Sunday, September 29, 2019

SUPREME INTERESTS: UK Supreme Court Judge Lord Reed's undeclared links to Lord Carloway selection panel & appeal review work - will not alter UKSC "unlawful" Parliament suspension ruling - but should feature in register of judges' interests

UKSC judge Lord Reed linked to Lord Carloway job panel. A POTENTIAL undeclared conflict of interest of the next President of the UK Supreme Court (UKSC) – in relation to a recent ruling on the unlawful suspension of Parliament - has been discovered from documents obtained from the Scottish Government.

Papers obtained via Freedom of Information legislation and published in 2016 reveal that Scottish judge Lord Reed – who has sat on the Supreme Court since 2012 – also sat on the selection panel which recommended the appointment of Lord Carloway (Colin Sutherland) as Lord President in 2015.

The potential conflict of Lord Reed - identified during discussions with legal sources – has a bearing (but no overall effect) on the ruling by eleven Supreme Court justices in relation to the findings of three Scottish appeal court judgesheaded by Lord Carloway – who declared Prime Minister Boris Johnson’s decision to suspend parliament in the run-up to the October Brexit deadline as unlawful.

In that ruling, Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

However, the failure of Lord Reed to declare he sat on the appointments panel which recommended Lord Carloway for the top judicial job in Scotland – is one of two potential conflicts of interest for the Supreme Court judge which may have required to have – at the very uleast - been aired and debated for recusal - prior to the UKSC hearing on the suspension of the Westminster Parliament.

How judges select Scotland’s judges - in secret Scottish Government documents previously obtained by the media revealed the selection panel for the office of Lord President - of which Lord Reed was a member, along with Sir Muir Russell, Judge Lady Dorrian, and Deirdre Fulton – considered five candidates for the position of Scotland’s top judge.

Written exchanges between civil servants and the selection panel which are included in the released papers - reveal a short listing meeting was held on 1 September 2015.

The panel considered that two applicants Lord Carloway [Redacted] merited an interview on the basis of the quality of their applications.

Two emails from Lord Reed, dated 14th ^ 15 October 2015 – released by the Scottish Government in the FOI documents - give a minimal, and heavily redacted description of Lord Reed’s role in the panel’s work, which ultimately recommended Lord Carloway for the position of Scotland’s top judge.

In one email, Lord Reed states: “This strikes me as an excellent report. I have made a few minor suggestions as shown on the attached version. Most of the suggestions are trivial, [redacted]”

In a second email Lord Reed writes “I am content with the amended report. I agree, in particular, with the points which were made by Leeona. The amended version beems to me to present an accurate account, and a fair and balanced assessment [redacted]”

A further potential interest not declared, brought ot the attention of journalists by a legal source, identifies Lord Reed’s work together with Lord Carloway – on a ‘compatibility issues review’ to consider if the High Court of Justiciary in Scotland would still have to give permission for appeals in criminal cases to go forward to the UK Supreme Court.

The review group was itself established by Lord Carloway, with others appointmed to the group being Lord Reed (Deputy President of the UKSC), and others - Lady Dorrian (Lord Justice Clerk); David Harvie (Crown Agent); Roddy Dunlop QC (Treasurer of the Faculty of Advocates); and John Scott QC (President of the Society of Solicitor Advocates).

The review concluded - "Appeals to the Supreme Court of the United Kingdom (UKSC) should not require certification by the High Court of Justiciary that the issue raises a point of law of general public importance, a review chaired by the Lord Justice General has concluded."

Although – it should be pointed out – coincidentally, the review on appeals to the UKSC – limited to appeals in criminal cases - came too late to help in several serious cases of judicial conflicts of interest in Scotland – particularly on a well known case where Court of Session judge & Privy Councillor - Lord Malcolm (Colin Campell QC) heard a case up to eight times - while failing to declare his own son represented the defenders in multi million pound damages action.

A report on the Lord Malcolm conflict of interest case can be found here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times - where his son acted as solicitor for the defenders.

The two potential conflicts of interest, not declared by Lord Reed in relation to what is a law changing UKSC ruling of significant impact – again highlight the need for a publicly available Register of judges’ interests - to ensure members of the judiciary do not forget to disclose interests which may have a bearing on cases before them.

The issue also brings into question again, the self imposed secrecy on judicial interests by the judges of the UK Supreme Court and wider UK Judiciary – who have resisted calls to become more transparent and declare their interests in the same way all public servants and elected politicians are required to declare in publicly available registers of interest.

The current stance of UK Supreme Court judges on transparency in relation to declarations of interest, is a point blank refusal by the judiciary to comply with the public expectation of transparency.

The UK Supreme Court’s website states the following in relation to judicial expenses and interests:

Justices' interests and expenses

Background

Prior to the creation of the Supreme Court of the United Kingdom, the highest court in the UK was the Appellate Committee of the House of Lords. The members of the Committee were Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876. Although those appointments gave them full voting and other rights in the House of Lords, the Law Lords had for some years voluntarily excluded themselves from participating in the legislative work of the House. Notwithstanding that, they were bound by the rules of the House and provided entries for the House of Lords Register of Interests.

On the creation of the Supreme Court the Lords of Appeal in Ordinary became Justices of the Supreme Court. They retain their titles as Peers of the Realm, but are excluded by statute from sitting or voting in the House, for so long as they remain in office as Justices of the Supreme Court. As such, they are treated as Peers on leave of absence; and do not have entries in the House of Lords Register of Interests. Historical information remains accessible via the House of Lords website.

Other judges in the UK, such as the judges of the Court of Appeal and the High Court in England and Wales, and in Northern Ireland, and the Court of Session in Scotland, do not have a Register of Interests. Instead they are under a duty to declare any interest where a case comes before them where this is or might be thought to be the case.

Current position

Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound, and which is now publicly available on the UKSC website.

In addition all the Justices have taken the Judicial Oath - and they all took it again on 1 October 2009 - which obliges them to "do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill will"; and, as is already the practice with all other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves from sitting in that case - whether a substantive hearing, or an application for permission to appeal.

In relation to the UK Supreme Court’s stance on declarations of interests, and declarations of conflicts of interest, Diary of Injustice reported on the issue in detail during 2017, here: SUPREME SECRETS: UK Supreme Court refuses to publish recusal data - Court rejects release of info on UKSC justices' conflicts of interest in response to Freedom of Information recusals probe on top UK court

During the probe of UKSC recusals and failure to declare interests, a common thread of dishonesty was noted in court staff’s handling of a Freedom of Information request from Scotland – which was only answered after coverage of the issue in The National newspaper, which prompted the Information Commissioner’s Office to order the court to respond to the request.

Lord Reed’s limited biography on the UK Supreme Court website (reprinted below) does not feature either of the issues identified linking the judge to Lord Carloway’s appointment as Lord President nor any mention of review & other work undertaken with Lord Carloway – including the UK Supreme Court sitting in Edinburgh, which included Lord Carloway as a sitting judge on the UKSC panel.

LORD REED BIOGRAPHY:

Robert John Reed, Lord Reed became Deputy President of The Supreme Court on 7 June 2018. He was appointed as a Justice of The Supreme Court in February 2012.

He studied law at Edinburgh University and undertook doctoral research in law at the University of Oxford. He qualified as an advocate in Scotland and as a barrister in England. He practised at the Scottish Bar in a wide range of civil cases, and also prosecuted serious crime.

He served as a senior judge in Scotland for 13 years. From 2008 to 2012 a member of the Inner House of the Court of Session, and from 1998 to 2008 a member of the Outer House of the Court of Session, where he was the Principal Commercial Judge.

As well as sitting on the Supreme Court and the Judicial Committee of the Privy Council, he is also a member of the panel of ad hoc judges of the European Court of Human Rights, and is a Non-Permanent Judge of the Court of Final Appeal in Hong Kong. He is also the Visitor of Balliol College, Oxford.

Lord Reed is one of the two Scottish Justices of The Supreme Court.

