Saturday, February 06, 2016

A QUESTION OF TRUST: Should solicitors be independently regulated? UK public say “Yes” - according to research conducted by the Solicitors Regulation Authority

Lawyers cannot be trusted to regulate themselves – say public. RESEARCH conducted by the Solicitors Regulation Authority (SRA) – the body charged with investigating solicitors in England & Wales, shows there is strong support in the rest of the UK for a move to make the SRA fully independent of the Law Society of England & Wales.

And, unlike Scotland, where the Law Society of Scotland ‘fronted’ regulation model – the  Scottish Legal Complaints Commission (SLCC) – continues to be driven by former Law Society staff - the English based Solicitors Regulation Authority wants a complete break from the over arching power & influence of the legal profession’s representative body – to enable it to conduct fully independent regulation of legal practitioners.

Proposals from the UK Government to fully separate legal regulators from professional bodies have been backed by polls reporting that 82 percent of adults in England and Wales say solicitors should be regulated independently.

Research conducted by ComRes - a leading research consultancy on behalf of the SRA, has found that 86 percent of adults in England and Wales believe solicitors should be regulated—similar to doctors and more than for other professions such as dentists and accountants.

And when asked about the type of regulation, there is overwhelming support for independent regulation.

Looking at how regulation affected public trust in solicitors, 68 percent of respondents said they were more likely to trust an independently regulated profession.

When asked directly about the proposals to deliver fully independent regulation, 77 percent agreed that they support the Government's attempts to do so.

Commenting on the research, Chief Executive of the SRA, Paul Philip, said: "This research shows that the public overwhelmingly support independent regulation. Public confidence is key and, as this polling shows, people say they will have greater trust in their solicitor if they know they are independently regulated.

“I am clear that separating out regulator and representative body would not only meet public expectations, but would enhance the important role of the Law Society in making sure the voice of solicitors is heard and respected.”

The Solicitors Regulation Authority recently ran a campaign titled “A Question of Trust” – which invited the public and profession to share their views on what should happen when solicitors fall short of the professional standards set out in the SRA Handbook.

The campaign used scenarios based on real-life cases to ask how serious the issues are and what action should be taken.

The response has been impressive with thousands of people getting involved.

In total the campaign secured: More than 2,350 online survey responses, 6.5m impressions on social media, including 10,000 engagements on Twitter and 1,636 answers via our Twitter polls, Almost 4,500 visitors to our website's "Hot topics" page, where the Question of Trust toolkit for firms could be found, 3,000 attendees to our events around England and Wales.

The input from the four-month campaign will help with the development of a reference framework for our staff to use when making regulatory decisions, including whether to refer to the Solicitors Disciplinary Tribunal.

Commenting on the campaign, SRA CEO, Paul Philip, said: "This is a landmark campaign that has really engaged people. Regulation is part of the social contract between the profession and the public and it important that we calibrate and validate what we do. Thank you to the thousands of solicitors and members of the public who have helped us with this.

"We asked people about what should happen when things go wrong. I believe that clear, consistent and transparent decision making is fundamental to good regulation and we are reviewing our end to end procedures accordingly. Our new reference framework will help staff and the profession alike.

"We refer the most serious cases to the SDT. The Tribunal is rightly independent and our campaign was not about how it operates. It was about stimulating a debate on the standards the public can expect of solicitors. Of course, each case must turn on its merits and we have a right of appeal where we think the Tribunal has got it wrong.

"A Question of Trust addressed the big issues at the heart of regulation and shows that there is real public interest in the high standards expected of solicitors. Testing what we do with the profession and the public increases public confidence, not only in regulation but in the profession itself."

The Solicitors Regulation Authority is due to report further on their campaign later this year.

Responding to the SRA statement on regulatory independence, Law Society chief executive Catherine Dixon said: “We support independent regulation. Regulation is about the minimum regulatory rules which should apply to the whole market to protect consumers. This is very different from professional standards of behaviour, conduct and ethics, which should be the responsibility of the profession, as they are best placed to raise these standards.”

“There is an opportunity to put in place better and simpler regulation which applies to all legal services, as currently many legal services providers are not regulated. This means that purchasers of some legal services are not protected.”

“Currently the regulatory maze is complex. There are numerous regulators of legal services and there is an opportunity to consolidate to save cost. There is also confusion because currently there is a very broad definition of regulation, which includes regulatory rules, professional standards and conduct, ethics, entry into the profession and awarding the professional title.”

“Paradoxically, the most qualified and trained are the most regulated; the least qualified and trained are not regulated. This is a mistake. There is an opportunity to redefine what regulation should cover to ensure that it is simple and better, and applies to all legal services. Regulation should not include professional standards and conduct, nor entry into the profession and awarding a professional title. In order to drive professional standards, the responsibility needs to be with the profession. This will ensure that the reputation of the profession at home and internationally is secured and that England and Wales remains the jurisdiction of choice, and that the legal profession is seen to be independent from government, enabling it to uphold the rule of law.”

The Times newspaper reported on the research conducted by the Solicitors Regulation Authority, excerpt follows here:

 It's time to have an independent body to police solicitors February 3, 2016

Should solicitors be independently regulated? The public certainly thinks so, according to a new poll this week, Frances Gibb writes. In the latest move in the current battleground between the Solicitors Regulation Authority (SRA), the profession's watchdog and the Law Society, the professional body for 160,000 solicitors in England and Wales, the SRA has published a poll showing strong support for its wish to become fully independent of the society.

The move could radically change the role and funding of the society — at present bound with the SRA. How it works is that the SRA tells the society what it needs and the society agrees the figure. The society's council then adds a sum for activities that it is authorised to conduct and together the figure determines what solicitors pay for their practising certificate fee.

Paul Philip, SRA chief executive, says: "The present arrangement is not understandable to the man or woman on the street. Most people would be surprised to know that the people who regulate solicitors are part of the body that represents the profession. In terms of public trust, you might have a question mark about that."

Meanwhile, the SRA is ready to make a strong case when ministers consult on regulation in March. "There's an inherent conflict between representing the profession and the public," Philip says. "When push comes to shove, we're part of the Law Society. If independent, we'd be less expensive and confidence in the profession would be bolstered."

SCOTLAND – Where the legal profession ensures solicitors look after their own:

In the past eight years of investigating complaints about legal services practitioners in Scotland, the allegedly ‘independent’ Scottish Legal Complaints Commission (SLCC has amassed a lengthy history of abusing clients expectations of action against wayward, rogue and corrupt Scots solicitors.

In attempts to placate calls to scrap the SLCC in current form and replace it with a fully independent regulator, the Law Society of Scotland has embarked on regular polls, one of which was widely published in the media claiming huge levels of client satisfaction with legal practitioners.

However, a media investigation by Diary of Injustice into the solicitor satisfaction survey uncovered evidence the Law Society had rigged the poll, and kept details of the SLCC’s involvement a secret, reported here: LAW POLL FIDDLE: Law Society of Scotland survey on client satisfaction used scripted replies, question rigging & involvement of ‘independent’ legal regulator SLCC was kept secret.

