FIVE YEAR FIDDLE : Rogue lawyers refuse to pay fines & client compensation orders, standards in legal profession at 'all time low' as Scots consumers remain unprotected by £3M a year Scottish Legal Complaints Commission

Independent’ regulator has made no difference to poor standards in Scotland’s legal profession STRUGGLING to shake off it’s pro-lawyer, anti-client image, the Scottish Legal Complaints Commission (SLCC) published its 2012-2013 annual report last week, revealing the regulator now deals with more complaints per year. The report also reveals the SLCC’s ‘free’ mediation service, which is generating costs & fees of over £45K to mediators, is resulting in a rising numbers of complaints resolutions instead of cases going on to investigation, determination, and potential disciplinary action against rogue lawyers.

The so-called ‘independent’ regulator of lawyers created six years ago by the Scottish Government at a staggering multi-million pound cost to taxpayers which has never been paid back, also published claims it made compensation awards and fee rebates to clients who were victims of crooked law firms to clients of “over £250,000.

Claims of a feather don’t necessarily match together – SLCC 2012-2013 annual report  Figures contained in the SLCC’s own annual report reveal a very different version on the ‘over £250K compensation figure’, showing that law firms are regularly refusing or delaying to pay fines imposed on them by the regulator, forcing the SLCC to resort to costly court action when dodgy law firms & lawyers refuse to pay up to clients now turned into financial victims.

Figures in the annual report actually reveal there were 49 cases where the SLCC was forced to take recovery action against solicitors & law firms who refused to pay up after the SLCC had made compensation awards to clients.The SLCC said it’s action recovered over £72,000 of compensation for complainers in these cases but gave no further details of the cases concerned.

The SLCC said “We continue to see cases of non-compliance where practitioners fail to pay awards which have been made against them by us. We take a firm line on this and use Sheriff Officers and the Small Claims Court processes where necessary to enforce outstanding sums.” The SLCC went onto claim : “We have the full support of the Law Society of Scotland in tackling non-compliance where a solicitor refuses to pay.”

The SLCC continued “In addition, we have found that complainers sometimes have to wait a considerable length of time to receive compensation or fee rebates where a Judicial Factor or Trustee has been appointed. They may also only receive partial compensation.”

“We have raised this point with the Law Society of Scotland. Whilst we understand that other creditors’ interests need to be considered, it is essential that the complaints system incorporates effective redress mechanisms. We are concerned that in an increasing proportion of cases, complainers are at risk of not receiving full redress.”

“In addition to the risk of inadequacy of redress, we are incurring increasing costs in seeking to enforce our decisions. Since we are funded by a levy on the legal profession, these costs are borne by the profession as a whole.”

In two cases, the SLCC was critical of the Law Society’s administration of the investigation and/or its decision-making. The regulator revealed the Law Society paid a total of £500 compensation to the complainers (plus £20 towards their costs).

The SLCC also asked the Society to reconsider one of these complaints which resulted in a complaint being upheld which the Society had previously decided not to uphold. Perhaps unsurprisingly, the SLCC found that in the two other cases, the Law Society had carried out its investigations generally satisfactorily.

While the claimed improvements contained in the annual report may be welcome in some quarters, notably the Scottish Government who are in need of positive figures from it’s inept creation of the SLCC in 2008 by Kenny MacAskill, the SLCC’s statistics and rumours surrounding the identities of law firms continually subject to client complaints actually reveal some unsurprising facts :

(i) Solicitors & law firms who continually abuse clients  & consumers in complaint after complaint are using the SLCC’s perceived bias towards the profession and the regulator's lack of powers to avoid complaints investigations,

(ii) Solicitors and their ‘professional representatives & support organisations’ (aka Legal Defence Union, Law Care, Law Society etc) are manipulating paperwork, dates of legal work carried out on behalf of clients, and also the regulator’s mediation service to ensure lawyers who are subject of complaints remain in a job with a clean record, thus avoiding claims for negligence, dishonesty and sanction as a result of prosecution before the Scottish Solicitors Discipline Tribunal .