To update readers – on 24 July 2019, the last working day of Prime Minister Theresa May, HM the Queen appointed Lord Reed to serve as the President of the Supreme Court of the United Kingdom and declared her intention to raise him to the peerage. 

Lord Reed will take over as President of the United Kingdom Supreme Court from Baroness Hale of Richmond on 11 January 2020.

IMPORTANT NOTE: Readers should note this article does not take sides in the brexit debate. Rather this article is a reporting of a failure to declare or discuss relevant interests and a potential failure to recuse - by a senior judge who has been appointed as the new President of the UK Supreme Court.

Wednesday, July 03, 2019

SHERIFF WALKS: Scottish Courts confirm lawyer & part-time Sheriff Peter Watson - who was named in £28M Heather Capital writ linked to collapsed £400M hedge fund – resigned from the judiciary in 2018

Carloway lifted suspension, Sheriff resigned.. THE Scottish Courts and Tribunals Service (SCTS) have confirmed a lawyer linked to a collapsed hedge fund - who also served as a judge – and was suspended for over three years “in order to maintain public confidence in the judiciary” - resigned his judicial post in 2018.

Peter Black Watson a former partner in Glasgow based law firm Levy and Mcrae – who was named in a £28million writ linked to the collapse of bust hedge fund Heather Capital – resigned his commission as a part time Sheriff on 10 October 2018.

The information was released by the Scottish Courts and Tribunals Service in response to a Freedom of Information request –  SCTS - Sheriff Watson resignation

The SCTS stated: “I can advise that Mr Peter Watson resigned his commission as a part-time sheriff on 10 October 2018. Mr Watson did not hear any cases between the lifting of the suspension on 12 July 2018 and his resignation. Mr Watson has not submitted any claims for expenses, nor attended any events, nor carried out any judicial functions, since the suspension was lifted.”

Watson’s resignation came less than three months after Lord Carloway had lifted Mr Watson’s record suspension from judicial office of over three years – imposted by Lord Brian Gill in February 2015

Mr Watson was suspended from the Judiciary of Scotland on February 16, 2015 - after the then Lord President, Lord Brian Gill, was informed by a journalist of the claims in the case against Levy and McRae, and specifically against Watson, over Heather Capital’s collapse in 2010.

The move came after allegations surfaced in a £28million writ naming part time Sheriff Peter Black Watson - and his former law firm Levy and Mcrae, and a number of individuals under investigation in connection with the collapsed Heather Capital hedge fund.

In response to queries from the media in February 2015 on the contents of the writ - the Judicial Office subsequently issued a statement confirming Lord Brian Gill  had suspended Sheriff Peter Black Watson (61) on 16 February 2015.

The suspension came after Gill demanded sight of the writ.

Responding to the Lord President’s request, Watson then offered to step aside temporarily – while the litigation concluded - however a Judicial Office spokesperson said “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”

A statement from the Judicial Office for Scotland read as follows: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

A fulll report on Mr Watson’s suspension from the judiciary in 2015 can be found here: CAPITAL JUDGE: As top judge suspends sheriff over £28m law firm writ alleging links to £400m Heather Capital collapse, what now for Lord Gill’s battle against a register of interests & transparency for Scotland’s judiciary

In 2018, after matters relating to the Heather Capital writ came to a conclusion, it fell to cScotland’s current top judge – Lord Carloway (Colin Sutherland) to consider the ongoing suspension of Watson – reported in further detail here: CAPITAL NUDGE: Scotland's top judge Lord Carloway to consider status of de-benched Sheriff Peter Watson - suspended for a record THREE YEARS over £28million writ linked to collapsed £400m hedge fund Heather Capital

Later in July 2018. a statement from the Judicial Office for Scotland on the continuing suspension of part-time sheriff Peter Watson stated:

Following the extra judicial settlement of the Heather Capital action in which part-time sheriff Peter Watson was named as one of the defenders, the Lord President has lifted the suspension imposed upon him in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008. Sheriff Watson will resume part-time judicial duties with effect from 12 July 2018.

Sheriff Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

Watson’s former law firm -  Levy & McRae, was one of several companies being sued by Heather's liquidator, Ernst & Young, after the fund's collapse in 2010.

Watson was also a director of a company called Mathon Ltd - a key part of the Heather empire.

The collapsed hedge fund Heather Capital – run by lawyer Gregory King was the subject of a Police Scotland investigation and a FIVE YEAR probe by the Crown Office.

However, in early February, the Crown Office coincidently confirmed there would be no prosecutions in the cases of the four individuals  - lawyers Gregory King & Andrew Sobolewski, accountant Andrew Millar and property expert Scott Carmichael – who were charged by Police Scotland in connection with a Police investigation of events relating to the collapse of Heather Capital.

Peter Watson now has his own law business, PBW Law.

Watson, and his former law firm named in the Heather Capital writ - Levy and Mcrae –  also represent the Scottish Police Federation.

Responding to queries from reporters, a  spokesperson for the Judicial Office said: “The action, in which suspended part time Sheriff Peter Watson was among the defenders, has settled.  An interlocutor to that effect has been issued.  The Lord President will consider what, if any, steps now require to be taken‎.”

Despite EY’s withdrawal of the £28million claim against Levy and Mcrae & Peter Watson, detailed claims in the Court of Session revealed the following:

[21]      In the Levy Mcrae case:

  • On 4 January 2007, HC transferred £19 million to its client account with LM (Lord Doherty paragraph [5]).

  • On 24 January 2007, HC transferred £9.412 million to its client account with LM (Lord Doherty paragraph [5]).

  • The money was intended to be loaned to a first level SPV Westernbrook Properties Ltd (WBP) for onward lending to second level SPVs (Lord Doherty paragraph [5]).

  • On 9 January 2007, LM transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).

  • By a memorandum dated 17 March 2007, HC’s auditors KPMG “identified a number of concerns relating to the documentation provided in respect of these loans”.Further work and information was required (Condescendence 5, page 13 of LM reclaiming print).

  • On 29 March 2007, LM transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).

  • In April to June 2007, amounts equivalent to the loans thought to have been made to WBP (including accrued interest) were “repaid” to HC via Cannons, solicitors, Glasgow.The directors were unable to ascertain the source of these repayments (Lord Doherty paragraph [7]).

  • Approaches made by HC to Mr Volpe and Triay & Triay, a firm of solicitors in Gibraltar, were met with a total lack of co-operation (Lord Doherty paragraph [8]).

  • At a board meeting on 6 September 2007, “KPMG could not approve HC’s accounts … Santo Volpe had executed certain loans to SPV companies where non‑standard procedures had been followed which meant that inadequate security had been given for some loans … Gregory King stated that the loans to the SPVs had been repaid in full in May 2007” (Condescendence 5, page 13 of LM reclaiming print).

  • By email to a non‑executive director of HC (Mr Bourbon) dated 7 September 2007, Mr McGarry of KPMG referred to the previous day’s board meeting, and expressed concerns about the situation.He asked for further information, namely “all possible evidence regarding the movement of monies out of Heather Capital into these SPVs and onwards to whatever purpose the funds were applied – ie, sight of bank statements, payment/remittance instructions, certified extracts from solicitors clients’ money accounts etc”.(It should be noted that, contrary to HC’s averment in Condescendence 5 at page 13C‑D of LM reclaiming print, the email did not restrict the inquiries requested to “explaining what information was required from Santo Volpe”:the request was much broader.)

  • In October 2007 the non‑executive directors of HC met with the Isle of Man Financial Services Commission (FSC) to discuss “the issues” (Lord Doherty paragraph [8]).A director also disclosed the suspicious activity and Mr Volpe’s obstruction to the Isle of Man Financial Crime Unit (FCU), who said they would investigate (Condescendence 5 page 14 of LM reclaiming print).The auditors KPMG carried out an additional full scope audit.

  • By letter dated 18 October 2007, FSC wrote to the directors of HC setting out further information which they required.

  • By letter dated 26 November 2007 Mr King advised the HC board that “some sort of fraud had been deliberately introduced with invalid land registry details on a number of the loans”.He stated that he had applied pressure to Mr Volpe and Mr Cannon, whereupon there had been “full repayment of the loans with relevant interest” which meant that “investors were secure”.