The full extent of how the poll had been rigged -  featured in an investigation by DOI reported here: OWNED POLL: Law Society ‘scripted’ survey criticised by Scottish Legal Complaints Commission - new data reveals few clients of dodgy lawyers ask legal regulators for help.

After the series of rigged polls, and the resignation of the SLCC’s then Chief Executive, Matthew Vickers,  the Law Society of Scotland took charge of the ‘independent’ SLCC by appointing one of their own former Directors - Neil Stevenson as the latest Chief Executive of the SLCC.

The move came after a challenging year for self regulation of Scotland’s legal profession – left reeling from the effects of the damaging BBC Scotland investigation “Lawyers Behaving Badly” -  which blew the mask off lawyers investigating their own and legal aid fraud.

A further media investigation into the Scottish Legal Complaints Commission recently revealed most of the SLCC’s key staff and investigators are in-fact families, friends & business associates of solicitors, reported here: 'Independent' Scots legal watchdog consists of solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers.

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.

Friday, February 05, 2016

THE DEPUTY: Search is on for a new Lord Justice Clerk as First Minister convenes selection panel to appoint Scotland’s second most powerful judge

Legal figures begin secret selection process for new Lord Justice Clerk. AMID the turmoil caused by the sudden retirement in May 2015 of Lord Brian Gill from the post of Lord President - and the subsequent elevation of his deputy - Lord Carloway to the top judicial post, Scotland’s First Minister Nicola Sturgeon has been forced to initiate another recruitment round to fill the post of Scotland’s second most senior judge – the position of Lord Justice Clerk.

A two week window for applications for the number two judicial role in Scotland -  which comes with a salary of £213,125 a year - was announced late last month by the Scottish Government – with a closing date of this Sunday, 7 February 2016.

The Lord Justice Clerk is the second most senior judge in Scotland and has a particular role in relation to the criminal justice system. In addition to its judicial duties, the office carries with it certain statutory duties relative to the provision of support to the Lord President in the discharge of his responsibilities as Head of the Judiciary.

The office brings with it responsibilities for providing leadership to the judiciary, not only in supporting the Lord President but also, separately, as a member and deputy chair of the Scottish Courts and Tribunals Service (SCTS), in providing leadership to the staff of the SCTS.

The Lord Justice Clerk is also chair of the Scottish Sentencing Council.

Sitting on the latest behind-closed-doors selection panel are: The 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.

A sift of applications for the post of Lord justice Clerk will take place on Thursday 11 February 2016 in order to provide a short list of candidates for interview. Invitations to interview will be issued by Friday 12 February 2016. The interviews will take place on 29 February 2016 in central Edinburgh, at a venue to be confirmed.

The selection panel will make recommendations to the First Minister by early March, who then makes her nomination to the Prime Minister after statutory consultation with the Lord President. The Prime Minister recommends a name for the new Lord Justice Clerk to Her Majesty, but may not recommend anybody who has not been nominated by the First Minister.

Eligibility for appointment as Lord Justice Clerk is the same as that for a Judge of the Court of Session. Serving judges of the Court of Session are eligible for appointment as Lord Justice Clerk.

Article xix of the Union with England Act 1707 and section 20A of the Judiciary and Courts (Scotland) Act 2008 provide that:  sheriffs principal and sheriffs who have held continuous office for at least 5 years immediately preceding the appointment;  solicitors who have had rights of audience in both the Court of Session and the High Court of Justiciary for a continuous period of at least 5 years immediately preceding the appointment; advocates of 5 years standing; and Writers to the Signet of 10 years standing who have passed an examination in civil law set by the Faculty of Advocates 2 years before appointment - are eligible to apply for the office of judge of the Court of Session and therefore appointment as Lord Justice Clerk.

The Lord Justice Clerk must be acknowledged by the judiciary and the legal profession to be among the most able lawyers of his or her generation. The holder of the office must have the capacity to command public confidence in the justice system and the confidence and respect of judicial colleagues, and to develop positive and productive relationships with judicial colleagues and others in the justice system. He or she must have the necessary knowledge, experience and judgement to be able to give authoritative opinions in the most complex and important cases both in civil appeals and in criminal cases at first instance and on appeal. Successful candidates will therefore have to demonstrate that they meet the criteria listed below to an appropriately high level

Personal Qualities and criteria for appointment: Legal and Judicial: A candidate shall: be an outstanding lawyer in the main areas of law that come to be determined in the Court of Session and the High Court of Justiciary; possess a thorough understanding of the theory and principles on which the law is based, its practical application and an ability to analyse and explore legal problems creatively and imaginatively; be able to set out complex legal issues clearly and succinctly, both orally and in writing, and to explain the reasoned basis for any decision; and be aware of the areas in which the law is developing and demonstrate a desire to master new and unfamiliar areas.

Leadership and Management: A candidate shall be able to: provide leadership and strategic direction across the full range of management issues, including through appropriate delegation, to ensure the effective and efficient delivery of the courts and tribunals service across Scotland in support of the Lord President; demonstrate an inclusive management style which builds consensus and facilitates the management of change; set and promote the highest standards of judicial behaviour in and out of court; inspire confidence, command respect and gain commitment from others; and ensure that decisions are taken and implemented to deliver an effective and efficient courts and tribunals service across Scotland.

Personal Qualities: A candidate should be able to demonstrate: Integrity, independence of mind, moral courage and the ability to command respect; Social awareness and understanding of the contemporary world; Resilience; Sound temperament, consideration and courtesy; Excellent communications skills which support the representational role on behalf of the SCTS; Fairness, impartiality and a responsible attitude.

WHO’LL BE THE JUDGE:

Diary of Injustice previously reported on the recruitment round for the role of Lord President,and featured reports from the Scottish Sun newspaper on the hunt for a new top judge, here: TO PLAY THE PRESIDENT: Hunt begins for Scotland’s next top judge & Lord President of the Court of Session.

The position of Scotland’s top judge became vacant after Lord Brian Gill – who served a short term as Lord President from 2012-2015 unexpectedly walked out of the top judicial post in May 2015 – giving only 30 days notice he intended to quit.

Lord Carloway was appointed to replace Lord Gill, in late December 2015, reported here: TOP JUDGE OF PARLIAMENT HOUSE: Lord Carloway appointed as Scotland’s Lord President & Lord Justice General of the Court of Session.

The elevation of the Lord Justice Clerk to the top job of Lord President came after recommendations were received from a secretive panel constituted by First Minister Nicola Sturgeon under the Judiciary and Courts (Scotland) Act 2008.

The behind-closed-doors panel, comprising of Sir Muir Russell & Mrs Deirdre Fulton from the Judicial Appointments Board for Scotland, Lord Reed of the UK Supreme Court and Court of Session judge Lady Dorrian - began a search in July for a new top judge in July 2015, with orders to recommend a name to the First Minister by 30 October 2015.

Lord Carloway was officially installed as Lord President in a ceremony at the Court of Session in Edinburgh on 8 January 2016, reported here: NEW JUDGE ON THE BLOCK: Lord Carloway installed as Lord Justice General & Lord President of the Court of Session.

Thursday, February 04, 2016

HI TECH, M’LORD: Lord President Lord Carloway sets out vision for digital courts and redesign of Scotland’s “Victorian” justice system for the 21st Century

Lord Carloway - Scots law to be more digital than Victorian. SCOTLAND’S top judge, Lord President Lord Carloway has set out his plans for a technologically advanced digital view of justice in Scotland.

