CALLING TIME ON CROOKS: Time bar on investigating complaints against crooked lawyers to be extended to 3 years - Consultation on rules changes launched by Scottish Legal Complaints Commission

Lawyers regulator suggests three years to complain about a crooked lawyer. FIVE YEARS on from the creation of an ‘independent’ regulator to take the sting out of lawyers dealing with their own complaints, the Scottish Legal Complaints Commission (SLCC) has launched a consultation on rules changes which also contains a proposal to raise the current, and controversial one year time bar on client complaints against rogue lawyers to three years.

The consultation will close on November 17th 2014. Anyone wishing to respond to the consultation should contact the Scottish Legal Complaints Commission via contact information provided in the letter sent out by the SLCC:  David.Buchanan-Cook@scottishlegalcomplaints.org.uk or enquiries@scottishlegalcomplaints.org.uk

Any changes to the rules can only be enacted once approved by Scotland’s top judge, the Lord President, Lord Brian Gill - who is currently waging a war against calls for judges to loosen their grip on their own complaints system – dubbed “Window Dressing” by Scotland's first Judicial Complaints Reviewer, Moi Ali.

SLCC Rules Change Consultation October 2014:

The SLCC has launched a consultation on a number of proposed changes to our Rules.

There are a number of reasons why our Rules need to be reviewed.

Firstly, with the exception of some clarification around the time bar provisions and the removal of the requirement for a draft determination decision, the Rules have not been reviewed since 2009. With the benefit of five years’ operating experience, we are taking the opportunity to ensure that our Rules are fit for purpose. In particular, we are including sections relating to oral hearings and handling complaints which have not previously been part of our Rules.

Secondly, there have been changes made to the Legal Profession and Legal Aid (Scotland) Act 2007. A stakeholder group made up of consumer interest groups and the relevant professional organisations wrote to the Scottish Government in Autumn 2013 to suggest changes which it was agreed would improve the 2007 Act. The Scottish Government conducted a further consultation on these proposals which were subsequently approved by the Justice Committee of the Scottish Parliament in August 2014. These changes have an enactment date of 1 January 2015 and some of them require to be reflected in the Rules. A link to the relevant Justice Committee papers is below, since these provide fuller background on the changes.

Thirdly, the Commission proposes to change the time bar provisions. Additional detail is set out in the attached document and the proposal is that the Commission moves from a one year to a three year time bar. A comparison with time bars operated by other professional bodies and an analysis of the high number of complaints currently excluded by the time bar are strong arguments for change. The proposal aims to encourage swift and transparent complaint handling by practitioners in the first instance. It introduces a shorter six month time limit where the practitioner makes it clear to the complainer that they will take no further action on a complaint and provides details of how a complaint may be raised with the Commission.

Under section 32 (5) of the Legal Profession and Legal Aid (Scotland) Act 2007, the Commission must, before varying its rules, consult with the Lord President of the Court of Session; the Scottish Ministers; the relevant professional organisations; such groups of persons representing consumer interests as it considers appropriate, as to the proposed content of the rules to be varied.

The SLCC’s latest attempt to redefine itself as less of an anti-client regulator comes after several changes in the SLCC's powers in the Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 – among which awarded solicitors involved in conduct complaints a new right to complain about the manner in which the complaint was dealt with by the relevant professional organisation.

The earlier changes were promoted by Cabinet Secretary for Justice Kenny MacAskill at the Scottish Parliament’s Justice Committee.

Justice Committee Scottish Parliament 5th August 2014 SLCC Rules change

Although the Justice Secretary argued a range of consumer groups took part in the modification of the SLCC’s rules, suspiciously, none chose to, or were called to appear before MSPs to explain themselves. Scotland’s top judge, who must also approve any changes to the legislation which governs the SLCC, also did not appear at the Justice Committee.

Legal observers expect the reforms to cause little change to the current way in which a mainly lawyer orientated body investigates complaints against other lawyers.

In a previous investigation by Diary of Injustice it was revealed much of the SLCC’s staff are qualified solicitors or have served at the Law Society of Scotland. The SLCC admitted:  15 members of staff qualified as solicitors, 5 members of staff held a previous position at the Law Society of Scotland, 8 members of staff held a previous position at a law firm and 5 members of staff have held previous positions at a law firm and Law Society of Scotland.

