.”

Allegations have since been raised by journalists a deliberate policy of delay was being orchestrated by COPFS staff in relation to FOI requests

And, in a sinister move by prosecutors - a number of enquiries to the Crown Office in relation to requests for media statements on activities including large fraud investigations involving individuals and accused persons known to have links to Crown Office personnel – have resulted in reporters being denied media quotes and told to turn their communications into FOI requests.

Monitoring of how the Crown Office complies with FOI legislation comes at an unwelcome time for prosecutors, after it was revealed Crown Office staff & prosecutors have been charged with serious criminal offences, reported here:  CROWN CROOKED: Crown Office crime files reveal Scotland’s Prosecutors & staff charged with Drugs crimes, Police assault, threats & perverting the course of justice.

A number of other public bodies are named in the documents including, Police Scotland, Scottish Ministers, the Scottish Fire and Rescue Service, NHS Scotland Loch Lomond and The Trossachs National Park Authority & Falkirk Council.

In the data release it is revealed Police Scotland scored the most number of interventions from the Scottish Information Commissioner’s office, totalling three interventions at various levels.

In one case, details release by the Scottish Information Commissioner reveal Police Scotland maintained a practice of sending out locked pdf documents with security protocols forbidding their printing.

A file disclosed by the SIC in response to an FOI request stated: “Asked Police Scotland to change its practice and stop sending us (and applicants) locked pdf documents, which can't be printed out.. We are still waiting for an accessible copy of a document required for case 201501763.”

“Police Scotland has raised the issues of locked documents and undated letters internally.” The issue is subsequently referred to as: “Issue resolved”.

In a Level two intervention with Police Scotland, files released by the Scottish Information Commissioner reveal details of Police Scotland’s information publication scheme.

The SIC asked Police to conduct a “Review of publication scheme (guide to information) from time to time. Proactive publication in the public interest.”

Police Scotland was then “Asked to review guide to information due to broken links etc. and currency of information.”

From information now made public by the SIC, the issue was raised with Police Scotland on 12/11/16 and a reminder issued on 18/02/16. The SIC appears to be awaiting an outcome.

In one of two interventions with the Scottish Government, documents disclosed by the SIC revealed there was a concern at the lack of knowledge of Freedom of Information at the Scottish Government.

Details of the level one intervention with Scottish Ministers revealed: “Meeting with the Office of the Office of the Chief Researcher, instigated by them. Recorded as a level 1 intervention as concerns about level of FOI knowledge within major area of Government.”

“Note of the meeting is on file.Practice areas:- who is covered by FOI. Seemed unaware that Universities are- Section 60 Code IRO contracts and procurement- sections 27, 33 and 36 specifically.”

Power to Intervene:

Powers granted to the Commissioner by the Freedom of Information (Scotland) Act (FOISA) allow the Scottish Information Commissioner to intervene where it is identified that an authority’s practice is or may be: (i) in breach of its statutory duties under the Freedom of Information (Scotland) Act 2002 (FOISA) and/or the Environmental Information (Scotland) Regulations 2004 (the EIRs); (ii) falling short of Government guidance, particularly the Section 60 Code.

Anyone who makes a Freedom of Information request to a public authority can request an intervention by the Scottish Information Commissioner, if the public authority in question does not adhere to FOI legislation.

The SIC’s website states: “All interventions will be appropriate and proportionate, and based on robust and accurate evidence.The term “Intervention” covers a range of activities: from providing advice and assistance to authorities in relation to good practice, to formal enforcement action carried out under the Commissioner’s Enforcement Policy.”

Levels of interventions conducted by the Scottish Information Commissioner:

Level 1: These are minor failures to follow good practice. In these cases, we will provide informal advice and assistance to authorities, pointing out the failure and suggesting remedial action. In such cases, individual officers are empowered to give advice to authorities if a relevant failing is identified as a result of an application or enquiry to us and to decide what follow-up action is required.

Level 2: These are ongoing failures by an authority to follow good practice in a specific area of practice. In these cases, an appropriate manager (DHOE, HOE, HOPI or the SIC) will contact the authority to discuss the issues and suggest remedial action. Level 2 interventions will require follow-up contact with the authority to ensure that appropriate action has been taken.

Level 3: These are more serious or systemic failings which have been identified and we do not consider the issue can be rectified without requiring the authority to put in place an action plan to address the issue. In such cases we may invite an authority to carry out a self- assessment using one or more of the modules in our self-assessment toolkit.

Level 4: These are when an authority consistently fails or refuses to comply with FOISA, the EIRs or statutory guidance despite previous interventions by us. In these cases, we may issue (or give warning of our intention to issue) a practice recommendation in terms of section 44 of FOISA specifying the steps that an authority must take in order to conform with its duties under Government guidance. Alternatively, we may issue (or give warning of our intention to issue) an enforcement notice under section 51 of FOISA requiring an authority to take specified steps to comply with Part 1 of FOISA or with the EIRs. We may also decide to carry out an on-site assessment of an authority’s arrangements for handling information requests.

Saturday, April 16, 2016

World Bar Conference: Lord Carloway - ‘luddite, paranoid & fee hungry lawyers who oppose change are wrong’ - top judge speaks on never ending reform proposals to Scotland’s Victorian justice system

Lord Carloway – fee hungry lawyers who oppose reforms are wrong. SCOTLAND’S top judge – Lord President Lord Carloway has again, publicly criticised the financial self interests of the legal profession who oppose reforms to  Scotland’s justice system – out of concern for their wallets.

In a speech at the World Bar Conference on Thursday in Edinburgh, aimed principally at the legal profession, criminal law & court reforms, Lord Carloway told his audience: “… it is readily recognised that some of the more Luddite and perhaps rather paranoid elements may inevitably regard all change as inherently wrong, designed to cut costs (specifically their fees) and to secure wrongful convictions. They are wrong, but their views must be listened to.”

The biennial event brings together the member independent bars of the International Council of Advocates and Barristers (ICAB) for seminars and social events, backed up by lavish occasions in public buildings such as the Scottish National Gallery.

This year the Faculty of Advocates hosted the World Bar Conference 2016 in Edinburgh, along with gatherings in Parliament Hall – which was revealed last year to have been secretly handed over to the Faculty in a dodgy free property handover masterminded by lawyers and approved by Scottish Ministers.

