Top judge cannot be immune from complaints says Judicial Complaints Reviewer Moi Ali SCOTLAND’S Judicial Complaints Reviewer Moi Ali has called for a change in the law after it emerged the office of Scotland’s top judge, the Lord President of the Court of Session, currently occupied by Lord President Lord Brian Gill has an immunity from the same kind of scrutiny & complaints procedures which apply to all other public servants and even subordinate judicial colleagues of the Lord President.
In a letter released by the Scottish Government, Judicial Complaints Reviewer Moi Ali told Justice Secretary Kenny MacAskill that complaints made to her office about the Lord President could not be investigated or dealt with under the current system, as there are no rules or guidance relating to complaints against Scotland’s top judge.
The omission of any form of scrutiny of the Lord President, discovered by the JCR during the course of her work, and the lack of any powers assigned the JCR to review cases involving complaints against Scotland’s top judge has leaving complainers feeling “outraged that they had no redress, felt disempowered and denied justice.”
Under the current system of what can only be described as less-than-impartial judicial oversight, court users and members of the public who wish to make a complaint against a judge or sheriff can contact the Judicial Office for Scotland (JOFS), which itself is headed by the Lord President. The complaint is then considered by colleagues of the judge being complained against, and the Lord President himself ultimately decides whether any sanction is appropriate.
If complainants remain dissatisfied, they can ask the Judicial Complaints Reviewer to conduct a review of how their complaint against a judge was handled and then the JCR can launch an investigation.
However, given the fact now revealed by the JCR there are no rules or guidance relating to complaints against the Lord President, this imbalance in scrutiny has effectively created a two tier system of regulation where the country’s top judge is immune from scrutiny while all other members of the judiciary can be subject to complaints and an independent review by the JCR of how such complaints were handled.
In the letter to Mr MacAskill, the JCR reinforced this point stating those who had approached her with regards to complaints about the Lord President felt : “Their view was that the head of the judiciary should be subject to the same rules as those beneath him, and that the public should not be denied access to the complaints process just because their judge happened to be the most senior one.”
JCR Moi Ali added : “I have considerable sympathy for this position, and believe that a fair, independent and proportionate procedure for investigating complaints about the Lord President would enhance public trust and confidence in the judiciary among the public, and would be in the interests of natural justice.”
The JCR said she had raised the matter with Lord Gill and had taken legal advice from senior counsel, which revealed there were no procedures or rules for making a complaint against the current Lord President Lord Brian Gill, other than his "fitness for office".
As an interim measure, Moi Ali has written to the Lord President asking if it could be made clear that conduct complaints cannot be made about him. She also requested clarification of the process for making a "fitness for office" complaint about the judge.
However, she told MacAskill: "The above are interim measures only that do not address the fundamental issue - that there is no provision for the public to make complaints about the Lord President's conduct, including when he is sitting as a judge. I would be grateful if you could give this matter consideration."
Unsurprisingly, the current way judges self regulate themselves and their colleagues is comparable to the way in which lawyers regulate themselves via the Law Society of Scotland and then sanctions if any are applied by the lawyer dominated Scottish Solicitors Discipline Tribunal (SSDT).
However it should be noted the SSDT has managed to strike off a few solicitors, if only due to media pressure whereas no judge has yet been heavily sanctioned or dismissed by the Lord President, even when criminal prosecutions have occurred for drunk driving and even benefits cheating.
Judicial Complaints Reviewer Moi Ali has also registered her support for Petition PE1458: Register of Interests for members of Scotland's judiciary. This has previously been reported in the Sunday Mail newspaper and Diary of Injustice, here : HERE
Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, 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
Complaints about the Lord President – JCR seeks change in law (Click image to view letter) The full text of the letter from the Judicial Complaints Reviewer Moi Ali to Justice Secretary Kenny MacAskill :
Dear Cabinet Secretary,
COMPLAINTS ABOUT THE LORD PRESIDENT
I am writing to you about the procedure for members of the public who wish to make complaints about the Lord President.
How the concern arose
This issue was prompted by correspondence I received from three individuals regarding this matter. One wrote to me to inform me that the Rules (Complaints about the Judiciary (Scotland) Rules 2011) appear not to allow complaints about the Lord President. While I was looking into the matter, two unconnected individuals wrote to me with complaints about the conduct of Lord Gill when sitting in the Court of Session as a judge (they were not aware that Lord Gill was the Lord President, nor that complaints about the Lord President could not be made under the Rules).
Normally I would refer any complaints to the Judicial Office (as I do not handle complaints; I merely review their handling). However, on this occasion there seemed little point in referring complaints that I knew could not be considered under the Rules. I wrote explaining the situation to the two individuals. They were outraged that they had no redress, felt disempowered and denied justice. Their view was that the head of the judiciary should be subject to the same rules as those beneath him, and that the public should not be denied access to the complaints process just because their judge happened to be the most senior one. I have considerable sympathy for this position, and believe that a fair, independent and proportionate procedure for investigating complaints about the Lord President would enhance public trust and confidence in the judiciary among the public, and would be in the interests of natural justice.
I have discussed this matter with the Judicial Office and officials at Scottish Government. I have also taken senior Counsel's advice (which I have shared with your officials) and I have written to the Lord President about the matter.
The current situation
I have given your officials a copy of my legal advice. In summary, while the Act (Judiciary and Courts (Scotland) Act 2008), at Section 35, allows for consideration of matters concerning fitness for office of the Lord President, there appears to be no procedure for members of the public to make complaints about matters that are not of a removal-from-office magnitude. Indeed, it is also not clear what the existing process is for the public to raise complaints that are of that magnitude. Nor is it clear from any published guidance that complaints about the Lord President cannot be made under the Rules.