Keen to promote the image of the SLCC as ‘improved’, even though the evidence appears to show the regulator at a five year stand still, Chief Executive of the SLCC, Matthew Vickers, said “We’ve made some significant improvements in our performance this year but there is no room for complacency. Where lawyers haven’t met the standards which the public should expect, we act to put things right. Where we do make awards we follow up strongly to ensure that redress becomes reality. We believe that our trend analysis and guidance contributes to improving legal services and we look forward to continuing to work with the professional bodies to build public trust and confidence in the Scottish legal profession.”

Once hailed as a hope to clean up crooked lawyers, the SLCC achieved so little in 5 years. The SLCC also published a five year review of it’s work, which can be viewed online here : The SLCC Five Years On - Facts & Figures. Commenting on the review, Bill Brackenridge, SLCC Chair said : “The review is a good measure of progress and while there is still work to be done it clearly demonstrates the benefits of having an independent regulator. I would encourage the profession to continue to work closely with the SLCC in order to promote best practice, further reduce the number of complaints and continue to improve the reputation of the legal sector with clients, the public and stakeholders”.

In reality, the Scottish Legal Complaints Commission has moved on little since its creation in 2008. Consumers of legal services in Scotland are as unprotected now as they have been for decades under the lawyer investigates their own culture of the Law Society of Scotland.

Indeed, the Law Society of Scotland appears more in charge of regulation of its own member solicitors than ever before, leaving the SLCC as some bystander, far from innocent, and far from having the will to clean up legal services or protect consumers from the costly consistent horrors of dealing with Scotland’s legal profession.

And, as far as independence goes, the ‘independent’ regulator of complaints against Scottish solicitors, is hardly independent at all as Diary of Injustice revealed earlier this year here : A SPECIAL RELATIONSHIP : Investigation reveals Scotland’s ‘independent’ legal regulator is mired in family, business & personal links to legal profession & Law Society

The cost of this five year stand still you ask? Well, poor legal services in Scotland for one, poor client protection for another, hundreds of lawyers escaping regulation & penalties, and a whopping £3 million pounds a year to run the Scottish Legal Complaints Commission on top of the millions every year Scottish solicitors take in ill gotten gains from clients and get away with it.

So, got a complaint against a lawyer ? Well, tell us in the media about it before or during your trip to the Scottish Legal Complaints Commission. Its amazing what some attention, and little transparency can achieve these days…

MEDIATION – Far from free, and a dodge for dodgy lawyers to escape penalty

Included in the SLCC’s annual report were claims their “free mediation service is an effective early complaint resolution method with 75% success rate.”

However, a response received from the SLCC in relation to a freedom of information request made by DOI journalists revealed a slightly different story which anyone thinking of going into mediation may wish to consider :

Of the 134 cases eligible for mediation in the last year, 43 cases were settled at mediation, 14 cases were not settled at mediation, 1 case was withdrawn by the complainer, 76 cases were marked as "did not happen", which refers to the fact that the parties did not agree to go to mediation.

The SLCC were asked for statistics on the numbers of mediation outcomes accepted or rejected by complainer or solicitor. However, the SLCC claimed “There is no way of knowing this information. The outcome of the mediation process is agreed between the parties, the mediator does not suggest the settlement. Any settlements reached are confidential.”

Asked about the numbers of mediation cases sent back for investigation, the SLCC disclosed “Any cases that are not settled at mediation will be passed to a Case Investigator to begin the investigation process. In the period in question 90 cases were sent for investigation.”

In spite of claiming its mediation service to be free (to clients), the SLCC disclosed in its FOI response the total cost representing the cost of the mediator and the room hire etc amounts to £45,210.

