Friday, October 25, 2013

LORD EVADER : Battle over Register of Interests sees Scotland’s top judge refuse to reveal information to Judicial Complaints Reviewer, brands JCR as “third party” in effort to shield judges from scrutiny

Lord Gill Moi Ali

Scotland’s top judge declares he will not inform Judicial Investigator of complaints outcomes. SCOTLAND’S top judge, Lord President Lord Brian Gill has told Judicial Complaints Reviewer (JCR) Moi Ali she is not to be informed of the outcomes of complaints against judges which are referred back to the Lord President by the JCR for further action.

Eager to keep questions & complaints regarding the conduct of judges in court hidden from public scrutiny, Lord Gill branded the office of JCR as a “third party” which data could not be shared with for reasons of confidentiality.

The latest development came to light in a submission to the Scottish Parliament’s Petitions Committee by JCR Moi Ali in response to Petition PE1458: Register of Interests for members of Scotland's judiciary.

JCR told MSPs in letter the Lord President is treating her office as “third party” on complaints follow up information. Writing to MSP members of the Petitions Committee, Judicial Complaints Reviewer Moi Ali stated : The other matter that I wished to follow up on relates to the Lord President’s procedure for informing the Judicial Complaints Reviewer of outcomes following referrals.

When I gave my evidence I explained to the Committee that I had written to the Lord President asking for clarity on what information would be given to me. I have since received a reply, so I am now in a position to clarify the process.

The Lord President has confirmed: “You have a clear but limited remit. The nature of your work and the terms of your remit do not involve any follow-up.”

So the situation is that when I make a referral to the Lord President that the complaints Rules have been breached, I will be told what the Lord President proposes to do - for example, to reinvestigate the complaint – but thereafter I will be given no further information, such as whether the complaint was subsequently upheld, as this data cannot be shared with “third parties” for reasons of confidentiality.

I am surprised at this response for two reasons: I do not regard the JCR as a “third party” but as an integral part of the complaints process; and in England and Wales, the outcomes of investigations, when upheld, are published on the Judicial Conduct and Investigations Office’s (JCIO) website.

The JCIO is the closest equivalent body to the Judicial Office for Scotland, in that it supports the Lord Chancellor and the Lord Chief Justice (the equivalent of the Lord President, as head of the judiciary) in their joint responsibility for judicial discipline. It seeks to ensure that all judicial disciplinary issues are dealt with consistently, fairly and efficiently. Like the Judicial Office, it can only address complaints about a judicial office-holder's personal conduct and cannot deal with complaints about judicial decisions or about case management.

Although the Office of Judicial Complaints Reviewer was created by an Act of the Scottish Parliament in 2008, principally highlighted in Section 30, S31 and S32 of the Judiciary and Courts (Scotland) Act 2008, protests from Scotland’s judges over proposals in the 2008 legislation resulted in Justice Minister MacAskill creating the powerless Judicial Complaints Reviewer, who works for three days a month on an annual budget of £2000 and no staff.

Also contained in the JCR’s recent response to MSPs was a suggestion of a proposal put forward by a “member of the public” regarding the gathering of data on recusals, information which has not been made available to MSPs on the Public Petitions Committee even though MSPs have three times requested the data from the Lord President himself.

Moi Ali told MSPs in her letter : I was contacted by a member of the public with an understanding of the court system. They informed me that they thought it unlikely that the Lord President would hold information on recusals, as the judiciary deal with perceived conflicts of interest in different ways and there is a lack of clarity about how such matters should be handled. I am informed that sometimes concerns about potential conflict of interest are aired publicly in court; at other times it's done behind the scenes.

They made a suggestion that seems to be a sensible and pragmatic step in the right direction. Their idea was that rules could be produced by the Court placing an express duty on a judge to declare any potential conflict in open court. Parties’ views could be heard and a judicial decision made on any objections. Thus, with almost immediate effect (subject to the approach taken by the Scottish Civil Justice Council) there could be in place a more open and consistent system than the present practice.

I stress that although I do not think that such a suggestion does away with the need for a register of interests, it does take things a step closer to greater transparency and accountability, could be implemented fairly quickly, and it would provide a basis for the collection of data on the number of recusals.