Addressing the Law Society of Scotland’s Council late last week, Friday 29 January 2016, the Lord President spoke of his vision for courtrooms ‘fit for the 21st century - echoing earlier calls for reform in 2009 by his predecessor Lord Brian Gill (73) - who branded Scotland’s justice system as “Victorian” and unfit for purpose.

Speaking in his introduction, Lord Carloway said: “Over the next 5 years plans will be developed which will see the court room, and its ancillary offices, redesigned in light of modern ideas and technology.  It will be changed from its current Victorian form into something fit for the 21st century.  The direction of travel may differ between the civil and criminal processes, but there will be themes common to both.  In all of this, a particularly important factor is your, the practitioner’s, attitude to the proposed modernisation; the view that you have about the efficiency and effectiveness of the current systems.”

Lord Carloway continued: “Do you see the civil courts as modern institutions which adequately deal with the disputes commonly arising in today’s Scotland?  Do you consider that the criminal courts are producing fair trials which properly balance the rights of the accused with those of others?  If the answer to each question is “well maybe not entirely”, the next question is what is to be done about it.”

An earlier attempt to reform Scotland’s antiquated civil justice system – Lord Brian Gill’s Scottish Civil Courts Review, ended in watered down ‘tinkering around the edges’ after Gill’s initial proposals had been put through the Taylor Review and then further diluted by the legal profession & Scottish Government.

Coincidentally, on the same day Lord Carloway addressed the Law Society’s Council with his plans to shake up Scotland’s justice system, three appeal judges dealt the new Lord President a blow on a headline rape trial, heard by Lord Carloway in 2014.

Lord Eassie, sitting with Lady Clark of Calton and Lady Smith, issued an opinion in the high profile case, quashing the convictions of Andrew Clark - who was jailed for eight years for raping two women and sexually abusing two others in Glasgow, Clydebank and Dumbarton between 2001 and 2012

In the appeal opinion, available on the Scottish Courts & Tribunals website HERE, the appeal judges stated Lord Carloway had misdirected the jury in the rape trial, finding “.. We consider that counsel for the appellant was correct in stating that this instruction to the jury did not constitute an entirely correct statement of the law.  While a witness may be cross‑examined as to credit in respect of a prior inconsistent statement, we do not consider that it is admissible to lead evidence of a prior extra judicial consistent statement or statements in order to bolster the witness’ evidence.”

Lord Eassie wrote: "In these circumstances we have come to the conclusion that the jury were misdirected on a matter which was central to the position of the defence at trial and that we are unable to say that no miscarriage of justice may have occurred.” "We shall therefore allow the appeal against conviction."

Lord Eassie wrote that he and his fellow judges now wanted to be addressed by lawyers about what Clark's new sentence should be.

Now, Lord Carloway – who served as Lord Justice Clerk under previous Lord President Lord Gill - 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, in which a publicly available register will contain 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 is widely backed by MSPs who debated the proposals in the Scottish Parliament’s main chamber on 9 October 2014 - reported in full with video footage of MSPs and Scottish Ministers here: Debating the Judges.

Lord Carloway’s speech on digital justice and reforming Scotland's “Victorian” courts is reproduced below, in full:

Over the next 5 years plans will be developed which will see the court room, and its ancillary offices, redesigned in light of modern ideas and technology.  It will be changed from its current Victorian form into something fit for the 21st century.  The direction of travel may differ between the civil and criminal processes, but there will be themes common to both.  In all of this, a particularly important factor is your, the practitioner’s, attitude to the proposed modernisation; the view that you have about the efficiency and effectiveness of the current systems.

Do you see the civil courts as modern institutions which adequately deal with the disputes commonly arising in today’s Scotland?  Do you consider that the criminal courts are producing fair trials which properly balance the rights of the accused with those of others?  If the answer to each question is “well maybe not entirely”, the next question is what is to be done about it.

I have a number of ideas.  These may occasionally be expressions of my own personal utopia, but generally they are conclusions based upon considered, albeit inevitably incomplete, research by others.  Many of the central changes require primary legislation.  Their introduction will not therefore be my decision.  All I can do is recommend. The proposals will then go forward for deliberation in the public forum and democratic determination.  I remain, however, convinced of their ultimate utility.

Civil Procedure: I have said elsewhere that “Court reform is never complete.  Our courts must be ready to adapt and respond to progressions and innovations in society ... with a modern outlook but ... reflecting upon historical experience”[1].  The last major reforms before the Gill Review were in the first quarter of the 19th century.  We now need to capture the benefits which 200 years of technological advances have given us.  We certainly have not done so yet.

Over a year ago, Lady Dorrian cited Ofcom research which found that we are now in an era in which we spend more time using technology devices than sleeping[2].  She observed:

“If people and businesses communicate instantly by email, Skype or Facebook, they will expect public services to do likewise.  They will increasingly fail to understand, or have sympathy with, any system that still relies on extensive documentation, sent by post, and by the requirement to appear in person for the handling of routine matters”.

The Gill Report has a chapter devoted to the use of IT in the civil courts.  It cites the Government’s policy commitment to increase the use of IT in the public sector[3].  I too have previously called for “clear sky thinking” on the use of IT in Scottish courts in the interests of justice, given the particular advances in the last twenty years or so[4].  We now need to make concrete progress in the harnessing of new devices to reconfigure our practices and procedures in a radical way.

The electronic process: The Gill report noted that a paperless litigation system had been all but achieved in several jurisdictions[5]. Such systems typically produce a number of advantages: the facility to lodge documents electronically; the supersession of paper processes with electronic document management systems; the introduction of electronic case files incorporating legal databases and other research tools; the use of routine correspondence with the court by email; the conduct of procedural hearings by video conference; the taking of evidence by video link; the display of documents and other materials on screen; the digital recording of oral evidence; and the electronic issue of court orders[6].   In due course, the one which deserves most attention, and which may be the most challenging, is the digital recording of testimony.

Drawing upon the experiences of other jurisdictions, the Gill report identified a number of significant advantages of using this technology, including: reduced waiting and travelling time; the overcoming of the tyranny of distance[7]; a stricter adherence to time estimates and hearing start times; the involvement of principal solicitors with full instructions; reduction of expense; and generally increased accessibility of the civil justice system, particularly for private individuals, firms and smaller corporate litigants[8].

In Scotland, there was widespread take up some time ago, in commercial causes at Glasgow Sheriff Court, of case management conferences by telephone[9], The Inner House put a bit of a damper on this in couple of cases some seven years ago[10]. This caused some retrenchment, but the idea is still a good one. The desirability of conducting procedural hearings by conference call, preferably on video, will depend upon the facts and circumstances of each case.  As the European Court of Human Rights has explained[11], a distinction can be drawn between these cases where the hearing involves a decision on the merits, and procedural hearings, such as case management diets.  The Convention right to a public hearing does not carry with it a requirement that every procedural hearing needs to be in open court. Procedural hearings do not involve the determination of civil rights or obligations[12].  There ought to be no difficulty in principle with procedural hearings being conducted by means of telephone or video conferencing, provided certain safeguards are in place.