RAPTOR RECUSAL: Sheriff with RSPB bird charity link steps down in Bird of Prey poisoning Wildlife Crime case - marks first published ‘detailed’ recusal of Scottish judge

Bird charity link Sheriff stands down in wildlife crime case IN what is the first detailed recusal of a Scottish judge published by the Judiciary of Scotland, a Sheriff has recused herself and stood down from a wildlife crime court case involving a man accused of killing birds of prey – after the sheriff disclosed she is a member of the charity the Royal Society for the Protection of Birds (RSPB).

During a pre-trial hearing, Sheriff Annella Cowan mentioned she was a member of the RSPB – an interest which would have to be publicly disclosed in proposals being considered by the Scottish Parliament to create a register of judges interests - Petition PE1458: Register of Interests for members of Scotland's judiciary.

Details of the case, heard at Aberdeen Sheriff Court last week reveal George Mutch, of Kildrummy, was due to stand trial accused of recklessly killing or injuring two goshawks and a buzzard by using traps. The 48-year-old who denies the offences faces four charges and is claimed to have carried out the offences at Kildrummy Estate, near Alford in Aberdeenshire, between August 6 and September 13 in 2012. The trial was adjourned until later this year.

Representing the accused, Defence counsel Mark Moir argued that Sheriff Annella Cowan should recuse herself from the case because she had mentioned during a pre-trial hearing that she was a member of the RSPB bird charity.

Mr Moir argued that the sheriff should stand down from presiding over the trial because the RSPB had been involved in the criminal investigation against his client.

He said: "Your Ladyship in this specific trial will require to determine whether or not investigators who are members of the RSPB are credible or reliable and you will also have to decide whether Mr Mutch is credible or reliable."

He added that if it was the case that the sheriff had paid membership fees to the charity the money could have been used to fund criminal investigations of this type.

Mr Moir stressed that he was not suggesting that the sheriff would be biased but said there could be an appearance of bias now that her RSPB membership had been mentioned and the fact was in the public domain.

Sheriff Cowan considered the lawyer's arguments for her to recuse herself from the case and decided she would stand down. The sheriff said she had taken no offence, insisting that it was more important that justice was seen to be done.

The public petition calling for a register of interests for Scotland’s judiciary, under consideration by msps since early 2013, has brought about a significant change in the justice system where Scotland’s top judge, Lord President & Lord Justice General Brian Gill reached a deal with msps and undertook to publish a list of recusals of Scottish judges as they occurred.

The current publication of recusals can be found on the Judiciary of Scotland’s website here: Judicial Recusals

Sheriff Cowan’s recusal has been published by the Judiciary of Scotland in the following terms: 22 October 2014 Aberdeen Sheriff Court Sheriff Cowan (Criminal) Evidence and witnesses from RSPB, of which Sheriff is a member 

Since the publication of recusals began in April of this year, court users and legal agents have became more aware of the significant interests of Scotland’s judges which could conflict with cases heard in courts. Publication of the recusal data has strengthened both litigants and legal representatives resolve to put recusal issues to Scottish judges, who are still left to decide on their own whether they should recuse or not.

Petition PE1458 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

What has not been disclosed so far by Scotland’s judges is their copious involvement with the hunting, shooting & fishing fraternity – an issue which will be of significant interest to those campaigning to conserve wildlife, and ensure wildlife crime cases are correctly taken forward in the courts.

Many members of the Scottish judiciary have memberships of, financial interests in, or other links to local shooting syndicates, shooting estates, fishing rights etc – all issues which would be required to be disclosed in a register of interests for Scotland’s judiciary.

It is also a well known fact others in the justice system frequent estates and stretches of fishing rights such as areas where in one recent case, a family of otters were found dead in a trap, reported by BBC News here Otters found dead in illegal net in River Tyne. While the net in which the otters became trapped is alleged to be designed to catch crayfish, the proximity of salmon rivers and suggestions the otters were eating away at the profits of fishing rights owners cannot be ignored.

Those with an interest in wildlife crime cases involving Birds of Prey can find out more from Raptor Persecution Scotland. Anyone who witnesses incidents of wildlife crime or has knowledge of those involved in it should report the matter to Police Scotland, and the media.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice into the undeclared interests of Scottish judges 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

Absence of register for judges may erode public confidence in judiciary - Chic Brodie MSP closing speech on Scottish Parliament register of judicial interests debate

Scottish Parliament debate on register of judicial interests. ON Thursday 09 October 2014, the Scottish Parliament’s main chamber held a detailed ninety minute debate on calls to require judges to declare their significant financial and other interests, as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary. On conclusion of the debate, MSPs overwhelmingly supported motion S4M-11078 - in the name of Public Petitions Convener David Stewart MSP on petition PE1458 and urged the Scottish Government to give further consideration to a register of interests for judges.