While the proposal to collect data on recusals is welcome, it is more probably that worried judges who are concerned about public exposure of their undeclared vast wealth, secret financial earnings outside their judicial duties and undeclared links & relationships, even memberships or directorships of organisations, companies & other vested interests, would use it as an excuse to delay the implementation of a full register of interests.

Commenting on the idea, a legal insider said “If judges are able to convince politicians all that needs to be done is the collecting of data on recusals and that it should be left to run for a few years, this will be used by the same judges who opposed statutory powers for the JCR to kill off any idea of a register of interests.”

He continued : “There is clearly an expectation of transparency in all public life including transparency for those sitting on the bench. There is a clear benefit in the implementation of a register of judicial interests and the sooner the better.”

The Judicial Complaints Reviewer has given her support the terms of Petition PE1458: Register of Interests for members of Scotland's judiciary, reported in the Sunday Mail newspaper and Diary of Injustice, HERE.

The Judicial Complaints Reviewer recently gave testimony to MSPs at Holyrood on the benefits of a register of judicial interests, reported along with video footage of the testimony, here : As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

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

Friday, October 18, 2013

Scottish Court interlocutors branded “toilet roll” as hospitality gorged court staff refuse to correct errors, omissions of what judge really said in court

The £220K toilet roll - Court documents are full of errors,omissions say clients, solicitors. INTERLOCUTORS from thousands of cases heard each year in Scotland’s “Victorian” courts may not worth the paper they are printed on due to hundreds of errors, incorrect references, inaccurate points of law, and what in some instances appear to be intentional omissions of what the judge actually said in court. The situation is becoming so bad, some solicitors have dubbed interlocutors as “toilet roll”, even though the documents are supposed to be scrutinised and signed by Scottish judges earning up to £220K a year.

And, when mistakes in interlocutors are pointed out by clients and their solicitors, angry Scottish Court Service staff apparently more interested in stocking up on hospitality, gifts chocolate & champagne than doing their job, routinely refuse to correct their own errors, claiming that documents cannot be changed as they reflected exactly what happened in court - even when it is clear the official account of proceedings contains elements of a fairy tale.

As court users will be well aware, an interlocutor is the document that officially records the final decision of a court.

Interlocutors are usually prepared by the sheriff clerk and handed on to the sheriff for their scrutiny and final signature. A copy of the signed interlocutor (the original being kept at the court as part of the process) is then sent out by court staff to litigants or their legal representatives, awarding the legal authority to put the decision by the court into action.

However, if the content of an interlocutor is incorrect, the lives of litigants can easily be turned upside down along with their relationship with their legal representatives, due to mistakes, errors or deliberate omissions of a sheriff clerk who failed to produce a true and accurate account of what the judge said or decided in court. And due to the attitude or motives of those who prepare the interlocutors, it is often impossible to have any mistakes rectified.

While members of the judiciary are expected to check the interlocutor for its correctness and accuracy, the frequency of mistakes and omissions contained in interlocutors have led to rising numbers of litigants and solicitors questioning whether the sheriff or judge has ever seen the interlocutor, or had time to check it, even though their signature appears on the document.

In some cases, copies of interlocutors which have been sent out to party litigants, appear to be copies of a copy, with, in the words of one solicitor “a photocopied signature of a sheriff placed at absurd angles to the remainder of the document”.

In a recent case brought to the attention of Diary of Injustice by member of the legal profession who was contacted by a party litigant, an apparent ink stain error made by a sheriff during his signing of an interlocutor was accurately repeated in interlocutors issued in different cases on different dates, sent out to several law firms operating in the same part of Scotland, along with one party litigant.

All the interlocutors apparently signed with the same sheriff’s signature along with the same ink stain error, contained numerous & repetitive mistakes which were only corrected after four solicitors simultaneously contacted the sheriff clerk and made him aware they had “evidence to suggest the signatures were not authentic”. From enquiries made on this matter by one of the solicitors concerned, it appears the Scottish Court Service were not made aware of this incident by the sheriff clerk in question.

Unsurprisingly, the frequency of mistakes, incorrect references & omissions contained court in interlocutors appear to increase when cases involving disputes between clients and their law firms, damages & injury claims against large insurers, big business, medical negligence claims & cases involving public authorities. And, in many cases were sheriff clerks have been contacted about the mistakes, they have failed to tell their superiors a complaint has even been made about their work.

