Saturday, April 16, 2016

World Bar Conference: Lord Carloway - ‘luddite, paranoid & fee hungry lawyers who oppose change are wrong’ - top judge speaks on never ending reform proposals to Scotland’s Victorian justice system

Lord Carloway – fee hungry lawyers who oppose reforms are wrong. SCOTLAND’S top judge – Lord President Lord Carloway has again, publicly criticised the financial self interests of the legal profession who oppose reforms to  Scotland’s justice system – out of concern for their wallets.

In a speech at the World Bar Conference on Thursday in Edinburgh, aimed principally at the legal profession, criminal law & court reforms, Lord Carloway told his audience: “… it is readily recognised that some of the more Luddite and perhaps rather paranoid elements may inevitably regard all change as inherently wrong, designed to cut costs (specifically their fees) and to secure wrongful convictions. They are wrong, but their views must be listened to.”

The biennial event brings together the member independent bars of the International Council of Advocates and Barristers (ICAB) for seminars and social events, backed up by lavish occasions in public buildings such as the Scottish National Gallery.

This year the Faculty of Advocates hosted the World Bar Conference 2016 in Edinburgh, along with gatherings in Parliament Hall – which was revealed last year to have been secretly handed over to the Faculty in a dodgy free property handover masterminded by lawyers and approved by Scottish Ministers.

While the Lord President’s recent proposals for justice reforms and faster access to justice for Scots court users may be seen as welcome, the fact is - year in year out, legal figures from Scotland’s multi billion pound legal industry claim change will come, access to justice will be faster, fees will be reduced, regulation will improve, the courts will be more accountable. None of which is ever achieved.

In short, we have heard it all before. Just like ridiculous crime statistics, supposed cuts in the legal aid budget and stage managed publications of annual reports to coincide with a budget announcement. Public Relations and spin with the repeat button pressed down.

However, this is the second time this year, Lord Carloway - who succeeded Lord Brian Gill to the role of Lord President & Lord Justice Clerk – has hit out at ‘obstructive’ lawyers and those who oppose change..

In a speech on digital justice and reforming Scotland's “Victorian” courts addressed to the Law Society of Scotland’s Council in late January 2016, Carloway reminded his audience of legal figures: “Much of this will be achieved in our professional lives, provided that we do not take a cantankerous and obstructive approach to it.”

And, during Lord Carloway’s speech to the Commonwealth Association of Law Reform Agencies Biennial Conference held in April 2015 – Carloway did not mince his words, accusing lawyers & critics of having a financial interest in retaining the centuries old injustice safeguard of corroboration.

Reacting to opposition from the legal profession – opposition which was backed by a number of judges, Lord Carloway said: "Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest."

Carloway is keenly aware that powerful elements within the legal profession and the Law Society of Scotland oppose a faster and wider system of access to justice for Scots, on the grounds such reforms may impact on the profits of law firms & sizeable claims on the annual £150 million plus Scottish Legal Aid budget.

Since the banking & financial crash of 2008, a staggering £1.2 billion pounds has been handed out to Scottish law firms, much of which goes on criminal legal aid.

Yet despite taking billions  in public cash, solicitors, led by bosses at the Law Society of Scotland have staged strikes outside the Scottish Parliament & court buildings demanding legal aid cuts be reversed.

Lord Carloway speech to World Bar Conference 2016:

Lord Carloway’s opening lines refer to how the legal profession & courts are supposed to represent the interests of clients & justice: “The courts play the central role in the administration of justice. Their function is to promote observance of the law through the process of resolving civil disputes and determining criminal guilt. The legal profession plays its own important role. Members of both branches, solicitor and advocate (or barrister), represent the interests of the system's users. They do more; specifically at the level of advocate, by assisting the court in finding the true facts and applying the correct law, albeit hopefully in the client's favour. The advocate owes duties to the court and to the public, over and above those to fellow members of his profession and to the client.”

“In this broad sense, the legal profession is the muscle and ligament which makes the skeleton of the law in our democracy move.”

“Both branches of the profession remain largely self-regulating. Each is responsible, albeit in some sphere under delegated authority from the court, for training, standards, and very occasionally, the discipline of its members. The court retains a keen interest in the effective representation of both those who rely on the system to vindicate their rights and those in need of protection from state action. It must ensure that parties are adequately represented. In Scotland, this obligation is enshrined not only within the concept of a fair trial under Article 6 of the European Convention on Human Rights but also in the much older and more established common law principles of fairness in court proceedings generally. What amounts to adequate representation may vary from case to case, but it is ultimately a matter for the court to determine. It must do so to ensure that there is access to justice for all parties. After all, if someone does not have effective representation, justice cannot be seen to be done.”