  • On 17 December 2007, KPMG signed the accounts and added a completion note using language such as “The risk of fraud increased to high as a result of the documentation issues surrounding the SPVs, where some form of fraud appeared to have been attempted”.In their audit report opinion, they stated “We have been unable to verify where funds advanced to the SPVs were invested.In addition, we were supplied with false documentation in relation to the SPVs which appears to have been a deliberate attempt to mislead us.Given these loans were repaid in the period, we consider that the effect of this is not so material and pervasive that we are unable to form an opinion on the financial statements [opting instead for express qualifications that loan and security documentation could not be validated] … There is uncertainty as to where the monies lent to the [SPVs] were then subsequently invested … Investigations continue to determine what party (or parties) were involved in and were accountable for these events, and whether any action should be taken against them …” (Lord Doherty paragraph [9]).

  • By letter to HC dated 4 January 2008, KPMG gave serious warnings about their inability to validate loan and security documentation, and lack of evidence as to the purpose for which the money advanced to SPVs was applied.In their words:

“ … Our report is designed to … avoid weaknesses that could lead to material loss or misstatement.  However, it is your obligation to take the actions needed to remedy those weaknesses and should you fail to do so we shall not be held responsible if loss or misstatement occurs as a result … [Having explained the disappearance of the funds and the apparent repayments, on which legal advice had been received, KPMG warned] … these matters are extremely serious … an attempted fraud appears to have been perpetrated … We would recommend that the Board continue their investigation into this matter and formally document their decision as to whether or not to inform the criminal justice authorities …”

A full copy of a court opinion detailing these and other claims with regards to a further case against Burness Paull LLB  - which coincidently also collapsed earlier last year - can be viewed here: Court of Session allows proof against Levy & Mcrae and Burness Paull LLP in Heather Capital case as liquidators attempt to recover cash from collapsed £280m hedge fund.

In the motion of abandonment filed by EY & Heather Capital, heard in the Court of Session on 28 February before Lord Glennie, Lady Paton & Lady Clark of Calton, Lord Glennie’s opinion sums up matters in relation to issues in the Heather Capital case, which linked claims of financial wrongdoing directly to Scotland’s judiciary – who, ultimately heard and ruled on the case.

Lord Glennie stated in his opinion:

[97]      I have had the advantage of reading in draft the opinions to be given by Lady Paton and Lady Clark of Calton.  I agree with them and, for the reasons they give, I too would allow parties a Proof Before Answer of all their averments on record preserving all pleas. 

[98]      I would wish to add two comments of my own. 

[99]      The main focus of the debate in each case was whether the pursuer, HC, had made sufficient and relevant averments of “reasonable diligence” for the purposes of section 11(3) and the proviso to section 6(4) of the 1973 Act.  In both cases the Lord Ordinary held that HC had not said enough and in sufficient detail to justify sending the matter to a Proof Before Answer.  The matter could be determined on the pleadings.  Lady Paton has explained why we take a different view.  But I have a more general concern about this approach. 

[100]    In his note of argument in the LM case, under reference to cases such as John Doyle Construction Ltd v Laing Management (Scotland) Ltd 2004 SC 713 at pages 722 - 723 and Watson v Greater Glasgow Health Board [2016] CSOH 93 at paragraphs 22-23, Lord Davidson QC was at pains to remind us that the purpose of pleading is to give fair notice of the assertions of fact sought to be established in the evidence as well as to identify the essential propositions of law on which a party founds.  Elaborate pleading is unnecessary in any action, not just in a commercial action.  The purpose of the pleadings is to give notice of the essential elements of the case.  The pleadings should set out the bare bones of the case.  They are not the place to set out in full the evidence intended to be adduced.  In the present cases that appears to have been overlooked.  To that extent I have some sympathy with Lord Davidson’s submission.  The Closed Record in the BP action, as it appears in the Reclaiming Print, runs to some 59 pages, while that in the LM action extends to 93 pages.  This has happened, so it seems to me, because in their pleadings parties have indulged in a process akin to trial by pleading.  The defenders have made averments of fact intended to undermine the pursuer’s case on reasonable diligence; the pursuer has responded by making further averments addressed to those points;  this in turn has caused the defenders to make further averments or raise further questions;  the pursuer has tried to answer by making yet further averments;  and this is constantly repeated until parties are finally exhausted.  The process resembles one of cross examination and response, a process for which pleadings are quite unfitted.  I do not seek to apportion blame.  In a case such as this, the temptation to pile pressure on to the pursuer by pleading a wealth of detail is difficult to resist;  and a pursuer who does not respond in kind runs the risk of being thought to have no answer to the points which have been raised.  Difficulty arises when the matter comes to debate on the question of whether, for example, the pursuer has made sufficiently relevant and specific averments that it “could not with reasonable diligence have been aware” that loss had occurred (section 11(3)) and that it could not “with reasonable diligence have discovered” the fraud or error induced by the debtor which induced it to refrain from making a relevant claim at an earlier stage (section 6(4), proviso).  Points are made in argument about the failure to take certain steps or to follow up on the particular line of enquiry;  and the Lord Ordinary is invited to form a view that what was done was insufficient or that the reasons given for not doing it are inadequate.  Such an invitation should, in my view, be resisted save in the most obvious case.  The judgments which the court is being asked to make are essentially value judgments, assessments of the reasonableness or otherwise of a party’s conduct.  Such judgments should seldom if ever be made on the basis of the pleadings without hearing evidence.  It may seem obvious, on paper, that something ought to have been done or that a line of enquiry ought to have been pursued; but when evidence is led it might seem less obvious, or there might be good reasons for not taking that course.  It is not the function of pleadings to set out every reason why each relevant individual took or did not take any particular step.  In many cases issues of credibility and reliability might arise, the evidence may be far more nuanced than it is possible to convey on paper, explanations may be given more fully and persuasively than can come over in the pleadings, and some of the criticisms may, in light of all the evidence, be seen to be informed by hindsight.  I should emphasise that I make these observations without reference to any of the particular points decided in the particular cases with which we are here concerned.  But it does seem to me that the cases with which we are concerned illustrate the danger of the court being drawn into deciding cases on detailed averments of fact when it would be more appropriate that all the evidence be heard before any decision is made. 

[101]    The other comment I would wish to make concerns the question of whether the claims advanced in both actions on the basis of the existence of a trust are subject to the 5‑year prescriptive period in section 6 of the 1973 Act or are subject to the 20-year long negative prescription in section 7.  This matter was discussed by Lord Doherty in the LM action at paragraphs [25]-[31].  He concluded that the obligation of a trustee to produce trust accounts is an imprescriptible obligation;  that the liability to make payment of the sum found due in an accounting for trust funds is subject only to the long negative prescription;  and that the obligation of a trustee to restore the value of trust property paid away in breach of trust is also subject only to the long negative prescription.  The matter was not discussed by Lord Tyre in the BP case for reasons which are slightly unclear – matters appear to have proceeded in that debate on the basis that all obligations were subject to the 5-year prescriptive period and that the only issues in that respect concerned the pursuer’s case on sections 6(4) and 11(3) – but it was not suggested before us that the point is not live in that action too.  Detailed submissions on the point were made by Mr Duncan QC on behalf of LM and adopted by Mr Dunlop QC on behalf of BP.  Lord Davidson QC responded on behalf of HC.  I, for one, was grateful for their submissions.  It emerged in the course of those submissions, as it had to some extent at the debate in the LM case, that not only was there a dispute as to the law to be applied in a case of accounting and/or breach of trust but there was also a dispute as to whether the circumstances of the present cases gave rise to a relationship of trust at all or, alternatively, a trust of a kind intended to be excluded from the 5-year short negative prescription.  In light of this, it seems to me that it would be desirable that all of the relevant facts be determined before the issues are decided.  For that reason, and for the reasons given by Lady Paton in paragraph [80] of her opinion, I am persuaded that it would be premature to attempt to decide these points at this stage.