In another case already covered by Diary of Injustice which related to a sequestration of a client by a Perth law firm who left their client standing on the steps of the Court of Session without a lawyer, which in turn contributed to the collapse of the client’s medical injury claim, similar questions were raised as to the authenticity of interlocutors originating from Perth Sheriff Court.

Speaking to Diary of Injustice today, a client who did not wish to be named, alleged he had been threatened by a sheriff clerk after informing him the interlocutor produced by the court “looked like a forgery”. and contained inaccurate details of what had actually been said in court along with references to “created evidence”.

If readers have similar experiences of mistakes, omissions, perhaps deliberate errors in interlocutors and feel questions regarding the authenticity of interlocutors issued by Scottish Courts must be raised, media attention to this problem may help.

Diary of Injustice would also like to hear from any litigants or court users who have made complaints to the Scottish Court Service regarding the authenticity or integrity of a court interlocutor Readers can contact Diary of Injustice at

Friday, October 11, 2013

Access to Justice, Hospitality or Bribes ? Scotland’s Courts revealed as haven of lawyers gift giving to staff, secret favours & private profiteering by court clerks

Judges don't declare their gifts, interests while court staff do, sort of. SCOTLAND’S COURTS are little more than a haven of questionable hospitality from law firms, secret favours & errands run by Scottish Court Service staff for lawyers, gift giving and private profiteering by senior officers of the court who are paid large sums of public money to keep the wheels of Scotland’s creaky “Victorian” courts system turning at a pace most now regard as glacial.

The information comes to light in disclosures by the Scottish Court Service in response to Freedom of Information requests after it emerged that ordinary court service staff are required to declare the presents they receive from solicitors & others, while judges are not. Scotland’s judiciary have so far resisted calls to declare hospitality and their wealth, interests & links to the legal and other professions in a Register of Judicial Interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

Extract of Register of Hospitality 2013 Scottish Courts Service. Disclosures from the Scottish Court Service in documents reveal that in the last five years, over 500 instances of gifts and hospitality received by publicly funded SCS were declared under the rules.

Gifts such as expensive champagne, wines, chocolates and dinner invitations were given by lawyers and others to Sheriff Clerks and SCS staff, along with invitations to the Royal Garden Party, paid-for trips in planes, tickets to football matches and a host of other goods, services & gifts many court users may well come to question in terms of how much this gift giving by lawyers dents the supposed impartiality of court staff.

It has also emerged in the media that in some cases, lawyers have actually paid for criminal fines accrued by court staff, leading some to question their reasons for doing so and what secret benefits this brought to the legal profession and court staff involved.

Privately, legal sources have acknowledged to Diary of Injustice that it is suspected a lot of gifts have not been declared by SCS staff, and that much of the gift giving may well be seen as thanks for favours done in court for law firms, particularly those who are pursuing clients for unpaid fees.

Confirming the air of suspicion over the hospitality register, the SCS explained in their response to the FOI request from Diary of Injustice : “In May 2010 we received an FOI relating to the acceptance of gifts by members of staff. On our investigation to establish the information we became concerned that some staff may have accepted gifts or hospitality but failed to register those in accordance with our policy.”

“We asked Gillian Thomson, former Chief Executive of the Accountant in Bankruptcy to investigate this and she reported to us in May 2010.  The report flagged up some areas of the then policy which merited strengthening to assist staff to understand their obligations regarding seeking authority for or registering gifts or hospitality.”

Report on gift giving at Scotland’s Courts by Gillian Thomson OBE. According to the report by the former AIB Chief Executive, “A few staff felt that all gifts and hospitality etc should be refused such a step is not likely to be workable, indeed it is more likely to have a detrimental effect on moral in some areas. Almost all who expressed a view, however, agreed that people who were external to SCS could misunderstand perceived close working relationships. And some others sought clarity on whether or not it was acceptable to receive gifts from or give gifts to the Judiciary.”

Ms Thomson’s report went on to state : “Staff are of course entitled to a family/private life and the public sector should not fear association with private however great care is needed over impropriety and conflict of interest.”

