THEY WANT YOUR CASH : Scotland has highest legal aid budget in EU, yet lawyers chant “save justice” and strike to demand more for them, less for you

STRIKE ! More money for them, but Clients see little access to justice for legal aid hand-outs. LET’S not kid ourselves about the motives for recent strikes & protests by the Scottish legal profession against plans to cut Scotland’s ONE HUNDRED & SIXTY MILLION POUND legal aid budget, the highest legal aid budget in the entire European Union. This strike, and the protests outside the Scottish Parliament by cohorts of Scots lawyers carrying banners crying for “justice” is purely about more money for solicitors & law firms and has little to do with the profession’s call access to justice for Scots who may, rightly, or even wrongly,  find themselves at the sharp end of the justice system for deeds they may or may not have committed.

The strike certainly has nothing to do with Scots access to justice for civil legal aid, because in a week of listening to solicitors bleat like sheep about the rights of accused criminals to be funded on the legal aid purse, (and for those same solicitors to be entitled to collect more than £500 per hour), not one member of the legal profession has come forward to argue for increased attention to civil legal aid, particularly in cases where the legal profession’s own regulators have done the dirty on members of the public.

Yes, it’s all about easy pickings for the legal profession, rather than helping Scots out of complicated legal difficulties created not by their own doing, rather their reliance on the professions who claim to have their clients best interests at heart …

The fuss, as great as it appears to be, is all about our Justice Secretary Kenny MacAskill’s idea to force solicitors to collect legal aid contributions from clients accused of criminal offences.

Solicitors argue they should not become the Scottish Legal Aid Board’s debt collectors, while the Justice Secretary argues it is not cost effective for SLAB to collect these same contributions from clients (yet it appears to be cost effective for SLAB’s senior staff to fly around on international airlines apparently learning nothing about how legal aid is done in the rest of the world)

Perhaps what is really at stake is some of the nasty habits solicitors and certain advocates have developed, such as in some cases, well known to journalists & the Scottish Legal Aid Board where some of Scotland’s supposedly esteemed legal professionals regularly ask their clients for cash bungs to continue to defend them on criminal charges. Clearly, clients may end up asking why they have to make a cash contribution to SLAB as well as their solicitor if justice is really being served …

Of course, with the headlines of legal aid fraud, and solicitors walking away with millions of pounds of legal aid money even after being accused by SLAB of making dodgy claims, it would be reasonable for anyone to ask “Is MacAskill’s plan for lawyers to collect our money safe ?” Well, put it this way, his plan is about as safe as allowing gangsters & loan sharks to collect for the Red Cross.

Predictably, several strikes & protests on, Mr MacAskill is being forced back to the negotiating table with the legal profession and, as has happened before in previous cases where solicitors have threatened to strike such as in 2008 he will give in and the legal profession will continue to enjoy its £160 Million state subsidy for the time being. Times are tough, the legal profession must survive, axe nurses first, but don't axe your lawyers they say …. yet the important questions, such as whether an independent Scotland can afford its legal aid budget, and why legal aid fraudsters in the legal profession are never prosecuted … are never answered …

Time for a new Justice Secretary, anyone ? Surely after five years of disasters in the justice system, from World’s End to the continuing Lockerbie cover up to the review of the review of the review of Lord Gill’s condemnation of the Scottish Justice system in his 2009 Civil Courts Review and recent allegations of “Institutional Corruption” at Scotland’s Crown Office is well enough to require a new, firm pair of hands on the broken bottle that is our Scottish justice system ?

WHERE DOES ALL THE LEGAL AID GO ?

Scots Legal Aid ‘a £161Million public subsidy for legal profession’ as EU report reveals judges salaries & lawyers legal aid claims come before public's access to justice

EU report reveals Scots justice is more about lawyers & judges making money than delivering justice. A REPORT published by the European Commission for the Efficiency of Justice and featured in an article in Scotland’s Sunday Mail newspaper has revealed Scottish lawyers take tens of millions of pounds more in publicly funded legal aid representing the Scots population of just over five million people than lawyers working Italy, which has a population of sixty million, twelve times greater than that of Scotland.

The figures show that Scots lawyers ‘earned’ around ONE HUNDRED & SIXTY MILLION POUNDS of legal aid in 2010 while their Italian counterparts working for a much larger client base only took £100million, making the Scots legal aid bill, running at a cost of £31 a head, the most expensive in Europe in terms of population. The grim figures show that Scots legal aid is working out at a cost of £31 a head, with little in the way of access to justice to show for it.

