Wednesday, October 22, 2014

Creating a register of judicial interests ‘is the right thing to do’ - David Torrance MSP on Scottish Parliament judicial interests debate

Scottish Parliament debate on register of judicial interests. ON Thursday 09 October 2014, the Scottish Parliament’s main chamber held a detailed ninety minute debate on calls to require judges to declare their significant financial and other interests, as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary. On conclusion of the debate, MSPs overwhelmingly supported motion S4M-11078 - in the name of Public Petitions Convener David Stewart MSP on petition PE1458 and urged the Scottish Government to give further consideration to a register of interests for judges.

The public petition, submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

In a move aimed at widening public awareness of the undisclosed interests of Scotland’s judiciary and details contained in the recent debate by MSPs at Holyrood, each day this week, Diary of Injustice is publishing the official record of the speeches given by individual MSPs who participated in the debate along with video footage.

This article focuses on the speech given by David Torrance MSP (Kirkcaldy) (SNP). David Torrance is also a member of the Public Petitions Committee.

David Torrance MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct

David Torrance (Kirkcaldy) (SNP): Like others, I would like to take this opportunity to thank Peter Cherbi for submitting the petition in question and the committee clerks for all their work.

The debate over whether to introduce a register of interests for the judiciary in Scotland is an intriguing one. It is true that there is currently no such register and that alternative arrangements are in place that arguably compensate for that. However, it is also true that registering one’s interests is now commonplace among all high-office public service personnel and that doing so increases transparency and accountability to the people we represent and serve. That is the point on which I would like to focus and is the main reason why I support the petitioner’s call for a register of interests to be introduced.

In Scotland, we take great pride in our legal system, and the integrity of our judges and sheriffs is paramount. We place a great deal of trust in our judiciary and things such as the judicial oath, the statement of principles of judicial ethics and the Judiciary and Courts (Scotland) Act 2008 help us to have confidence that that trust is well placed. However, regardless of the level of trust that we have in the judiciary, situations can nevertheless arise that might lead us to question the actions of one of its members and to doubt whether they have acted appropriately when exercising individual discretionary judgement.

The committee’s correspondence from the judicial complaints reviewer, Moi Ali, indicates that allegations of judicial bias, albeit unsubstantiated, have been made by members of the public. Implementing a register of interests would certainly reduce the scope for such doubt and would help to ensure maximum public confidence in our judiciary.

I am aware that every other category of public servant of high office, MSPs and MPs included, is required to complete a register of interests. That therefore begs the question why the judiciary should be treated as an exception. Exceptions tend to create suspicion, which we should seek to avoid. Completing a register of interests is not an overly arduous task and it is one that, in my view, is worth doing to ensure transparency and accountability in our legal system. I would be surprised if there were many members of the judiciary who did not share that view.

I understand that it is currently at the discretion of individuals to decide whether to recuse themselves from a case. Under those circumstances, I can appreciate that judges might be viewed as having too much autonomy over deciding when to recuse. I am pleased to learn that there is now a system in place whereby recusals made by judges and sheriffs are routinely recorded, and that that information is now publicly available via the judiciary of Scotland website. I thank the Lord President for initiating that action. However, although that development has been widely welcomed, I understand that it does not go far enough to address the petitioner’s concerns, as it does not disclose occasions on which a judge decides not to recuse themselves despite the existence of a potential conflict of interest.

Although I understand that conflicts of interest are on occasion declared in open court prior to taking on a case, the introduction of a register of interests would provide a more consistent and sound basis on which to move forward.

The ultimate priority must be transparency and accountability to the public. It seems to me, after examining the evidence provided to the committee thus far, that there is a strong case for introducing a register of interests with that purpose at its heart. Considering that that is a standard requirement for all others in positions of high public office, I believe that that is the right thing to do. That said, care must be taken to ensure that minimal inconvenience is caused to judicial office-holders in terms of the time and effort taken to complete and update a register, and to alleviate any ill effects that they may be put at risk of by doing so.

I look forward to hearing the views of the other speakers in today’s debate, as it is important for us to gain as many perspectives as possible on the issue in order to ensure that a decision is made in the best interests of the public while protecting the privacy of members of our judiciary.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, 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

11 comments:

Anonymous said...

Not sure about all this protecting the privacy of judges stuff.

Judges are often involved in judgements which result in someone's whole life being exposed in some snotty press release from whoever AND birth date and everything else of an accused even when not found guilty is published so WHY is everyone so concerned with a judges privacy.

If they have the power they have to take the transparency test too otherwise unfit to be there.

Anonymous said...

agree with everything said so when do we get this register

Anonymous said...

What actually does The Lord President do?

Apart from trying to keep things secret from the public?

Why have a Lord President, when the only reason for having one is that we have always had one?

Seems to me Scotland would be far better off without a Lord President and with an additional doctor, 2 teachers and 5 nurses?

Anonymous said...

You saw this?Looks like your petition is having an effect at last!
http://www.eveningexpress.co.uk/news/local/aberdeen-sheriff-stands-down-over-rspb-link-1.641674

Aberdeen sheriff stands down over RSPB link
22 Oct 2014 3.35pm

Sheriff Annella Cowan

A SHERIFF today stood down from a court case involving a man accused of killing birds of prey - because she is a member of the RSPB charity.

George Mutch, of Kildrummy, was due to stand trial at Aberdeen Sheriff Court today accused of recklessly killing or injuring two goshawks and a buzzard by using traps.

The 48-year-old faces four charges and is claimed to have carried out the offences at Kildrummy Estate, near Alford in Aberdeenshire, between August 6 and September 13 in 2012.

He denies the charges. The trial was scheduled to go ahead today but was further adjourned until later this year.