In the period from 25/04/13 till 30/06/13 the SLCC said it had identified 3 cases which were closed following settlement at mediation. The combined costs of these cases (mediators costs and room hire) amounts to £1335.30

Commenting on the SLCC’s mediation process, a consumer affairs representative who has seen documents from a client who’s case was unsuccessful in mediation, said : “The SLCC’s mediation scheme only seems to guarantee that any lawyer who faces a complaint and who is lucky enough to end up in mediation, can drag out discussions for months, settle for much less than the client appears to have lost, and then go on to find another victim to rip off.”

Calls for Justice Secretary to get tough with anti-transparency judges as Judicial Investigator reveals weak-by-design scrutiny fails to protect public from errant judges

Annual report of Judicial Investigator calls for Scottish Govt action, raises concerns of judicial transparency. MOI ALI, Scotland’s first ever Judicial Complaints Reviewer (JCR) has today published a damning report on how the judiciary deal with complaints made by members of the public against Scottish judges. In her second annual report, Moi Ali details case histories, problems with confusing rules, and raises a series of significant concerns over the lack of scrutiny & transparency in the judiciary.

Ms Ali has spoken in the media at length regarding her annual report, calling on the Scottish Government to raise the level of scrutiny of the judiciary and give the JCR extra powers which already exist in England & Wales.

JCR admits office lacks much needed powers – Report. The Judicial Complaints Reviewer’s 2012-2013 annual report is published today on the JCR’s website, available here or can be viewed online via DOI here. Among many issues of concern raised in the JCR’s annual report are instances where the Judicial Office has refused to share files and paperwork in relation to complaints made against judges and how were handled.

The report also makes reference to refusals by Lord President Lord Brian Gill to hand over information to the JCR, claiming Moi Ali’s office is a "Third Party" and that data cannot be shared with her office for reasons of confidentiality. while in England & Wales, the same information is published online.

It also emerged that even though a Memorandum of Understanding was signed between the JCR & Judicial Office earlier this year on respective roles, responsibilities and agreed undertakings, the situation regarding the contents of files has not been resolved to Ms Ali’s satisfaction.

JCR publishes consultation on rules. Additionally, and of equal importance, the Judicial Complaints Reviewer has also published a highly critical and detailed consultation response to the Lord President on proposals to revise rules on complaints against the judiciary. The consultation document can be viewed online via DOI here : Judicial Complaints Reviewer Responses re Rules consultation public document. Moi Ali has recommended significant changes to rules on judicial complaints, clarity of procedures and also the amending of rules to allow complaints to be made about the Lord President, something which currently cannot be done.

The Sunday Mail newspaper reported this weekend on issues raised in the JCR’s second annual report, including calls from Moi Ali for the Scottish Government to act over the lack of scrutiny and transparency in Scotland’s judiciary.

Justice secretary Kenny MacAskill urged to improve scrutiny of Scotland's judges after claims they stifle public complaints

We, Scotland's judges, stand accused of making the process of complaining about us impossibly difficult. You, our toothless watchdog, have been deliberating. So, have you reached a verdict? YOU'RE GUILTY, M'LUDS

MOI ALI, the country's first ever Judicial Complaints Reviewer, says she is currently powerless to do more to help the public understand the complex legal complaints system.

News Special : By Russell Findlay Sunday Mail 15 Dec 2013

KENNY MacASKILL has been urged to get tough with Scotland’s judges after a watchdog warned they are stifling complaints and dodging scrutiny.

Moi Ali was appointed by the SNP’s Justice Secretary as the country’s first ever Judicial Complaints Reviewer but, before delivering her second annual report tomorrow, she voiced fears that her role is mere “window dressing” and needs more teeth if it is to hold judges to account.

Ali says people find it virtually impossible to understand confusing rules about how to complain about judges, sheriffs and JPs. She said: “They are legal rules, written by lawyers for other lawyers to use. To me, the perspective is completely wrong. You write the rules for the public, not for lawyers.”

She believes that former solicitor MacAskill must bring in new laws to end judicial self-regulation.

