Friday, August 09, 2013

Failure to Recuse : Evidence handed to MSPs in judicial register of interests proposal reveals judges who blocked injustice appeal failed to declare interests in court

Judges with links to original trial failed to declare their interests. THE complicated mixture of Judicial oaths & rules which govern the current requirements of Scotland’s judges to declare any interests in court has this week been proved to be a catastrophic failure by evidence which depicts cosy clubs, prosecutors turned judges, & undisclosed family relationships between members of the judiciary in Scotland’s top courts.

Legal insiders say the evidence provided to MSPs on the Scottish Parliament’s Petitions Committee may well be the tip of the iceberg with regard to judges failing to properly declare their interests when faced with cases in which their personal and professional interests collide.

Glasgow man William Beck, who many inside & outside the justice system are satisfied was wrongfully convicted for an armed robbery over thirty one years ago, made the submission to the Scottish Parliament Petitions Committee concerning the failure of judges to recuse themselves in his appeal against his conviction.

The evidence provided by Mr William Beck in response to Petition PE1458: Register of Interests for members of Scotland's judiciary reveals how one judge, Lord Johnston, failed to declare any interest or recuse himself from an appeal by Mr Beck against a wrongful conviction & sentence handed down by Lord Dunpark who was Lord Johnston’s father.

Mr Beck’s submission to MSPs also reveals that years later, Lord Osborne, who sat with two other judges and rejected another appeal by Mr Beck against his wrongful conviction, failed to disclose that he was the prosecutor in the original trial of Mr Beck.

When Lord Osborne was recently asked by journalists why he did not recuse himself or reveal his role in the original case against Mr Beck, Lord Osborne, now retired, claimed he had “no recollection”. The retired judge went on to admit he should have recused himself.

Mr Beck has been fighting to clear his name ever since his wrongful conviction, and the terns of his submission and evidence provided appear to make it clear to all that even the most senior judges, prosecutors and others in the legal system have been long aware of conflicting interests of members of the judiciary which have not been properly declared.

The evidence provided by Mr Beck, which identifies multiple failures by judges & prosecutors who became judges to declare their interests in court, is in stark contrast to arguments presented by the current Lord President Lord Brian Gill who has previously claimed the current judicial recusal system works well in brief, albeit antagonistic letters to MSPs on the Scottish Parliament’s Petitions Committee in response to Petition PE1458: Register of Interests for members of Scotland's judiciary

William Beck’s submission to the Scottish Parliament reads as follows :

I would like the following to be presented to the Public petitions Committee hearing the petition PE1458 : At an appeal hearing in 2006: appeal hearing in 2006 Two judges ought to have recused themselves or at the very least declared an interest in my case.

Lord Johnston was the son of my trial judge which he did not declare. Lord Osborne had acted as an Advocate Depute in my appeal on 7th October 1982 and did not declare this.

Both ought to have known from the court papers, namely the Charge to the jury and Interlocutor of 7th October 1982 which would have been before the court. The charge discloses the name of the trial judge and in this instance was Lord Dunpark the Father of Lord Johnston.

I only found out that Lord Dunpark was the Father of Lord Johnston when I read the obituary for Lord Johnston when he died. Had I known of any of these connections I would have asked them both to recuse themselves. The interlocutor is attached above and I can produce the charge to jury should it be required.

Lord Osborne is quoted as saying had he known about this link he would have recused himself. I cannot accept this position as it clearly states in the 2006 appeal linked above my appeal was rejected on 7th October 1982.

The only way Lord Osborne or any of the other two judges that heard this appeal would have known this is indeed by viewing the interlocutor with Lord Osborne’s name attached. (See Interlocutor of 7th October 1982)

Lord Johnston made a comment (Which will be recorded) that Lord Dunpark certainly had a way with his quirky comments knowing full well he was referring to his Father.

It is my belief that the reactions from the court after this comment that everyone(Apart from me) in that court that day knew of these connections including the Advocate Depute.

Like I have said had I known of these connections I would have asked these judges to recuse themselves but the judges also had a duty enshrined within the Bangalore Principles to recuse themselves which they also ought to have done.

The fact they did not recuse themselves leaves me feeling I can never get a fair hearing in Scotland.

To add insult to injury I tried to raise this matter at a Nobile Officium Appeal for the court presided over by the Lord President to ignore it completely.

How can they ignore it completely I hear everyone ask. Simply because they can.

My defence team produced the interlocutor from 1982 showing Lord Osborne had prosecuted me yet this is not reflected in the opinion which states I did not raise any issue apart from being refused Legal Aid in 1982. This should be recorded and I would urge the committee to ask the High Court to answer this allegation and provide the tape recording and transcript of the Nobile Officium Appeal.

So not only do I have two judges sitting on my appeal who ought to have recused themselves but when I tried to raise this issue it was ignored by our courts at its highest level.

My MSP Bill Kidd raised this issue with the Lord President (And many others within the Judiciary) asking him the meaning of the Latin Phrase “Nemo Iudex In Causa Sua as well as raising it with Kenny MacAskill to no avail, and now after a Sunday Mail expose Lord Osborne is saying he would have recused himself if he had known.

