Failure to Recuse : Evidence handed to MSPs in judicial register of interests proposal reveals judges who blocked injustice appeal failed to declare interests in court

Judges with links to original trial failed to declare their interests. THE complicated mixture of Judicial oaths & rules which govern the current requirements of Scotland’s judges to declare any interests in court has this week been proved to be a catastrophic failure by evidence which depicts cosy clubs, prosecutors turned judges, & undisclosed family relationships between members of the judiciary in Scotland’s top courts.

Legal insiders say the evidence provided to MSPs on the Scottish Parliament’s Petitions Committee may well be the tip of the iceberg with regard to judges failing to properly declare their interests when faced with cases in which their personal and professional interests collide.

Glasgow man William Beck, who many inside & outside the justice system are satisfied was wrongfully convicted for an armed robbery over thirty one years ago, made the submission to the Scottish Parliament Petitions Committee concerning the failure of judges to recuse themselves in his appeal against his conviction.

The evidence provided by Mr William Beck in response to Petition PE1458: Register of Interests for members of Scotland's judiciary reveals how one judge, Lord Johnston, failed to declare any interest or recuse himself from an appeal by Mr Beck against a wrongful conviction & sentence handed down by Lord Dunpark who was Lord Johnston’s father.

Mr Beck’s submission to MSPs also reveals that years later, Lord Osborne, who sat with two other judges and rejected another appeal by Mr Beck against his wrongful conviction, failed to disclose that he was the prosecutor in the original trial of Mr Beck.

When Lord Osborne was recently asked by journalists why he did not recuse himself or reveal his role in the original case against Mr Beck, Lord Osborne, now retired, claimed he had “no recollection”. The retired judge went on to admit he should have recused himself.

Mr Beck has been fighting to clear his name ever since his wrongful conviction, and the terns of his submission and evidence provided appear to make it clear to all that even the most senior judges, prosecutors and others in the legal system have been long aware of conflicting interests of members of the judiciary which have not been properly declared.

The evidence provided by Mr Beck, which identifies multiple failures by judges & prosecutors who became judges to declare their interests in court, is in stark contrast to arguments presented by the current Lord President Lord Brian Gill who has previously claimed the current judicial recusal system works well in brief, albeit antagonistic letters to MSPs on the Scottish Parliament’s Petitions Committee in response to Petition PE1458: Register of Interests for members of Scotland's judiciary

William Beck’s submission to the Scottish Parliament reads as follows :

I would like the following to be presented to the Public petitions Committee hearing the petition PE1458 : At an appeal hearing in 2006: appeal hearing in 2006 Two judges ought to have recused themselves or at the very least declared an interest in my case.

Lord Johnston was the son of my trial judge which he did not declare. Lord Osborne had acted as an Advocate Depute in my appeal on 7th October 1982 and did not declare this.

Both ought to have known from the court papers, namely the Charge to the jury and Interlocutor of 7th October 1982 which would have been before the court. The charge discloses the name of the trial judge and in this instance was Lord Dunpark the Father of Lord Johnston.

I only found out that Lord Dunpark was the Father of Lord Johnston when I read the obituary for Lord Johnston when he died. Had I known of any of these connections I would have asked them both to recuse themselves. The interlocutor is attached above and I can produce the charge to jury should it be required.

Lord Osborne is quoted as saying had he known about this link he would have recused himself. I cannot accept this position as it clearly states in the 2006 appeal linked above my appeal was rejected on 7th October 1982.

The only way Lord Osborne or any of the other two judges that heard this appeal would have known this is indeed by viewing the interlocutor with Lord Osborne’s name attached. (See Interlocutor of 7th October 1982)

Lord Johnston made a comment (Which will be recorded) that Lord Dunpark certainly had a way with his quirky comments knowing full well he was referring to his Father.

It is my belief that the reactions from the court after this comment that everyone(Apart from me) in that court that day knew of these connections including the Advocate Depute.