The report, available on the EU website HERE (pdf) or online here : The European Commission for the Efficiency of Justice Report on Evaluation of European Judicial Systems also reveals Scots judges are paid the highest in Europe with Scottish Sheriffs taking home an average taxpayer funded salary of a staggering £120,000, while others on Scotland’s judicial benches take up to £200,000 a year plus expenses.

The Sunday Mail article reported on the EU study which exposed Scotland’s justice system as the costliest in the entire European Union :

SCOTTISH JUSTICE IN THE DOCK : Scotland's lawyers earn more from Legal Aid than whole of Italy, shock report reveals

By Russell Findlay Sunday Mail 30 September 2012

THE European Commission report reveals that Legal Aid in Scotland cost 203million euros (£161million) in 2010 - more than in Italy, which has a population of 61million.

SCOTS lawyers collected more taxpayers’ cash for Legal Aid than their counterparts in Italy – a country 12 times the size.

A European Commission report reveals that Legal Aid in Scotland cost 203million euros (£161million) in 2010 – around 39 euros, or £31, for every one of our 5.2million people.

Lawyers in Italy, which has a population of 61million, got just £100million of public cash – £1.50 per person.

The 450-page Brussels report also found that Denmark, with 5.6million people, paid its lawyers only 88million euros (£70million).

And in Belgium – population 10.9million – legal aid cost 75million euros (£59million).

The revelations, in a 450-page report by the European Commission for the Efficiency of Justice – came as the Scottish Legal Aid Board banned three lawyers from claiming cash for criminal cases.

We can reveal that Gerard Tierney, Massimo D’Alvito and Andrew Brophy, of Blantyre, Lanarkshire, breached the board’s code of practice. Tierney and D’Alvito have been reported to the Crown Office, who will decide whether to prosecute.

The ban also extends to Tierney’s firm G Tierney & Co, of Auchinleck, Ayrshire, who have raked in £610,500 in Legal Aid over three years, and Edinburgh firm Massimo D’Alvito Defence Lawyers.

The European report looked at 47 criminal justice systems across the continent.

It found the cost per person of Legal Aid in Scotland was third-highest – behind only Northern Ireland and England and Wales. The cost per person was 53.5 euros in Northern Ireland and 45.7 euros in England and Wales.

The findings led to calls for a radical overhaul of Legal Aid.

Central Ayrshire Labour MP Brian Donohoe said: “It seems major organised criminals and terror suspects qualify for unlimited Legal Aid, yet I have constituents who don’t get a penny simply because they have a few thousand pounds of savings.

“The system in Scotland and the rest of the UK is out of control.”

Legal blogger Peter Cherbi added: “Legal Aid is no longer about access to justice for the poor, but a state subsidy for the legal profession – and one they don’t seem keen on talking about.”

The Sunday Mail has exposed a series of rogue lawyers banned from claiming Legal Aid. But none of the 14 reported to prosecutors was put in the dock, prompting claims that Scotland’s legal self-regulation system protects lawyers.

Kilmarnock solicitor Niels Lockhart, who took £600,000 in Legal Aid in just two years, was found to have made “unnecessary and excessive” claims. The Legal Aid board withdrew their complaint to the Law Society after he agreed to stop claiming.

Reacting to the Brussels report, the Scottish Legal Aid Board said: “Across Europe, there are substantial differences between judicial systems and very different approaches to the provision of legal aid and its cost.

“The Scottish system is highly regarded internationally for the efforts made to ensure access to justice.

“The Scottish Government’s budget allocation for the Legal Aid Fund has reduced significantly in 2011-12 and is planned to reduce further in future years.”

Justice Secretary Kenny MacAskill hopes to cut the Legal Aid bill by making criminals pay some of their costs. The planned move, outlined in a Holyrood Bill, could save taxpayers around £3.9million.

• The Euro study showed that Scotland disciplined a tiny number of lawyers compared to countries of similar size.

Just three were struck off and 13 reprimanded in Scotland in 2010.

Denmark, with a similar population, took action against 309 lawyers, with six struck off and 145 fined. And in Finland, also close in size, 99 rogue solicitors were sanctioned.

Critics blame the Law Society of Scotland’s dual role of representing lawyers while also acting as regulator.

• A large proportion of alleged criminals reported to prosecutors in Scotland are not being put in the dock.

Of 265,830 cases sent to the Crown Office, only 41.7 per cent were brought to court. In England and Wales, 90.6 per cent of all cases resulted in court action.

The difference is thought to be partly due to Scotland’s recent introduction of spot fines and fiscal fines for what the authorities insist are more minor offences.

Critics claim such fines lead to a secret justice system.