COLLAPSE OF FIVE YEAR CROWN OFFICE PROBE:

In a further twist to the Heather Capital saga, a FIVE YEAR probe by the Crown Office & Procurator Fiscal Service (COPFS) collapsed just a few days before the collapse of the £28million writ against Levy and Mcrae, & Peter Watson.

A report by journalist Russell Findlay revealed: CROWN prosecutors will take no action against four men following a fraud probe into a collapsed £400 million finance firm.

Lawyer Gregory King, 49, and three others were reported to the Crown by detectives who investigated his hedge fund Heather Capital which was based in the Isle of Man.

Heather, launched by King in 2005, attracted investors from around the world and loaned money to fund property deals.

Following its 2010 collapse, Heather’s liquidator Paul Duffy claimed that around £90million was unaccounted for and a police fraud probe resulted in the four men being reported to the Crown Office in April 2013.

An Isle of Man court judgement likened Heather to a ‘Ponzi’ scheme, made famous by US financier Bernie Madoff who was jailed for 150 years in 2009.

The other three reported by police were lawyer Andrew Sobolewski, of Bridge of Weir, Renfrewshire, Andrew Millar, of ­Cambuslang, near Glasgow, and Scott ­Carmichael, of Thorntonhall, near Glasgow.

Last year there was criticism of the Crown for taking so long to consider the case but after almost five years it has now dropped the case.

A Crown Office spokesman said: “Following full and careful consideration of the facts and circumstances of the case, including the currently available admissible evidence, Crown Counsel instructed  that there should be no proceedings at this time.

“The Crown reserves the right to raise proceedings should further evidence become available.”

The Scottish Sun reported on the serving of the £28million civil writ which named lawyer Peter Black Watson - back in February 2015, here:

The Scottish Sun reports:

WRIT HITS THE FAN

FIRM FIRM SLAPPED WITH COURT SUMMONS - Top legal outfit in megabucks lawsuit

Practice is linked to bust hedge fund - Briefs with ties to big business and high-profile clients

By RUSSELL FINDLAY Scottish Sun 15 February 2015

A TOP law firm has been hit with a multi-million pound writ linked to a finance company at the centre of a fraud investigation.

Legal practice Levy & McRae — which acts for footballers, politicians, cops and newspapers — faces the claim over its role in connection with £400million investment scheme Heather Capital.

It's claimed millions of pounds went missing following the collapse of the hedge fund. And The Scottish Sun told last week how four men — including tycoon Gregory King — have been reported to prosecutors probing the allegations.

King, 46, ran Heather subsidiary Mathon, where Sheriff Peter Watson — a former senior partner at Levy & McRae — was also briefly a director.

The Court of Session summons was served on the firm six months after he left the legal firm.

Watson is one of the country's most high-profile lawyers and spent 33 years with Levy & McRae before quitting to set up his own business.

The visiting Strathclyde University professor sat on an expert panel created by former First Minister Alex Salmond to look into media regulation in Scotland.

Watson also acted for former Lord Advocate Elish Angiolini after she was harassed by a campaigner who was later jailed.

'Their clients are a who's who of Scotland' And he includes ex-Glasgow City Council chief Steven Purcell among his list of clients, as well as senior police and prison officers.

The legal expert, 61 — chairman of Yorkhill Sick Kids' Hospital charity — has also acted for former Rangers owner Sir David Murray.

And a Gers supporters' group closed down its website following legal threats from Watson, who was working for under-fire directors Sandy and James Easdale.

A source said: "Watson and Levy & McRae are very well known and their clients are a who's who of Scotland."

Investors from around the world sunk their cash into Gibraltar-based fund Heather Capital, which launched in 2004.

Some of the cash was loaned to Mathon to bankroll developments across Scotland. But many of the Mathon-funded plans did not happen — and some of the cash was not repaid.

Liquidator Paul Duffy of Ernst & Young has been battling to recover investors' cash since 2010 and is suing Heather's auditors KPMG for negligence over their role. Isle of Man court documents — acquired by The Scottish Sun — claim Heather was operating a "Ponzi" scheme to dupe investors.

They alleged that as early as December 2006, senior KPMG staff feared that Heather Capital "may have been perpetrating a fraud".

And in August 2007, KPMG employee Raymond Gawne told a colleague that he was "very uncomfortable" acting for the fund which "may have acted in a criminal manner".

The claim also alleges that millions of pounds of loans passed through the client account of Glasgow lawyer Frank Cannon who acted for Heather. KPMG senior executive David McGarry sent an email to Gregory King stating: "Frank Cannon has been uncooperative, either in providing some form of explanation for all of the security documentation prepared by his firm, or in agreeing to facilitate access to Cannon's clients' money account". McGarry added he did not accept "that this is due" to Cannon.

Watson declined to comment on the writ and Levy & McRae and Cannon did not respond to our requests for comment.

The Police Scotland report naming Mr King and his associates Andrew Sobolewski, Andrew Millar and Scott Carmichael is now being considered by the Crown Office.

A spokesman for Ernst & Young confirmed: "Heather Capital, via Ernst & Young, has made a claim against Levy & McRae." And a KPMG spokesman said: "The passages in the plaintiff's summons provide a selective and misleading picture and are drawn out simply to seek to make what is a wholly unsubstantiated case.

"The allegations are completely unfounded and are being fully contested by KPMG."

GREGORY KING MARBELLA-based former Glasgow Academy pupil, 46, was a lawyer and taxi firm boss before launching Heather Capital in 2004. Family business dynasty includes nightclub boss cousin Stefan King.

PETER WATSON GREENOCK-born solicitor advocate, 61, carved out a fearsome reputation as a media lawyer during 33 years at Levy & McRae. He also dishes out justice as a part-time sheriff across Scotland.

KING'S £400million hedge fund Heather Capital loaned millions of pounds to Glasgow-based Mathon, of which Watson was briefly a director.

TOP lawyer and part-time sheriff Watson has acted for a string of high profile celebrity, political, sport and media clients in a glittering legal career:

Watson’s clients included Alex Salmond, Stephen Purcell, Elish Angiolini, Yorkhill Hospital Board, Rangers Chiefs.

and a further development reported by the Scottish Sun on the suspension of Sheriff Peter Watson:

Bench ban for sheriff linked to fraud probe

Lawman, 61, suspended

By RUSSELL FINDLAY 25th February 2015, Scottish Sun

A SHERIFF was suspended after he was linked to a collapsed finance firm at the centre of a massive fraud probe.

Peter Watson, 61, was barred from the bench by judges’ boss Lord President Lord Gill following an inquiry by The Scottish Sun.

Watson, whose past clients include ex-First Minister Alex Salmond, was briefly a director of Mathon, a company run by Glasgow bookie’s son Gregory King, 46.

It received millions in loans from King’s hedge fund Heather Capital which crashed owing a seven-figure sum.

Watson’s suspension came 24 hours after we revealed Heather liquidators Ernst & Young filed a multi-million court demand against his former law firm Levy & McRae.

Lord Gill, 73, can suspend sheriffs and judges if it’s “necessary for the purpose of maintaining public confidence”.

Watson forged a fearsome reputation as a media lawyer over 33 years with Levy & McRae before he left the firm six months ago.

King is one of four men named in a police report which is being considered by the Crown Office.

The Judicial Office for Scotland said last night: “Sheriff Peter Watson was suspended from the office of part-time sheriff on February 16.”

The National also recently reported on the continuing suspension of Peter Watson from the judicial bench, here:

Lawyer Peter Watson still suspended despite case ending

Martin Hannan Journalist

Peter Watson was suspended from the bench more than three years ago

LAWYER Peter Watson remains suspended from his position as a part-time sheriff despite a £28 million court action in which he was being sued having been brought to an end.

Lord Carloway, the Lord President and Scotland’s senior judge, is said by legal sources to be considering the position of Watson after Paul Duffy, the liquidator of Heather Capital, abandoned the £28m action against Levy and McRae solicitors in which Watson was a former partner.