While the Lord President’s recent proposals for justice reforms and faster access to justice for Scots court users may be seen as welcome, the fact is - year in year out, legal figures from Scotland’s multi billion pound legal industry claim change will come, access to justice will be faster, fees will be reduced, regulation will improve, the courts will be more accountable. None of which is ever achieved.

In short, we have heard it all before. Just like ridiculous crime statistics, supposed cuts in the legal aid budget and stage managed publications of annual reports to coincide with a budget announcement. Public Relations and spin with the repeat button pressed down.

However, this is the second time this year, Lord Carloway - who succeeded Lord Brian Gill to the role of Lord President & Lord Justice Clerk – has hit out at ‘obstructive’ lawyers and those who oppose change..

In a speech on digital justice and reforming Scotland's “Victorian” courts addressed to the Law Society of Scotland’s Council in late January 2016, Carloway reminded his audience of legal figures: “Much of this will be achieved in our professional lives, provided that we do not take a cantankerous and obstructive approach to it.”

And, during Lord Carloway’s speech to the Commonwealth Association of Law Reform Agencies Biennial Conference held in April 2015 – Carloway did not mince his words, accusing lawyers & critics of having a financial interest in retaining the centuries old injustice safeguard of corroboration.

Reacting to opposition from the legal profession – opposition which was backed by a number of judges, Lord Carloway said: "Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest."

Carloway is keenly aware that powerful elements within the legal profession and the Law Society of Scotland oppose a faster and wider system of access to justice for Scots, on the grounds such reforms may impact on the profits of law firms & sizeable claims on the annual £150 million plus Scottish Legal Aid budget.

Since the banking & financial crash of 2008, a staggering £1.2 billion pounds has been handed out to Scottish law firms, much of which goes on criminal legal aid.

Yet despite taking billions  in public cash, solicitors, led by bosses at the Law Society of Scotland have staged strikes outside the Scottish Parliament & court buildings demanding legal aid cuts be reversed.

Lord Carloway speech to World Bar Conference 2016:

Lord Carloway’s opening lines refer to how the legal profession & courts are supposed to represent the interests of clients & justice: “The courts play the central role in the administration of justice. Their function is to promote observance of the law through the process of resolving civil disputes and determining criminal guilt. The legal profession plays its own important role. Members of both branches, solicitor and advocate (or barrister), represent the interests of the system's users. They do more; specifically at the level of advocate, by assisting the court in finding the true facts and applying the correct law, albeit hopefully in the client's favour. The advocate owes duties to the court and to the public, over and above those to fellow members of his profession and to the client.”

“In this broad sense, the legal profession is the muscle and ligament which makes the skeleton of the law in our democracy move.”

“Both branches of the profession remain largely self-regulating. Each is responsible, albeit in some sphere under delegated authority from the court, for training, standards, and very occasionally, the discipline of its members. The court retains a keen interest in the effective representation of both those who rely on the system to vindicate their rights and those in need of protection from state action. It must ensure that parties are adequately represented. In Scotland, this obligation is enshrined not only within the concept of a fair trial under Article 6 of the European Convention on Human Rights but also in the much older and more established common law principles of fairness in court proceedings generally. What amounts to adequate representation may vary from case to case, but it is ultimately a matter for the court to determine. It must do so to ensure that there is access to justice for all parties. After all, if someone does not have effective representation, justice cannot be seen to be done.”

On access to justice in the modern age – Lord Carloway said: “Advances in technology mean that the courts operate in a world which would be unrecognisable to those who lived 100 years ago and, in many respects, unfamiliar to those practising 14 years ago when the first of these conferences was held. Last year saw the implementation of the most comprehensive reform of the practices of the Scottish courts since the early Victorian age. The implementation of Lord Gill's Review has had, and will continue to have, a very significant impact on the level at which both civil and criminal cases are decided. Court procedure is closely linked to access to justice: it is the link between evidence, as proof of fact, and correct decisions based on a correct application of the law.”

“Advances in technology influence users' expectations. On a fundamental level, the opportunities presented by modern technology could, to use the words of Lady Dorrian ..."make justice more accessible to a wider number of people, to make evidence more reliable and more readily available, and to make processes and procedures more efficient". This is something which is being considered on a wider basis as part of the Digital Justice Strategy of the Scottish Government.It is a recognition of the fact that the court system should keep pace with developments and change in the society which it is intended to serve.”

Concluding his speech to the World Bar Conference, Lord Carloway said: “What is the role of the legal profession in all of this? The profession is a vital part of the machinery of justice. The court relies on both branches of the profession to perform their functions as representatives of the parties. Without this input, the risk that the court will fall into error is greatly increased.”

“The challenges posed by the development of the traditional roles of the profession, models of funding, competing interests, and modern technology are all ones which the profession, as well as the court system, require to meet.”

Sounds Familiar? - Civil Courts Review : Scots Justice still “Victorian” years after judge called for reforms:

The Scottish Civil Courts Review of 2009 authored by then Lord Justice Clerk, Lord Brian Gill, castigated Scotland’s Civil Justice System as being Victorian, costly, and unfit for purpose, yet years on from the review, little of the proposed reforms have been implemented due to pressure from vested interests in the legal world, and a lack of political will to deliver access to justice to all Scots.

The Civil Courts Review can be viewed online here : Scottish Civil Courts Review Synopsis, Scottish Civil Courts Review Vol1 Chapters 1-9 & Scottish Civil Courts Review Vol2 Chapters 10-15

In a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here Lord Gill said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.

“It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Previous articles on the Civil Courts Review and reforms of Scotland's antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.

Thursday, April 14, 2016

M'LADY JUSTICE CLERK: Lady Dorrian becomes first female judge appointed to position of Lord Justice Clerk - second most powerful judge in Scotland

First female judge appointed Lord Justice Clerk. FOR THE first time in the history of Scotland’s legal system, a female judge has been appointed to the role of Lord Justice Clerk, the second most powerful position in Scotland’s judiciary.

Lady Leonna June Dorrian (58), who is currently a judge of the inner house of the Court of Session - will take up her appointment as Lord Justice Clerk on 26 April 2016, the day of her installation.

