Scotland’s Lord President, Lord Hamilton. MCKENZIE FRIENDS for Scotland are back on the agenda next Tuesday 20 April as the Scottish Parliament’s Petitions Committee considers the latest submissions in what has become an increasingly bitter debate on the rights of party litigants, with Scotland’s top judge, Lord Hamilton appearing entrenched in his plans to heavily restrict the use & application of McKenzie Friends in Scotland’s civil courts, while consumer organisations & law reform campaigners lobby for a fair & equitable application of McKenzie Friends in Scotland comparable to their use for over forty years in the English courts system.
The latest response on Petition 1247 McKenzie Friends for Scotland, from Mr Stewart MacKenzie, the petitioner himself, accuses Lord Hamilton of misleading the Petitions Committee on several issues, including that of whether McKenzie Friends have or have not (definitely have not) existed in Scottish Courts prior to Holyrood considering the question of formally introducing McKenzie Friends to Scotland.
Stewart MacKenzie told the Parliament’s Petitions Committee : “Lord Hamilton states that he will “bring into force” McKenzie Friends in June 2010, following the implementation of an Act of Sederunt in May 2010. Lord Hamilton wrote to the Petitions Committee on 3rd November 2009 and stated that there was no need for the “introduction” of McKenzie Friends in Scotland, as it already existed and then added “contrary to the apparent understanding of the Petitioner”.”
“Why does Lord Hamilton therefore now say that he will bring McKenzie Friends “into force” in June 2010, when he has already informed the Petitions Committee in November in 2009 that it already existed and did not require to be introduced? Had the Petitions Committee accepted the content of Lord Hamilton’s 3rd November 2009 letter, the Petitions Committee could have closed this Petition and I consider therefore that it was plainly misleading of Lord Hamilton to say at that time to the Petitions Committee that there was no need for the introduction of McKenzie Friends in Scotland and consequently I would wish the Petitions Committee to raise this matter with Lord Hamilton.”
The petitioner’s letter also goes on to heavily criticise Lord Hamilton for planning to force the signing of certificates from those appearing in Scottish Courts as McKenzie Friends, a requirement which apparently does not in any other jurisdiction where McKenzie Friends are used. Lord Hamilton also intends an even stricter requirement that McKenzie Friends have an as yet undefined “relevant experience”, raising a further condition upon Scottish McKenzie Friends which does not exist elsewhere.
Mr McKenzie commented : “Firstly, McKenzie Friends in all other jurisdictions are for example, either a friend, a relative, an associate etc and none of these have, or are required to have, what Lord Hamilton now requires, being “relevant experience”. It is beyond question that he [Lord Hamilton] must explain himself in this regard and explain that if the McKenzie Friend applicant does not have the required “relevant experience”, does this mean that they will not be allowed to be a McKenzie Friend in Court?”
Mr MacKenzie went onto say the Committee should make enquiries of Lord Hamilton regarding the independent evidence or research base to justify his requirements of ‘relevant experience’ before an individual could be approved as a McKenzie Friend in a Scottish court.
Defining “Relevant Experience, Mr MacKenzie told the Parliament : “Relevant means “connected to the subject”, however a nurse, an office worker, a plumber or the wife/husband of the litigant,will not have “relevant” experience connected to litigation, the Courts or Law but they do have the ability to carry out the very simple and defined role of a McKenzie Friend by “passing papers, whispering to the litigant from prepared notes, taking notes, help with case papers and importantly, providing moral support”. Experience means “knowledge or skills which comes from practice”, however the concept and usage of a McKenzie Friend is not necessarily by using someone who has knowledge or skills from practising as a McKenzie Friend or has knowledge and skills in law or court procedures.”
Mr MacKenzie continued : “The definition of the word “friend” is a helper, a supporter and the concept and meaning of a “McKenzie Friend” is simply that and the Petitions Committee should make this clear to Lord Hamilton and convey their concerns over this matter.”