Watson was suspended from the bench more than three years ago on February 16, 2015, after the then Lord President, Lord Gill, was informed of the claims in the case against Levy and McRae, and specifically against Watson, over Heather Capital’s collapse in 2010.

It was Watson himself who e-mailed the summons material to the Lord President’s office himself and volunteered “not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings,” as the Judicial Office stated at the time.

The statement added that Lord Gill had “concluded that ... suspension was necessary in order to maintain public confidence in the judiciary.”

Watson now has his own law business, PBW Law.

He told reporters: “I am very pleased that this action has been abandoned and I am looking forward to serving my clients now it is clear that there was no valid basis for this claim.”

A spokesperson for the Judicial Office said: “The action, in which suspended part time Sheriff Peter Watson was among the defenders, has settled.

“The Lord President will consider what, if any, steps now require to be taken?,” the spokesperson added.

Of note – there is no statement on the Judcial Office website in relation to the resignation of Peter Watson from the judicial bench, as of this article’s date of publication on 3 July 2018.

Saturday, June 22, 2019

POLICE STORY: Ex-Lord Advocate linked to Police union complaints lawyers - says Police should continue to investigate themselves, complaints against top cops should be heard by ‘quango style’ panel - headed & appointed by Scotland’s top judge

Police should investigate Police – report. A FORMER Lord Advocate once accused of undermining the judiciary by Scotland’s top judge – has delivered a preliminary report as part of a review on handling of complaints and investigations against officers of Police Scotland.

However, the report from Dame Elish Angiolini on “Independent review of complaints handling, investigations and misconduct issues in relation to policing” - continues to advocate Police should continue to investigate themselves - on the vast majority of complaints.

Angiolini also goes on to outline an eerily familiar procedure where – in the case of complaints against the most senior cops –  a ‘quango’ style panel will be convened and headed by Scotland’s top judge - along with selected ‘independent’ persons from other quangos or organisations - appointed to the panel by - Scotland’s top judge.

The report from Elish Anglioni – who herself is linked to lawyers & law firms which represent Police Officers against complaints - states “The vast bulk of complaints should properly be investigated by the police service itself” and “it is critical that those processes are clear, transparent and trusted”.

As far as the Police Investigations and Review Commissioner is concerned, Angiolini states that “Independent supervision and audit is also critical. In those cases rightly requiring independent investigation the police must also provide the fullest co-operation and assistance to allow timely and effective action.”

In a recommendation linked to deaths in custody, and with relevance to the death of Sheku Bayoh who died in 2015 after being restrained by police in Kirkcaldy.

Angiolini’s report states that Police officers involved in a death in custody should be separated to prevent them conferring and contaminating evidence.

This recommendation comes after what happened following the death of Mr Bayoh, where up to nine officers involved were together in the same room for more than eight hours - which led to allegations the cops conferred with each other in compiling their reports of what happened during their involvement in the incident which ultimately lead to Mr Bayoh’s death.

Angiolini’s report states “Police officers involved in a death in custody or serious incident, whether as principal officers or witnesses to the incident should not confer or speak to each other following that incident.

“Early separation of officers, other than in pressing operational circumstances, is the best way to ensure non-conferral in practice, give transparency to the process and preserve the integrity of each individual’s evidence.

“This is in the interests of both the individual police officers themselves and the public interest in order to safeguard public confidence in the integrity of their evidence.”

“In any group of people there is a danger of group-think that could contaminate or colour evidence inadvertently or otherwise.”

However, what is not revealed anywher in the report is that Elish Angiolini – has frequently used the legal services of the same lawyer – Peter Black Watson - who also represented Police Officers involved in the same incident which led to the death of Mr Bayoh.

In a BBC Disclosure investigation, it was reported : Days after his death, the Scottish Police Federation (SPF) lawyer Peter Watson told the media that "a petite female police officer was subjected to a violent and unprovoked attack by a very large man who punched, kicked and stamped on her."

The new evidence obtained by BBC Disclosure casts doubt on this account.

More on the BBC investigation can be read here: Sheku Bayoh: Fresh questions over death in police custody

It was also reported Peter Watson – who represented Angiolini in some high profile cases – had hit out against the family of Mr Bayoh over criticisms relating to the death in custody.

BBC News reported: Peter Watson of PBW Law said: "Comments made by those representing the family of the deceased promote a completely inaccurate and misleading account."

He added: "The officer injured remains off work, has had several hospital visits and is now in rehabilitation.

"An examination by a leading consultant confirms her injuries were significant. The injuries have been documented and photographed.

"The officers involved have never refused to provide statements. It was agreed at the outset with the Police Investigations and Review Commissioner (PIRC) that they would revert to us when they wanted statements and when they were clear on the basis that statements were to be given.

"PIRC emailed me this morning at 10:46 asking for our assistance to organise interviews and we answered at 11:29 confirming we would be pleased to assist. Those are the facts."

Peter Watson, and also his former law firm of Levy & Mcrae, both remain as legal service providers to the Scottish Police Federation – and have represented Police Officers facing complaints, and criminal charges – yet neither are identified in Angiolini’s report nor is her use of both Watson and Levy & Mcrae flagged up as a conflict of interest issue.

The report on scrutiny of complaints against the Police comes in a tough year for Police Scotland - after the appointment of Iain Livingstone to the top post of Chief Constable even after questions surfaced over Livingstone’s suitability for the role after he once faced five allegations of serious sexual assault against a female officer.

The allegations against Livingstone - who was demoted over the sexual assault allegations and then reinstated upon appeal after the case was heard by a male-led Police tribunal – resurfaced in the print media earlier in 2019 – and in a BBC Scotland investigation into cover ups and scandals at Police Scotland.

Previous articles reporting the sexual assault allegations against Iain Livingstone are available here: Scotland's Chief Constable & what happened to five allegations of serious sexual assault against a female officer

Full report available here: Independent review of complaints handling, investigations and misconduct issues in relation to policing

On complaints against top cops - Angiolini’s report on misconduct investigations against senior officers is critical of current procedures, and recommends responsibilities be transferred away from the Scottish Police Authority (SPA) – due to fears of familiarity between top cops and SPA figures, and a perceived lack of impartiality.

The report states: Police Scotland’s senior officers form a small group of 12 officers above the rank of Chief Superintendent. The members of this group are in regular contact with members and officials of the SPA at meetings of the Board of the Authority and its committees. The SPA, by its nature, also consists of a small group of members and executives. Regular engagement is right and proper and an essential part of the current accountability arrangements whereby it is the statutory function of SPA to hold the Chief Constable to account for the policing of Scotland. However, the regularity of that contact and the familiarity of senior police officers with board members and senior officials could lead to actual or perceived partiality, or antipathy, when it comes to disciplinary matters in which any of those same officers might be involved as the officer under complaint, a supporter to a subject, or a witness.

However, Angiolini’s solution to probes involving top cops - is to create a quango style panel of selected individuals - chaired by a very senior member of the judiciary or Scotland’s top judge – the Lord President – who will also appoint every one of the ‘independent’ persons to the quango style panel hearing complaints against senior cops.

From the report: The key stages of the senior officer misconduct proceedings (both misconduct and gross misconduct) should in future be removed from the responsibility of the SPA and made subject to consideration by an independent legally chaired panel appointed by a very senior member of the judiciary such as the Lord President. The Lord President should be consulted on this matter. The other members of the Panel should consist of an expert in senior policing and a lay person.

The process should follow the steps specified: 1) receipt of the complaint/allegations by SPA; 2) meaningful preliminary assessment and scrutiny of the complaint (within a strict deadline) by a senior Director; 3) prompt referral to the PIRC, or in the case of a criminal allegation to COPFS; 4) an independent investigation by the PIRC of the allegations which should remain confidential unless or until a prima facie case is established; 5) referral by the PIRC to an independent legally chaired panel and determination by the panel as to whether, in the light of the PIRC’s report, there is a case to answer of misconduct or gross misconduct; 6) a preliminary independent hearing by an independent, legally chaired panel to identify any evidence that is not in dispute and can be agreed, and any other matter which can be resolved prior to the formal hearing of the misconduct; 7) a hearing by the panel to consider the evidence, to determine the matter and if proven to decide the appropriate disciplinary action; 8) a right of appeal to a further and different legally chaired independent panel; and finally; 9) the implementation of the disciplinary action by the SPA as the “employer” of the senior officer. (Any constable may further appeal to a Police Appeals Tribunal against any decision to dismiss or demote him or her, and that should remain the case.)