Like I have said had I known of these connections I would have asked these judges to recuse themselves but the judges also had a duty enshrined within the Bangalore Principles to recuse themselves which they also ought to have done.

The fact they did not recuse themselves leaves me feeling I can never get a fair hearing in Scotland.

To add insult to injury I tried to raise this matter at a Nobile Officium Appeal for the court presided over by the Lord President to ignore it completely.

How can they ignore it completely I hear everyone ask. Simply because they can.

My defence team produced the interlocutor from 1982 showing Lord Osborne had prosecuted me yet this is not reflected in the opinion which states I did not raise any issue apart from being refused Legal Aid in 1982. This should be recorded and I would urge the committee to ask the High Court to answer this allegation and provide the tape recording and transcript of the Nobile Officium Appeal.

So not only do I have two judges sitting on my appeal who ought to have recused themselves but when I tried to raise this issue it was ignored by our courts at its highest level.

My MSP Bill Kidd raised this issue with the Lord President (And many others within the Judiciary) asking him the meaning of the Latin Phrase “Nemo Iudex In Causa Sua as well as raising it with Kenny MacAskill to no avail, and now after a Sunday Mail expose Lord Osborne is saying he would have recused himself if he had known.

I tried raising this as a devolution issue (At Nobile Officium) referring to Hoekstra and Pinochet only for the court to tell the Crown not to appear in a deliberate attempt to stop me raising a devolution issue.

This is clearly pointed out by the court of appeal at Nobile Officium paragraph 1 where the court say this: The Lord Advocate is not, so far, a party to these proceedings and has not been invited to address the court on the issue of competency or on any other issue. This makes the position of the court clear: They did Not Invite The Crown To Appear.

I would suggest this was a deliberate attempt to deny me not only the act of raising a devolution issue but also a fair hearing enshrined within article 6 of the European Convention of Human Rights.

I should point out that every case in Scotland are indeed indicted at the instance of Her Majesty’s Advocate and this is a duty that applies throughout the history of any case including appeals. Never in the history of Scots Law have Crown Failed to appear at an appeal. This proves that not only did two judges sit on my appeal when they ought not to have done so but there have been a concerted attempt from the Judiciary to cover this up since.

In their attempts to stop me raising a devolution issue they have created a bigger one. This also shows how cosy the relationship is Between our Courts and Crown Office.

I would welcome the opportunity to give evidence to the committee at any evidence gathering session, unlike Lord Gill.

The Sunday Mail newspaper has also reported on Mr Beck’s case :

They shouldn’t have been anywhere near my appeal

ROUGH JUSTICE FIGHT JUDGES’ LINKS QUESTIONED

By Russell Findlay  Sunday Mail 09/06/2013

A robber fighting a 31year battle to clear his name yesterday claimed two judges who blocked a crucial appeal had links to his original trial.

Willie Beck, 52, discovered that Lord Osborne presided over his appeal hearing despite helping prosecute him in 1982.

And Lord Johnston sat on the 2006 hearing even though his father Lord Dunpark was the original trial judge who had jailed Beck for six years.

The dad-of-two, of Dennistoun, Glasgow, said: “At the hearing in 2006, I had no idea that two of the three judges had strong personal connections to my original trial.

“National Archives records revealed Lord Osborne, then called Kenneth Osborne, was the advocate depute who prosecuted me in 1982.

“There are supposedly rules in place to ensure judges don’t get involved in cases where they have kind of conflict. It’s clear to me that he should have declared his connection and stepped aside.”

Beck was sentenced to six years in 1982 for a robbery in Livingston, West Lothian.

In 2006, the three judges  including the late Lord Dawson  rejected Beck’s appeal against an earlier decision not to allow a time extension.

Lord Johnston died in 2008 but Lord Osborne, now retired, said: “You’ll appreciate that an advocate depute prosecutes a great many cases and I have no recollection of this one.

“If it had been drawn to my attention that I had an involvement as a prosecutor I would have recused myself but I had no recollection of it.”