Ali, who also sits on the Scottish Police Authority board said: “I think fundamentally the problem is the legislation. “The way it’s created, it’s about self- regulation so you have judges judging judges’ conduct. There isn’t really an independent element.“I’m presented as the independent element but, without the powers, I can’t be independent. We have the appearance of independent oversight but not the reality.”

Ali’s post was created by the Scottish Government in the face of fierce opposition from judges. With a ￡2000 annual budget, no staff and no office, she has been forced to work for free in addition to the three days per month for which she is paid.

She said: “There was a genuine recognition that something needed to be done. “But I think with any professional group, whether it’s the judiciary or any other powerful group of people, it’s quite difficult to take them on. “And I think that appearing to do something when actually, perhaps, doing the bare minimum is an easier way of addressing it. It’s a bit like being in a straitjacket.”

Ali has caused consternation in government and judicial circles by publicly admitting she is powerless. All she can do is review how complaints are handled by the Judicial Office for Scotland, which is headed by top judge Lord President Lord Gill.

She said: “I’m sorry to say that I do think there was an element of window dressing. “The system is about investigating complaints about the judiciary but that whole system is run by the judiciary. “Without any proper, external, genuinely independent oversight, you’re not going to have public faith and confidence. “I know people will be very unhappy with me using the term window dressing but I think there is an element of that.”

Scotland’s system trails behind England and Wales, who have an Office for Judicial Complaints.

In addition, there is a powerful independent ombudsman who can overturn decisions, order reinvestigations and compensate victims.

Ali said: “England and Wales started doing this, and a whole lot more, in 2006. “We’re not even where they were at when they started so we’ve got an awful lot of catching up to do. “The fact we have a JCR and not an ombudsman, to me, says it all.”

Some senior figures within the judicial system privately dismiss Ali as an “outsider” and unqualified to comment.

She has also angered judges by backing a Holyrood petition by legal reform campaigner Peter Cherbi calling for a register of interests for judges.

Lord Gill sparked cross-party anger by twice rejecting a plea by Holyrood to give evidence to the committee. He said the Scotland Act allowed him to avoid parliamentary scrutiny as it ensures judicial independence from political meddling.

But critics said that the Act is to protect judges from being quizzed over courtroom decisions not administration issues.

Ali said: “I think it’s a confusion between independence and accountability. I really do think it’s as basic as that. The dividing line is completely clear.”

Ali has led by example by voluntarily publishing her own register of interests, even though it took six months to get it on the JCR website. Her annual report details 20 alleged breaches of the complaints rules by the Judicial Office.

She has also scored two victories for the public since taking the three-year post.

One is that Lord Gill has now agreed to supply people with some details about the outcome of
their complaint. And he has also agreed to inform the JCR about the outcome of cases which she refers to him.

She said: “I’ve made some small differences but it’s progress. “But really it’s difficult to make an impact within the constraints that I’m in at the moment.”

MacAskill has already dismissed calls to tackle the powerful judiciary with new laws but Ali wants him to think again.

She said: “In the past few years in Scotland, there have been some really good things being done in all sorts of different sectors. “I don’t understand why this appears to be the one sector that is really behind. “I don’t think there’s an appetite for looking at the legislation again. “I think it will have to be looked at again at some point because, at the moment, Scots citizens have a lot less protection than they do in England and Wales. “If I was asked to create something to deal fairly, effectively, efficiently and transparently with complaints about the judiciary, I would not invent this.”

The Judicial Office for Scotland: “The review of the existing complaints rules ends tomorrow. “The responses will then be considered in full by the Lord President.”

JUDGES IN DOCK

Probed after bawling out a dog walker

A judge was accused of a "tyrannical rant" at a woman walking her dog.

The dog walker was left "shaking with nerves" and felt "very intimidated" by the unnamed judge, who told her to put her pet on a lead.

Her complaint was dismissed as being "without substance" by the Judicial Office for Scotland because he was not acting as a judge at the time.