The post of Lord Justice Clerk comes with a salary of £213,125 a year.

The Lord Justice Clerk also holds the office of President of the Second Division of the Inner House of the Court of Session, and, by virtue of the post, is Chair of the Scottish Sentencing Council.

The appointment of Lady Dorrian to the second most powerful judicial position comes after the recent appointment of the previous holder of the office of Lord Justice Clerk – Lord Carloway – to the top role of Lord President & Lord Justice General of the Court of Session.

During the six month search for a new Lord President which took place after the sudden retirement of Lord Brian Gill in May, 2015 - Lady Dorrian was appointed to a selection panel convened by the First Minister Nicola Sturgeon to interview applicants for the position of Lord President, reported in further detail here: To play the President - Hunt begins for Scotland’s next top judge

The panel, which comprised Sir Muir Russell – Judicial Appointments Board for Scotland, Mrs Deirdre Fulton – Judicial Appointments Board for Scotland, Rt Hon Lord Reed – Justice of the Supreme Court of the United Kingdom,  Rt Hon Lady Dorrian – Senator, Inner House of the Court of Session – concluded their deliberations with a recommendation Lord Carloway (real name Colin Sutherland) be appointed to the position of Lord President – reported in further detail here: Top judge of Parliament House: Lord Carloway appointed as Scotland’s Lord President

With the ascension of Lord Carloway to the post of Lord President, the move required the appointment of a new Lord Justice Clerk.

A selection panel to interview candidates for the role was again convened by the First Minister earlier in January 2016 – the panel comprising of Rt Hon Lord Carloway – Lord President, Sir Muir Russell – Judicial Appointments Board for Scotland, Alison Mitchell – Judicial Appointments Board for Scotland, The Hon Lady Stacey – Senator of the College of Justice to select a candidate for the position of Lord Justice Clerk.

Lady Dorrian was then nominated by the First Minister Nicola Sturgeon to Her Majesty the Queen - after taking account of recommendations made by the selection panel constituted under the Judiciary and Courts (Scotland) Act 2008 .

The panel which made the recommendations included Lord Carloway – who had been nominated for the position of Lord President by the previous panel which Lady Dorrian was a member of.

Lady Dorrian - Biography:

Lady Dorrian is a graduate of the University of Aberdeen and was admitted to the Faculty of Advocates in 1981 before becoming Standing Junior Counsel to the Health and Safety Executive and Commission between 1987 and 1994.

She served as Advocate Depute between 1988 and 1991, and as Standing Junior to the Department of Energy between 1991 and 1994. In 1994, she was also appointed Queen's Counsel. Between 1997 and 2001 she was a member of the Criminal Injuries Compensation Board. Lady Dorrian was appointed as a judge of the Supreme Courts in 2005, having served as a temporary judge since 2002. She was appointed to the Inner House in November 2012.

SECRETLY SELECTING A PRESIDENT, SO SECRETLY:

 How judges select Scotland’s judges - in secret The selection panel for the office of Lord President - of which Lady Dorrian was a member – considered five candidates for the position of Scotland’s top judge – according to papers released by the Scottish Government in response to a Freedom of Information request by the media.

While there was significant speculation during 2015 that a female judge would be appointed to the top judicial post of Lord President, the unpredicted shift away from a male only top judge did not happen this time around.

Responding to queries, the Scottish Government refused to disclose the genders & diversity information relating to any of the candidates for the top job, citing privacy concerns.

Written exchanges between civil servants and the selection panel reveal a short listing meeting was held on 1 September 2015. The panel considered that two applicants Lord Carloway  [Redacted] merited an interview on the basis of the quality of their applications.

The panel agreed that given the level of appointment, candidates needed to be able to demonstrate that they met the criteria to an exceptional degree [Redacted].

The content of the selection panel’s report recommending Lord Carloway for the nomination of Lord President, was completely censored by the Scottish Government.

Emails between Scottish Government show First Minister Nicola Sturgeon had decided on Lord Carloway’s nomination as Lord President around 18 November 2015. Lord Carloway’s appointment as Lord President was finally made public a month later in December 2015.

Scotland’s judiciary faces a testing time as calls grow for judges to apply the same levels of transparency to themselves as is required of all other branches of Government, the justice system and those in public life.

SPOTLIGHT ON JUDICIAL INTERESTS SECRECY:

Scotland’s current Lord President - Lord Carloway is to be asked to give evidence to the Scottish Parliament’s Public Petitions Committee in connection with three year probe on proposals to require judges to register their interests, as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The petition calls for the creation of a publicly available register of judicial 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.

The proposal to require judges to declare their interests enjoys cross party support, and was widely backed by MSPs during a full debate in the Scottish Parliament’s main chamber on 9 October 2014 - reported in full with video footage of MSPs and Scottish Ministers speaking during the Holyrood debate, here: Debating the Judges.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations on judicial interests 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

Friday, March 11, 2016

CROWN CROOKED: Crown Office crime files reveal Scotland’s Prosecutors & staff charged with Drugs crimes, Police assault, threats & perverting the course of justice

Crime & drugs empire at Crown Office revealed. AMID a string of collapsed cases involving high profile criminals, plea deals with gangsters, failures to to prosecute those responsible for multiple deaths, & multi million pound frauds involved legal eagles - documents obtained by the media reveal Scotland’s Prosecutors have their very own crime gang - right at the heart of the Crown Office & Procurator Fiscal Service (COPFS).

Information released in response to Freedom of Information requests now reveal prosecutors & key staff among the ranks of Lord Advocate Frank Mulholland’s £110m-a-year Crown Office empire - have been charged with a string of criminal offences over crimes ranging from violence to misuse of drugs, making threats and offences against Police Officers.

In a period of just two years – from November 2013 to November 2015 - the Crown Office admitted it retained records showing 15 cases reported to COPFS containing allegations of criminal offences by COPFS staff. Court proceedings were taken in 11 cases, three cases were disposed of by non-court disposal and no proceedings were taken in one case.

The charges brought against staff include assault and vandalism; road traffic offences; threatening and abusive conduct; breach of the peace; Misuse of drugs/offences against the police; data protection offences/attempt to pervert the course of justice.