The electronic process for use in the Court of Session and the sheriff courts is in the late stages of development by the Scottish Courts and Tribunal Service.  It may be ready for piloting as early as the Summer.  It is envisaged that this system will have all the advantages envisaged in the Gill report.  In time, it is anticipated that the system will be expanded to facilitate the taking and hearing of evidence by recorded video.

Modes of Proof: Our system of proof is founded upon the primacy of oral testimony, that is, an account given upon oath from the witnesses in court.  The apparent reason is, as the editor of Dickson put it at the end of the 19th century “that an examination and cross-examination in open Court, under the solemn sanction of an oath, are the best means of securing truth and detecting falsehood”[13].  Certainly, the perceived significance of a witness answering for his or her testimony at the Great Day of Judgment, as the original form of oath prescribed[14], was considerable in these God fearing days.

This mode of inquiry, or truth finding, is inherited from the Victorian age and earlier, when there was a need for litigants, their representatives and witnesses, to appear before the courts at a specific cited time and place.  Those considerations are losing relevance today, when information can be assembled and presented in recorded form using modern technology.  Yet, the rules on the admissibility of evidence, other than the formal removal of the prohibition on hearsay, remain substantially similar to those set out in 1887 by Dickson[15].  Many forms of what should be admissible evidence of fact today – video recordings of witness accounts, for example – would have been beyond the then realms of contemplation.  Although it may be competent to use these as evidence, that does not routinely occur. In our age of technology, we must seize the moment and hold that, in the future, evidence might be presented to the court in a quite different, more advanced manner, than the appearance of the witness at court.

Today, what a person says can be recorded electronically and accurately at any time in audio and video format.  Events can be caught, contemporaneously, on CCTV or on portable devices.  In the ascertainment of fact, the question then is: which is more likely to be true: a record of an event as caught on camera and a video recorded statement made by a witness in the minutes or hours immediately following an event; or the oral testimony of a witness at a proof months or perhaps years later?  Why should it not be the norm, employing a procedure akin to a commission[16], for all evidence to be taken, in advance, in the form of a video recordings of witnesses’ accounts or of the relevant event or thing?  Our system has long recognised the competency of taking the evidence of a witness, which is in danger of being lost, to lie in retentis or the evidence of a witness who will be unavailable for the proof diet[17].  Provided that there is suitable oversight of the procedure and the witness can be, if judicially deemed necessary, cross-examined, this material should in principle be admissible as the primary method of proof of fact[18].

The task of evaluating credibility and reliability would, where required, remain with the judge.   If the final hearing proceeds, the video recordings can be submitted to the judge who will have examined all of the evidence in advance.  Excepting cases with special features, the diet would be restricted to oral submissions.  The judge, having had the opportunity to digest the evidence in advance, would be in a better, more informed position to engage with these submissions.  The diet itself would be much shorter, reducing expense and waiting times in other cases, thereby increasing the general accessibility of the civil courts. 

This process would offer the additional benefit that witnesses could provide their testimony at a time and place convenient to themselves, as well as the parties’ representatives, and the court.  Once the evidence has been heard and recorded, parties would have an opportunity to consider the advantages or otherwise of proceeding any further.  In this way, the reform might serve a dual function as a dispute resolution procedure whereby parties could evaluate the merits of their respective cases at a much earlier stage, without incurring the risk and expense of proceeding to the conventional final diet.

Article 6 confers, in civil cases, the right to a fair trial.  There is no breach of that essential guarantee inherent in these proposals.  There would be sufficient safeguards.  Even in criminal matters, the European Court has held that Article 6(3)(d), which contains the accused’s right to examine or have examined witnesses against him, is not absolute.  It does not entail a right to cross-examine every, or indeed, any witness in the conventional domestic sense in open court.[19]  There must, of course, be an opportunity to pose questions to a party or a witness, but that is the extent of the Convention entitlement.  The proposed new procedure would need to guarantee an opportunity to ask questions of a witness and, where appropriate, use cross examination as a forensic technique.

It is unlikely that the civil justice system, or the parties, can afford to have the luxury of the long proof, other than in the most exceptional of circumstances.  Restrictions in oral examination and cross-examination, along the chess game model, may have to be considered in the not too distant future.  The days of the lengthy proof may soon be over.  Such diets are time consuming, expensive and unnecessary.  They do not operate in the matter best suited to the ascertainment of truth.  They are not consistent with modern ideas of justice.

Appropriate level: Significant structural changes to our civil court system are underway.  The essential consideration is the promotion of justice, more particularly access to justice, through the quality and efficiency of our courts.  The objective is “rationalisation”; improved organisation, not only of the court structure, but also in the allocation of cases to be heard.  Cases must be given, but given only, the appropriate level of scrutiny.  They must be determined in accordance with our principles of law and justice but, in the promotion of justice for all, they must also be determined expeditiously and affordably.

Suffice it to say, the devolution of a large chunk of civil first instance business from the Court of Session to the Sheriff Courts by virtue of the increased privative limit is the headline reform, or was the main concern of the Bar and certain agents based in Edinburgh.  It may promote local justice, but the new All Scotland Sheriff Personal Injuries Court is likely to process most of the devolved work

One consequence will be that the Court of Session will be appropriately placed to function, as it should, as the supreme civil court in Scotland.  An increasing volume of public, and public interest litigation, important and developing areas of jurisprudence, is anticipated, especially as more reserved matters are devolved to Holyrood.  It is important that the Court of Session is in a position to deal with the new business promptly and effectively.   Although it is beyond the scope of this address, the affordability of litigation is a crucial consideration underlying the reforms.  Increased efficiency and cost-effectiveness will be achieved from the allocation to, and hearing of cases before, courts commensurate with their nature and subject-matter.

Leave provisions: The right of appeal to the Sheriff Principal against all final judgments and those involving for example interim interdicts and decrees, and that traditional staple, the refusal of the reponing note, is preserved[20].  Otherwise, leave from the sheriff is required to take matters further[21].  Whether an appeal will be heard before one or three Appeal Sheriffs is for determination by the Sheriff Appeal Court[22], as is whether it may be leap frogged, where an appeal raises a complex or novel point of law[23]. 

Appeals against a decision constituting a final judgment to the Court of Session from the Sheriff Appeal Court may be taken only with leave granted by the Sheriff Appeal Court, which failing the Court of Session, but only if the appeal raises an important point of principle or practice or there is some other compelling reason for the Court of Session to hear the appeal[24].  Thus, appeals from decisions of fact or discretionary determinations taken in the sheriff court are now unlikely to reach the Inner House.  Those that do must have a wider procedural or practical significance.  This test is intended to cause a significant drop in the number of unmeritorious appeals reaching the Divisions, often presented without the benefit of professional legal advice.