“I would therefore urge the Petitions Committee to conclude that Scotland must follow the criteria required for McKenzie Friends, which is adopted throughout the rest of the world and which does not require “relevant experience” or the signing of a certificate, otherwise Scottish consumers will be at a distinct disadvantage and will not enjoy the same rights as those in England and Wales.”
Consumer organisations Which? and Consumer Focus Scotland have both criticised Lord Hamilton’s stringent plans for McKenzie Friends, in earlier reports HERE & HERE
Mr MacKenzie also tackled the shifting descriptions used by Lord Hamilton on the issue, where the Lord President has often preferred to refer to the McKenzie Friend as a “Lay Assistant” instead of the universally accepted “McKenzie Friend”. Mr MacKenzie and those involved in the debate have raised questions over the “Lay Assistant” term, which appears to have a much reduced status in law than an actual McKenzie Friend.
Mr MacKenzie told the Parliament : “The process and procedure which Lord Hamilton now details in his 16th February 2010 letter, for bringing into force McKenzie Friends in June, refers to the words “Lay Assistant” and not “McKenzie Friend”. “McKenzie Friends” are so-called in Court jurisdictions from England & Wales to Northern Ireland, Canada, Australia and New Zealand. It is an internationally recognised terminology and I would urge the Petitions Committee to convey the strongest of views to Lord Hamilton that the distinctly Scottish term “McKenzie Friend” must also be used in the Scottish Courts system and not “Lay Assistant”.
“Additionally I would ask the Petitions Committee to bear in mind that litigants present and future, will do their research on “case law” for example, by researching “McKenzie Friends” and not “Lay Assistant”. We also simply cannot have a situation where a truly Scottish word such as McKenzie, as used in “McKenzie Friends”, is not used in Scotland’s own Courts system.”
My earlier report on Lord Hamilton’s plans for the Scottish version of a McKenzie Friend, which the Lord President preferred to call a “Lay Assistant” instead of the universally accepted “McKenzie Friend” can be viewed here : Exclusive : McKenzie Friends for Scotland ‘are go’ as Lord President yields to Holyrood access to justice petition for Scots court users
Forbidding the use of the term “McKenzie Friend” in a Scottish court, simply because some members of the judiciary wish to control the use of ‘courtroom helpers’ by the increasing numbers of legally unrepresented court users who cannot for a variety of reasons afford or obtain the services of a lawyer … well, that is simply not on …
An official from one of Scotland’s consumer organisations spoke today on the increasingly murky debate over McKenzie Friends.
He said : “There appears a market reluctance on the part of the judiciary to allow Scottish consumers the same rights & entitlements enjoyed by court users in England & Wales. The Scottish Parliament must intervene in this issue and safeguard the rights of Scots, ensuring equality of access to justice and the right to a fair hearing for all court users.”
You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far
All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland
17 comments:
Its getting a bit tedious on both sides.Why doesn't the Parliament just allow it over Hamilton's head.He's only a judge after all and should be accountable to the people not himself.
"The Scottish Parliament must intervene in this issue and safeguard the rights of Scots, ensuring equality of access to justice and the right to a fair hearing for all court users.”
Yes and about time too instead of letting this drag on for years!
Good stuff as always Peter.Hamilton should be dragged (whether he wants it or not) to the Parliament and questioned over his idiotic proposals.
Why Scotland has to always be different is beyond me and probably beyond any sane thinking person.
Good luck for next week !
Scotland’s Lord President, Lord Hamilton. MCKENZIE FRIENDS for Scotland are back on the agenda next Tuesday 20 April as the Scottish Parliament’s Petitions Committee considers the latest submissions in what has become an increasingly bitter debate on the rights of party litigants, with Scotland’s top judge, Lord Hamilton appearing entrenched in his plans to heavily restrict the use & application of McKenzie Friends in Scotland’s civil courts, while consumer organisations & law reform campaigners lobby for a fair & equitable application of McKenzie Friends in Scotland comparable to their use for over forty years in the English courts system.