• The report reveals that Scotland’s sheriffs top the European pay league.

Researchers compared the wages of lower court judges across Europe.

Our sheriffs, with an average salary of 150,106 euros (£120,000), were number one, ahead of the Irish and Swiss.

Next were sheriffs’ counterparts in England and Wales, who were paid 120,998 euros (£95,000).

Not only were sheriffs the highest-paid, they also topped the table comparing their earnings to the national average. They earned 5.2 times the average Scot’s wage.

ANYTHING TO DECLARE, M’LORD ? Holyrood Petition calls for a Register of Judicial Interests for Scotland’s Judges & Sheriffs

Judges wealth, links to big business, banks, law firms etc should be declared in register of interests. SCOTTISH JUDGES should be required to declare their financial wealth along with money making ventures, business & professional relationships & any other relevant links including those impacting on criminal trials, in a published REGISTER OF JUDICIAL INTERESTS, according to A PETITION filed at the Scottish Parliament by legal blogger & contributor to Diary of Injustice, Peter Cherbi

Petition PE01458: Register of Interests for members of Scotland's judiciary which is now open for signatures from the public, calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand's Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

Diary of Injustice has featured coverage of the petition in earlier reports, Register of Interests for Judges.

The petition goes on to report how the Parliament of New Zealand is debating legislation to create a register of interests for the judiciary. Mr Cherbi says he believes it is time for Scotland to move in the same direction and create a similar register of interests for the judiciary of Scotland and all its members, increasing the transparency of the judiciary and ensuring public confidence in their actions & decisions.

The full details of the New Zealand Register of Pecuniary Interests of Judges Bill, should be looked at for a model of similar legislation in Scotland, can be viewed online here  Register of Pecuniary Interests of Judges Bill.

New Zealand MP, Dr Kennedy Graham’s bill on judicial interests states : It is a time-honoured principle of Western democracy that public servants of every kind must be beyond reproach, and suspicion thereof. Public confidence in the standard of behaviour and conduct observed by leading servants of the people is a cornerstone of social harmony and political stability. A threshold of confidence to that end should ideally be enshrined in constitutional and legislative form. Little scope should be available for individual discretion or subjective perception.

The principle of transparency in this respect pertains in particular to issues of financial (pecuniary) interest. Nothing undermines public confidence in a nation’s institutions and procedures more than suspicion that a public servant may have, and especially proof that one has, suffered a conflict of interest arising from a pecuniary interest in a particular dealing in which he or she was professionally involved.

The correct balance in this respect appears to have been achieved over the years–the public interest in such annual statements is significant without appearing prurient, and few complaints have been voiced by those on whom the obligations are placed. There seems to be a general acceptance that such exercises are in the public interest and are neither unduly onerous nor revealing.

No such practice, however, has been observed in the case of the judiciary. Recent developments within New Zealand’s judicial conduct processes suggest that application of the same practice observed by the other two branches of government might assist in the protection of the judiciary in future.

Being obliged under law to declare pecuniary interests that might be relevant to the conduct of a future case in which one is involved would relieve a judge from a repetitive weight of responsibility to make discretionary judgements about his or her personal affairs as each case arises. Having declared one’s pecuniary interests once, in a generic manner independent of any particular trial, a judge may freely proceed in the knowledge that, if he or she is appointed to adjudicate, public confidence for participation has already been met. Yet care is to be exercised to ensure that the final decision is left to the individual judge whether to accept a case. There should be no intention of external interference into the self-regulation of the judiciary by the judiciary.

This is the reasoning behind this draft legislation–the Register of Pecuniary Interests of Judges Bill. The purpose of the Bill, as stated, is to promote the due administration of justice by requiring judges to make returns of pecuniary interests to provide greater transparency within the judicial system, and to avoid any conflict of interest in the judicial role.”

Mr Cherbi said in his petition : “I believe the same aims of the New Zealand legislation as quoted above, are compatible with the public interest in Scotland and to promote the due administration of justice by providing the public with greater transparency within the judicial system.”

The Register of Pecuniary Interests of Judges Bill is an example of similar legislation for a register of judicial interests in New Zealand, bought to the New Zealand Parliament by Dr Kennedy Graham.When asked whether a register of interests existed for Scottish judges, the Judicial Office for Scotland said “The Judicial Office for Scotland does not hold a register of hospitality for members of the judiciary and there are no plans to do so. The Lord President has set out formal guidelines to the judiciary in the STATEMENT OF PRINCIPLES OF JUDICIAL ETHICS Para 4.9 and 7.2 address this particular point.”