The public petition, submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

In a move aimed at widening public awareness of the undisclosed interests of Scotland’s judiciary and details contained in the recent debate by MSPs at Holyrood, each day this week, Diary of Injustice is publishing the official record of the speeches given by individual MSPs who participated in the debate along with video footage.

This article focuses on the closing speech given by Chic Brodie MSP (South Scotland) (SNP). Chic Brodie is Deputy Convener of the Scottish Parliament’s Public Petitions Committee and is a member of the Economy, Energy & Tourism Committee. Mr Brodie is also a member of a number of Cross Party groups.

Chic Brodie MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Chic Brodie (South Scotland) (SNP): This has been an interesting and necessary debate, as Joan McAlpine pointed out. I anticipated that it would be.

I make it clear that the intention of the petition—and the debate—was not to impugn the independence, integrity or credibility of the judiciary. Indeed, the very opposite has been clear from members’ speeches. Members talked about openness and transparency. They talked about perceptions, clarity and trust, and the need for change. Their comments reflected concerns of members of the Public Petitions Committee.

As members said, the debate arose from the petition that Peter Cherbi lodged, which called for a register of interests for members of Scotland’s judiciary. The petition called for a register of pecuniary interests, and it suggested amending legislation so that declarations could be made in relation to general interests and hospitality.

It is perhaps instructive to consider the history of the position vis-à-vis the Parliament’s power to call for witnesses and—importantly—documents. Under section 23(7) of the Scotland Act 1998, the Parliament

“may not impose”

a requirement in that regard on

“a judge of any court”.

From reading the Hansard of debates on the Scotland Bill, it seems that there was little debate about the rationale for exempting the judiciary, although the current Advocate General for Scotland suggested at the time that the Parliament should be able to compel witnesses to attend and produce documents.

The provision was intended to protect the judiciary’s position in the constitution. The impartiality of the judiciary in Scotland would be secured, and in the event of a potential conflict of interest a judge would necessarily recuse himself or herself from a case. Of course, that relies on the judge himself to determine whether he has relevant interests, but the approach tends to cover all relationships, in the way that the minister described, rather than just monetary and hospitality considerations.

There are some safeguards to ensure judicial impartiality, which might mitigate and temper suggestions of impropriety by members of the judiciary because of a lack of transparency regarding their interests, particularly pecuniary interests.

We have mentioned the judicial oath, in which judges swear that they will

“do right to all manner of people … without fear or favour”.

There is also the Judiciary and Courts (Scotland) Act 2008, which sets out the rules that may be invoked if it is felt that a judicial office-holder is not acting impartially. Section 28 of that act allows the Lord President to make rules for the investigation of complaints about the judiciary, a matter to which I hope to return briefly.

Thirdly, there is the “Statement of Principles of Judicial Ethics for the Scottish Judiciary”, which was revised in May 2013 and is to be used as a guide for holders of judicial office in Scotland. Enshrined in that document is, perhaps, the basis of the petition and of an understandable perception—or, indeed, misperception—that underpins the petition and gives rise to concern.

Section 4.9 of the statement says:

“it is recognised that a judge may, from time to time, legitimately be entertained by legal, professional or public organisations or officeholders, in furtherance of good relations between them and the judiciary as a whole, or representatives of it.”

What on earth does that mean? It goes on:

“Furthermore, nothing said here should be understood as inhibiting judges from accepting invitations to give lectures, addresses, or speeches of a non-legal nature at dinners, or other occasions, or … from accepting … hospitality, tokens of appreciation for their efforts, or appropriate expenses of travel or accommodation.”

That, in itself, is okay but openness and transparency of information would eliminate some of the misperceptions that matter.

In addition to those safeguards, the Council of Europe GRECO stated that it found no

“element of corruption in relation to judges”.

However, one might argue that that was not the charge; rather, it was that a register might secure the transparency that would make the group’s evaluations redundant.