In the 11 cases where court proceedings were raised, these were concluded as follows: Guilty plea accepted (4); accused found guilty after trial (1); case marked for no further action (1); court proceedings active (4).

Crooks among Them – Prosecutors own crime gang revealed. The only case where a COPFS employee was found guilty after trial relates to that of Iain Sawers, 27, from Edinburgh, who was found guilty of passing information to the criminal fraternity - during a seven-day trial at Edinburgh Sheriff Court in September 2014.

A jury found Sawers guilty on a charge of attempting to pervert the course of justice, the Official Secrets Act and nine under the Data Protection Act.

Sawers joined the Productions Office of the Procurator Fiscal Service in Chambers Street in the city in 2008.

His induction covered security of information and the warning that any breach could lead to disciplinary proceedings. He was also told, under the Official Secrets Act, the unauthorised disclosure of documents was an offence.

The offences by Sawers came to light when police began an investigation into the case of 27-year old Calum Stewart on charges of breach of bail and attempting to pervert the course of justice by threatening his ex-partner, Kelli Anne Smillie, if she gave evidence in a trial in July, 2013.

Stewart paid for her and her mother to leave the country and go on holiday to Benidorm on the week of the trial.

The police investigations led them to a number of phone calls and text messages between Stewart and Sawers between 24 and 29 January 2014.

These led to Stewart phoning Kelli Anne threatening her and her mother. They were to be witnesses in the outstanding trial which has since been deserted by the Crown.

The police also recovered Sawers' iPhone. Although many messages had been deleted, forensic experts were able to recover them and the telephone numbers of the senders and receiver. They showed that between April 2008 and January 2014, Sawers had passed on information to other people on nine occasions.

A check on the productions office computer showed shortly after receiving a call, Sawers' secret personal user number was used to access the information.

The jury also found Stewart guilty of attempting to pervert the course of justice and breach of bail. Neither men gave evidence during the trial – much to the relief of the Lord Advocate.

The Crown Office also admitted 40 staff  had been subject to disciplinary action, been suspended, dismissed or have been moved to other duties as a result of disciplinary action between January 2013 to late last year and  that 14 of those staff members were suspended in the period requested. The reasons for suspension included allegations related to potential criminal activity and/or charged by Police; and breach of trust.

Of the 40 members of staff who were suspended, 10 were dismissed from the Crown Office.

However officials refused to identify the reasons for their dismissal, insisting they wished to protect the identities of their colleagues and nature of the sackings.

A legal insider has since come forward this week to indicate former Crown Office staff including some of those who were sacked or had faced criminal charges - are back working with private law firms and public bodies with links to the Scottish Government.

The Scottish Sun newspaper reported further, here:

Crooks of the Crown: 15 legal staff on charges

EXCLUSIVE by RUSSELL FINDLAY 7 Mar 2016

COPS charged 15 Crown Office workers with crimes including drugs, police assault and perverting the course of justice.

Violence, vandalism, threats and data breaches were also among the alleged offences.

And 11 of those cases reported over the last two years went to court.

A source said: “The nature of the criminal charges are very serious.

“The Crown Office should be beyond reproach as it’s responsible for highly sensitive information about the most serious crimes and sudden deaths.”

Four of the 11 employees taken to court pleaded guilty, one case was dropped, four are ongoing and the outcome of one is unknown.

It’s thought Edinburgh procurator fiscal’s office worker Iain Sawers, 26, is the only one found guilty.

He was jailed for 18 months in 2014 for attempting to pervert the course of justice by leaking details of cases.

The information about staff charges from the two years to November 2015 was unearthed using freedom of information laws.

Similar data on police officers accused of crimes is published by the Scottish Police Authority.

Last night, Scottish Tory justice spokesman Margaret Mitchell said: “The Crown Office should be no different from Police Scotland in that they should routinely publish this information.”

The Crown Office is Scotland’s prosecution agency headed by the country’s most senior law officer Lord Advocate Frank Mulholland.

A spokesman said: “We employ more than 1,600 staff, the overwhelming majority of whom uphold our high standards of professionalism. Any breach of rules is dealt with swiftly and appropriately.”

Thursday, March 03, 2016

DECLARE IT, M’LORD: MSPs seek further evidence on proposals to create register of judges’ interests, Lord President to be invited to face Holyrood Committee after May 2016 elections

Lord Carloway to face questions on judicial register. A THREE YEAR Holyrood probe on proposals to require judges to register their interests is to be continued into the next Parliamentary session – with a call to invite Scotland’s latest top judge – Lord Carloway – to give evidence on plans to bring the judiciary into line with transparency rules which apply to all other branches of Government.

The decision to call in the Lord President – who is on record opposing proposals to require judges to declare their interests – came last week after MSPs sitting on the Scottish Parliament’s Public Petitions Committee heard further evidence and submissions on Petition PE1458: Register of Interests for members of Scotland's judiciary.

Speaking in favour of continuing the petition, Petitions Committee Convener Michael McMahon MSP (Scottish Labour, Uddingston and Bellshill) said: “We have written to the new Lord President, whose position is no different from that of the outgoing Lord President. However, we invited the outgoing Lord President to come to the committee to discuss the petition; does the committee want to extend the same invitation to the new Lord President, so that we can explore the issue?”

Mr McMahon continued: “There is still a live debate on the matter, and I would certainly be reluctant to close the petition without having exhausted the discussion and examined the issue—almost to destruction, I think. There are serious questions to ask.”

Committee member Kenny MacAskill MSP (SNP, Edinburgh Eastern) asked for the petition to be placed in the Committee’s legacy paper for the next Petitions Committee - which will come into being after the elections to the Scottish Parliament  on 5 May 2016.

The former Justice Secretary - who is set to publish a book revealing more on his decision to release Abdelbaset al-Megrahi – convicted of the bombing of Pan Am Flight 103 over Lockerbie in December 1988 – also hoped the next Petitions Committee would consider the process of selecting a new judge for the US Supreme Court to fill the vacancy after the recent death of Justice Antonin Scalia.

Mr MacAskill said “It would also be up to the future committee to consider what will be on-going in the United States of America, where judicial declarations go to an extreme that we might not wish to emulate—I am thinking of the replacement of Justice Scalia.”