A EUROPEAN COURT OF HUMAN RIGHTS ISSUE, HAMILTON SHOULD BE JAILED.
All this obstruction Hamilton. You mendacious fool, you are the antithesis of justice, protect your lawyers Hamilton, your attitude is in the dark ages.
Can anyone tell me what exactly Lord Hamilton's own "relevant experience" is for setting these conditions,considering he has obviously never even dealt with a McKenzie Friend in his entire judicial life ?
Taking over a year to introduce McKenzie Friends to Scotland yet all it took was one judgement in an English court some 40 years ago is good enough evidence to me your Scottish judiciary need a good dose of retirements.
Lord Hamilton is a biased prejudicial judge in terms of the McKenzie friends issue. You are acting like a rascist only the race you hate are lawyers clients.
JULLIAN DANSKIN
This paedophile lawyer served a paltry 9 MONTHS in prison for abusing young boys in his care. One of his victims committed suicide, meanwhile the others continue to serve life sentences. Two thiefs who blackmailed Danskin received 10 YEARS in jail. Scotland's courts routinely protect child abusers and crooked lawyers - but are merciless when dealing with petty offenders and legal profession whistleblowers.
WHAT DO YOU THINK OF THIS LORD HAMILTON?
Scotland Against Crooked Lawyers www.sacl/info state
"Lord Hamilton abuses his position to cover-up legal misconduct and criminality in Scotland's courts".
Why should he not, after all he is answerable to no one but himself. A legal dictator, that is what I think he is.
Elected dictatorship and legal dictatorship, and they call this a democracy?
What would have happened to McKenzie v McKenzie if it had taken a year to allow Ian Hanger in the door ?
Stupid Scotland
Well all I can say is I'm over the moon I dont live in Scotland and have to deal with your judges and courts.Really terrible.No wonder the Scottish usually leave their country not stay there!
I'm curious about something and wonder if you could answer me.
Which political party actually supports McKenzie Friends ?
An excellent campaign Mr Cherbi.
I've just been reading your coverage of the McKenzie friend debate in Scotland and congratulate you all on its success so far.Also compliments on the video footage of the debates in the parliament which seems to go well.
http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/8625616.stm
Leonardo da Vinci conspiracy claims 'startling'
A court has been told a solicitor would not have put his unblemished record at risk by getting involved in a plot to ransom a stolen Leonardo da Vinci.
(HAHAHAHAHA RIGHT !!)
In his closing speech, defence QC David Burns said David Boyce, 63, should be cleared of a conspiracy charge.
He said claiming his client could have got involved amounted to a "startling proposition".
Mr Boyce is one of five men who deny conspiring to extort £4.25m to bring back the Madonna of the Yarnwinder.
The painting was stolen from the Duke of Buccleuch's Drumlanrig Castle in Dumfries and Galloway in 2003.
Mr Burns told the High Court in Edinburgh his client believed everything he had done was legal and above board.
He added he would do nothing to harm his staff or his own standing.
'Wholly incredible'
The lawyer denied that Mr Boyce had become part of a criminal conspiracy.
"Application of your commonsense may tell you that this is wholly incredible," he said.
"Would he risk ruin, his career, his future by becoming knowingly involved in a plan to extort?"
The court has previously heard from QC Jack Davidson, representing Mr Boyce's former colleague Calum Jones.
He described the case as "a colourful tale" but insisted his client had done no wrong.
Mr Davidson said it beggared belief that during the course of a meeting lasting little over an hour Mr Jones had agreed to a career-wrecking conspiracy plan, putting his whole life in jeopardy, with people he had never met before.
On trial with Mr Boyce, of Lanarkshire, and Mr Jones, 45, of Renfrewshire, are Robert Graham, 57, Marshall Ronald, 53, and John Doyle, 61, all from Lancashire.
They deny conspiring to extort £4.25m between July and October 2007. The trial continues.
JAIL THE LOT !
Thanks for this Peter,will watch what happens tomorrow with interest !
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