The petition raised and raises several questions, none of which requires a defensive posture. For example, the board members of the Scottish Court Service, three of whom are judges, already declare some interests in the SCS annual report. We also understand that the SCS staff are required to register all of their interests. I fail to understand why that cannot be extended to cover the whole of the judiciary.

The Judiciary and Courts (Scotland) Act 2008 set up the role of the Judicial Complaints Reviewer to review the handling of investigations into the conduct of the judiciary. The previous holder of that role—a role that should be much more robust and recognised as important—indicated that, in the interest of general transparency, a register of interests for the judiciary would likely lead to an increase in public confidence and trust—two of the words that I mentioned at the beginning of my speech.

The practice extends not only to the SCS but to the Crown Office and Procurator Fiscal Service, which operates a register of hospitality interests, and to the Scottish Legal Complaints Commission, which publishes a full register of interests and hospitality.

We accept that the petition called for a register of pecuniary interests. It recognised that we would not need to try to capture all of the other concerns that might arise, as the minister said—for example, family relationships—so we accept that it might be impossible to capture all interests that might arise or cause concern. The onus should, rightly, be on the judge or sheriff to declare any relationship interests at the beginning of a case and to recuse appropriately if necessary.

There is concern that a register would have unintended consequences—a phrase that has been used often in the debate—for the judiciary’s freedom and privacy and its freedom from harassment from the media or dissatisfied litigants. Those are concerns, but they are no less so for others in public life, including MPs and MSPs, who may be attacked publicly for non-declaration of interests. Although it is argued that the establishment of a register may have the unintended consequence of eroding public confidence in the judiciary, it might equally be argued that its absence might have the same effect.

I congratulate Peter Cherbi, the petitioner. I welcome the exchange that we had with the Lord President on the issue, although I wish that it had been in front of all the committee. I suspect that the issue will still be a topic for review and will be, as Stewart Stevenson said, recalibrated. Perhaps the snub to the Scottish people will be recovered.

I am glad that we have had the opportunity to discuss and debate the matter meaningfully.

Decision Time

The Presiding Officer (Tricia Marwick):

There is one question to be put as a result of today’s business.

The question is, that motion S4M-11078, in the name of David Stewart, on petition PE1458 on a register of interests for members of Scotland’s judiciary, be agreed to.

Motion agreed to,

That the Parliament notes Petition PE1458, in the name of Peter Cherbi, on the issue of a register of interests for members of Scotland’s judiciary; welcomes the petitioner’s efforts to highlight what it considers to be an important matter, and commends the issues raised to the Scottish Government for further consideration.

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

No register for Qatar touring, tax dodging, banker friendly fraudster Scots judges - Roseanna Cunningham MSP closing speech in Holyrood register of judicial interests debate

Scottish Parliament debate on register of judicial interests. ON Thursday 09 October 2014, the Scottish Parliament’s main chamber held a detailed ninety minute debate on calls to require judges to declare their significant financial and other interests, as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary. On conclusion of the debate, MSPs overwhelmingly supported motion S4M-11078 - in the name of Public Petitions Convener David Stewart MSP on petition PE1458 and urged the Scottish Government to give further consideration to a register of interests for judges.

The public petition, submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

In a move aimed at widening public awareness of the undisclosed interests of Scotland’s judiciary and details contained in the recent debate by MSPs at Holyrood, each day this week, Diary of Injustice is publishing the official record of the speeches given by individual MSPs who participated in the debate along with video footage.

This article focuses on the closing speech given by Roseanna Cunningham MSP (Perthshire South and Kinross-shire) (SNP). Roseanna Cunningham is the Scottish Government’s Minister for Community Safety and Legal Affairs.

Roseanna Cunningham MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Roseanna Cunningham: The debate has given us the opportunity to discuss issues around transparency and conflicts of interest and whether a register of judicial interests would address those matters. However, I sense that much of the debate has been about the process. Members will forgive me if I do not get too drawn into that aspect of the discussion—it is not really for me to intervene in committee procedures or the calling of witnesses. I am sure that if concerns are expressed about that they might be taken up in another place.

The debate also ranged rather more widely than the motion might have otherwise suggested. That is understandable. We have heard differing views expressed about the need for a register of judicial interests. As I said, some contributions went very widely, indeed. An exchange of views is always welcome.

