Judicial Investigator Moi Ali finds judges guilty in final report. SCOTLAND’S first Judicial Complaints Reviewer (JCR), Moi Ali, has published her final and highly critical annual report on how judges handle complaints against their colleagues. The stinging attack on Scotland’s judiciary reveals details of cases including alleged racial bigotry, bullying, lying, omitting details from records, conflicts of interest, and even making secret recordings of meetings.
In one case, Ms Ali details a complaint made by a journalist against a judge who cleared the media from a court case – even though similar cases previously had been heard with journalists present. Another case involved a complaint filed by a mother on behalf of her disabled son. The complaint was dismissed by the Judicial Office because the judge may not have been able to recall events due to a “time gap”.
Another case related to an alleged conflict of interest and failure of a judge to recuse, with specific information provided regarding a relative of the judge. The Judicial Office dismissed that part of the complaint and when the matter was referred by the JCR to the Lord President Lord Brian Gill, he revoked the initial dismissal, referred it to a determining judge who went on to find ‘nothing of concern’.
The JCR also found breaches of complaints rules in a case involving an alleged “outburst of racial bigotry” by a judicial office holder. Within this case, it was also alleged by the person who made the complaint that “The official record had been falsified to omit the racist comment.”
In another case review, the JCR revealed that an organisation who works closely with the courts and when they tried resolve matter with the judge – he secretly recorded their meetings.
The JCR’s report in the secret recordings case states: “Over a number of years various members of staff within the organisation had difficulties with the conduct of a JOH, which they sought to resolve informally. The situation was ongoing but matters came to a head due to a cluster of incidents. A formal complaint was made to the Judicial Office about bullying.”
“During the investigation, it came to light that the JOH had made recordings of meetings. Organisation F lodged a further complaint about these allegedly covert recordings (Review 2). The original complaints about the JOH were investigated - without Organisation F's witnesses being interviewed. It was not upheld. The complaint about covert recordings was not investigated. Organisation F was not told that it would not be investigated.”
Moi Ali was appointed Judicial Complaints Reviewer in 2011 but announced her decision to quit her role earlier this year after describing her role & function to MSPs investigating judicial transparency - as “window dressing”. Previously Ms Ali had requested the now sacked Justice Secretary Kenny MacAskill give greater powers to the JCR. MacAskill refused, leaving the office in limbo and at the mercy of Scotland’s top judge – Lord Brian Gill – who must himself approve any changes to the remit of the JCR.
And in spite of promising new complaints rules, Scotland’s top judge the Lord President Lord Brian Gill is still to act over a year after his consultation on changing the rules around judicial complaints.
Moi Ali also continues to support the creation of a register of interests for Scotland's judiciary as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.
Ms Ali – who gave her support for the petition during an evidence session before MSPs at the Scottish Parliament’s Public Petitions Committee last September, 2013, wrote in her 2014 annual report: “I continue to be of the view that a register of interests would increase transparency, enhance public confidence in the judiciary, and reduce complaints numbers and review requests.”
The Sunday Mail newspaper reported on the Judicial Complaints Reviewer’s 2014 annual report here:
MY FINAL VERDICT ON JUDGES? A LAW UNTO THEMSELVES
Investigator says she got no co-operation and only met law chief once in three years
By Mark Aitken Political Editor Sunday Mail 07 December 2014
A former watchdog who probed complaints about legal chiefs has hit out at Scotland's judges in her farewell report.
Moi Ali was appointed the country's first ever judicial complaints reviewer in 2011 but announced her decision to quit earlier this year because she had no power and the role was "tokenistic".
Her final report details complaints of alleged racial bigotry, bullying, lying, conflicts of interest and making secret recordings of meetings.
And Ali, who left the role in August, reveals Scotland's top judge, Lord Gill,only met her once.
She said: "Unfortunately, there has been little interest in the positive difference that the JCR could make.
"Although I have had a good working relationship with the judicial office, I have met the Lord President just once in three years.
"My interactions with both the Lord President's office and the judicial office have focused more on what I cannot do rather than what I can do and as such, an opportunity for whole system improvement has been lost.
Reform campaigner Peter Cherbi said: The current system of judges slapping each other on the back and dealing with their own complaints is clearly unfit for purpose.