The automatic right of appeal from the Court of Session to the United Kingdom Supreme Court has ceased to exist.  The substitution of the new sections 40 and 40A of the Court of Session Act 1988[25] brings Scotland into line with the other UK legal systems in civil appeals at least in so far as final judgments are concerned.  Leave to appeal must be sought from the Inner House.  Permission will be granted only if “the appeal raises an arguable point of law of general importance which ought to be considered by the Supreme Court”[26].  Such a test is already familiar from recent cases, notably Lord Reed’s dictum in Uprichard v Scottish Ministers[27].  The timing of applications continues to be relevant.[28]

Criminal Law: I turn briefly to criminal law; briefly because, first, I have largely covered most of what I want to say in this field in relation to the use of pre-recorded testimony; secondly, I have spoken on this topic frequently; and, thirdly, very shortly, I hope that the Scottish Courts and Tribunal Service will publish its Evidence and Procedure Report; a culmination of an examination of the solemn and summary criminal systems with conclusions on the best way forward.  This is not specifically designed to save money. The proposals have not been costed.  It is an attempt to improve our fundamental way in which we ascertain fact, or, more accurately, truth, in criminal trials.

The problems within the summary criminal system were highlighted recently in the Audit Scotland Report, with its pointed statistics on the number of prosecutions mounted, trials fixed and trials conducted. The pace of change in society threatens to leave criminal procedure behind.  There requires to be a significant re-design of summary criminal procedure to take full advantage of the new technologies which are available. Along the lines which I have already mentioned in the civil context, work must be undertaken to develop the detailed requirements of a Digital Evidence Vault which can store and manage evidence and other information relevant to individual criminal cases.  The numbers of witnesses who require to attend court must be radically reduced.  There requires to be a more streamlined, digitally enabled justice system which enables cases to be managed judicially and administratively prior to trial so that personal appearances of accused and representatives are reduced to a minimum. Pleas of guilty should be capable of being submitted easily, at any time, on-line. Trials must only be fixed when the parties are ready to engage in that process.

Advanced systems must be introduced to deal properly, that is fairly, with cases involving children and vulnerable witnesses. It must be presumed that in such cases the evidence in chief and cross must be in pre-trial recorded form The court has already recommended a system whereby, in cases where there has been a Joint Investigative Interview, there ought to facilities to hold any cross-examination at any point after the service of the petition or complaint. Improvements in the training of those conducting JIIs must be made.  Advocates or solicitors engaged in the examination or cross-examination of children must prove that they have the proper skills to do so. Their work must be closely supervised by the court.

The Bowen Reforms, which introduce the High Court system of procedure into the sheriff courts, notably in connection with the fixing of trials, must be properly and effectively implemented. As I have recently made clear in the Practice Note, the First Diet in solemn cases must normally be regarded as the end point in preparing for a case and not its starting gun. The courts must deal with all preliminary points in advance of trial at diets having sufficient allocated time. The jury trial diet must be regarded as a precious resource, not to be interfered with.

Conclusion: Much of this will be achieved in our professional lives, provided that we do not take a cantankerous and obstructive approach to it. Ultimately, it is much better that we have a legal profession that enjoys working in a civil or criminal justice system which works fairly and efficiently; not one which may be seen by some as failing in certain areas. It is my hope that you will all engage in this process so we can have a system in which, when the questions I asked at the beginning of this talk are asked, we can say “well, just about”.

Lord Carloway, Lord President, 29 January 2016

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.

Wednesday, February 03, 2016

LAW ROGUES SURVEY: Consultation launched by Scottish Legal Complaints Commission - What should lawyers & clients expect from solicitors’ regulator run by vested legal interests?

Legal regulator seeks consumer & legal views on ‘new’ strategy. SCOTLAND’S ‘independent’ regulator of complaints about solicitors – the Scottish Legal Complaints Commission (SLCC) has launched a consultation seeking views from the public, clients & the legal profession on a strategy for the next four years.

The SLCC – created by the Scottish Government in 2008 at a cost of over two million pounds of taxpayers money, was originally planned to be a single gateway for all complaints relating to the legal profession, and a break from endemic dishonesty and corruption in the system of self regulation of solicitors – managed by the Law Society of Scotland.

However, the past eight years of ‘managing’ public complaints about solicitors has brought few headline success cases for clients of rogue solicitors solicitors – despite a staggering £20 million pounds of clients’ funds in the form of complaints levies thrown at the widely criticised pro-lawyer SLCC.

After eight years of doing little to raise standards in Scotland’s legal profession, the SLCC now claims : “We want to continue that journey: looking at greater efficiency and effectiveness (especially around early resolution); how we can share trends and learning from the many complaints we have dealt with to inform better practice; increasing our visibility; improving our own customer service; and drawing on best practice principles in regulation and consumer policy.  In our strategy we discuss why this approach is good for consumers, and good for the sector – high confidence in legal services plays a vital role in sustaining and growing the market.”

However, a recent media investigation uncovered most of the staff and investigators at the Scottish Legal Complaints Commission are in-fact families, friends & business associates of solicitors, reported here: 'Independent' Scots legal watchdog consists of solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers.

And in December last year, the commission announced it would publish selected details of cases the regulator had investigated in relation to corrupt lawyers.  NO NAME, NO SHAME: Scottish Legal Complaints Commission will protect identifies of rogue solicitors & dishonest law firms.

Pointedly, the SLCC refused to name or shame any solicitor or law firm involved in complaints and scams – leaving consumers in the dark on lawyers and their law firms who are the subject of frequent complaints for the same offences against clients & consumers of legal services in Scotland.

The latest annual report from the Scottish Legal Complaints Commission, 2014-2015 SLCC Annual report - published in December 2015 - indicated the regulator had paid out £401,000 to victims of rogue or corrupt solicitors, reported here: ROGUES PAY: 1009 cases of rogue lawyers reported to ‘independent’ legal regulator as SLCC claim mediation success up, £401K awarded to clients of dodgy solicitors.

However, the figure of £401K is thought to be a tiny fraction of the amount of fraud involving solicitors and their clients every year, demonstrated alone in one on-going case brought to the attention of the media where a sole solicitor is involved in the disappearance of around £500,000 from a trust.

Now, seeking what some in the legal profession are calling a “51st shade of grey”, the Scottish Legal Complaints Commission has announced  a consultation on a new strategy for the next four years, aimed at putting consumer understanding at its heart.

The draft strategy outlines a number of key priorities for the SLCC including work with consumer groups, lawyers and professional bodies such as the Law Society of Scotland and the Faculty of Advocates.

This work includes greater efficiency and effectiveness in complaints handling, increased visibility for the SLCC and considering whether the current regulatory set up delivers effective protection and redress for consumers.

SLCC consultation 2016  – Your views count.

Speaking with regard to the consultation, Bill Brackenridge, SLCC Chair said,  “At a time when consumer rights and redress are very much on the agenda for all sectors, this strategy lays out the path to an even more effective and efficient legal complaints handling system, where we build on the learning from complaints we’ve already undertaken in the last seven years.”

“We’re currently in a strong position and now is a great time to start planning for the years ahead – to our 10th anniversary in 2018 and beyond.  We think we can deliver even greater value to consumers and to lawyers, but working in partnership is a key part of this.  We’re looking forward to hearing what our stakeholders want to contribute to the refreshed approach we’re laying out.”

