The improvements to the register of recusals, agreed after lengthy exchanges between the Head of Governance of the Judiciary of Scotland & journalists - acknowledge the woeful lack of detail previously entered on cases, where little was given away about the case subject, litigants, points of law involved or even whether judges had refused to recuse themselves after being asked to do so.
Soon, members of the public, court users and legal representatives will be able to find out much more about why judges have stood aside in cases, the identity (where appropriate) of legal cases, litigants, case reference numbers and legal representatives – which all appear in court opinions published online by the Scottish Courts & Tribunals Service (SCTS).
The move has come about after Lord Caloway was quizzed on Judicial Recusals at a recent meeting of the Scottish Parliament’s Public Petitions Committee – where it became clear recusals of judges which had occurred, were not included on the register for reasons not well explained by Lord Carloway in his responses to former Cabinet Secretary Alex Neil MSP.
Now the register is to be corrected, and all the extra information now agreed to be entered by the Judicial Office will also be backdated to the date the recusals register came into being, in April 2014 – when Lord Brian Gill created the register of recusals in response to the Scottish Parliament’s ongoing consideration of Petition PE1458: Register of Interests for members of Scotland's judiciary.
The further publication of information revealing the identities of solicitors & law firms bold enough to challenge the judiciary and raise motions for recusals could also significantly benefit members of the public in access to justice issues, enabling clients to select a lawyer who isn’t afraid to raise questions on the appropriateness of a judge to hear a case if there are conflicts of interest which must be raised as matters for recusal.
The extra concessions from the Judicial Office – which go further than Lord Carloway indicated during his meeting with MSPs, come after journalists pursued a Freedom of Information request seeking all information contained in forms submitted in motions from legal teams & litigants for judges to step aside in court hearings.
Initially, the Judicial Office claimed it held no information on recusals other than a form for collecting information on recusals, a blank copy which was provided to journalists, who then sought a review of the refusal to release further information.
Then, writing in response to a request for a review of the Judicial Office’s earlier decision to refuse release of detail on recusals, Mr Steven D’Arcy Head of Strategy & Governance said: “Following the Lord President’s letter to the Petitions Committee, the Register of Recusals will be extended to cover instances when a judge has recused them self and when he or she has declined to do so - a copy of the this letter can be found here. The Judicial Office for Scotland has amended the guidance for SCTS staff and a copy is attached to this letter.”
“The Judicial Office does hold copies of submitted recusal forms. However, when a form is submitted the information of the recusal is placed on our website. Therefore this is exempt information as you can reasonably obtain it other than by requesting it (section 25(1) of the Freedom of Information (Scotland) Act 2002)).”
Intimation of a Decision of Declinature (Recusal)
Declinature of jurisdiction, also referred to as recusal, refers to the act of a judicial office holder abstaining from participation in legal proceedings due to a conflict of interest or when his or her impartiality might reasonably be impugned.
The attached form should be completed by clerks of court in the event of a formal motion for recusal being granted or refused in open court and accordingly recorded in an appropriate interlocutor.
The return should only be completed for recusals involving a senator, temporary judge, sheriff principal, sheriff or summary sheriff (this includes fee-paid members of the judiciary). It should not be completed when there has only been an informal administrative decision not to sit in a particular case.
The returns should be completed electronically and emailed to the Judicial Office for Scotland.
This information is being collated on behalf of the Lord President and this requirement should be completed accurately and timeously. Local records should be noted once the return has been submitted.
If you have any questions please contact the Judicial Office for Scotland.
The form of Intimation of a Decision of Declinature of Jurisdiction (Recusal) seeks, and records COURT (Location), DATE, NAME OF JUDGE, CASE NAME & REF, ACTION TYPE, MOTION (please select), GRANTED/REFUSED, REASON (please provide specific reasons), CLERK OF COURT, CONTACT DETAILS.
However, on analysing the form provided by the Judicial Office, it was plain there was a significant amount of information gathered by the form which was still to remain unpublished.
A series of discussions then took place between the Head of Governance at the Judicial Office & journalists pursuing the release of recusal information, which ultimately concluded in an agreement to publish all the information where appropriate.
Journalists asked: “Just to confirm this information to be published will go right back to the first recusals in 2014 contained in the register of recusal archive?”
Mr D’Arcy responded: “…if it was 2014 then the answer is Yes. All case names/references that we can publish will be added to the list of recusal information on our website.”
A recent investigation by Diary of Injustice revealed instances where senior Court of Session judges have stood aside from cases were not entered into the register of recusals, for up to a year later, and then only after DOI journalists had queried the Judicial Office over the cases.