Defence counsel Mark Moir argued that the Sheriff Annella Cowan should recuse herself from the case because she had mentioned during a pre-trial hearing that she was a member of the RSPB bird charity.

Mr Moir argued that the sheriff should stand down from presiding over the trial because the bird charity had been involved in the criminal investigation against his client.

He said: "Your Ladyship in this specific trial will require to determine whether or not investigators who are members of the RSPB are credible or reliable and you will also have to decide whether Mr Mutch is credible or reliable."

He added that if it was the case that the sheriff had paid membership fees to the charity the money could have been used to fund criminal investigations of this type.

Mr Moir stressed that he was not suggesting that the sheriff would be biased but said there could be an appearance of bias now that her RSPB membership had been mentioned and the fact was in the public domain.

Sheriff Cowan considered the lawyer's arguments for her to recuse herself from the case and decided she would stand down.

The sheriff said she had taken no offence insisting that it was more important that justice was seen to be done.

Diary of Injustice said...

@ 22 October 2014 21:49

From the article it appears the solicitor and accused only found out about the Sheriff's RSPB membership when she mentioned it at a pre-trial hearing herself.

It is good for the judiciary to declare and this example should remind the Lord President the current list of recusals published by the Judicial Office does not contain enough detail or references to cases where recusals have already taken place.

Only a full register of interests containing such memberships of organisations and other interests, links, relationships & assets will address the issue in the long run.

Diary of Injustice said...

@ 22 October 2014 19:44

Good point ... COPFS often put out press releases where individuals are identified to date of birth, address etc. If such a case ends up as a successful miscarriage of justice appeal the damage has already been done.

There are also elements of information contained in court judgements which permit identification of litigants even when names are removed.

The entire court process must be open to all scrutiny.

Privacy can be protected but those in the judiciary who get cases and judgements wrong cannot be permitted to use arguments of privacy to protect themselves from exposure over criminal convictions, offshore tax evasion, undeclared earnings and links to both prosecutors and defence counsel in cases called before them in court.

No one else has such a sweeping immunity from everything so why should judges.

Anonymous said...

Anonymous said...
Not sure about all this protecting the privacy of judges stuff.

Judges are often involved in judgements which result in someone's whole life being exposed in some snotty press release from whoever AND birth date and everything else of an accused even when not found guilty is published so WHY is everyone so concerned with a judges privacy.

If they have the power they have to take the transparency test too otherwise unfit to be there.

22 October 2014 19:44
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Apparently Scottish lawyers and their mates are very sensitive and self serving when it comes to their own perception about status and reputation?

Anonymous said...

Anonymous said...
You saw this?Looks like your petition is having an effect at last!
http://www.eveningexpress.co.uk/news/local/aberdeen-sheriff-stands-down-over-rspb-link-1.641674

Aberdeen sheriff stands down over RSPB link
22 Oct 2014 3.35pm

Sheriff Annella Cowan

A SHERIFF today stood down from a court case involving a man accused of killing birds of prey - because she is a member of the RSPB charity.

George Mutch, of Kildrummy, was due to stand trial at Aberdeen Sheriff Court today accused of recklessly killing or injuring two goshawks and a buzzard by using traps.

The 48-year-old faces four charges and is claimed to have carried out the offences at Kildrummy Estate, near Alford in Aberdeenshire, between August 6 and September 13 in 2012.

He denies the charges. The trial was scheduled to go ahead today but was further adjourned until later this year.

Defence counsel Mark Moir argued that the Sheriff Annella Cowan should recuse herself from the case because she had mentioned during a pre-trial hearing that she was a member of the RSPB bird charity.

Mr Moir argued that the sheriff should stand down from presiding over the trial because the bird charity had been involved in the criminal investigation against his client.

He said: "Your Ladyship in this specific trial will require to determine whether or not investigators who are members of the RSPB are credible or reliable and you will also have to decide whether Mr Mutch is credible or reliable."

He added that if it was the case that the sheriff had paid membership fees to the charity the money could have been used to fund criminal investigations of this type.

Mr Moir stressed that he was not suggesting that the sheriff would be biased but said there could be an appearance of bias now that her RSPB membership had been mentioned and the fact was in the public domain.

Sheriff Cowan considered the lawyer's arguments for her to recuse herself from the case and decided she would stand down.

The sheriff said she had taken no offence insisting that it was more important that justice was seen to be done.

22 October 2014 21:49
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I think I am correct to say that the Sheriff did not volunteer her membership of the RSPB in recusing herself, rather that the court case was already proceeding, when during a hearing the Sheriff inadvertently disclosed that she was an RSPB member and that on learning this extra curricular Interest, the defendant's lawyer asked the Sheriff to recuse herself?

This is precisely the Precedent that will be utilised by opportunist lawyers who are trying to delay process indefinitely to get their client off, by simply availing himself with all of the Conflicts of Interests caused by Scottish Judges and Sheriff's getting themselves involved in Other Interests which clash with them being able to carry out their job as a Judge?

If Scottish Judges and Sheriffs are forced to Recuse and so interfere with the administration of justice because of clashing outside Interests, then they should be sacked on the spot?

Anonymous said...

When the Register of Interests comes in, I hope it is backdated to prior to Mr Cherbi's Petition, so a record can be taken of all of the Sheriffs and Judges who are now trying to avoid the repercussions of their actions by trying to amend their interests in secret?

Anonymous said...

I've lost track of who is saying what anyway good on you for getting the debate in the end and publishing everything.Scotland needs the judges to be accountable not in the backroom department!

Big Wullie Beck said...

Fat too many judges sitting on cases they ought not to be doing.
Far too many related judges with different names in Scotland.