"Ms Ali found investigations by the judicial office were delayed for months, officials were confused as to their own procedures, and complaints were treated with the disdain.
"One complaint filed by a mother on behalf of her disabled son was kicked out because too much time had passed and the judge could have forgotten the events. There's not much point in having judges who forget what they had for breakfast but can remember to pick up a £200,000 salary and all the expenses trappings of judicial office."
Independent MSP John Wilson said:"It is up to the new justice Secretary to take a serious look at the report by Moi Ali and develop a system that is independent of the Lord President to bring confidence in the judicial review process."
A judicial office spokesman said: "The judicial office has fully co-operated and will continue to work with the judicial complaints reviewer to take forward the recommendations of the Lord President's consultation on the complaints process.
JUDICIAL COMPLAINTS, SCOTLAND 2014:
Report of the Judicial Complaints Reviewer 2013-2014. Moi Ali wrote in her report: When I accepted the office, it was in order to make a difference and I do believe that I have had an impact, albeit a more limited one than I had hoped at the outset. My aim was to work with the Judicial Office and the Lord President to help shape a fair, user-friendly, user-centric and transparent complaints system. I saw my role as not only reviewing the handling of complaints, but also using my insights into the complaints system to work in partnership to bring about improvements to the system as a whole. I believed that my wider observations could be fed into the justice system. For example, from my unique independent viewpoint I have seen from my complaints reviews that there are potential issues around communications training for the judiciary. My observations were an opportunity to inform and improve judicial training, to help avert future complaints and to provide a better court experience for everyone.
Unfortunately there has been little interest in the positive difference that the JCR could make. Although I have had a good working relationship with the Judicial Office, I have met the Lord President just once in three years. My interactions with both the Lord President's office and the Judicial Office have focussed more on what I cannot do rather than what I can do, and as such an opportunity for whole- system improvement has been lost.
Over the last few months of my term of office there were positive developments at the Judicial Office. I was recently invited to work with their team on reviewing their standard letters to complainers to help make them clearer and more user-friendly. I was critical of these letters from the outset and was delighted to be involved.
Another success is achieving the Lord President's agreement that he will now share a summary of the key findings of investigations with complainers, having initially decided that he would not. Complainers quite reasonably expect to see the findings of any investigation into their complaint. Sharing a summary is a big step forward in terms of transparency, but it still does not go far enough. I cannot see why, in most cases, the full investigation report cannot routinely be shared with both complainers and complained-about.
Last year I reported that the Lord President told me that "third parties" such as the JCR could not be given information relating to outcomes of my referrals for reasons of confidentiality. As my role is an integral part of the complaints process, I was surprised that I would not be informed of the outcome of my own referrals, especially as I would have already seen the full details of each complaint. Following correspondence with the Lord President's office, I am pleased that he has reconsidered the matter and agreed that this will now be shared with the JCR. Although a welcome development, again it does not go far enough. In England and Wales, the outcomes of investigations, when upheld, are published on the Judicial Conduct and Investigations Office's (JCIO) website. Greater transparency builds public confidence.
When I became JCR in 2011, there was no appetite among the judiciary for an independent complaints reviewer and I have seen no evidence that that position has changed. There was also scepticism among the public about the role. The feeling was that the JCR would be in the pocket of government, or the judiciary - or both. I have asserted my independence, to the extent that both government and the judiciary have at times felt uncomfortable. My stance has helped build public trust and confidence in the office, even if frustrations have been voiced about the lack of powers of the JCR. It is vital that the public and the judiciary can appreciate the value of the JCR to a fair complaints system. I have won part of the battle, with the public. I hope my successor is successful in persuading the judiciary of the benefits.
In just over three years of the new complaints regime, the Judicial Office's published statistics show that of 313 complaints received, there were 22 investigations. These resulted in one judicial office holder apologising for his or her conduct and no judicial office holders being disciplined. This may explain why no JOH has sought to have their case reviewed by the JCR: only a finding against the JOH would be likely to result in their making a review request. My previous experience of being a member of the review process in England and Wales bears this out: JOHs challenged when the finding is against them; not when it is in their favour.
The Scottish Parliament’s Public Petitions Committee has received a copy of Moi Ali’s report. MSPs are due to debate Petition PE1458 again tomorrow, Tuesday 9 December, and hear evidence from Legal Affairs Minister Paul Wheelhouse. 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