John Wilson MSP (Independent, Coatbridge North and Glenboig) agreed with moves to keep the petition open, and backed calls to contact the Lord President, and a University of Strathclyde Law Professor who has researched judicial interests.

Mr Wilson said: “The petitioner has suggested that the committee write to Professor Alan Paterson of the University of Strathclyde, who has apparently done some independent academic research on the subject. It might be as well writing to the Lord President and asking him to consider whether he would appear before the committee. That might also be something for the legacy paper. We should also suggest that the committee invites Professor Alan Paterson to give some independent academic scrutiny of what has been requested in the petition.”

Mr Wilson also revealed former Judicial Complaints Reviewer (JCR) - Moi Ali, had recently written to The Scotsman newspaper, urging the establishment of a register.

During an evidence session held at Holyrood in September 2013 – Ms Ali backed the creation of a register of judicial interests - providing MSPs with a powerful first hand, honest and highly detailed account of the workings of Scotland’s judiciary and lack of judicial transparency & accountability.

Current Judicial Complaints Reviewer Gillian Thompson also backed plans to require judges to declare their interests, during an evidence  session of the Public Petitions Committee held in June 2015.

The cross party supported proposals - debated at the Scottish Parliament on 9 October 2014 - call for the creation of a publicly available register of judicial 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.

Video footage & transcript of Public Petitions Committee debate:

Petition PE1458 Register of judicial interests Scottish Parliament 23rd February 2016

Judiciary (Register of Interests) (PE1458) 23 February 2016

The Convener: PE1458, which was brought by Peter Cherbi, is on a register of interests for members of Scotland’s judiciary.

We have written to the new Lord President, whose position is no different from that of the outgoing Lord President. However, we invited the outgoing Lord President to come to the committee to discuss the petition; does the committee want to extend the same invitation to the new Lord President, so that we can explore the issue? There is still a live debate on the matter, and I would certainly be reluctant to close the petition without having exhausted the discussion and examined the issue—almost to destruction, I think. There are serious questions to ask.

Kenny MacAskill (Edinburgh Eastern) (SNP): There is clearly still debate about the matter. It was the Judicial Complaints Reviewer who initially indicated a change in tack, which was upheld.

Where we can take the matter and whether it should be this committee that pursues it, I am not sure. Lord Carloway, the new Lord President, has made his position quite clear. It seems to me that the question is whether anyone else wants to pick the issue up. We could ask the new Lord President the same questions that we asked of the former Lord President, but given that we have his response in writing, I do not know where that would take us.

The question is whether the Justice Committee or the Scottish Government wants to pursue the issue. My recollection is that it is about six months since we heard from the minister but there was no indication of any change in perspective.

The Convener: There are still issues to be debated and it would be useful to get the new Lord President’s views on the record. The question is whether we, as an out-going committee, extend that invitation or put it in our legacy paper so that the new committee can pick it up and run with it.

Kenny MacAskill: I would be inclined to leave it in the legacy paper on the basis that we have had a reasonably full letter from Lord Carloway. If we were to squeeze him in within the next fortnight, I am sceptical as to what we could get from him that we have not already had in writing.

John Wilson: The petitioner has suggested that the committee write to Professor Alan Paterson of the University of Strathclyde, who has apparently done some independent academic research on the subject. It might be as well writing to the Lord President and asking him to consider whether he would appear before the committee. That might also be something for the legacy paper. We should also suggest that the committee invites Professor Alan Paterson to give some independent academic scrutiny of what has been requested in the petition.

I spent half an hour this morning trying to get the updated register of interests of judicial members of the Scottish Courts and Tribunals Service. I am assured that it is on the site somewhere, but although I tried for half an hour this morning, it was impossible to find. The latest register of interests that I have comes from last year and so is not up-to-date enough to include Lord Carloway. I know that he registered no interests when he was Lord Justice Clerk.

We have been told that there are safeguards in place, but it would be useful to know how the general public get the information that they are looking for. If it is difficult to get the Scottish Courts and Tribunals Service judicial service register, it raises other questions about where we are going and whether we are making it more difficult for people to find out judicial interests.

The former Judicial Complaints Reviewer, Moi Ali, has recently written to The Scotsman, urging the establishment of a register—just as she did when she gave evidence. The current Judicial Complaints Reviewer has also said that it would be helpful to have a register of judicial interests.

I would like to think that the future Public Petitions Committee could take the issue forward and invite Lord Carloway and others to come and give evidence, perhaps answering some of the questions that arise further down the road.

The Convener: The suggestion is that we put it in our legacy paper and write to Professor Paterson, as John Wilson suggested, so that his response would be available to the new committee, which could take it into consideration. Is everyone happy with that?

Members indicated agreement.

Kenny MacAskill: I am fine with that. It would also be up to the future committee to consider what will be on-going in the United States of America, where judicial declarations go to an extreme that we might not wish to emulate—I am thinking of the replacement of Justice Scalia.

The Convener:It is interesting to watch what is happening there and compare it.

Writing in the Scotsman newspaper, Moi Ali said :

“I hope that when the Scottish Parliament’s petitions committee reconsiders a proposal to implement a register of interests for the judiciary next Tuesday, it does not accept the Lord President’s advice to throw out this petition.”

“When I was Scotland’s first independent Judicial Complaints Reviewer, I gave evidence to the committee in support of a register of interests. I am a ministerially-appointed board member in Scotland, where I am rightly required to complete a register of interests to provide assurance to the public that my dealings are above board. For the same reason, the judiciary should also complete such a register.”

“The judiciary can take away people’s assets, separate families, and lock people away in prison. Given this position of power, it is essential not only that they have absolute integrity – but crucially, that they are seen to be beyond reproach.”

“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 keep a register of interests creates public suspicion that in turn undermines judicial credibility. Thus, a register of interests is good for the judiciary and good for the public.”

JUDICIAL BLOCK: Transparency on judicial interests not welcome in my court – Lord Carloway.

Last month, Diary of Injustice reported on written evidence provided by Lord Carloway to the Public Petitions Committee on plans to require judges to declare their interests.

Lord Carloway (real name: Colin Sutherland) told MSPs: “The proper administration of justice could be inhibited by the disclosure of the judiciary's otherwise confidential financial arrangements. In that connection, there is the possibility that an individual judge may be the subject of misconceived criticism, deriving from the disclosure of personal financial information, where those interests are tangential and de minimis.”