Two months ago, Beck lost an appeal against his conviction at the Court of Criminal Appeal in Edinburgh. He now hopes to appeal to the Supreme Court in London.

Scots judiciary want 'independence' from legislative reforms, public accountability as judges attack Judiciary & Courts Bill

While to many, independence means a break from whatever foul acts or perceptions of wrongdoing, lack of freedoms, unaccountability or lack of honesty exist in an organisation, public body, or even a country, the Scots legal establishment have taken on the 'independence' word as an argument to retain control over itself and all things relating to the law, from appointments to regulation, to just about anything it feels is within it's sphere of influence.

This is not a new argument to the Scots legal establishment however, who in the form of the Law Society of Scotland, used the same argument in 2006 in an attempt to thwart the progress of the now passed Legal Profession & Legal Aid (Scotland) Act 2007, which brought a measure of independent regulation to the legal profession, attempting to cure the high rate of corrupt complaints investigations carried out by the solicitors own self regulatory body, the Law Society of Scotland.

Douglas Mill, the Law Society's Chief Executive, famously threatened the Scottish Parliament & Executive with legal action, declaring after drafting in an English QC to assist in writing legal opinions, that it was and is a solicitor's "Human Right" to regulate complaints against colleagues .. and thus taking away regulation from the Law Society of Scotland would be a breach of ECHR.

You can read about Douglas Mill's threat of a legal challenge against the LPLA Bill here : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill

Unsurprisingly, Douglas Mill's threat of court action to stop the much needed legislation failed, but it did have an effect of galvanising some politicians in the parliament to speak out somewhat more than they had previously, particularly regarding the now Cabinet Secretary for Finance John Swinney's position on matters, where a stinging confrontation between Douglas Mill & John Swinney before the Justice 2 Committee saw revelations of serious corruption and fraud within the Law Society's Master Insurance Policy, run by the equally infamous insurers Marsh UK.

You can read about the bitter public confrontation between Douglas Mill & John Swinney here : Law Society boss Mill lied to Swinney, Parliament as secret memos reveal policy of intervention & obstruction on claims, complaints.

Now, in 2008, the 'independence' argument is being presented again, this time by those higher up the ladder in the Scots legal establishment, to thwart changes proposed in the forthcoming Judiciary & Courts (Scotland) Bill, which is currently under consideration by the sole Justice Committee of the Scottish Parliament, chaired by Bill Aitken MSP, a self confessed fan of Douglas Mill.

For a brief guide to how the Scots judiciary regard the term 'independence', see a previous related article here : Judicial 'independence' in Scotland sees Lord President appointed head of judiciary & 'Law Society' style complaints system against judges

Senior judges appeared earlier this week before the Justice 2 Committee and criticised parts of the proposed judicial reforming legislation, particularly raising points relating to the Judicial Appointments Board, where Lord Osborne, Scotland's longest serving judge claimed the Board was not carrying out its duties properly.

From the Scotsman :

Lord Osborne said: "It's my understanding that the board has set its face against making inquiries about how the individual candidate may have performed his professional or judicial responsibilities before that appointment arises.

"For example, if a sheriff is seeking appointment to a more senior judicial office, the board does not enquire of others how that sheriff has performed."

He added: "This is not a happy approach. You are blinkering yourself to sources of information I would have thought are highly valuable."

There are many of course, who would say that past and even the current system of appointing judges has never really inquired as to how candidates had performed their duties in the past as lawyers, and certainly none of that has ever been made public, leading to feelings that poor regulatory records and bad legal service to clients has been glossed over while candidates for judicial appointments were solicitors themselves ...

I don't ever recall the public getting to read the service & regulatory history of a candidate for a judicial appointment when they were a lawyer, how they performed for their clients, what they did, what kinds of cases they were involved in etc ...

Why shouldn't such information be published ? Don't the rest of us deserve to know who these judges really are and what they have been doing before they were a judge ?