Former Law Society director, Neil Stevenson  - appointed SLCC Chief Executive during 2015 added, “One area we think will be of particular interest is focus on the consumer journey – we tend to talk about regulation from the perspective of the pieces of legislation, or the institutions involved. With the strategy we’re consulting on, we’ve lifted techniques used with patients in the NHS, and used them to examine the pathways along which lawyers and consumers experience regulation.  It makes you look very differently at the current landscape – for example, should a single complaint travel across as many as four organisations to be resolved? And even if that is the best way of handling it, how do you work together to give the consumer a single explanation of the system and the different stages? ”

“Personally, another project I see as vital is work to look at situations where we decide a client has suffered poor service, but the firm is being disbanded and the client never gets the refund in fees we award.  We think this undermines confidence in the regulation of the sector, and want to work with others to look for solutions.  We believe clients should be sure they will always get redress when things go wrong, and we know lawyers also want to be able to give this reassurance, but that’s not a promise that can always be made at the moment.   Of course, the purpose of the consultation is to see what focus and projects others think are important, and we’d really encourage debate and input.” 

Submit your questions, comments and responses to consult@scottishlegalcomplaints.org.uk.

The deadline for responses is Friday 11 March 2016.

The SLCC’s budget and operating plan for 2016-2017 are also out for consultation. All documents relating to the consultation can also be viewed on the SLCC’s website at the following links

Draft Strategy for 2016 - 2020 (PDF, 1.3 MB)  Draft Operating plan for 2016-2017 (PDF, 715 KB) Draft Budget and proposed levies for 2016-2017 (PDF, 847 KB)  Consultation questions,  on which we would specially value your views (PDF, 705 KB)

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.

Friday, January 22, 2016

CRIME FLIES: Crown Office jet set junket racket - Files reveal Prosecutors spent £57K on international & domestic air travel as crooks deal plea bargains to dodge law & courts

Prosecutors swap court time for international jet travel. SCOTLAND’S Prosecutors based in Edinburgh at the Crown Office & Procurator Fiscal Service (COPFS) - are now spending as much time in the air jetting between international destinations than chasing some of Scotland’s biggest crooks, tax dodgers, gangsters & serial offenders.

Figures obtained by the media show the Lord Advocate, Frank Mulholland and his team of staff jetting off to 39 international destinations and choosing air travel over other modes of transport for 143 domestic UK flights – all funded by public cash.

Hong Kong, Mauritius, Taiwan South Africa, Australia, Malta, San Francisco, and New York are listed among the international destinations visited by Crown Office employees on the taxpayer air junket ticket.

The figures (Destination & number of flights) reveal: International flights 2012/13:  Albania  2, Amsterdam  10, Brussels  1, Budapest  1, Cape Town  1, Charles de Gaulle  2, Cologne/Bonn  1, Copenhagen  2, Frankfurt  1, Lisbon  2, Luxembourg  4, Malta  1, Pula  1, Rome Leonardo de Vinci  2, Washington Dulles Int  5, 2012/13 Total  36

International flights 2013/14:  Amsterdam  12, Basle  1, Brussels  1, Bucherest, Romania  2, Canberra  1, Charles de Gaulle  5, Hobart  3, Krakow  1, Luxembourg  3, Madrid  2, Taipei  1, Vilnius  1, Washington Dulles Int  1, Total  34

UK Domestic flights 2012/13: Aberdeen  2, Benbecula  2, Birmingham  1, Edinburgh  9, Glasgow  8, Inverness - Airport  2, Kirkwall  1, Lerwick, Shetland  1, London City  34, London Gatwick  7, London Heathrow  28, Manchester  2, Total  97.

UK Domestic flights 2013/14: Birmingham  4, Edinburgh  9, Glasgow  6, Inverness - Airport  4, Kirkwall  3, Lerwick, Shetland  14, London City  30, London Gatwick  9, London Heathrow  42, London Stansted  3, Stornoway  5, Total  131

The growing air junket habit at the Crown Office comes after the media exposed a bonus culture racket among Scots prosecutors – revealing Crown Office staff share bonus payoffs of more than £580,000 in just two years.

Yet, every year, the Edinburgh based Crown Office - which costs taxpayers a staggering £112.5 million every year – issues regular press releases claiming hard up prosecutors are busy chasing hundreds of criminal gangs and  thousands of unknown gangsters and their ‘professional’ advisers – who hardly ever see the inside of a court room.

Recently the Crown Office has come in for criticism after a number of high profile and expensive prosecution flops which allowed criminals to walk free after prosecutors failed to do their job.

And in a number of cases presented by the Crown Office as successes for justice - a deeper look into the facts of the prosecutions and their outcomes revealed plea bargains and  proceeds of crime seizures dwarfed by vast amounts of publicly funded legal aid paid to crooks.

Last week, BBC news reported a Perth drugs dealer had been allowed to keep £300K of his drugs profits - after high flying prosecutors cut a plea bargain deal.

The Crown Office and Lord Advocate Frank Mulholland have also been hit with criticism over their refusal to prosecute the driver of the Glasgow bin lorry tragedy which resulted in six ‘preventable’ deaths.

Another similar case where Prosecutors were criticised for a failure to act involved the deaths of two students, killed by a driver of a Range Rover in Glasgow in 2010. The Crown Office dropped their attempt to prosecute the driver in 2013. Both cases are now the subject of bids to begin private prosecutions.

The Scottish Sun reports:

CRIME FLY WITH ME: Taxpayers foot exotic trips bill 

Prosecutors' £57K travel costs

Exclusive:by Russell Findlay Scottish Sun 03/01/2016

PROSECUTORS were blasted for splurging more than £57,000 of taxpayers' cash last year alone flying staff across the globe.

Hong Kong, Mauritius, Taiwan and New York were among 15 exotic destinations visited by Crown Office employees.

And since 2012, they have taken off on a total of 109 international flights to places like South Africa, Australia and Malta.

Yesterday, Tory MSP Alex Johnstone slammed the foreign travel bill as "appalling".

It comes as Finance Secretary John Swinney raised the Crown's budget by £400,000 to £112.5million for this year, despite massive public spending cuts elsewhere.

Mr Johnstone said: "Hard-working Scots will be appalled to learn their cash is going on flying staff out to far-flung destinations.

"If it's not to solve a crime, then they shouldn't be going — there are plenty of conferences and training events in the UK."

He added: "As the SNP are slashing budgets left, right and centre and local courts are closing, this does not represent good value."

The Crown, led by Lord Advocate Frank Mulholland, racked up £29,504 on 39 international flights to meetings and conferences last year and £27,603 on 143 domestic trips.

The number of overseas flights has remained fairly steady over three years at 36, 34 then 39.

But domestic flights have increased sharply from 97 to 131, then 143 last year.

Amsterdam was the most common destination, with 30 trips since 2012. The Dutch city is a major travel hub and close to the International Criminal Court in The Hague. Flights to Washington DC and Malta were in connection with the ongoing probe into the 1988 Lockerbie bombing.

Scottish Labour justice spokesman Graeme Pearson said: "As prosecution services are finding it hard to deliver justice across our shrinking court system, I hope the authorities can justify the costs."

A Crown Office spokesman last night defended the outlay and insisted bosses "strive to provide the best value for the public purse".

He added: "Prosecutors are required to travel abroad in connection with the investigation of cases, in the support of international co-operation and to secure the extradition of individuals who have committed serious crimes.