Ms Thomson recommended the “SCS should revise the Policy on Acceptance of Gifts, Rewards and Hospitality to ensure that it is fit for purpose for all staff, taking account of the various roles performed within SCS. It may also be time to revisit the levels of value for gifts and hospitality.”

The report was also highly critical of the state of the SCS Registers of Hospitality, stating : “The information currently captured on the registers is insufficient to provide assurance that staff are using their common sense and considering issues such as conflict of interest. The registers seem sparsely populated and some of the names appear more frequently as seen in Appendix E. Indeed, some of the entries on the hospitality register have been retrospectively recorded.”

“One interviewee commented that on the 2 occasions they had asked for hospitality to be recorded they were either not recorded or put on the wrong register. Although a small sample it may be worth consider the process of reporting. The formatting of documents was also raised, there is perhaps a need to ensure they are easy to read for all, including those with visual impairments. so that SCS may wish to look at the registers held by other organizations, a good example of which might be the gifts and hospitality register held by the Scottish Government which uses a self referral facility. Random audits could be carried out to ensure compliance.”

Ms Thomson went on to recommend : “SCS should develop the individual registers to contain more information to allow better monitoring of what was offered, to whom it was offered and by whom it was approved, these changes would provide better assurance that the policy is being complied with and more easily identify any attempt to offer inappropriate gifts or hospitality to staff.”

“In addition this should create  an opportunity to monitor the consistency of advice provided and to counter any assertions of conflict of interest. SCS should also consider improving access to the registers. This might take the form of an electronic self certifying document for lower value gifts, rewards and hospitality.”

The question of Sheriff Clerks profiteering on the side from their roles in court also raised recommendations to bring the practice to an end : “Several staff raised the issue of sheriff clerks who carry out extrajudicial taxations and private assessments and who personally benefit financially from these activities.”

“Not only is it inappropriate in terms of the civil service code requirements for staff who are public servants to be able to receive private gain from their employment it is also highly divisive when other staff see such benefits being derived from simply being in the right post of Auditor of Court within the Sheriff Courts.”

Ms Thomson recommended : “SCS should bring the practice of sheriff clerks profiting privately from their employment by SCS to an end as quickly as possible”

While the recommendation to prevent Sheriff Clerks from profiteering privately was made by Ms Thomson back in 2010, it appears not to have been heeded by all, as several cases brought to the attention of Diary of Injustice over the past two years have revealed financial relationships between court staff and law firms which have emerged through investigation of cases where solicitors were attempting to pursue clients for questionable fee demands, some of which have led to years of suffering and personal bankruptcy for innocent members of the public.

Curiously, while Scotland’s Lord President Lord Gill has continued to argue the setting up of Registers of Interest (and hospitality) for the judiciary would cause undue harm to judges, even dent the possibility of recruiting to the bench, it is the case the staff of the Scottish Court Service who run Lord Gill’s courts have been required to declare their hospitality for a number of years without any of the problems Lord Gill has thrown against a call for a Register of Judicial Interests.

Given we now have one half of the courts system declaring or being seen to declare some of their hospitality and interests, It is therefore clear the same rules must be applied to the judiciary, and even more so, given their position in public life.

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

Tuesday, October 01, 2013

SECRET SCOTS : FOI Chief Rosemary Agnew voices transparency concerns as Scottish Public Authorities fail on Freedom of Information requests

Information Commissioner Rosemary Agnew raises concerns over FOI failures. SCOTTISH Public Authorities are failing to respond to Freedom of Information requests on time, says Scotland's Information Commissioner Rosemary Agnew in her 2012-2013 Annual Report published today. The report reveals a 14% rise in appeals to the Scottish Information Commissioner’s office during the last year with 27% of those cases relating to failures by public authorities to respond to FOI requests.

Speaking at the launch of her Annual Report, Commissioner Rosemary Agnew revealed that there was a 14% rise in appeals to her office in 2012/13, and that 27% of those appeals related to a failure by the public authority to respond. This is the highest proportion of such appeals to date. Under Scottish FOI law, public authorities have a legal duty to respond to the requests they receive within 20 working days.

The publication of the report coincides with new research which reveals that only 49% of the Scottish public are confident that they would receive an FOI response within 20 working days, with only 10% stating that they would be "very confident" of a response.