But the Judicial Office's own guidelines state that complaints can be made about judges' conduct inside and outside court.

The dog walker said ; "The point is that he is a judge and. as such, may be expected to adhere to a certain standard of personal conduct and behaviour to all members of the public."

Ali agreed and upheld the complaint that the Judicial Office had breached their own rules.

Accused of insensitivity over disability.

A disabled woman complained about a judge who, she claimed, ignored her medical condition.

The woman said that the judge did not consider her "mental and physical disabilities and current aggressive medical treatment".

The Judicial Office kicked out the complaint because it was "primarily about judicial decisions".

But Ali found that the Judicial Office rules were breached because the complaint also related to the judge's conduct so should have been investigated.

She also said that "further investigation" would be needed to establish if the judge had been insensitive.

However, Lord Gill disagreed with Ali's opinion.

IF I AM NOT SURE WHAT THIS LEGALESE MEANS

Watchdog Moi Ali slates the legal jargon which is used to deter ordinary Scots from complaining about judges.

She fears the complex Judicial Office for Scotland rules are not fit for purpose.

She said ; "If you have a set of rules that you can pick up and not understand, then they can't be fit for purpose.

And the public don't understand. They are not written in any understandable way.

I don't understand the purpose of some of the rules and some of them are cross-referenced with Acts of Parliament."

Ali has submitted a damning 25 page report to Scotland's top judge, Lord President Lord Gill, who is reviewing the rules.

In it, she says : "One of my principal concerns relates to the style and tone of the rules and the way in which they have been constructed, giving an impression that they are devised to deter people from complaining, to find reasons to reject a complaint at the earliest opportunity and to over-protect the judiciary."

She cites numerous examples of archaic language which many people would struggle to understand.

For example, Section 5.4.b states : "If sent by electronic means indicated to be acceptable a document is to be treated as valid only if it is capable of being used for subsequent reference."

Ali has urged Lord Gill to bring in new rules which will be "fair, proportionate, transparent and easy to understand."

Dodgy legal aid claims, negligence, dishonesty … If regulation really worked, crooked solicitors struck off by ‘old boys club’ Tribunal could be stopped earlier to protect public, clients & reputations

Tribunal & regulators fail to protect public from crooked lawyers. A PARADE of recent cases before the Scottish Solicitors Discipline Tribunal (SSDT), involving solicitors who previously appeared before the tribunal on numerous similar complaints, only to be put back into profession with a light fine or slap on the wrist, confirm the current system of self regulation of Scotland’s legal profession is failing to protect the public, consumers of legal services and established clients of law firms.

Last month, the Scottish Solicitors Discipline Tribunal met to consider seven complaints lodged by the Council of the Law Society of Scotland against solicitor Alistair George Kay, who previously appeared before the SSDT in 2007 on a number of complaints and was found guilty of Professional Misconduct, fined £1000 and censured.

In the latest hearing, the Tribunal considered an “extensive catalogue of behaviour” including “two cases of a complete failure to respond to Law Society correspondence and statutory notices, a failure to respond to correspondence to Master Policy insurers, a failure to respond to correspondence from another firm of solicitors, a failure to pay the Respondent’s insurance excess, a failure to keep proper accounting records for a period of some three years, false declarations in five accounts certificates, and a failure by the Respondent to complete the appropriate paper work to allow a new executor to be appointed which led to the necessity of a court action being raised to allow the executry to be properly dealt with.”

The tribunals findings state the respondent (Alistair Kay) “had clearly been involved in dishonesty. The false declarations made in five accounts certificates were  deliberate and considered acts of dishonesty carried out over a period of two years.”

A now familiar and recurring tale of how solicitors treat their clients, how law firms fraudulently manage clients finances and law firms accounts, emerges in further excerpts of the SSDT’s report which stated “The Respondent’s conduct was an ongoing course of conduct that covered a period in excess of four years.The Respondent’s conduct clearly presented a danger to the public, a clear example of that being the effect of his conduct on the executry of Ms A.The Respondent’s conduct was extremely likely to seriously damage the reputation of the legal profession. His complete failure to co-operate with  his professional body could be seriously detrimental to the public trust in solicitors.