The Panel should consist of independent people from other organisations or jurisdictions, and the Lord President should be consulted by the Scottish Government about the proposal that he should appoint suitable individuals. It is suggested that stages 5, 6 and 7 described in the preceding paragraph could be carried out by an independent 3-person panel comprising a legally qualified chair, one member with a senior UK policing background and one lay member; while the role of the SPA would be limited to stages 1, 2, 3 and 9. The appeal stage could also be conducted by a different independent panel appointed by the Lord President. 184. I believe that the principle of having an independent legally qualified chair for a misconduct hearing should also be extended to gross misconduct hearings for non-senior officers, that is, the rank of Chief Superintendents and below.

The Scottish Governemnt’s announcement of Elish Angiolini’s initial report mentions main points, does not allude to any relationships between the report’s author and law firms who have made millions of pounds from defending Police Officers from complaints and associated issues.

Independent review of complaints handling, investigations and misconduct issues in relation to policing: preliminary report Published: 21 Jun 2019

Dame Elish Angiolini's independent review addresses complaints handling, investigations and misconduct issues in relation to policing in Scotland, in the wake of the Police and Fire Reform (Scotland) Act 2012.

Foreword

In June 2018 Michael Matheson MSP, the then Cabinet Secretary for Justice, and the Lord Advocate, James Wolffe QC, invited me to conduct an independent review on complaints against the police in Scotland. The Review commenced in September 2018. Six years have passed since the creation of radical, new policing structures for Scotland. This is an appropriate juncture to review the effectiveness of the new systems for dealing with complaints against the police in Scotland, how well such complaints are investigated and the processes reviewed. This review also provides a significant opportunity to contribute to work on matters of profound public interest in a key area of human rights.

My mandate from the Ministers is to make recommendations that will help to strengthen public confidence in policing in Scotland. This first report makes recommendations that are preliminary. It will be followed next year by a wide‑ranging report seeking to ensure that the future legislation, regulations, guidance and practice are fit for purpose. It will also examine in detail the structures of the individual organisations charged with dealing with complaints against the police. Despite the very different responsibilities and natural tensions between the four separate organisations involved in the process, it is crucial that relationships are professional, respectful, and focused on continuous improvement of policing in Scotland and securing the rights of those they serve.

In 2017 I was asked by the then Home Secretary to carry out a review of deaths in police custody in England and Wales. In my report of that Review[1] I observed that we ask a lot of those who police us in the 21st century. The need to interact and sometimes intervene in the lives and freedom of members of the public is a daily occurrence for the police. Such duties involve the power to arrest or intervene where criminal conduct is suspected or where the welfare or life of that individual or others is at serious risk, as well as in many other emergency settings. The powers that flow from those duties are immense in their potential impact on citizens and are regulated by a complex framework of laws and regulations to prevent abuse or negligence in the exercise of those powers.

How those powers are exercised is also governed by the competence and integrity of the individual police officer as well as the wider police force within which he or she serves. In addition to law, training and guidance on how officers should approach encounters that may lead to detention, the community relies on the professionalism, wisdom, ethics and courage of police officers to approach incidents which may result in harm to the officers or others. These are often situations from which most in the community would wish to remove themselves immediately for their own personal safety. Where death or serious injury occurs for those detained by the police and, in other cases, where it is alleged the detention is unlawful, human rights considerations come into play and the state is obliged to carry out effective, timeous and independent investigations into those allegations. In those that result in death, the investigation must also be held in public and allow effective participation in the process by the next of kin of the deceased.

There is however a much wider set of complaints against the police which may involve other types of allegations of criminality. Serious complaints should also be the subject of independent investigation and consideration by a prosecution service independent of the police, others should be drawn to the attention of the prosecutor as soon as possible to allow the prosecutor to determine who should carry out the investigation. Further, members of the public who interact with the police may have complaints about the conduct or efficiency of officers or the quality of service they have received from the police service as an organisation. These matters represent the vast bulk of complaints and are principally directed at the quality of the service provided including rudeness, delay or ineffectiveness. These complaints are identified for a process which aims to be user friendly and capable of as swift and proportionate a response as possible by the police organisation itself, subject to independent supervision, audit and checks.

It can be seen therefore that the notion of a complaint against the police covers a very wide range of events, behaviours and conduct that can be very distinct from each other in character. There may also be occasions however where a combination of different categories of complaint can arise from any given situation. Similarly, the character of the complaint is not always apparent to those first to receive the intimation and further information needs to be sought or investigation undertaken before decisions are made about the route the complaint should take.

This variation in the nature of, and appropriate response to complaints, presents significant challenges for the police and appropriate agencies charged with supervising or investigating such matters; more so for any member of the public wishing to make a complaint. Any understanding of the operation of the different types of complaint and the complex routes for response flowing from the complaint has been described in another, similar context as displaying "the complexity of a wiring system from the star ship Enterprise"[2] This is certainly also the case in Scotland and it was put to this Review in evidence that "the current arrangements for handling complaints about the police are overly complex, lack clarity and can be open to a range of different interpretations".

The vast bulk of complaints should properly be investigated by the police service itself but it is critical that those processes are clear, transparent and trusted. Independent supervision and audit is also critical. In those cases rightly requiring independent investigation the police must also provide the fullest co‑operation and assistance to allow timely and effective action. The effectiveness of the relations among and between each of the four organisations charged with these responsibilities in Scotland is also critical to success of the process. While the interaction of these organisations requires a degree of autonomy, and in respect of the COPFS and PIRC, independence from the police, independence does not equate to isolation, which undermines the independence of an organisation. In order for the independence of organisations to be maintained and enhanced, and for checks and balances to be effective, there must be regular and meaningful interaction at all levels of these agencies. There must also be mutual respect and an atmosphere of genuine co‑operation.

This preliminary report identifies and discusses a number of issues about these central matters for immediate consideration and others about which further comment is invited before the full report next year. Elish Angiolini 21 June 2019

Independent Report or Political Interference by Scottish Ministers

After an earlier attempt by Scottish Ministers to interfere in complaints reports from the Police Investigations and Review Commissioner, some see the Angiolini report as a new attempt by Scottish Ministers to control how investigations are handled against Police officers and particularly officers who have shown political support for Scottish Government policies.

The review of Policing complaints handling came after the Police Investigations and Review Commissioner Kate Frame spoke out on the subject of who should investigate the Police in a Sunday Post article, here: So who should police the police? In her first interview in four years, Police Scotland watchdog breaks her silence

In the interview, Kate Frame called on MSPs to review who probes misconduct claims against officers and said whistleblowers should be able to turn to investigators outside the force.

Ms Frame said: “There is a discussion to be had about whether the police should investigate themselves.

“I think that from the public’s position, they would feel an independent investigation which has not been undertaken by the police would be preferable.”

In an earlier article it was revealed Police Complaints watchdog Kate Frame had accused Scottish Ministers of interfering in her functions as Scotland’s independent Police watchdog, reported by the Sunday Post here: Emails reveal police commissioner accused Scottish government of interfering after Justice Secretary’s aide asks her to delay scathing report

In an article featuring Scottish Government interference with PIRC, the Sunday post reported “the Police Investigations and Review Commissioner had to warn one of Justice Secretary Michael Matheson’s senior civil servants to back off after he attempted to persuade her to delay the publication of a damning report.”

”Ms Frame responded to the civil servant’s suggestion that her report might be delayed by writing: “My perception of your remarks is governmental interference with my independence.”