A full report on investigations into judicial recusals can be found here: Doubts over credibility of register of judges’ recusals - as Judicial Office admit court clerks failed to add details of senior judges recusals – then silently altered records a year later
During enquiries into failures to record recusals, Elizabeth Cutting, Head of Communications of the Judicial Office stood down from her post, leaving acting head Baktosch Gillan to reply to queries on why a recusal relating to Lord Bracadale had been concealed from the register of recusals for up to a year.
Responses from the Judicial Office claimed there had been a “clerical error”, a claim echoed by Lord Carloway during his attendance at the Petitions Committee where the top judge was widely criticised for his attempts to thwart increases in judicial transparency with the creation of a register of interests for Scotland’s judiciary.
The National reported on the developments to publish full details on judicial recusals in Scotland, here:
Bridget Morris Journalist 31 July 2017 The National
THE register which shows when judges have stood aside from court cases because of a probable or perceived conflict of interest is to be extended and give more details to the public.
Since the Register of Recusals – the legal term for stepping aside from a case – was started by the Judicial Office for Scotland in 2014, the public has been able to read about the location of the recusal, the reason why sheriff or judges recused themselves and the name of those sheriffs and judges, but not the name of the cases or their reference numbers.
Now, after a Freedom of Information request by the legal blogger and campaigner Peter Cherbi, full details of the cases including names and reference numbers will be added to the Register of Recusals.
The Judicial Office has decided to backdate the information to the start of the register three years ago, though sensitive matters such as child protection cases will not be included in the extended release of details.
The decision, which is understood to have been made or sanctioned by Scotland’s most senior judge, Lord Carloway, the Lord President, will make accessing information on recusals much easier.
Cherbi said: “With the latest concessions offered by the Judicial Office on releasing all information with regard to recusals, this is a tacit acceptance that the content of the recusals register created by Lord Gill in early 2014 has been woefully lacking in critical detail, and has by the very lack of detail led to a register which has omitted key recusals for reasons not well explained by Lord Carloway.
“The release of case references, identities of litigants if appropriate and also, I urge, the identities of legal teams acting in such cases where recusals have been sought, gained or refused could have assisted court users and legal representatives in making a more accurate assessment of how to progress cases before judges who may have conflicts of interest which, as we have seen from recent reports do occur."
Previous article on Judicial Recusals can be found here: Judicial Recusals in Scotland - Cases where judges have stood down over conflicts of interest
7 comments:
Well this is interesting.
First time I have the opportunity of reading an intimation of recusal.
A colleague in my firm requested one such form at a Sheriff Court.
Clerk informed her no forms existed and "recusals are verbal motions"
When pressed and press coverage quoted colleague informed "none available"
Case ongoing.I have downloaded your posting of the form and will forward your blog to our client.
@ 4 August 2017 at 18:57 Would like to hear more about this case including location of Sheriff Court, please contact the blog.
So in other words they were not going to publish all this except you persisted and they gave in.
Well done Peter!
Although I have to say Scotland seems a very corrupt place with figures such as those Lords of the justice and courts in control.Very dangerous to allow a small clique of society (lawyers and their brethren) so much control of the country.
I suspect we are going to hear more about recusals now you got them to publish all the information good work!
This is all very well but I must return to the point made by Moi Ali - how many years ago now? - namely that litigants very often only found out after their cases finished that there were grounds to seek the recusal of a judge and this could only be remedied by a fully transparent and independently regulated JUDICIAL INTERESTS REGISTER!
Shame on the SNP and Nicola Sturgeon for stubbornly denying the Scottish people access to justice.
After my own experience anyone who has information a sheriff or judge should recuse themselves to make it public before you ask your lawyer to do something about it and I say this because I was in a sheriff court with a relative a few weeks back and the sheriff knows the former partner of my relative who told his lawyer all about the link but the lawyer screamed at him in the hall outside the court and said she was not going to ask the sheriff to stand down there were people all round us it was so embarrassing and when we came out everyone was asking us what happened now the lawyer has left the case and is refusing to hand over the papers with the name of the sheriff and the court clerk refused to tell my relative and myself who the sheriff was on the day so much for women lawyers being more honest than male lawyers and now she refuses to hand over the file even though she wants nothing more to do with the case what a rotter
Regarding the comment on 8 August 2017 at 08:17 it is my understanding that the client has a legal right to their casefile, or a copy of it. I suggest you make that simple enquiry to a trustworthy and independent solicitor, perhaps slab if your relative was receiving legal aid or, in writing, to the Law Society.
Certainly casefiles belonging to me were returned by the respective solicitors as a matter of course.
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