The move by Scotland’s latest Lord President to undermine the Scottish Parliament’s efforts to increase judicial transparency follows a bitter three year campaign against the petition - led by Carloway’s former boss – Lord Brian Gill – which culminated in an ‘aggressive’ evidence session with the former top judge at Holyrood in November 2015.

Responding to Lord Carloway’s letter, the petitioner told the Committee: “Lord Carloway presents the same view of his predecessor Lord Gill in that a register of interests for the judiciary is unnecessary or undesirable. Similarly, as Lord Gill has already inferred, Lord Carloway speaks of constitutional problems if the judges are asked to declare their interests.”

“In reality, there are no constitutional issues created by this petition, nor is there an impediment to the creation of a register of judicial interests. Such a register already exists for the Scottish Court Service and Tribunals Board, of which Lord Carloway and others declare their interests.”

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

Saturday, February 20, 2016

LORD NO-WAY: Top judge Lord Carloway hits out at judicial interests register proposal - tells Holyrood ‘justice could suffer’ if judges are forced to reveal secret wealth, tax, land ownership & financial links to big business

Lord Carloway – opposes judicial interests register. SCOTLAND’S newly appointed top judge – Lord President Lord Carloway - has attacked proposals before the Scottish Parliament calling for judges to be required to declare their financial interests and links to big business as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The widely backed proposals - debated at the Scottish Parliament on 9 October 2014 - call for the creation of a publicly available register of judicial 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

However, Scotland’s latest top judge – on a salary of £220,655 a year - has declared his opposition to calls for a register of judges’ interests, with Lord Carloway claiming - the judiciary must remain exempt from the same transparency rules which apply to all other branches of Government, public bodies and the Scottish Parliament.

Writing to Michael McMahon MSP, convener of the Scottish Parliament’s Public Petitions Committee, Lord Carloway said: “It is of great constitutional importance that the judiciary remain functionally distinct from both elected representatives, who make the law, and the Government, who promote changes to the law and take executive decisions in areas involving wide discretionary powers covering many areas of economic interest.

And, the top judge – who recently published a speech on making Scotland’s courts 'fit for the 21st Century' – claimed justice could grind to a halt in a constitutional calamity if judges were forced to declare their vast wealth, property owning interests, professional links and other financial affairs – just like politicians, members of public bodies, local councillors are required to reveal.

Lord Carloway (real name: Colin Sutherland) told MSPs: “The proper administration of justice could be inhibited by the disclosure of the judiciary's otherwise confidential financial arrangements. In that connection, there is the possibility that an individual judge may be the subject of misconceived criticism, deriving from the disclosure of personal financial information, where those interests are tangential and de minimis.”

The move by Scotland’s latest Lord President to undermine the Scottish Parliament’s efforts to increase judicial transparency follows a bitter three year campaign against the petition - led by Carloway’s former boss – Lord Brian Gill – which culminated in an ‘aggressive’ evidence session with the former top judge at Holyrood in November 2015.

Responding to Lord Carloway’s letter, the petitioner told the Committee: “Lord Carloway presents the same view of his predecessor Lord Gill in that a register of interests for the judiciary is unnecessary or undesirable. Similarly, as Lord Gill has already inferred, Lord Carloway speaks of constitutional problems if the judges are asked to declare their interests.”

“In reality, there are no constitutional issues created by this petition, nor is there an impediment to the creation of a register of judicial interests. Such a register already exists for the Scottish Court Service and Tribunals Board, of which Lord Carloway and others declare their interests.”

“As members of the Petitions Committee have already discussed, it would be no great effort to expand the already existing register to include the entire judiciary. The Committee is also well aware other jurisdictions have implemented registers of judicial interests, without difficulty or an end to justice as we know it.”

“It is not enough to say, as the Lord President suggests, the judiciary should be excluded from the public's expectation of transparency, simply because the judiciary say so upon their own rules.”

“Thankfully, there is a general realisation, and acceptance, that registers of interest in public life are required, promote transparency and assist in the process of good government and detection of vested interests where they should not be.”

Lord Carloway added judges were unable to speak out in public or defend themselves against criticism – despite a series of recent headlines where judges have embarked on highly publicised criticisms of Police Scotland, the Crown Office, the media and other public bodies.

Responding to the Lord President's claims of a judiciary under a vow of silence - the petitioner told the Committee: “Lord Carloway suggests in his letter judges are unable to speak out in public. Not so. The media have covered numerous examples where members of Scotland's judiciary have spoken out in public, on government policy, reforms in the courts, cuts to legal aid, or more recently where senior members of the judiciary have become embroiled in public arguments with the Police and Prosecutors on evidence presentation in court.”

The petitioner provided MSPs with examples of judicial public comments, stating: “On the same day the media reported that the Scottish Government announced a moratorium on Shale Gas Fracking, the previous Lord President Lord Gill spoke out, declaring "Our resources of energy may be increased by the retrieval of shale gas, if that should be allowed. It seems to me therefore that the opportunity that our natural resources present should be served by the court system."

“The current Lord President himself was recently reported in the media to have availed himself of opportunities to speak out against certain interests he appeared to believe contributed to blocking Scottish Government policies such as the removal of corroboration - a move rejected by the Scottish Parliament's Justice Committee.”

“Transparency underpins our modern democracy, and should underpin our courts and judiciary in equal measure. A register of judicial interests enhances transparency, and is both in the public's interest, and that of the judiciary.”

The petitioner concluded his response by asking members of the Public Petitions Committee to call the Lord President to give evidence and to contact Law Professor Alan Paterson of the University of Strathclyde – who has published a book and material on judicial interests.

Letter from Lord Carloway to Michael McMahon MSP, Convener, Public Petitions Committee.

Lord Carloway: The proposal for a public register of the judiciary's interests, gifts and hospitality is both unnecessary and undesirable.

I have had the benefit of reading the views offered by my predecessor, Lord Gill, both in correspondence and in evidence on 10 November 2015. I agree with his views regarding:

(i) the sufficiency of current safeguards protecting the impartiality of the judiciary;

(ii) the potential for unintended consequences of the register;

(iii) the impracticality of such a register; and

(iv) the petition not, in fact, achieving its stated aims.