"It is essential to ensure that Scottish interests are represented at meetings and conferences, which may make decisions which have far reaching consequences for the police, courts and people of Scotland.

"It would be irresponsible not to ensure that representation."

£26K SPLASHED ON JUDGES' JAUNTS

by Russell Findlay

JUDGES sparked controversy last year after we revealed they spent £26,000 of taxpayers' cash on overseas trips.

Top beaks flew out to destinations including Russia, Israel, Switzerland, Germany & France.

The most expensive jaunt was a £5,8000 visit to Canada by Lord Carloway, then Scotland's No2 judge. Lord Gill, the Lord President also spent five days on a £2,800 trip to Doha, Qatar, where he gave a speech on judicial ethics.

It came after he twice snubbed calls to appear in front of Holyrood's public petitions committee just 800 yards from his office.

Legal campaigner Peter Cherbi said: "Judges are supposed to sit in courts, not in jets."

The Judicial Office for Scotland also forked out public money for Lord Armstrong, Lord Boyd and Lady Dorrian to meet other European judges on a three-day trip to Luxembourg.

Lord Eassie travelled to legal events in St Gallen, Switzerland, and Yalta, Ukraine. Lady Clark spent four days in Tel Aviv, Israel, while Lord Hodge went to Paris.

Full details of overseas trips undertaken by Scottish judges are available here: Overseas Travel of Scotland’s Judges 2013-2014 & Judicial overseas trips & expenses claims 2010-2013

Wednesday, January 13, 2016

LORD, FIRST CLASS: Scotland’s former Lord President demands expenses from Scottish Parliament - after challenging MSPs to close three year Holyrood probe to create register of judges’ interests

Anti-transparency judge demands MSPs foot bill for rain travel & meals. SCOTLAND’S former top judge has demanded taxpayers pay his dining expenses & travel to Edinburgh - after he was forced to face MSPs over a three year Scottish Parliament investigation of plans to create a register of judges’ interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

Lord Brian Gill (73) - who twice refused to attend earlier hearings of the Scottish Parliament’s Public Petitions Committee who are considering proposals to require judges to register their interests – submitted a £225.05 claim for first class return rail fare from London, a £19.50 claim for taxis and a £23.20 claim for a meal the former Lord President treated himself to the night before he finally showed up to face MSPs at Holryood on 10 November, 2015.

Gill – who was dubbed “Lord No-No” for his refusals to give evidence to MSPs on judges’ undeclared links to big business, secret criminal records & hidden wealth, handed the claim to the Scottish Parliament after a stormy session at the Scottish Parliament - where the former top judge demanded MSPs halt their public debate on the judiciary’s interests and close down a long running public petition calling for transparency on judges’ wealth – which is backed by both of Scotland’s independent judicial investigators.

The proposals, backed by cross party MSPs during a debate in the Parliament’s main chamber on 9 October 2014 - Debating the Judges - 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.

As the petition was debated at Holyrood in the Lord President’s absence, it was revealed Lord Gill billed taxpayers for a five day state visit to Qatar. The top judge also travelled to numerous other international destinations – all charged to taxpayers.

An investigation by the Scottish Sun newspaper also revealed Scotland's top judges spent £26,000 on thirty three international trips funded by taxpayers - including journeys to destinations such as Russia, Israel, Switzerland,Germany, France, Bulgaria, Lithuania.

Previously, Lord Gill refused to give evidence to MSPs on their probe of the petition, instead, the top judge sent a series of letters to MSPs - demanding the judiciary remain exempt from the public’s expectation of transparency in Government and those in public life.

The Scottish Sun reports:

FIRST CLASS FURY - MSPs blast parly quiz judge expenses

Lord Gill claimed £267.75 expenses bill

By RUSSELL FINDLAY, Scottish Sun.

A SENIOR judge is being challenged over claiming first class rail travel to a Scottish Parliament grilling.

Lord Gill, 73 — who stood down from his £220,655-a-year post as Lord President in May — has been asked by MSPs to explain a £267.75 expenses bill.

It covers a £225.05 first class return rail fare from London, £19.50 on taxis and £23.20 for a meal the night ahead of appearing before Holyrood’s Public Petitions Committee last month.

The committee discussed the claim on Tuesday and its convener, Labour’s Michael McMahon, is now writing to Scotland’s former top judge about it. Last night, Mr McMahon declined to reveal the contents of the letter, saying: “I can’t discuss this as it was in private.”

But a source said: “There were raised eyebrows at the claim, and they intend to ask why he needed to claim for first class return rail travel. They may also ask about claiming for a meal the day prior to attending.”

After twice snubbing the committee while Lord President, Lord Gill spoke against law journalist Peter Cherbi’s petition for a register of judges’ business, financial and personal interests.

Lord Gill’s successor has still to be appointed. But we told last month, left, how the new Lord President will not be called before the committee.

Last night, a Scottish Parliament spokeswoman said: “It would be inappropriate for us to comment.”

JUDGE DEMANDED MSPS CLOSE JUDICIAL TRANSPARENCY PROBE:

Evidence of Lord Gill before the Scottish Parliament 10 November 2015

During  tough exchanges between the ‘retired’ judge and MSPs, Lord Gill got into arguments with members of the Petitions Committee, reflecting his underlying aggressive tone at being hauled before MSPs he twice refused to meet.

In an angry exchange with MSP Jackson Carlaw, Lord Gill demanded to control the kinds of questions he was being asked. Replying to Lord Gill,  Mr Carlaw said he would ask his own questions instead of ones suggested to him by the judge.

And, in responses to independent MSP John Wilson, Lord Gill dismissed media reports on scandals within the judiciary and brushed aside evidence from Scotland’s independent Judicial Complaints Reviewers – Moi Ali & Gillian Thompson OBE – both of whom previously gave evidence to MSPs in support of a register of judges’ interests.

Facing further questions from John WIlson MSP on the appearance of Lord Gill’s former Private Secretary Roddy Flinn, the top judge angrily denied Mr Flinn was present as a witness – even though papers prepared by the Petitions Committee and published in advance said so. The top judge barked: “The agenda is wrong”.

And, in a key moment during further questions from committee member Mr Wilson on the integrity of the judiciary, Lord Gill angrily claimed he had never suspended any judicial office holders.

The top judge was then forced to admit he had suspended judicial office holders after being reminded of the suspension of Sheriff Peter Watson.

A statement issued by Lord Gill at the time of Watson’s suspension 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.”

Several times during the hearing, the retired top judge demanded MSPs show a sign of trust in the judiciary by closing down the petition.

During the hearing Lord Gill also told MSPs Scotland should not be out of step with the rest of the UK on how judges’ interests are kept secret from the public.

Questioned on the matter of judicial recusals, Gill told MSPs he preferred court clerks should handle information on judicial interests rather than the details appearing in a publicly available register of interests.

Lord Gill also slammed the transparency of judicial appointments in the USA - after it was drawn to his attention judges in the United States are required to register their interests.

In angry exchanges, Lord Gill accused American judges of being elected by corporate and vested interests and said he did not want to see that here.

However, the situation is almost identical in Scotland where Scottish judges who refuse to disclose their interests, are elected by legal vested interests with hidden links to corporations.

