Top judge forced to publish limited disclosures of judicial conflicts of interest. INCREASING revelations in the media of undeclared links between Scotland’s wealthy, unaccountable judges and big business, as well as undeclared earnings, secret relationships, undeclared criminal convictions and links to offshore trusts have forced top judge, the Lord President Lord Brian Gill to publish a limited amount of information on how judges recuse themselves from conflict of interests in cases being heard in Scottish Courts.
The move to disclose recusal data only came about after Lord Gill gave an undertaking on the issue to MSPs of the Scottish Parliament's Public Petitions Committee who are currently investigating proposals contained in Petition PE1458: Register of Interests for members of Scotland's judiciary. The petition calls for judges to declare all their interests in a published publicly available register of judicial interests.
An Exclusive investigation by the Sunday Herald newspaper revealed Sheriff Principal Alistair Dunlop QC who is in charge of courts in Tayside, Central & Fife, held shares in supermarket giant Tesco while hearing a case against the same company. The articles by journalist Paul Hutcheon also go on to detail significant shareholdings of Scotland’s top judge Lord Gill, who is hostile to the creation of a register of judicial interests:
Paul Hutcheon Investigations Editor Sunday 27 April 2014
A senior sheriff presided over a court hearing involving Tesco at the same time as he held shares in the multi-national supermarket giant.
Sheriff Principal Dunlop QC did not absent himself because having shares in a company that is party to a court action does not require a member of the judiciary to step down from a case.
A Holyrood committee is considering proposals that would require judges and sheriffs to publish their outside interests, including details of their finances.
Members of the judiciary, unlike other senior public servants, do not need to give any details of their external sources of income.
A self-regulating system governing the behaviour of the judiciary is in place instead, with judges and sheriffs taking an oath requiring them to "do right" by people "without fear or favour".
The Statement of Principles of Judicial Ethics, issued in 2010, also notes that judges must act impartially and recuse, or remove, themselves in the event of a conflict of interest: "Plainly it is not acceptable for a judge to adjudicate upon any matter in which he, or she, or any members of his or her family has a pecuniary interest," it states.
However, senior members of the judiciary who are board members of the Scottish Courts Service (SCS) do have to submit details of their financial interests.
The rules require disclosure of items including membership of clubs and shareholdings whose value is worth more than £25,000 or greater than 1% of the issued share capital of the company. The value of the holding does not need to be registered.
Sheriff Principal Dunlop, whose territory spans Tayside, Central and Fife, is an SCS board member who declares shares in 29 firms.
These include well-known companies such as Vodafone, Royal Bank of Scotland, G4S, Diageo, Lloyds Banking and Weir Group. He also declares shares in Tesco.
In 2009, Falkirk council licensing board was in dispute with Tesco Stores Ltd - a subsidiary of the PLC - over a premises licence in a service station.
The supermarket giant appealed in 2010 and Sheriff Principal Dunlop, who held the Tesco shares at that time, oversaw a highly technical and procedural hearing in the case.
According to a spokesman for the local authority, the Sheriff remitted it back to the council and the application was subsequently granted by the board. Dunlop is a highly respected legal figure and there is no suggestion of wrongdoing or personal gain. However, the case has again thrown a spotlight on whether the system for declaring and registering judicial financial interests is satisfactory.
Peter Cherbi, a campaigner for judicial accountability, said: "It should be necessary for judges to declare all their interests and in even greater detail than politicians do."
Moi Ali, the outgoing Judicial Complaints Reviewer in Scotland, recently wrote to a Parliament committee to express her support for a register.
"An independent judiciary underpins a civilised society. But with independence goes accountability, and a register of interests is a mechanism for enhancing accountability."
The Judicial Office for Scotland (JOS) recently introduced a register of recusals, which shows cases where judges or sheriffs have absented themselves.
There have been four recusals since March. In a criminal case, Sheriff Veal recused himself as he was "personally known" to a witness.
Lady Wise recused herself from a high court case last week as she had previously acted for a relative of the accused.
A spokesperson for the JOS confirmed the Sheriff Principal held the Tesco shares at the time of the hearing. She added: "In the case involving Tesco and Falkirk Council Licensing Board, Sheriff Principal Dunlop dealt with a procedural issue in order to seek a pragmatic solution to a procedural matter and enable the case to proceed.
"There is well established case law to guide a judge or sheriff on when they should recuse in cases where they may hold shares in a company that is party to an action. Simply being a shareholder is not sufficient to require recusal.