The petition raises the issue of the balance to be struck between the principles of openness and transparency in public life, on the one hand, and the proper administration of justice, on the other. I support the need for openness and transparency, where appropriate. There is a potential for tension between these principles and the proper administration of justice. Within the proposals in this petition there lies the potential only to undermine the latter, without advancing respect for the principles in any meaningful way. For example, it was Lord Gill who made the point, with which I agree, that the vast majority of matters that in theory could undermine judicial impartiality, such as familial and social relationships, would not be addressed by such a register.

The proper administration of justice could be inhibited by the disclosure of the judiciary's otherwise confidential financial arrangements. In that connection, there is the possibility that an individual judge may be the subject of misconceived criticism, deriving from the disclosure of personal financial information, where those interests are tangential and de minimis. It is inappropriate for judges to make public comment beyond their judicial opinions in relation to individual cases. Therefore, unlike an elected representative or a member of the Government, a judge enjoys no right of reply. Judges thus have no scope to remedy unjustified reputational and professional damage by explaining their decisions or responding to criticism.

The appropriate safeguard with regard to the judiciary is not a register of interests, but the obligation to decline jurisdiction in a case ("recuse himself/herself") where he or she has any real or perceptible conflict of interest, whatever the nature of that conflict. In that regard, in the interests of openness and transparency, all instances of (and reasons for) recusals are published on the judiciary's website.

It is of great constitutional importance that the judiciary remain functionally distinct from both elected representatives, who make the law, and the Government, who promote changes to the law and take executive decisions in areas involving wide discretionary powers covering many areas of economic interest. The danger that representatives and the Government could be influenced by personal interest is ameliorated by the relevant disclosure requirements incumbent upon them. The judiciary's function is not that of law-making nor is it equivalent to any kind of executive power. The same considerations do not apply.

Lord Gill said that judges, "by their imaginative development of the law, [...] improve and extend the law, explaining it in their judgments". I echo this characterisation, but it is not reasonable to suggest that a judge, through the means Lord Gill explained, would be able to dispense jurisprudence over a period of time that would advantage a particular financial interest which he or she had.

I hope that this assists the Committee.

Amid calls for Lord Carloway to be called to give evidence and take questions on his opposition to judicial transparency, the Scottish Parliament’s Public Petitions Committee will consider the petition again next week, on Tuesday 23 February 2016.

In a previous session of the Public Petitions Committee MSPs took evidence from the current Judicial Complaints Reviewer (JCR) – Gillian Thompson – who said: “I do not see that there is a reasonable argument to be made against people who are in public service—I might go further and say, in particular, people who are paid by the public pound—providing information, within reason, about their other activities.”

MSP Jackson Carlaw (Scottish Conservative, West Scotland) told colleagues during the same hearing: “The clerk has advised me that it is not competent for the committee to initiate a bill of its own. Of course, it is open to any member of the Parliament to do so, in this session or the next.”

“As Ms Thompson has said, there seems to be a clear public interest in the issue, which has found expression. In the absence of a more substantive argument than the impression that it is not something that people want, the committee should be reluctant to allow the petition to run into the sand. We should do all that we can to sustain it and pursue its objectives for as long as we feel able to do so.”

Scotland’s first Judicial Complaints Reviewer, Moi Ali, also backed the petition.

During an evidence session held at Holyrood in September 2013 - Moi Ali provided a first hand, honest and highly detailed account of the workings of Scotland’s judiciary and lack of judicial transparency & accountability.

Ms Ali wrote a further letter to MSPs while she held the post of Judicial Complaints Reviewer – writing of the “incredibly powerful” nature of the judiciary and why a register of judicial interests would help judicial transparency and public confidence in the justice system.

Moi Ali said: “I write not from the viewpoint of the judiciary, who have a vested interest in this issue. I write from the perspective of the Scottish public. I write not on behalf of those who hand down justice, but those who are on the receiving end. It is important that their voice is heard. They have a right to know that justice is being done, an essential component of which is that it is seen to be done. A register of interests is a tangible way of showing that justice is being done.”

“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.”

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

Friday, February 19, 2016

REGULATION ROBBER: Lawyer who ripped off clients & embezzled £1.04m from Bank escapes Proceeds of Crime prosecution - thanks to solicitors' self regulation stitch-up

No charges for lawyer who stole from clients & bank – Crown Office. A SOLICITOR who embezzled over £1 million from a bank has escaped criminal charges – because the Law Society of Scotland - who control self regulation of solicitors and the tribunals who ‘prosecute’ rogue lawyers - did not call for the case to be taken up by Police or prosecutors.

David Lyons (64) – who has appeared numerous times before the Scottish Solicitors Discipline Tribunal (SSDT) was struck off from the roll of solicitors after the tribunal heard in a recent case Lyons had consistently ripped-off clients and executry estates by charging excessive amounts for work and fees.

It also emerged during an investigation Lyons had secured a £1,010,000 property loan from the Bank of Ireland - but kept the cash for himself.

His business partner - Duncan Drummond, of Pollokshields, Glasgow, who was also found guilty of ripping off clients - was struck off at the same hearing.

In one case Drummond charged £15,700 for work he’d carried out which auditors calculated should actually have totalled £2,350 – a mark up of 568%. In another case he sent out a £4,000 bill for £1,125 worth of work.

Despite the severity of fraud and consistent breach of client trust,  there is no mention in the tribunal’s findings of any move to refer the case to Police Scotland or the Crown Office – who have both since confirmed no action is being taken against Mr Lyons or anyone from the now defunct law firm of Lyons Laing, which had offices in Greenock and Glasgow.

The ‘independent’ Scottish Legal Complaints Commission (SLCC) has also not issued any comment on the case or the lack of action against Lyons and his business partner.

The Scottish Sun newspaper reports:

'Untouchable' lawyer fury: Bent brief in £1m bank theft let-off

CROOK DODGES CASH GRAB

EXCLUSIVE by RUSSELL FINDLAY 14 Feb 2016

A CROOKED lawyer dodged prosecution despite nicking more than £1million.

David Lyons, 64, was struck off after embezzling the money from the Bank of Ireland.