Scotland’s first ever Judicial Complaints Reviewer (JCR) - Moi Ali gave backing to the the judicial transparency proposal during a must watch evidence session held at Holyrood in September 2013.

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

Scotland’s new top judge – Lord Carloway – who served as Lord Justice Clerk under Lord Gill - 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,

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, January 08, 2016

NEW JUDGE ON THE BLOCK: Lord Carloway installed as Lord Justice General & Lord President of the Court of Session

Lord Carloway installed as Scotland’s new top judge. SCOTLAND has a new top judge today as Lord Carloway was formally installed in a ceremony this morning at Parliament House as the new Lord President & Lord Justice General of the Court of Session.

The post of Lord President – who is paid £220,655 a year - lay vacant for an unprecedented seven months after Lord Carloway’s predecessor in the job - Lord Brian Gill unexpectedly walked out of the top judicial post in May 2015 – giving only 30 days notice he intended to quit.

Lord Carloway’s confirmation as Lord President was reported in further detail, here: Lord Carloway appointed as Scotland’s Lord President & Lord Justice General of the Court of Session.

Lord Carloway – real name Colin Sutherland - is known for his backing for the Scottish Government’s failed plan to remove corroboration from Scots law.

While in the role of Lord Justice Clerk, Lord Carloway authored the Carloway Review Report & Recommendations 2011 – which backed a joint effort by Scottish Ministers and the Crown Office to remove the centuries old safeguard against wrongful convictions requiring evidence in criminal trials to be corroborated from two independent sources.

The Carloway Review and it’s recommendation to abolish corroboration - was opposed by members of the judiciary in their Response by the Senators of the College of Justice to SG consultation : Reforming Scots Criminal Law & Practice.

Meanwhile, a new appeal court has been set up to examine disputed civil cases from Scotland's sheriff courts.

The new Civil Sheriff Appeal Court will hear appeals on civil cases from local courts which are typically less serious than those escalated to the Court of Session.

The Criminal Sheriff Appeal Court – created last year has already fallen foul of the legal profession after solicitors vowed to boycott it over levels of legal aid fees.

Commenting on the changes, Community safety and legal affairs minister Paul Wheelhouse – who previously mislead a Holyrood Committee with back pocket briefing notes aiming to help the previous Lord President conceal judges links to business and judicial financial & property empires, said the changes would help "reduce unnecessary delays".

Speech by Lord President, Lord Carloway: Friday 8 January 2016

A few words. First, I wish to thank my own colleagues and all the staff for their support over the last 7 months or so whilst the appointment process was taking place. This was an invaluable resource during a period of some uncertainty. Secondly, I wish to thank all who have taken the time to write to me with words of encouragement and wisdom. I will reply to all of them over time. Thirdly, I wish to thank everyone here for taking the time to attend this ceremony.

This is not the time or place for prolonged analysis of the challenges which the courts face as we commence another New Year. It is after all a business day and some of what I am going to say has been said before. I should, however, say something about what is being addressed and with what priority. I am not today going to cover the integration of the reserved tribunals into the Scottish Courts and Tribunal Service, but that does not mean that it is not regarded as of particular importance.

On the civil side, we will shortly have the Sheriff Appeal Court hearing the merits of appeals; removing a portion (perhaps one fifth) of the appellate business from this court's Inner House. The All Scotland Sheriff Personal Injuries Court has recently been launched and is expected, along with other sheriff courts operating in the post new privative jurisdiction limit, to absorb the bulk of the PI work traditionally channelled through this court's Outer House. We await statistical information on the practical effect of these major pillars of Lord Gill's reforms. It will undoubtedly produce a rebalancing of civil work which ought to see the Court of Session engaged primarily in cases appropriate to the supreme courts in Scotland.

In due course, consideration may require to be given to the size of the Divisions and the work of the appellate judges according to the change in business volumes. We await too the impact of the new provisions: for leave to proceed with judicial review petitions, to appeal generally to the Inner House; and to proceed to the United Kingdom Supreme Court. The UK Supreme Court provisions should ensure that only significant matters of law, rather than fact, and then only ones of general public importance, will be considered by that court. That will be something into which that court will have a decisive input. Again, however, a rebalancing will undoubtedly occur, which will hopefully ensure that each case will ultimately be considered at, but only at, the appropriate judicial level.

There will be continued work to increase accessibility to the courts, including the Court of Session. This will involve a determined drive towards more sustainable procedures with the introduction in the near future of what will in effect be the electronic process. There will be efforts focused on the time taken not for a case to be heard in court, but for a decision to be issued. The problem area here is primarily the Outer House, but in that context it applies across the board in ordinary, commercial and family actions. The solution requires careful consideration of the allocation of judicial reading, hearing and writing time; a fine balance which, after many years of experimentation, we have not yet succeeded in securing.

Accessibility at sheriff court level is also a priority. The untiring Rules Rewrite team, to which we continue to owe a deep gratitude, have been producing a vast series of new rules in a variety of different fields. The effectiveness of the new Simple Procedure Rules will be the touchstone of our success in this difficult area, which affects so many in terms of relatively low value, often consumer related, claims by private individuals.

On the criminal side, there are, as Donald Rumsfeld said, known unknowns. What we do know is that over the last 4 years or so there has been a 60% increase in the number of High Court trials. Numerically this means that, within broadly the same budget, we are dealing annually with 160 more trials, each of which takes an average of 6 to 7 days, than we were processing in 2010. This is a significant challenge. The known unknown is that, other than anecdotal reasoning concerning the subject-matter of the modern High Court prosecution, the underlying cause of this - and it exists at sheriff solemn level too - is uncertain.

We await the coming of the new Criminal Justice Act with the Bowen Reforms on sheriff and jury trials. This will bring sheriff and jury practice into line with the High Court.

There has been concern expressed about the extension of time limits, not for the Crown bringing cases into court at a first diet or preliminary hearing, but thereafter for the court to allocate the case for trial within the current programming constraints. The issue for the future will be whether, in the era of statutory disclosure, scientific analysis of DNA findings and the recovery and detailed scrutiny of text and email messaging, the narrow window allowed by statute for the commencement of a trial is sustainable or in accord with modern principles of fairness or justice.

The recent Audit Scotland report on summary prosecutions threw up some interesting statistics including levels of churn and the substantial costs of the late resolution of cases. These will all be addressed.

The Scottish Courts and Tribunal Service will shortly be in a position to complete its review on evidence and procedure with a view to asking the Government to consider reforms, some of a radical nature, to the way in which we conduct trials and, in particular, the requirement for all witnesses to attend court and testify on oath, even if their evidence is either not controversial or not to be challenged. The continued efficacy of the now almost eviscerated prohibition of hearsay will require re-examination in light of modern technological advances.

We can only have a successful Scottish Legal System if we all participate in its constant re-evaluation. This does not mean that we all require to agree on the best way forward. We will never achieve that level of perfect harmony in Parliament House. If we can all, however, engage in discussing where the problems lie and attempt to devise practical solutions for them, the system will begin to match public expectations in the 21st Century. I look forward to working with everyone willing to do so in achieving that end.

Thank you once again for coming this morning. The court will now adjourn.

On his appointment as 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