PROBE CONFLICT: Ex Lord Advocate used same lawyers who are paid to defeat complaints by Police Union

A FORMER Lord Advocate who has links to lawyers and a suspended judge who represent the Scottish Police Federation (SPF) and cops facing complaints – has been appointed to review how complaints are handled against cops.

However, details released of the review fail to mention that Dame Elish Angiolini (nee McPhilomy) – hired Levy and Mcrae - who have been paid hundreds of thousands of pounds by Police Scotland & the Scottish Police Authority (SPA) – to get cops off the hook from complaints - including probes into deaths.

One of the lawyers linked to ex Lord Advocate Elish Angiolini – is Sheriff Peter Watson –  who was suspended from the judicial bench by  Lord Brian Gill in 2015, after being named in a £28m writ linked to bust hedge fund Heather Capital.

Watson represents Police officers facing complaints and investigations by the Police Investigations and Review Commissioner.

More on Elish Angiolini’s connections to law firms representing Police Officers facing complaints, and an investigation revealing she earned over £600K on inquiry appointments can be found here: PROBE CONFLICT: £604K public cash inquiry magnate Ex Lord Advocate appointed to investigate Police complaints – linked to lawyers representing cops facing complaints

The Scottish Parliament’s Justice Committee is due to hear evidence on Monday 24 June 2019 from Elish Angiolini on the Independent review of complaints handling, investigations and misconduct issues in relation to policing.

Monday, June 03, 2019

JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women's rights

Need for Judges’ Register. MEMBERS of the Scottish Parliament’s powerful Justice Committee have committed to further work and action on a cross-party backed petition calling for the creation of a register of judges’ interests - Petition PE1458: Register of Interests for members of Scotland's judiciary

The petition calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, 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.

Amid strong comments during last Tuesday’s Justice Committee meeting from MSPs supporting the need for action on judicial transparency from the seven year Scottish Parliament investigation – the Committee also decided to call for further evidence from Moi Ali - Scotland’s first Judicial Complaints Reviewer, and Scotland’s top judge - Lord President Lord Carloway.

Commenting on the petition – John Finnie MSP made extensive observations on evidence presented to Justice Committee exposing involvement of senior Scottish judges in the Gulf States, and submissions from Moi Ali, and Justice Secretary Humza Yousaf.

John Finnie said: “It is very helpful to have all this information here. “There are a number of suggestions. I, for one, cannot understand what the problem with having a register would be.”

“The more people tell me that there is no issue, the more I am convinced that there is a need for a register. The submission from Moi Ali is very helpful. She refers to a letter of 23 April 2014, which is now a bit old.”

“We have also been provided with extracts from news coverage.”

“I do not agree with the idea that anyone connected with the Scottish judiciary could have any role whatsoever in the United Arab Emirates.”

“I looked yesterday at the Human Rights Watch world report, which does a country by country breakdown. The United Arab Emirates is a country that is intolerant of criticism, which has played a leading role in unlawful acts in Yemen, and whose treatment of migrant workers’ rights and women’s rights is shocking. It is a country that permits domestic violence.”

I do not think that any reasonable examination of the role of a public official—and I get the point about the separation of the judiciary—would say that involvement in such a country is acceptable.”

“I believe that we need to do something and I am not content with the cabinet secretary’s response, which is just playing out the same line as before—that there is nothing to see here and we should move on.”

“I do not think that this issue will move on until we have the openness and transparency that people rightly expect of public office.”

Adding to the debate, Daniel Johnson MSP referred to the Nolan principles, from the Committee on Standards in Public Life

Daniel Johnson said: I would like to speak in support of what my colleague John Finnie has just said.

“The Nolan principles are 25 years old this year. They are principles that have guided public life very well, in particular integrity, whereby holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties”;

“openness, which I think is self-explanatory; and honesty, whereby”

“holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest”.

“That is pretty clear. Although the cabinet secretary may well not view that there is a problem, that is not to say that this is not a positive step towards ensuring that we have a judiciary that is open and transparent and whose integrity is beyond question.”

“I absolutely believe in the independence of the judiciary, but I think that in order to maintain that integrity and independence, this step has merit in terms of transparency.

“The committee should think about taking some further evidence, certainly from Moi Ali, which is the suggestion from the petitioner. This is something that we should progress and seek to move forward.”

Liam Kerr added: “I am pretty much in the same place on this. I can see the argument for why we would take this further and hear more.”

“I have looked at the response from the cabinet secretary and the reference to the previous cabinet secretary, whose view has been that there is nothing particularly to examine here.”

“Having considered the force of the argument in favour of exploring it further, I am not convinced that it is good enough to say, “There is nothing here. Don’t worry about it.”

For that reason, I think that we should look at this in more detail.

Liam McArthur said: “I echo what Daniel Johnson has said and much of what John Finnie has said.”

“In reference to the United Arab Emirates, although I might share many of his concerns, I think that the point is that a register would be illuminating”

Minutes from the meeting reveal the Justice Committee agreed to take evidence at a future meeting on issues raised by the petition – which will occur later this year in September.

Video from the Justice Committee meeting, the full official transcript and further reporting follows:

Register of Judicial Interests Petition PE1458 Justice Committee 28 May 2019

Judiciary (Register of Interests) (PE1458)

The Convener (Margaret Mitchell MSP): Our final item is consideration of petition PE1458. The petition is from Mr Peter Cherbi and asks the committee to consider the merits of establishing a register of interests for members of the judiciary. I refer members to paper 4. Since we considered the petition last time, we have received additional information from Mr Cherbi and also from Moi Ali. We have also received a letter from the Cabinet Secretary for Justice. I invite members to comment on the correspondence and say whether they wish to make any recommendations or suggest further action.

John Finnie MSP: It is very helpful to have all this information here. There are a number of suggestions. I, for one, cannot understand what the problem with having a register would be. The more people tell me that there is no issue, the more I am convinced that there is a need for a register. The submission from Moi Ali is very helpful. She refers to a letter of 23 April 2014, which is now a bit old.

We have also been provided with extracts from news coverage. I do not agree with the idea that anyone connected with the Scottish judiciary could have any role whatsoever in the United Arab Emirates.

I looked yesterday at the Human Rights Watch world report, which does a country by country breakdown. The United Arab Emirates is a country that is intolerant of criticism, which has played a leading role in unlawful acts in Yemen, and whose treatment of migrant workers’ rights and women’s rights is shocking. It is a country that permits domestic violence.

I do not think that any reasonable examination of the role of a public official—and I get the point about the separation of the judiciary—would say that involvement in such a country is acceptable.

I believe that we need to do something and I am not content with the cabinet secretary’s response, which is just playing out the same line as before—that there is nothing to see here and we should move on. I do not think that this issue will move on until we have the openness and transparency that people rightly expect of public office.

Daniel Johnson MSP: I would like to speak in support of what my colleague John Finnie has just said.

The Nolan principles are 25 years old this year. They are principles that have guided public life very well, in particular integrity, whereby

“holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties”;

openness, which I think is self-explanatory; and honesty, whereby

“holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest”.

That is pretty clear. Although the cabinet secretary may well not view that there is a problem, that is not to say that this is not a positive step towards ensuring that we have a judiciary that is open and transparent and whose integrity is beyond question.

I absolutely believe in the independence of the judiciary, but I think that in order to maintain that integrity and independence, this step has merit in terms of transparency. The committee should think about taking some further evidence, certainly from Moi Ali, which is the suggestion from the petitioner. This is something that we should progress and seek to move forward.

Liam McArthur MSP: I echo what Daniel Johnson has said and much of what John Finnie has said. In reference to the United Arab Emirates, although I might share many of his concerns, I think that the point is that a register would be illuminating and, if there is a justification in engaging in order to improve the way in which judicial procedures operate in a third country, at least we would all know what the purpose of that engagement is.

I very much concur with what has been said about the need for transparency and the underpinnings of the Nolan principles.

I see from the Scottish Courts and Tribunals Service the details of the accountability report. I am not sure that that is a massive leap away from what the petition is seeking, and therefore this may be a bit of a journey that it is on, but I certainly agree that it would be worth the committee continuing to pursue this, and to take further evidence from Moi Ali.