On access to justice in the modern age – Lord Carloway said: “Advances in technology mean that the courts operate in a world which would be unrecognisable to those who lived 100 years ago and, in many respects, unfamiliar to those practising 14 years ago when the first of these conferences was held. Last year saw the implementation of the most comprehensive reform of the practices of the Scottish courts since the early Victorian age. The implementation of Lord Gill's Review has had, and will continue to have, a very significant impact on the level at which both civil and criminal cases are decided. Court procedure is closely linked to access to justice: it is the link between evidence, as proof of fact, and correct decisions based on a correct application of the law.”

“Advances in technology influence users' expectations. On a fundamental level, the opportunities presented by modern technology could, to use the words of Lady Dorrian ..."make justice more accessible to a wider number of people, to make evidence more reliable and more readily available, and to make processes and procedures more efficient". This is something which is being considered on a wider basis as part of the Digital Justice Strategy of the Scottish Government.It is a recognition of the fact that the court system should keep pace with developments and change in the society which it is intended to serve.”

Concluding his speech to the World Bar Conference, Lord Carloway said: “What is the role of the legal profession in all of this? The profession is a vital part of the machinery of justice. The court relies on both branches of the profession to perform their functions as representatives of the parties. Without this input, the risk that the court will fall into error is greatly increased.”

“The challenges posed by the development of the traditional roles of the profession, models of funding, competing interests, and modern technology are all ones which the profession, as well as the court system, require to meet.”

Sounds Familiar? - Civil Courts Review : Scots Justice still “Victorian” years after judge called for reforms:

The Scottish Civil Courts Review of 2009 authored by then Lord Justice Clerk, Lord Brian Gill, castigated Scotland’s Civil Justice System as being Victorian, costly, and unfit for purpose, yet years on from the review, little of the proposed reforms have been implemented due to pressure from vested interests in the legal world, and a lack of political will to deliver access to justice to all Scots.

The Civil Courts Review can be viewed online here : Scottish Civil Courts Review Synopsis, Scottish Civil Courts Review Vol1 Chapters 1-9 & Scottish Civil Courts Review Vol2 Chapters 10-15

In a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here Lord Gill said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.

“It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Previous articles on the Civil Courts Review and reforms of Scotland's antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.


Anonymous said...

looked at some of the pictures of who was there - resembles a group of basking sharks round dinner tables although I do not intend any insult to sharks by lowering them to the level of the legal fraternity!

Anonymous said...

All that rubbish about the legal profession regulating itself well Carloway conveniently has no knowledge of how corrupt the Scottish Legal Complaints Commission and Law Society of Scotland are just take a look at today's Herald

Couple loses £30,000 as fraudster dupes law firm

Helen McArdle, News Reporter

A COUPLE lost more than £30,000 after the solicitors’ firm they hired to sell their holiday home was duped by an online fraudster, in what is believed to be the first case of its kind in Scotland.

Alan and Lizanne Richards, from Dunblane, say they are furious that the firm has never apologised or reimbursed them since mistakenly transferring the profits from the sale of their two-bedroom property in Pittenweem harbour into the scammer’s bank account in July last year.

Exactly £30,366.65 was stolen when the fraudster hacked into online correspondence between the Richards and their solicitor at the Glasgow branch of Wright, Johnston & Mackenzie (WJM), before duplicating the couple’s email to request that the firm pay the funds to a new sort code and account number. It turned out to belong to a bank account in Birmingham.

Mr Richards, who owns a window-making factory in East Kilbride, said the couple are “at the end of our tether” trying to recoup the lost cash.

He said: “From the minute it happened, they’ve never spoken to us since. Not one member of that organisation has been on the phone to apologise. They could just say ‘we’re sorry and we’ll do everything we can to help you get the money back’.
“But nothing – not a jot. It just beggars belief.”

The businessman said plans to use the money to buy a new property in Dunblane or a student flat for their son were now “out the window”.

Despite the error, the firm collected its fee of £1,261 for the sale.

Mr Richards, 57, added: “They were in charge of our money, we never got it – and they got paid for it anyway.”

An initial investigation by the Scottish Legal Complaints Commission has also infuriated the couple.