We all recognise the importance of the need to ensure judicial independence, accountability and transparency. However, as I said in my opening remarks, key safeguards are already in place to ensure the judiciary’s independence and accountability. To repeat, those important safeguards are the judicial oath; the “Statement of Principles of Judicial Ethics for the Scottish Judiciary”, which was issued by the Judicial Office for Scotland in 2010; and the Judiciary and Courts (Scotland) Act 2008.The debate has given us the opportunity to put on the record that those safeguards exist.

We have seen from the debate that, if the Lord President was to introduce a register, a wide breadth of interests may need to be declared. As raised by a number of members, including Stewart Stevenson and Graeme Pearson, material relationships may in many cases be more relevant than pecuniary interests.

I think that I am right in saying that it was David Stewart who described a situation whereby a judge had to recuse himself because he had been at the same social event as one of the key lawyers in the case. I do not want to misrepresent what he said, but that is my recollection; what he said was along those lines. Frankly, if we took that approach too far, either we would have to cloister judges permanently or no cases would ever be heard, because the way in which our social relationships work in Scotland makes it almost possible to avoid that happening on a number of occasions.

David Stewart:

I understand the minister’s point, but will she say something about the point that I have made a couple of times that we are not discussing a new issue? Before the Supreme Court, law lords registered their interests day and daily for generations. The assumption is that all this is new; the issue is not at all new.

Roseanna Cunningham:

Perhaps the member will allow me to get into my speech, because I want to return to that point.

We have also heard that the Lord President is taking action to increase transparency. The register of judicial recusals recently set up by the Scottish Court Service is an excellent example of that. Over time, that will give us a better understanding of how that process works.

I am sure that the Lord President will read the Official Report of the debate and members’ speeches with interest. I will not be drawn into a discussion of his decision about attending the committee. However, as referred to by Joan McAlpine and others—I am not quite sure if I remember who—he has warned that the introduction of a register of judicial interests could have unintended consequences. He said:

“Consideration requires to be given to judges’ privacy and freedom from harassment by ... media or ... individuals, including dissatisfied litigants.”

A point that no member has raised is that, if publicly criticised or attacked, a judicial office-holder cannot publicly defend him or herself, unlike a politician. We have the opportunity to respond to criticism; a judge would not. They do not have the same right of reply as we have.

I must ask what would be included on a register. If we are agreed that it is far less likely to be financial interests that create problems, the register would somehow have to encompass social, familiar and other relationships. A register that included those relationships would be difficult to compile. Family trees, friendships and all sorts of organisations and affiliations would have to be included. Neil Findlay seemed to suggest that even religious affiliation should be included. How on earth would one know in advance what might cause a problem in a case that was as yet unseen?

It is interesting that all members who have spoken have avoided making reference to a register in anything other than very general terms, although it is clear that it is assumed that any declaration would go beyond financial interests. I have set out some of the issues that would arise if such a register were given closer consideration.

I return to David Stewart’s point about the situation in the House of Lords prior to the creation of the United Kingdom Supreme Court. As I understand it, declarations were confined to financial interests and there was not the kind of register that members have discussed this afternoon. Furthermore, when the Supreme Court was set up in 2009, it was decided that the financial register would not be continued. Instead, a code of judicial conduct was drawn up. The register to which David Stewart referred was not analogous to the register that members have been discussing. We should understand that.

We should also take heed of the outcome of the report of the Council of Europe group of states against corruption—GRECO. I reiterate that that is an important objective assessment of where we are in relation to the judiciary in Scotland and the United Kingdom.

I am aware that other people take a different view on the need for a register. The former Judicial Complaints Reviewer thought that a register would increase transparency and public trust.

As I said, it would be for the Lord President to establish a register of interests, in his capacity as head of the Scottish judiciary. However, the Government does not consider that there is currently evidence that the existing safeguards are not effective. We do not consider that a register is necessary. Indeed, some of the issues that members have raised point us to how difficult it might be to compile the kind of register that people think might be appropriate.

A number of members referred to the register of interests of MSPs. However, the situation is different, because we are directly accountable to the electorate. That is why the register exists—and we are not required to declare religious affiliation, our circles of friends and relatives, and all the social relationships that can give rise to some of the suspicions in respect of judges.

The Deputy Presiding Officer:

I regret that I must ask you to close.

Roseanna Cunningham:

The debate has presented an opportunity to consider all the issues. I assure members that we will continue to keep the issues under review. However, our current position is that a register is not necessary.

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