Of course, the problem with obtaining such information about a judicial appointments candidate in the first place is that any regulatory records and other information would originate from that great bastion of honesty, the Law Society of Scotland, whom we know has more than on one occasion, fiddled a few investigations against crooked lawyers, leaving little 'honesty' value being able to be attached to such disclosures of previous service ...

Lord Osborne also went onto criticise plans plans for an ombudsman to oversee the way the Lord President handles complaints against judges, saying :

"If we cannot trust the Lord President of the Court of Session to observe the rules … then it is a sorry day."

No one likes a bit of much needed transparency then, and with the way the Scots legal establishment has effectively ruled itself for centuries, deciding for itself who among us gets access to justice and who gets justice denied, who would ever be able to trust anyone linked to such a body ...

Lord Hamilton the current Lord President who is currently in charge or has a powerful 'say so' in appointing just about everyone to anything in any area of the Scots legal establishment, faired no better, with an insistence that he should be able to "tap someone on the shoulder" for an emergency appointment ... another great vote for 'independence of the judiciary'.

It is quite clear there needs to be significant judicial reform in Scotland, with much needed accountability & transparency brought to admissions, regulation and all matters relating to Scotland's judiciary, and while their lordships will no doubt resist such ideas to the bitter end, perhaps even daring to bring a few legal challenges, quiet threats, or even a few case rulings to 'teach government a lesson or two', at the end of the day, the public interest and the interests of accountability must be served, thus such reforms will win the day, albeit in a slightly watered down version.

Along with reforming admissions to the judiciary of course, the Scottish Parliament could also tackle reforming admissions to the legal services market, where for now, the Lord President and the Justice Secretary Kenny MacAskill, both former lawyers and members of the Law Society of Scotland, decide who can enter the legal profession and who cannot, and the two of them have happily sat down together and canceled all applications by qualified persons so far under Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990 to gain rights of audience and representation in the Scottish courts system ...

The Herald reports :

Protect judiciary’s independence, top judge tells MSPs

ROBBIE DINWOODIE, Chief Scottish Political Correspondent

The Lord President, Scotland's most senior judge, appeared for the first time before MSPs yesterday and made a strong plea for the judiciary's independence from government to be enshrined in law.

Welcoming Lord Hamilton to the justice committee, convener Bill Aitken said it was a unique occasion as he could find no precedent for the Lord President addressing a parliamentary committee.

The country's top judge gave evidence on the Judiciary and Courts (Scotland) Bill at a session which included three other judges, as well as sheriffs, advocates, solicitors and representatives of the Judicial Appointments Board.

Lord Hamilton was one of several senior legal figures who gave their views on the Judiciary and Courts Bill.

They included fellow judges Lord Hodge, Lord Osborne, and Lord Reed, and top figures from the Law Society of Scotland and the Faculty of Advocates.

Lord Hamilton backed the intention to place a statement on judicial independence on the face of the Bill, saying: "I see it as a signal, if nothing more, that there should appear in the legislation a provision for the importance of judicial independence."

He stressed he did not envisage this principle being breached but added: "It sends out the right message. We live in pleasant times. Times may not always be pleasant, and conflicts could arise between the judiciary and the executive."

Lord Hamilton would become formal head of the system, responsible not just for the High Court, Court of Session and Court of Appeal, but also for the sheriff and district courts.

To ease the administrative burden he would be given his own separate civil service, the Scottish Courts Service, based on the model established in Dublin. Lord Hamilton stressed that he still intended to spend the majority of his time in court.

He argued that if MSPs wanted to compel anyone in future to appear before him it should be the chief executive of the SCS, not the Lord President, who could be invited to attend but should not be compelled to attend, again as a bulwark for the independence of the post from political control.

Similarly, there was disagreement about the planned composition of the Judicial Appointment Board. He believed that, on another point of principle, those appointed by the Government should be in a minority, with either a majority for the judiciary or a casting vote in the hands of the Lord President. Most witnesses were broadly happy with the Bill, but Lord Hamilton rejected a suggestion that training for judges should be made mandatory in law. He told MSPs that he had responsibility in the Bill for putting in place the arrangements for the training of judges.