That would seem to be a logical next step, as John Finnie suggested. The earlier evidence was in written form. It was a number of weeks ago. I believe that it would probably benefit us all to hear what she has to say and cross-examine that a little further. I would be very keen to keep the petition open.

Liam Kerr MSP: I am pretty much in the same place on this. I can see the argument for why we would take this further and hear more. I have looked at the response from the cabinet secretary and the reference to the previous cabinet secretary, whose view has been that there is nothing particularly to examine here. Having considered the force of the argument in favour of exploring it further, I am not convinced that it is good enough to say, “There is nothing here. Don’t worry about it.” For that reason, I think that we should look at this in more detail.

Fulton MacGregor MSP: I echo what others have said. John Finnie in particular made a very compelling argument for doing something further on this. Some people have commented on the cabinet secretary’s response. It is not my take on it that he is saying that there is nothing to see here, but I think that we should take more evidence and information in order to work out where to go from here. I agree with what has been said.

The Convener (Margaret Mitchell MSP): If there are no other views, I will summarise. The committee is keen to hear from Moi Ali. Her letter was dated in 2014, but she has said that it is still relevant. It would be good to get an update. The Nolan principles are 25 years old, so perhaps it is time to take some evidence from Lord Carloway, if he is prepared to give a view, and certainly from the petitioner, and to give the cabinet secretary an opportunity to respond more fully than he did in his letter. If there are any other witnesses, we will be looking to do this in September. Are we agreed that that is how we will move forward?

Members indicated agreement.

CROSS-PARTY calls are being made for all of Scotland's judges to declare their interests:

The issue of judicial transaprency and calls for judges to declare their interests was reported in more detail on Scottish Television (STV) - full article by visiting the link here: Scots judges facing pressure to declare their interests

The STV report states: Cross-party politicians on Holyrood's justice committee believe that increased transparency is vital to maintain public trust in the judiciary.

The committee will call Moi Ali, the former Judicial Complaints Reviewer and current Independent Assessor of Complaints at the Crown Prosecution Service, to give evidence.

She told STV News: "This is the 21st century and people have quite high expectations of openness and transparency.

"I don't really understand why one small but very powerful section of society should be allowed not to have to do that. It really doesn't make sense.”

SNP MSP Alex Neil plans to introduce legislation if a register is not introduced.

An in-depth investigation on judicial conflicts of interest and the need for a register of judicial interests to increase public trust in the courts, is featured on STV (full article by visiting the link below)

 Judging for ourselves if conflict of interest in courtsBy Russell Findlay

“Most people would struggle to name Scotland's top judge or many of the other 700-plus judicial office holders who preside in our civil and criminal courts.”

“His grand title is Lord President of the Court of Session and Lord Justice General (previously Colin Sutherland, lawyer) and one of his jobs is to take the swearing-in oath of First Ministers.”

“Yet he and these other largely unknown judges, sheriffs and justices of the peace hold great power - including being able to send people to prison - and their decisions directly or indirectly impact on all our lives.”

“However, there are growing concerns about how little we know about their outside interests and concerns that these could potentially influence decisions on the bench.”

SCOTTISH JUDGES SERVING IN THE GULF STATES:

An exclusive investigation by Investigative Journalist Russell Findlay revealed Scottish judges were serving in Abu Dhabi & UAE courts while serious Human Rights abuses were taking place against British citizens in the same countries.

The investigation also reveals how Scottish and UK judges are lured to the UAE, Abu Dhabi, and Qatar with big money salaries are available here: JUDGES FOR SALE: Special investigation into top lawmen being lured with big money jobs in Qatar and the UAE and here: Scottish judges slammed for being on payroll of oppressive regimes abroad

The report reveals TOP judges are accused of selling the reputation of Scottish justice by working for Middle East countries with toxic human rights records.

Two judges are on the payroll of the United Arab Emirates (UAE) where domestic violence against women is legal and where regime critics are tortured and jailed without trial.

The most senior is Lord Hope of Craighead — Scotland’s former top judge, a member of the House of Lords and ex-deputy president of the UK Supreme Court.

Our investigation found that Lord McGhie has been registered to sit in the UAE for the past two years while he was also dispensing justice at the Court of Session in Edinburgh.

In recent years, retired UK judges have been increasingly lured with big paycheques to new civil courts in Qatar and the UAE states of Abu Dhabi and Dubai.

Lord Hope is chief justice of Abu Dhabi Global Market Courts which also employs Lord McGhie and six other male judges from the UK and Commonwealth.

Another former Lord President, Lord Hamilton, sits in a court in Qatar which is accused of backing international terrorism and using migrant slave labour.

The Justice Committee’s meeting of Tuesday 28 May 2019, was also reported in The National newspaper, here:

Holyrood committee advance plans for register of judges' interests

By Martin Hannan Journalist 29 May 2019

SCOTLAND’S judges may soon have to register their interests after the Scottish Parliament’s Justice Committee yesterday defied Justice Minister Humza Yousaf and Scotland’s most senior judges on the issue of transparency.

Seven years after he raised a petition on the issue, journalist and legal issues campaigner Peter Cherbi admitted last night he was surprised that Holyrood’s Justice Committee were going to keep his petition “live” and take the matter up with Scotland’s most senior judge, the Lord President, Lord Carloway.

Justice Minister Yousaf had told MSPs a register of interests was not necessary. Lord Carloway and his predecessors have also opposed it.

Cherbi told The National: “I am happy to hear that the Justice Committee are taking this petition forward and the supporting comments from MSPs today who clearly understand the value of bringing a register of interests to Scotland’s courts.

“Thanks to media coverage, including in the National, the issue has remained in the public eye and interest for seven years, and public debate has led to people asking why judges should exempt themselves from transparency and accountability – which are the core principles of any justice system.

“The benchmark evidence from Scotland’s first judicial complaints reviewer, Moi Ali, contributed in great measure to how the Public Petitions Committee took the work forward, with MSPs backing the petition in a major debate at Parliament, and through the seven years of work by the Public Petitions Committee.

“Perhaps it is now time for our judiciary to reflect on why they have resisted calls for transparency for seven long years.

“Where the Lord President and Scottish Government have failed to act, I look forward to the Justice Committee moving forward on this issue, and creating legislation for a publicly available register of judges’ interests, with proper rules and full, independent scrutiny in a manner which is equivalent to the register of interests which many other public servants, including our elected representatives and Scottish ministers, must sign up to.”

NOLAN PRINCIPLES

The 7 principles of public life apply to anyone who works as a public office-holder. This includes people who are elected or appointed to public office, nationally and locally, and all people appointed to work in:

  • the civil service
  • local government
  • the police
  • the courts and probation services
  • non-departmental public bodies
  • health, education, social and care services

The principles also apply to all those in other sectors that deliver public services.

1. Selflessness: Holders of public office should act solely in terms of the public interest.

2. Integrity: Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.

3. Objectivity: Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.

4. Accountability: Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.

5. Openness: Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.

6. Honesty: Holders of public office should be truthful.

7. Leadership: Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.

They were first set out by Lord Nolan in 1995 and they are included in the Ministerial code.

For further information on the 7 principles and the work of the Committee on Standards in Public Life, visit the Committee’s website and blogsite.

SEVEN YEARS JUDICIAL INTERESTS PROBE:

The judicial register petition - first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 - ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

The lengthy Scottish Parliament probe on judicial interests has generated over sixty two submissions of evidence, at least twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate and has since been taken over by Holyrood’s Justice Committee after a recommendation to take the issue forward from the Public Petitions Committee in March 2018.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland's judiciary.

TWO TOP SCOTS JUDGES FAIL IN HOLYROOD JUDICIAL TRANSPARENCY PROBE:

Both of Scotland’s recent top judges failed to convince MSPs that a register of interests is not required for judges – even after both Lord Presidents attempted to press home the existence of judicial oaths and ethics – which are both written, and approved by – judges.

Video footage and a full report on Lord Brian Gill giving evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests - Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency - Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

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.