No powers to make things better: Judicial Complaints Reviewer to stand down from MacAskill’s “window dressing” justice watchdog over errant judges

Moi Ali, Scotland’s First Judicial Complaints Reviewer to stand down over lack of support from Scottish Government. SCOTLAND’S Judicial Complaints Reviewer (JCR) is to stand down from the post created by legislation in 2008 which was intended to investigate and review how judges investigate complaints against themselves.

It has been revealed that Moi Ali, the first person to hold the office of Judicial Complaints Reviewer has told Scotland’s Justice Secretary Kenny MacAskill that she will not seek a second term in the role because she has complained the post is mere “window dressing” and “tokenism”.

Moi Ali, who took on the post of JCR after it was created in 2008 has endured a difficult term due to a lack of cooperation from the judicial office who refused to share documents and details relating to complaints made by members of the public against judges.

In particular, Moi Ali encountered difficulties in dealing with Scotland’s top judge, Lord President Lord Brian Gill, who it was revealed, had dismissed earlier findings against fellow judges, and had gone on to brand the office of Judicial Complaints Reviewer as “a third party” when it came to handing over details on complaints made against judicial colleagues and discussions on how those complaints had been investigated by other judges.

MacAskill created a watchdog without teeth on orders of angry judges with undeclared secrets. The position 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.

However, protests from vested interests within Scotland’s judiciary and legal profession from Scotland’s judges who were “dead against” proposals to create an independent form of regulation of judges resulted in what legal observers have branded “a cowardly capitulation” by Justice Minister MacAskill.

The lobbying from Scotland’s unaccountable judges and their allies in the justice system led to the creation of a Judicial Complaints Reviewer without any statutory powers, working on a three days a month basis and with an annual budget of £2000 and no staff.

In England and Wales, the situation is very different from Scotland, where the Office for Judicial Complaints has 15 staff and publishes details of upheld complaints. If complainants remain dissatisfied with how their case was handled, they can appeal to the Judicial Appointment and Conduct Ombudsman, headed by Sir John Brigstocke, with 14 staff.

And, although Scotland’s Judicial Complaints Reviewer has been given no statutory powers to deal with complaints against judges, the Judicial Appointment and Conduct Ombudsman in England has statutory powers enshrined in law,  and can overturn decisions, order reinvestigations and ask for victims to be compensated.

First Annual Report of JCR for 2011-2012 revealed Scotland’s top judge froze out independent Judicial Investigator. To illustrate what has become a consistent lack of cooperate from the judicial office, the first annual report from Moi Ali last year reiterated concerns over refusals by judges  to share information  with investigators, previously reported in February by the Sunday Mail newspaper and featured on Diary of Injustice here: Annual Report revealed Lord President Lord Gill ‘froze out’ Judicial Complaints Reviewer amid series of revoked findings, secret unshared memos & dismissed complaints.

Ms Ali’s first annual report, which can be read online here : Judicial Complaints Reviewer Annual report 20011- 2012 or available via the JCR’s website HERE reveals a series of incidents where her office has been blocked by the Lord President from accessing communications, internal memos and reports between the office and the judges about complaints.

In one particular case, Ms Ali revealed in her report “When the Judicial Office made an initial assessment of this complaint, it was not reasonable for them to conclude that the behaviour complained about, which left the complainer “insecure and scared”, fell into the category of judicial decision/case management/court programming. According to the Rules, they should have referred that element of the complaint to the disciplinary judge for consideration. This did not happen, and instead the complaint, in its entirety, was dismissed. For that reason I made a referral to the Lord President, who then revoked that part of the original determination and referred it to the disciplinary judge, who then dismissed the complaint.”

Second annual report - JCR lacks much needed powers. The Judicial Complaints Reviewer’s 2012-2013 annual report revealed continuing issues of concern and further instances where the Judicial Office has refused to share files and paperwork in relation to complaints made against judges and how were handled.

The report also makes reference to incidents such as where Scotland’s top judge Lord Brian Gill refused to hand over information to the JCR. Gill claimed Moi Ali’s office was a "Third Party" and that data cannot be shared with her office for reasons of confidentiality. However, the confidentiality concerns of Gill appear to be restricted to Scotland, as the same information in England & Wales is published online.

It also emerged in the JCR’s second annual report that even though a Memorandum of Understanding was signed between the JCR & Judicial Office earlier this year on respective roles, responsibilities and agreed undertakings, the situation regarding the contents of files has not been resolved to Ms Ali’s satisfaction.

The Sunday Mail newspaper reported on issues raised in the JCR’s second annual report, including calls from Moi Ali for the Scottish Government to act over the lack of scrutiny and transparency in Scotland’s judiciary.More can be read here: Calls for Justice Secretary to get tough with anti-transparency judges as Judicial Investigator reveals weak-by-design scrutiny fails to protect public from errant judges

JCR SUPPORTED REGISTER OF JUDICIAL INTERESTS PETITION:

In support of Petition 1458, Judicial Complaints Reviewer Moi Ali wrote in her 2012-2013 Annual Report of her recognition of the issues of transparency raised in the petition, and recommended “any judicial register of interests should not be limited to pecuniary interests, but should also encompass non-financial interests such as memberships, unpaid trusteeships, and any relevant close family/friendship links that may be perceived as a potential conflict of interest.” Video footage of the evidence session in which the JCR answered questions from MSPs can be viewed here :

JCR Moi Ali gives evidence to Scottish Parliament on a proposed Register of Judicial Interests (Click image to view video)

JCR 2012-2013 Annual Report confirms support for a Register of Judicial Interests, recommends extending interests to be declared. Register of Interests : I was invited to submit written evidence to the Scottish Parliament’s Petitions Committee on a register of interests for the judiciary and I did so in May.

I  supported the view of the petitioner, Peter Cherbi, that a register of interests would increase the transparency of the judiciary and ensure public confidence in the judiciary’s actions and decisions.

Responses from the Lord President, the Law Society of Scotland and the Scottish Government suggested that a register of interests is unnecessary because, among other things, the complaints process is a safeguard.

As Judicial Complaints Reviewer, I believe that some of the necessary independent safeguards are missing from the complaints process. In any event, registers of interest are now a normal part of public life.

We are fortunate to have an independent judiciary, whose independence must never be undermined. However, independence must not be confused with lack of accountability. Better transparency would enhance the judiciary’s standing and bring parity between judicial office holders and other holders of important roles in public life.

Although not required to do so, I prepared my own register of interests in May 2013, which was publicised using social media, is published on my website and also reproduced in this report. I believe that the JCR should be required to publish their interests, either by legislation or as a requirement set out in their letter of appointment from the Minister. Their independent oversight role makes the publication of their interests all the more important.

I suggested in my evidence that any judicial register of interests should not be limited to pecuniary interests, but should also encompass non-financial interests such as memberships, unpaid trusteeships, and any relevant close family/friendship links that may be perceived as a potential conflict of interest.

I based my comments on the cases that I have reviewed and the nature of the original complaints raised. I followed up in September with oral evidence and further written evidence, an account of which will be given next year.

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

Petition PE1458: Register of Interests for members of Scotland's judiciary is due to be heard again at the Scottish Parliament on Tuesday 28th January 2014 and will include a report or comment on a private meeting held last Tuesday between the Convener and Deputy Convener of the Public Petitions Committee and Scotland’s top judge Lord Brian Gill.