"It's a question of finding the right way of securing the ultimate end," he said, adding that his experience indicated that the best way of securing attendance of senior judicial office holders at training events was through encouragement.

"There are dangers if one uses the stick too much rather than the carrot. I would say that a judicial office holder is going to be much better able to receive training if he or she has been encouraged that it is a good thing to go there, rather than by two policemen marching him or her to the appropriate place.

"I would say that the better arrangement is to leave matters to me to put in place appropriate arrangements. If it is necessary then the arrangements could include matters which verge on compulsion, but I would hope it would not come to that."

He also said that, in terms of a complaints system against judges and sheriffs, there were already steps in place through the Judicial Council for Scotland to draw up a Code of Judicial Guidance, a list encouraging good practice rather than a "penal code of misconduct".

He made one other appeal to MSPs regarding judicial appointments. He wanted to encourage a system similar to that of Recorders south of the border, part-time judges bringing expertise to the Bench without seeking to become full-time judges.

It was envisaged that these would have to go through the Judicial Appointments Board but he asked for flexibility on this.

"I need to be able to tap them on the shoulder to invite them onto the bench part-time and get that trend going."

The Scotsman reports :

Top judge attacks 'blinkered' judicial appointments system

By Michael Howie

Home Affairs Correspondent

SCOTLAND'S longest-serving judge has attacked the way his fellow judges and sheriffs are appointed, accusing the body in charge of failing to do enough to weed out bad candidates.

Lord Osborne said the Judicial Appointments Board for Scotland had "set its face against" consulting other members of the legal profession when deciding who should become a judge or sheriff.

Lord Osborne, a senior appeal judge, and Lord Hamilton, the Lord President, yesterday gave evidence to the Scottish Parliament's justice committee, which is examining a bill proposing one of the biggest overhauls of the judiciary and courts in legal history.

Lord Osborne said: "It's my understanding that the board has set its face against making inquiries about how the individual candidate may have performed his professional or judicial responsibilities before that appointment arises.

"For example, if a sheriff is seeking appointment to a more senior judicial office, the board does not enquire of others how that sheriff has performed."

He added: "This is not a happy approach. You are blinkering yourself to sources of information I would have thought are highly valuable."

Lord Osborne suggested inferior candidates could get the job simply because they were better at interviews, adding: "The ability to interview well is not necessarily a guide to the ability to a job under consideration."

He highlighted the situation where a part-time sheriff applies for a full-time role, and pointed out that the sheriff principal would not be consulted to find out if the candidate was subject to any disciplinary proceedings.

"The part-time sheriff could be given a permanent appointment when there are outstanding complaints against them which were never brought to the attention of the appointments board. That doesn't seem to be a satisfactory situation."

He also criticised plans for an ombudsman to oversee the way the Lord President handles complaints against judges, adding: "If we cannot trust the Lord President of the Court of Session to observe the rules … then it is a sorry day."

Sir Neil McIntosh, chairman of the Judicial Appointments Board, said it carried out disclosure checks on candidates, adding: "We also check available information on candidates from the Law Society and Faculty of Advocates."

Meanwhile, Lord Hamilton, the country's most senior judge, yesterday criticised proposed new laws which would require temporary judges to be appointed by the board, insisting he should be able to "tap someone on the shoulder" in emergencies.

At present, the Lord President is in charge of appointing temporary judges, and does not have to consult the Judicial Appointments Board. Lord Hamilton said the proposed system would put people off applying for temporary judge posts.

He told MSPs that he wanted to see experienced advocates routinely becoming part-time judges to gain experience of the bench, adding: "In order to set that trend into place, I think I require to be able to go and tap on the shoulder rather than people filling out application forms."

Lord Hamilton also welcomed the provisions in the new legislation to place a statutory duty on the government to preserve the independence of the judiciary: "I think it's internationally recognised that this guarantee of continued judicial independence should be formally established within the constitutional structure.

"It's important as a symbol if nothing else that there's a recognition of judicial independence."