I had wondered if the Rules might be amended to allow for conduct complaints about the Lord President to be considered, but Section 29 of the Act on the imposition of sanctions means that even if the Rules were amended to allow for the independent investigation of complaints about the Lord President (as happens in Northern Ireland), only the Lord President may impose sanctions (in this case, on himself).
As an interim measure I have written to the Lord President asking if he would consider revising the published guidance, complaints leaflet and website so that it explains to the public that complaints about the Lord President cannot be accepted under the Rules, and explains why this is so.
I have written both to the Lord President and to your officials at Scottish Government asking that they consider producing published guidance for the public which clarifies what the procedure is for referral by the Judicial Office to the First Minister of fitness for office complaints about the Lord President.
The above are interim measures only that do not address the fundamental issue: that there is no provision for the public to make complaints about the Lord President’s conduct, including when he is sitting as a judge. I would be grateful if you could give this matter consideration.
Annual report 2012/13
Finally, I am nearing the end of my second year in office and I would like to produce an annual report. There has been much activity this year that I would like to report on, much of it positive, including more complaints reviewed and an MoU signed with the Judicial Office. You may recall that I may publish a report only if directed to do so by Scottish Ministers. I would be grateful if you would consider providing such direction, perhaps even a more open ended direction that I must publish such a report every year. This will save me (and my successors) from having to approach you about this annually. It also ensures that the Judicial Complaints Reviewer remains accountable to Ministers, to the judiciary, and to the public.
Judicial Complaints Reviewer
In response to media enquiries on the matter, a spokesperson for the Scottish Government said "The Lord President's office is highly respected and is in a unique position as the head of the Scottish judiciary, whose independence is enshrined in law through the Judiciary and Courts (Scotland) Act 2008. Because it is the head role, the Act takes a different approach to oversight in the Lord President's case - and would require the constitution of a tribunal. This recognises that a balance has to be struck in terms of how oversight of the Lord President's role should ultimately be achieved in a way which fiercely protects its independence."
TRANSPARENCY NOT : JUDICIAL COMPLAINTS REVIEWER’S TOUGH TIME WITH JUDGES
The Sunday Mail newspaper revealed how Judges have treated the Judicial Complaints Reviewer's requests for files on complaints against the judiciary :
May the watchdog appointed by the Scottish Government to investigate complaints against judges have leave to approach the bench, Your Honours? NO.. SHE MAY NOT
SILENCE IN COURT Lord Gill has not met judicial investigator so far.
EXCLUSIVE, By Russell Findlay, Sunday Mail 10 Feb 2013
A watchdog appointed to look into complaints against Scotland's judges fears she is being frozen out.
Moi Ali has accused the country's most senior judge, Lord President Lord Gill, of undermining her work by blocking access to vital documents.
She revealed her frustration in her first annual report since taking up the newly-created role of Judicial Complaints Reviewer.
Ali said she was only seeing the correspondence between the Judicial Office, who act for the judges, and the complainers.
But she was not allowed to see the internal memos and reports between the office and the judges about complaints.
She said: "I believe that in order to conduct a review, and to make wider recommendations on complaints handling, I need to see files in their entirety. "Without this, it is difficult to satisfy myself, let alone complainers, as to the fairness of the process. "I have continued to complete reviews but have made it clear to complainers that I have not had access to all documentation in their complaint file."
Justice Secretary Kenny MacAskill defied judicial opposition to create the part-time job to monitor how complaints against judges, sheriffs and justices of the peace are handled.
And Ali fears there is still resistance from within the judiciary to her role as an independent investigator.
She said: "With any profession, there's a feeling that regulation should come from within. "But this is the first time that the judiciary have been exposed to this kind of scrutiny, which other professional groups are more used to. "Most have accepted there is some kind of mechanism to scrutinise their conduct. That doesn't mean that we don't have a free and independent judiciary."
Ali also revealed that she has still not met 70-year-old Lord Gill, who was appointed to his £214,165-a-year post last June, and did not meet his predecessor Lord Hamilton.
She said: "I'm not overly concerned but I'm slightly surprised that the Lord President did not proactively suggest a meeting. I don't need to meet him but I think it would have sent out a positive message."
Ali is more concerned at the decision to block her access to documents.
She said: "This came to light because in review number one I was sent all the documents but then I didn't get the same ones for the second review. "At that point I discovered that I had been given them in error the first time. "I can't see any reason why and that worries me because I can't understand it."
Ali also voiced concerns that judges being investigated could evade punishment by quitting before the probe is complete. And she found there has been a breach in the rules in the way one of the four complaints she reviewed had been handled. Ali also urged the judiciary staff to use plain English when dealing with the public.
Her lack of administrative support was also highlighted - on her first day, she did not have a computer, printer, phone, email address or stationery - and she said it meant she was "unable to give the level of service that I would like to provide".
A Judicial Office for Scotland spokeswoman said: "In the short time the JCR has been in the post, we have worked very closely with Ms Ali in implementing, developing and reviewing the rules and how they are applied.
"With any new system, there is always a period of adaptation and adjustment and we are grateful to Ms Ali for the helpful suggestions and recommendations she has put forward and which, for the most part, have been implemented.
"A review of the rules is due to take place shortly and the Lord President is committed to working constructively to ensure the complaints procedure develops effectively."