However in an age of transparency where the decisions of Scottish judges affect all our lives, whether the case be criminal or civil, there must be a requirement for all public servants particularly those in positions of such importance as the judiciary to submit their interests to a publicly available register of interests.

New Zealand’s Law Commission issued paper supporting a register for judges interests. In New Zealand, the New Zealand Law Commission has argued for a wider remit to include all officials whose positions given them potential to influence a case to be included in such a register of interests.

The Law Commission stated : “If there is to be legislation, should it apply to all judges, or only to judges of some levels, or to all judicial employees and officials such as prosecutors and registrars? An argument can be made that if there is to be financial disclosure it should be required of all officials whose positions give them sufficient potential to influence the outcome of a case, whether as a result of a bribe or other improper influence.”

The New Zealand Law Commission’s discussion paper on a register of judicial interests can be downloaded
here :  NZLC IP21 - Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)

In comparison to New Zealand’s effort to ensure transparency in the judiciary, Scotland’s judges and the Scotish Government have, unsurprisingly backed away from any similar measures, even concealing criminal charges and convictions of Scottish judges, where in one case a Scottish judge was charged with fiddling benefits claims, exposed in a Diary of Injustice investigation into Judge’s financial fiddles, here : CAREER CROOKED : Investigation reveals Scottish judges are CONVICTED CRIMINALS, Drunk Drivers,Tax Dodgers & alleged BENEFITS CHEATS

In response to an earlier Freedom of Information Request from Diary of Injustice, the Head of Strategy & Governance for the Judicial Office for Scotland pointedly REFUSED to provide any details of information disclosing whether any members of the judiciary in Scotland have declared or informed the Scottish Court Service in the past three years of :

Any offshore investments, Unrecorded cash transactions, Payments for outside work, Any application of “tax efficient” schemes to avoid paying taxes, Associations or meetings with convicted criminals, Vehicle accidents,  criminal charges, or being interviewed by Police.

The reasons given by the Judicial Office for refusing to disclose key details on what Scots judges are getting up to, are that much of the information requested is held by an ‘arms length body’ created by the Scottish Court Service which holds such information on behalf of the Lord President, rather than passing it directly to him.

The on-going investigation by Diary of Injustice into members of Scotland’s judiciary has already revealed a series of judges appear to be involved in OFFSHORE TAX AVOIDANCE schemes, associations with convicted criminals & organised crime, prostitution rackets, accepting hospitality & payments from well known corrupt solicitors representing dodgy law firms while others on the bench are engaging in questionable investments & duties which appear to be in conflict with their positions as members of the judiciary. More on these findings can be read in an earlier article here : Offshore trusts, property holdings, insurance syndicates, hospitality from dodgy lawyers, yet no plans for a register of interests for Scottish judges

The Sunday Mail newspaper has reported on the petition for a register of Judicial Interests, here :

Petition to hold judges to account

by Russell Findlay
Sunday Mail November 04 2012

A legal campaigner has urged MSPs to create a register of interests for Scotland’s judges.

Peter Cherbi has secured a Scottish Parliament petition calling for all sheriffs and judges to declare financial interests and hospitality.

The legal blogger from Edinburgh, said: “Like those in other areas of public life, members of the judiciary should be required to disclose their interests, financial or otherwise.

“This would increase transparency and help to ensure public confidence in their actions and decisions.

“It has been suggested to me some judges have offshore investments for the purpose of tax avoidance while others may have shares or other connections to businesses.”

Cherbi was inspired by a similar proposed law which is being debated in New Zealand.

The closing date for the online petition is December 7.

Judges were issued with ethical guidelines which were drawn up by senior judges headed by Lord Osborne two years ago.

The Judicial Office for Scotland: “We do not hold a register of hospitality for members of the judiciary and there are no plans to do so.”

SLOW MOTION ON CROOKED LAWYERS : Law Society Chiefs unable to sniff out rogue solicitor, fail to serve court order banning him from targeting new victims

In the bag ? ‘Sniffer dogs may have a better chance of catching John O’Donnell than Law Society’s Elaine Motion’. A ROGUE SOLICITOR remains at large in Scotland today after Law Society Chiefs claim they could not find him to serve a court order banning him from working as a solicitor. The lawyer in question, John G O’Donnell, who was suspended, then had his practising certificate removed after the media focussed on his trail of destruction which includes many ruined clients, is, according to the Law Society of Scotland “nowhere to be seen”, thus preventing the incompetent regulator from serving a court order obtain earlier in October at Scotland’s Court of Session.