The agency concluded in April that the firm was not at fault because “nothing in the content, email address or sender of the emails would, on the face of it, have caused the solicitor to have concern that the email was not genuine”.

The couple are seeking a review of the decision. Mrs Richards, 51, said: “It’s left me feeling very vulnerable. You feel like you’ve been burgled, but nobody has been in your house – it’s virtual.”

The type of hoax, which has been nicknamed “Friday afternoon fraud”, is already known to have cost law firms in England and Wales some £85 million over the past 18 months.

According to the Law Society of Scotland, such cases count as negligence and would be covered by insurance.

However, similar cases in England have seen homeowners spending months fighting for compensation because legal firms refuse to accept liability for the hoax.

Murdo Fraser, MSP for Perthshire and a former solicitor, said the case had “quite severe implications” for the public.

Mr Fraser said: “If you can hand over large sums of money to a professional who then pays it to the wrong account and you have no comeback, that just seems extraordinary to me.

A spokesman for WJM said: “This matter is currently under consideration by the Scottish Legal Complaints Commission so we are unable to comment specifically on the allegations.

“Any complaint is treated extremely seriously and is thoroughly investigated, with measures taken to address any shortcomings or failings discovered.

“WJM has rigorous IT standards in place which are audited by independent specialists for protecting our clients’ assets and follows best practice policies and guidelines.

“We are constantly reviewing those policies and guidelines to protect our clients’ assets from increasingly sophisticated scams.”

Anonymous said...

And yet the queue of people lining up at the Court of Session to throw their money at lawyers believing they will gain a 'fair hearing' before some judge with money stuffed in Panama continues to get longer and longer.

Sheer madness or maybe just plain greed.Take your pick.

Anonymous said...

One wonders if this is just more political window dressing and that rather than The Lord President being in a war with the criminals at the Law Society of Scotland, that this may just be another spat for the consumption of the general public to take hook, line and sinker as usual and that these two titans of power in Scotland are as thick as thieves?

Alternatively, maybe the much needed clipping of the Law Society of Scotland's wings is about to take place to reign in their maniacal and out of control lust for power in Scotland and that there will be a watershed with respect to Legal Aid Fund theft, which has been commonplace for years?

Who knows, maybe the so far unnamed Judges and Sheriff's who have criminal records, will be served up to the public by way of convincing them that radical change is happening, so that they can be expunged from the system, that has become tired, lazy, self serving and corrupt?

For all we know, maybe the sacking of the dodgy character Frank Mulholland was the beginning of this purge to return Scotland to a lawful country once more?

Anonymous said...

As you say we have heard this all before.
Our courts remain as slow as ever.
Carloway and those to come will make no difference.
Lawyers control access to justice and that is that.

Anonymous said...

In response to an earlier comment;

"One wonders if this is just more political window dressing for the consumption of the general public to take hook, line and sinker as usual and that these two titans of power in Scotland are as thick as thieves?"


Anonymous said...

Brilliant blog.All I can say is I am glad someone outwith the legal mafia is around to tell us the truth about what goes on in our courts and while I am writing a comment also want to say the £1.2bilion given to lawyers for defending crooks is well out of order.As well as ripping off taxpayers they are ripping off their own clients at the same time.Pure evil allowed to go on but because Sturgeon and the gang are all former lawyers everyone turns a blind eye.

Anonymous said...

Gill Mk2

Anonymous said...

Lord Carloway can say this as many times as he likes because he knows as well as the lawyers nothing will change.Lawyers will still go on claiming all the legal aid they like and will get it and courts will be off limits to anyone but the rich greedy and stupid 20 years from now as they are today.

Anonymous said...

The appointment process for Scotland's highest legal positions is clearly nothing more "You scratch my back and I'll scratch yours".

Anonymous said...

Waffle.No one will believe him and those in legal circles apparently too terrified to question!

Anonymous said...

Anonymous said...

Waffle.No one will believe him and those in legal circles apparently too terrified to question!

19 April 2016 at 22:17

Precisely! and since everyone in the Scottish legal world is too afraid to write up a decent story on Carloway we will have to rely on Diary of Injustice team to put out the news and the fires!

Diary of Injustice said...

17 April 2016 at 11:03

Window dressing.

Everything is ... with the legal profession and justice system, from falsified or embellished crime statistics to annual press releases from the Crown Office on crime gangs, to claims of improving access to justice, faster courts, dodgy legal aid figures and lawyers looking after their own courtesy of the Law Society of Scotland self regulation set up.