"The Sheriff Principal quite properly dealt with the procedural matter as he was entitled to do and did not consider it necessary to recuse himself."
Paul Hutcheon Investigations Editor Sunday 27 April 2014
A top judge and staunch opponent of a register of interests for the judiciary has shareholdings in several investment funds.
Lord Gill, who has been critical of plans to require judges to publish their financial interests, made the declaration in his capacity as a board member of a courts quango.
It can also be revealed that his predecessor as Lord President, Lord Hamilton, declared shares in dozens of companies when he was in post.
In a written submission to the Scottish Parliament's public petitions committee, Lord Gill argued that a register of interests for judges and sheriffs was unnecessary, adding that their privacy could be impacted by "aggressive media or hostile individuals".
He wrote: "The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the judiciary."
The Lord President declined Parliament's invitation to elaborate on his argument in person, a snub he was within his rights to deliver as judges cannot be compelled by law to give oral evidence to Holyrood. The Lord President instead agreed to a private meeting with MSPs.
However, despite his hostility to a register, Lord Gill is required as a Scottish Court Service (SCS) board member to declare shareholdings and membership of outside bodies. Other board members include Lord Justice Clerk Lord Carloway, Sheriff Principal Dunlop, Lord Bannatyne and sheriffs Iona McDonald and Grant McCulloch.
These registers have recently been made available to the Sunday Herald. Lord Gill, the de facto leader of Scotland's judges, declared shares in Henderson UK Growth Fund, Newton International Growth Fund, Aviva Investors UK Equity Fund, Terrace Hill Group and Vestry Court Ltd.
Sheriff McDonald declared shares in seven companies: pharmaceutical giant GlaxoSmithKline, banks HBOS and Barclays, Royal Dutch Shell, Standard Life, Unilever and Equiniti.
Lord Hamilton, who was Lord President until two years ago, registered shares in 33 firms in 2011. These included Barclays, BSkyB, BP, Centrica, Nestle SA and Rio Tinto.
Also listed were shares in Statoil ASA, National Grid, HSBC bank and Edinburgh Dragon Trust.
The declarations have raised the question of why, if Lord Gill and other senior colleagues can register financial interests as SCS board members, all judges and sheriffs cannot do the same.
However, in a letter to the Committee, Lord Gill said the SCS entries were an "entirely different" matter. "The requirement of those judicial office holders who are members of the SCS to register their interests arises in the context of their membership of a public body," he said. "The disclosure of their interests arises from their work as board members, which may involve the placing of contracts and employment questions. It is not related to their holding judicial office."
Chic Brodie, an SNP MSP, said: "This shows there is no consistency. There should be a consistent set of rules across the judiciary."
A spokesperson for the Judicial Office for Scotland declined to comment beyond Lord Gill's letter.
The Sunday Mail newspaper also reported on the UK legal first where recusals of judges are now published:
by Mark Aitken Sunday Mail 27 April 2014
Scotland's judges are coming clean when they have to step away from court cases because of a conflict of interests.
Scotland’s top judge has decided that for the first time the public can see online why judges and sheriffs have stood down from hearing criminal trials and civil actions.
It comes after the Sunday Mail told of MSPs' anger that the Lord President Lord Gill had dismissed calls for a judicial register of interests and snubbed invitations to discuss his position at a Holyrood committee.
The judiciary of Scotland's website lists four cases in the past month where a sheriff has decided not to hear a case. Reasons include a sheriff being known to a witness and a sheriff having previously represented a client in a civil case. The disclosure by Lord Gill, Scotland's most senior judge, follows his block on a judicial register of interests.
But campaigners say judges should reveal business, professional and financial links and do not believe the latest move goes far enough.
Peter Cherbi has called for a judicial register of interests, which could disclose hospitality, gifts and property, as well as personal or financial links to outside bodies.
He said: "The judiciary have the power to change public life, change the law or even throw out legislation passed by elected representatives. "Any group with such power can't be seen to exempt itself from the public's expectation of similar levels of transparency and accountability which apply to other branches of government and public life."
SNP MSP John Wilson said that until there was a full declarable register for judges, there would be doubts about "the interests that judges may be putting before the legal arguments".
Lord Gill has rejected calls for a register as he fears judges may be harassed by the media and has refused to attend Holyrood's public petitions committee
Petition PE1458: Register of Interests for members of Scotland's judiciary is due to be heard again at the Scottish Parliament next week on 6 May 2014.
Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Herald and Sunday Mail newspapers, 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