The recent case in Scotland’s Court of Session, where the Law Society sought an Interim Interdict preventing O’Donnell posing as a solicitor, only came about after further investigations by the Sunday Mail newspaper, who revealed that O’Donnell had been receiving clients desperately in need of legal assistance from ‘wannabe lawyers’ working for Hamilton Citizens Advice Bureau.

The Sunday Mail revealed that O’Donnell had targeted an elderly widow, Elizabeth Campbell, who produced evidence that one of Hamilton CAB’s In Court advisers had sent her to O’Donnell, sending a handwritten note he hoped the crooked lawyer would be able to scoop £3000 from his latest victim. Diary of Injustice reported on the case, here : Crooked lawyer impersonates DEAD COLLEAGUE to lure clients in fraud scam as Law Society of Scotland’s self regulation of solicitors fails yet again

QC Elaine Motion of Balfour & Manson, has represented the Law Society against John O’Donnell at hearings before the Scottish Solicitors Discipline Tribunal and now at the Court of Session, yet years have gone by, and the numbers of victims of O’Donnell increased markedly, without any substantive action on the part of regulators or Scotland’s Crown Office to go after O’Donnell to end his reign of terror over Scots who take him on, unknowingly. In an earlier attempt to get O’Donnell off the hook, and limit media coverage of the serial conman, legal representatives of O’Donnell tried to broker a deal at a Law Society Christmas party in 2009.

A ‘sanitised‘account’ of the meeting between Elaine Motion & Steven Gold, is reported in the Tribunal's hearing into one of the complaints against O’Donnell, which is published online here Council of the Law Society of Scotland v John G O'Donnell and reprinted below to give a flavour of the double dealing behind the closed doors world of self regulation of Scottish solicitors :

Law Society’s 2009 Christmas party was scene of deal to save O’Donnell from disciplinary moves. Page three of the Council of the Law Society of Scotland v John G O'Donnell states : “In December 2009, Elaine Motion and Steven Gold, Solicitor were both at a Law Society’s Christmas Drinks Party. They were involved in a conversation with regard to the health and welfare of the Respondent. Mr Gold made representations on behalf of the Respondent to Elaine Motion to the effect that it would be humane and advantageous to everyone involved if a way could be found to allow the Respondent to hand in his practising certificate without having to undergo the ordeal and expense of an appearance before the Tribunal. Elaine Motion was sympathetic to the representations but indicated that she would require to discuss matters with the Law Society of Scotland who would make the decision. There was no undertaking given at this meeting to Steven Gold that if the Scottish Solicitors’ Discipline Tribunal struck the Respondent’s name from the Roll of Solicitors in Scotland no further Complaints would be brought against the Respondent and no undertaking was given that if the Respondent accepted pleas of guilty to the outstanding Complaint, no further proceedings would be brought against him.”

Commenting on the latest development in the O’Donnell saga, a legal insider told Diary of Injustice this afternoon he felt the case was being handed very poorly by the Law Society, who could have gone after O’Donnell “years ago” to stop his trail of destroyed clients.

He compared the latest efforts made by the Law Society of Scotland to stop O’Donnell working as a solicitor, as “a joke”, going onto say “The Law Society clearly don't want to find him to quickly. Perhaps they might have a better chance if they call out some sniffer dogs.”

If you know where rogue solicitor John G O’Donnell is, tell us via scottishlawreporters@gmail.com and the information will be passed on to the appropriate channels.

The Sunday Mail has reported on the new developments :

BANNED LAWYER FACES NEW COURT DATE

A rogue lawyer is being hunted by watchdogs so they can tell him he's banned - again.

John O'Donnell, 62, has been accused of breaching a ban on working as a solicitor following a Sunday Mail probe.

The Law Society of Scotland's Elaine Motion is trying to take him to court but does not know where he is.

O'Donnell has been repeatedly rapped for professional misconduct and negligence.

The Law Society won an interim interdict at the Court of Session Edinburgh three years ago, banning him from posing as a solicitor. Six Months ago, we revealed that O'Donnell was allegedly using another lawyer's identity to beat the ban.

That prompted the Law Society to take action against him for flouting the interdict.

One source said : "The problem is that he's nowhere to be seen and does not appear keen to make himself available."

The Law Society said : "John O'Donnell does not hold a current practising certificate and therefore cannot practise as a solicitor in Scotland.

"The Law Society applied to the court to serve notice - by way of an advertisement in the press - of an alleged breach of an interim interdict."

"The Interim Interdict included an order preventing Mr O'Donnell from holding himself out as entitled by law to practise as a solicitor."

"The application to service a notice was granted by the court on October 16"