But the Crown Office will not put him in the dock or use proceeds of crime laws to claw back the cash.

Former Labour minister Brian Wilson blasted the decision.

He said: “There are people in jail for embezzling £1,000 but as a lawyer he’s untouchable.

“It’s an example of the madness where lawyers are treated as a separate class of citizen.”

Lyons, of Kilmacolm, Renfrewshire, was struck off over eight counts of professional misconduct, including pocketing the £1.04million in a commercial property deal.

The Dublin-based bank — bailed out with 3.5billion euros of taxpayers’ cash after the 2008 economic crash — would not discuss the case.

But Fergus O’Dowd, who is on the Irish parliament’s justice committee, said: “If they won’t pursue him in Scotland’s criminal courts they should go after the money.”

He added: “It’s a disgrace the bank won’t comment.”

Lyons ran Lyons Laing in Greenock, where clients were ripped off with hugely inflated fees over a decade.

His colleague Duncan Drummond, of Pollokshields, Glasgow, was also struck off over four counts of misconduct.

Mr Wilson is also calling for an end to self-regulation by legal watchdog the Law Society of Scotland.

An LSS spokesman said a judicial factor was appointed in 2009 to run Lyons’ company.

He added: “The factor has an obligation to report findings to the Law Society and Crown Office.”

The Crown said: “There are no criminal or civil recovery proceedings against someone of that name.”

Scottish Solicitors Discipline Tribunal Hearing & Decision: Having heard submissions on behalf of the Complainers and the Second Respondent in mitigation and having noted three previous Findings of professional misconduct against the First Respondent and one previous Finding of professional misconduct against the Second Respondent, the Tribunal pronounced an Interlocutor in the following terms:-

The Tribunal having considered the Complaint dated 9 April 2015 at the instance of the Council of the Law Society of Scotland against David Richard Blair Lyons, residing at Greenways, Pacemuir Road, Kilmalcolm ("the First Respondent") and Duncan Hugh Drummond, residing at Flat 1/2, 80 Kirkcaldy Road, Pollockshields, Glasgow ("the Second Respondent");

Find the First Respondent guilty of professional misconduct in respect of his failure to respond to correspondence from the Complainers, his failure to obtemper statutory notices, his taking of grossly excessive fees from executry estates, his failure to comply with the requirements of the Accounts Rules, his taking of fees from the sale proceeds of a property to which he was not entitled, his failure to obtemper letters of obligation, his taking of fees without rendering fee notes, and his embezzlement of the sum of £1,040,000 from the Bank of Ireland;

Find the Second Respondent guilty of professional misconduct in respect of his taking of grossly excessive fees from executry estates, his taking of fees without rendering fee notes, his failure to comply with the requirements of the Accounts Rules and his failure to supervise his firm's assistant, in breach of the undertaking given by him to the Complainers; Order that the name of the First Respondent be Struck Off the Roll of Solicitors in Scotland; Order that the name of the Second Respondent be Struck Off the Roll of Solicitors in Scotland.

THE LYONS SHARE - How law firm employed legal industry’s commonly used overcharging scams to rip off wills & executry estates:

In the executry of Mr E, the Respondents took fees totaling £15,950.00 excluding VAT during the period 21 June 2007 to 7 April 2009. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £8,597.00 excluding VAT. The overcharge was 86%. The Second Respondent was principally in charge of this case.

In the executry of Mr AE, the Respondents took fees totaling £12,500.00 excluding VAT during the period 6 December 2004 and 26 June 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £4,338.05 excluding VAT. The overcharge was 188%. The First Respondent was principally in charge of this case.

In the executry of Mr F, the Respondents took fees totalling £15,700 excluding VAT during the period 3 April 2007 to 23 December 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £2,350.00 excluding VAT. The overcharge was 568%. The Second Respondent was principally in charge of this case.

In the executry of Mrs G, the Respondents took fees totalling £13,100.00 excluding VAT during the period 12 April 2006 and 4 August 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £5,917.03 excluding VAT. The overcharge was 121%. The Second Respondent was principally in charge of this case.

In the executry of Mrs H, the Respondents took fees totalling £8,000.00 excluding VAT during the period 5 July 2007 and 6 April 2009. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £4,642 excluding VAT. The overcharge was 72%. The Second Respondent was principally in charge of this case.

In the executry of Mr I, the Respondents took fees totalling £4,000.00 excluding VAT during the period 26 February 2008 to April 2009. A file audit by the Auditor of Court at Glasgow assessed the fees due to the firm for that period to be £1,125 excluding VAT. The overcharge was 256%. The Second Respondent was principally in charge of this case.

In the executry of Mr J the Respondents took fees between November 2004 and May 2008 which exceeded by £90,000 or thereby the value of the work as assessed by the Auditor of Greenock sheriff court. The Second Respondent was principally in charge of this case.

In the executry of Mr M, the Respondents took fees of £2,000.00 plus VAT in December 2006 and £2,500.00 plus VAT in November 2007. On neither occasion did the Respondents issue a fee note. The Auditor of Court assessed the fees due to the Respondents as £3,397.00 plus VAT. The overcharge is therefore £603.00 plus VAT. The First Respondent was principally in charge of this case.

Also in relation to this case, the assistance of the Complainers having been invoked by Ms N, the executor, and the files having been provided to the Complainers, on 15 August 2008 the First Respondent wrote to the Complainers asking for the files to be returned for Taxation. The files were sent to the First Respondent on 1 September 2008. Thereafter the Complainers wrote to the First Respondent requesting return of the files on 10 and 21 October 2008, 10 November 2008 and 7 January 2009. No response was ever sent by the First Respondent. On 16 January 2009 the Complainers issued a notice under Section 42C of the Solicitors (Scotland) Act 1980 requiring return of the file. The First Respondent did not return the file. The Complainers wrote with a list of conduct issues to the First Respondent on 25 February 2009 arising out of this executry. No response was ever received from the First Respondent. The files were eventually recovered from the Judicial Factor.

In the executry of Ms O between 20 May 2008 and 28 May the Respondents deducted fees without rendering fee notes to the executor, Mr P, in breach of Rule 6(d) of the Solicitors (Scotland) Accounts etc Rules 2001. The Second Respondent was principally in charge of this case.