I tried raising this as a devolution issue (At Nobile Officium) referring to Hoekstra and Pinochet only for the court to tell the Crown not to appear in a deliberate attempt to stop me raising a devolution issue.

This is clearly pointed out by the court of appeal at Nobile Officium paragraph 1 where the court say this: The Lord Advocate is not, so far, a party to these proceedings and has not been invited to address the court on the issue of competency or on any other issue. This makes the position of the court clear: They did Not Invite The Crown To Appear.

I would suggest this was a deliberate attempt to deny me not only the act of raising a devolution issue but also a fair hearing enshrined within article 6 of the European Convention of Human Rights.

I should point out that every case in Scotland are indeed indicted at the instance of Her Majesty’s Advocate and this is a duty that applies throughout the history of any case including appeals. Never in the history of Scots Law have Crown Failed to appear at an appeal. This proves that not only did two judges sit on my appeal when they ought not to have done so but there have been a concerted attempt from the Judiciary to cover this up since.

In their attempts to stop me raising a devolution issue they have created a bigger one. This also shows how cosy the relationship is Between our Courts and Crown Office.

I would welcome the opportunity to give evidence to the committee at any evidence gathering session, unlike Lord Gill.

The Sunday Mail newspaper has also reported on Mr Beck’s case :

ROUGH JUSTICE FIGHT JUDGES’S LINKS QUESTIONED Sunday Mail 09 June 2013

They shouldn’t have been anywhere near my appeal

ROUGH JUSTICE FIGHT JUDGES’ LINKS QUESTIONED

By Russell Findlay  Sunday Mail 09/06/2013

A robber fighting a 31year battle to clear his name yesterday claimed two judges who blocked a crucial appeal had links to his original trial.

Willie Beck, 52, discovered that Lord Osborne presided over his appeal hearing despite helping prosecute him in 1982.

And Lord Johnston sat on the 2006 hearing even though his father Lord Dunpark was the original trial judge who had jailed Beck for six years.

The dad-of-two, of Dennistoun, Glasgow, said: “At the hearing in 2006, I had no idea that two of the three judges had strong personal connections to my original trial.

“National Archives records revealed Lord Osborne, then called Kenneth Osborne, was the advocate depute who prosecuted me in 1982.

“There are supposedly rules in place to ensure judges don’t get involved in cases where they have kind of conflict. It’s clear to me that he should have declared his connection and stepped aside.”

Beck was sentenced to six years in 1982 for a robbery in Livingston, West Lothian.

In 2006, the three judges  including the late Lord Dawson  rejected Beck’s appeal against an earlier decision not to allow a time extension.

Lord Johnston died in 2008 but Lord Osborne, now retired, said: “You’ll appreciate that an advocate depute prosecutes a great many cases and I have no recollection of this one.

“If it had been drawn to my attention that I had an involvement as a prosecutor I would have recused myself but I had no recollection of it.”

Two months ago, Beck lost an appeal against his conviction at the Court of Criminal Appeal in Edinburgh. He now hopes to appeal to the Supreme Court in London.

34 comments:

Anonymous said...

Lord Gill's protests to the contrary seem kind of false now.Evidence proves top judge wrong?Time for a new top judge?

Anonymous said...

Another example of a derelict justice system we have to put up with in Scotland.These judges are clearly out of their trees and dont give a fig for fairness or the rest of us.

Anonymous said...

Lord Osborne, now retired, said: “You’ll appreciate that an advocate depute prosecutes a great many cases and I have no recollection of this one.

“If it had been drawn to my attention that I had an involvement as a prosecutor I would have recused myself but I had no recollection of it.”

What a load of crap.Every single case this judge has ever been on as a judge and a prosecutor should now be reexamined.

Anonymous said...

So where does this leave Lord Gill after all those protestations about the system being fine?

Clearly there are now issues with the Lord President which need to be resolved in public rather than in letters behind closed doors.

Anonymous said...

I find it inconceivable that this Judges has so much secret power in 2013. They certainly have much of the media in their pocket.

Anonymous said...

How can it be legal the son of a judge who is a judge himself kicks out an appeal on a case heard by his dad?

Scotland is messed up!!

Anonymous said...

Given the opportunity, I believe that there will be hundreds of cases where Conflicts of Interests were apparent but there was no recusing as required by law.

This case makes the Scottish judges concerned look utterly incompetent as their ability to judge a case should be their first priority as a basic tenent of law?

Imagine responding that they could not remember whether or not they should have recused themselves or not?

Lord Gill is trying to safeguard a system that is unfit for practice and which provides little protection to the Scottish Public?

Anonymous said...

Yes 21:15 who had the access to the dates and times of this case, and should he have checked, most certainly, this means Lord Osborne does not even bother to check on what his involvement could have been in previous cases. I had an experience where the senior partner of a firm of solicitors could not remember handling a court case for me ,as he had handled so many and had no recollection. I called at his house (he was now a Sheriff) and when the door was opened to my knock it was immediately slammed shut and locked I did not even have time to introduce myself, I was going to point out to him that there was an overwhelming amount of evidence showing very clearly that during the court case he had colluded with the opposing lawyer. His reaction to my presence was very confirming.