Information Commissioner Rosemary Agnew said: "These findings concern me. Eight years on from the introduction of FOI, we would expect authorities to be more effective at handling requests, not less so. When they don't respond, authorities fail to respect people's legal rights to information: information which can be extremely important to individuals and communities. By contrast, authorities that perform well take a customer focussed approach, respond promptly and engage with requesters.

"A failure to respond can also harm public perception of FOI. While many FOI requests are answered on time and a lot of information is provided, the research findings reveal that this is certainly not the public's perception.

"Scottish public authorities that are falling short should take steps to address their performance as an immediate priority. In doing so, they should also remember that failing to respond doesn't make requests go away, but just creates unnecessary extra work and increases costs. Failure to respond generates complaints, review requests, and appeals to my office, and damages a public authority's reputation. The most efficient option is to get it right first time."

As those who make FOI requests and many in the media will know, some of the most persistent offenders in Scotland are local authorities, Departments of the Scottish Government, NHS Scotland trusts and others all eager to cover up internal scandals, the persisting, endemic jobs for the boys culture, the pernicious abuse of vulnerable individuals and widespread waste of public funds including large, sometimes secret pay-outs to top public officials the details of which only emerge after months of wrangling over the terms of FOI replies, requests for reviews and a possible appeal to the Information Commissioner.

Key public authorities in charge of the justice system are well known to journalists as some of the worst offenders, which include Scotland’s prosecution service the Crown Office & Procurator Fiscal Service (COPFS) who appear to be operating a policy of regular delay in response to FOI requests.

It has been found in many cases brought to the attention of the media that Crown Office staff have persistently engaged in expanding the required time to reply to FOI requests by weeks, even months in some cases, while in others, regular refusals to hand out information have become a staple diet of Lord Advocate Frank Mulholland’s £100million a year Crown Office.

Commenting on the Information Commissioner’s report, a Scottish government spokeswoman said: "Scotland has the most robust freedom of information regime in the UK, with a transparency system that sets an example for other nations to aspire to.”

"In 2012 we received over 1,900 FoI requests - the highest number on record - and we are on course to receive even more in 2013. We strive to respond on time to all cases, and the number of technical appeals we receive has decreased since the end of March 2013."

She added: "Our commitment to proactive publication and sharing of information with the public is enshrined in legislation."

Scottish Information Commissioner Rosemary Agnew has also announced today she is planning to lay a Special Report for the Scottish Parliament exploring such failures in the spring.

The Commissioner's 2012/13 Annual report: Upholding the right to know reveals that:

The number of FOI appeals increased by 14% over the last year, to 594 appeals.

564 cases were closed, a 9% increase on the previous year.

The Commissioner found completely in favour of requesters in 37% of cases and completely in favour of authorities in a further 37%. The remainder were partially upheld.

60% of appeals were made by members of the public

43% of appeals related to local government bodies and 31% related to the Scottish Ministers or the Scottish Parliament.

Enquiries to the Commissioner rose by 8% last year.

The report also contains examples of how FOI has been used by the Scottish public over the last year, seeking a wide range of information on issues relating to housing, health, transport, education and the environment.

Discussing the rise in FOI appeals, Rosemary Agnew said: "Our case volumes have continued to rise, with a 14% rise over the last year and a 49% increase in the last five years. I'm happy to report that we've been able to manage these increases through a combination of hard work and a considered review of how we conduct our business. As a result, we have closed more cases than ever and reduced the time we take to investigate appeals.

"However, I am concerned about how sustainable this position will be in the longer term. These advances have been achieved against a backdrop of decreasing resources, and if volumes continue to rise, it will pose significant challenges to my ability to enforce FOI effectively."

Appeal statistics - by Region and Sector

More detailed information on appeals received since 2005, broken down by public authority, region and sector, are available in the following spreadsheets:

2012/13 Public Authority Tables - by Sector (Excel - 597kB)

2012/13 Public Authority Tables - by Region (Excel - 1.6MB)

Technical appeals

These are appeals made following a public authority's failure to respond with the FOI Act's 20-working day timescale. 

The 2012/13 Technical appeals investigated - by authority reveals that 29% of the appeals investigated by the Commissioner in 2012/13 related to such a failure to respond.