Anonymous said...

If the potential for conflicts of interests are allowed to go unpunished in the Scotland's highest Court, then I shudder to think what has been going on further down the ladder.

Yet more compelling evidence of why the Judiciary MUST be made to declare any and all interests in a Public Register.....and NOW!

Anonymous said...

Lord Osborne's weasel words betray his motives, he knows - as does any informed observer - that the papers identifying his previous involvement would be part of the Court process papers before him.

Clearly Lord Gill thought the same trick would allow him to escape the scrutiny of the Petitions Committee and increasingly, the Public. Big mistake.

Anonymous said...

Well..not much to say other than now we know why Lord Gill has been so hostile towards your petition - because there is too much to hide about our judges who are not fit for purpose and from the dates of this case this has been for a long time.

Anonymous said...

Fine system for vested interests, but hardly a justice system.

Anonymous said...

Someone I know had a crazy decision made against them by a Scottish judge. Now it turns out that this judge should have recused themselves and by failing to do so they knowingly created a conflict of interest?

When this person asked their lawyer how to rectify the unlawful act, their lawyer told them just to forget about it as it would not be fair on the judge as it would damage his reputation if exposed!

This just sums up the incredible corruption in the Scottish lawyer fraternity?

Anonymous said...

How many more of these cases are being kept secret from the Scottish Public?

Anonymous said...

I fear that this type of behaviour is commonplace in the crooked Scottish system?

Anonymous said...

This demands that a Public Inquiry takes place into this scandal provided that it is NOT chaired by a Scottish Judge because if it was, we know what the result would be?

The usual Whitewash?

Anonymous said...

This is a disgrace.

Why do we have to put up with this in Scotland?

Anonymous said...

How can these crooks expect us to trust them when they are getting up to tricks behind our backs?

Anonymous said...

Is this not perverting the course of justice?

To claim they did not know about this Conflict of Interest is simply not credible?

Anonymous said...

Lord Osborne seems to have done your work for you,Peter,with that admission in the Sunday Mail article of a failure to recuse.

Clearly in the light of Lord Osborne's statement there is now evidence to contradict the Lord President's arguments regarding the function of the current arrangements regarding recusals and therefore the Scottish Parliament should now look to go down the legislative route and ensure your petition becomes law.

PS You have more backing in the profession than it may appear from outside.

Anonymous said...

Good to hear there is support from the legal profession for this blog because there are few alternative credible resources for news on legal affairs from the consumer standpoint in Scotland.

Anonymous said...

If the msps are reading this they should be thinking about calling in Lord Osborne as well as Lord Gill because there are big questions in this case as Mr Beck points out in his letter.

Anonymous said...

It would not surprise me in the slightest if wigged and gowned relatives of a judge hearing a case were appearing before them to state a case with no-one any the wiser.

Doubtless Diary of Injustice knows of many examples.

Anonymous said...

So, was Lord Gill overtly lying to the PPC Committee by knowingly misrepresenting the system as being fit for purpose whilst knowing that it was the opposite OR did he genuinely not know that this was going on on his watch?

Either way, he has shown that he is not competent to do the job he is being paid for?

Anonymous said...

It shows just how these crooks treat the Scottish Public as if they are stupid.

Imagine trying to tell us that the Scottish Judicial System is worked out on the back of an envelope?

Diary of Injustice said...

@12 August 2013 22:06

Good point.Lord Osborne's admission regarding his own failure to recuse is certainly one which provides evidence to the contrary of the Lord President's claims regarding the current system of oaths & rules on recusals & interests.

@ 12 August 2013 22:40

Yes. However it is more appropriate to headline such interests as the debate on the interests of the judiciary goes on.

Anonymous said...

So basically you are going to allow the judges to make some small declarations and then release the goods on what they have really been up to re financial etc

Very good.Let them lie first then headlines.Your friends in the papers are correct when they say you know your stuff!

Anonymous said...

You'll be happy with the new look hootsmon website.I cant find anything in it now not even the stuff written by lawyers!Great!

When is the petition being debated next?

Anonymous said...

Looks like they've been dangling this guys life on a piece of string.....

Anonymous said...

It's as if they make up the rules as they go along, that is, if there are any rules to start with.

Anonymous said...

Poor explanation from the retired judge who seems to forget his cases as a prosecutor.Just goes to prove the arguments about paying judges high salaries to get good standards and no corruption is just a lot of rubbish.The earlier comment asking for a review of cases the retired judge sat on should be enough for more coverage as I imagine he has forgotten a few other critical recusals in his career.

Anonymous said...

This is what happens when they are allowed to operate above the law in an artificially secret system?

They cannot be allowed to be 'trusted' by the Scottish People anymore, as they have shown by their actions that they are dangerously out of control?

Anonymous said...

These are the same judges who are the highest paid in the whole of the British Isles and the whole of Europe?

Can anyone explain to the Scottish Public why this is possible?

Is it because they have been allowed to claim their own salaries for too long without justifying it?

This smacks of fraud as Scottish Judges are once again proven to be less than competent?

Anonymous said...

This is like cartoon capers.....