The way the Respondent had  failed to respond  to  these matters as they each arose demonstrated both a lack of remorse and insight into the consequences of his conduct. The Respondent’s conduct clearly demonstrated that he was not a fit person to be a solicitor. His misconduct was directed towards his own professional body, his colleagues, the Master Policy insurers, and most seriously his own clients.

The Tribunal considered that there were two particular aggravating factors to the Respondent’s case which caused  it  a great deal of concern. The first was the Respondent’s willingness to resort to dishonesty to try to cover his misconduct, by making false  declarations in five separate accounts certificates. The second was the apparent complete lack of care or concern on the part of the Respondent for his own clients as particularly demonstrated in his behaviour in relation to the executry of Ms A, resulting in particularly difficult consequences for that executry.  The Respondent has also failed to take any part in the Tribunal proceedings.

As a result of the complaints, Kay was struck off the roll of solicitors, reflected in the decision which stated :

The Tribunal having considered the amended Complaints at the instance of the Council of the Law Society of Scotland against Alistair George Kay, Solicitor, 73 Bruntland Court, Portlethen, Aberdeen; Direct that Orders be issued under Section 53C(2) of the Solicitors (Scotland) Act 1980;

Find the Respondent guilty of Professional Misconduct in respect of his repeated failure to respond timeously, openly and accurately to reasonable enquiries made of him, and statutory notices served upon him by the Law Society; his breach of Rule 6 of the Solicitors (Scotland) Professional Indemnity Insurance Rules 2005;

his failure to respond timeously, openly and accurately to reasonable enquiries made of him by the Master policy insurers;

his breach of Rules 4, 8, 9 & 10 of the Solicitors (Scotland) Accounts Etc Rules 2001;

his false declarations made in five separate accounts certificates;

his failure to sign and return the application for confirmation and other papers sent to him by Messrs Andersonbain & Company and his failure to respond timeously to reasonable enquiries made of him by Messrs Andersonbain & Company; Order that the name of the Respondent be struck off the Roll of Solicitors in Scotland

Commenting on the tribunal's findings, a legal insider said the SSDT and the Law Society could and should have stopped Kay much earlier.

A similar tale of missed opportunities and bungled regulation emerges from the discipline tribunal’s findings in the case of Steven Angus Anderson, formerly of Messrs Andersons, Solicitors & Notaries, 2 Hillkirk Street Lane, Springburn, Glasgow.  Anderson, who appeared at the SSDT in September of this year in relation to a complaint filed in 2011 by the Law Society, was also struck off after a catalogue of failures emerged in the SSDT’s blistering 87 page report, available here :

After consideration of the evidence, the tribunal’s decision found Anderson guilty of multiple failures including breaches of legal aid regulation.

The decision stated : The Tribunal having considered the Complaint at the instance of the Council of the Law Society of Scotland against Steven Angus Anderson, Solicitor, formerly of Messrs Andersons, Solicitors & Notaries, 2 Hillkirk Street Lane, Springburn, Glasgow ;

Find the Respondent Guilty of professional misconduct in respect of his failure to respond to correspondence from another solicitor, his failure to implement a mandate, his failure to respond to correspondence from and statutory notices served upon him by the Complainers; his obtaining or attempting to obtain payment from the Scottish Legal Aid Board by persistent breaches of the Legal Aid Regulations, Code of Conduct and Relative Guidance and Otherwise and in particular:

(i) by making multiple and / or repetitive grants of legal advice and assistance;

(ii) by charging or attempting to charge the Scottish Legal Aid Board other than for work actually and necessarily done;

(iii) by holding unnecessary meetings with clients which inflated fees;

(iv) by acting or accepting instructions to act unprofessionally, giving inappropriate advice and doing work under the Legal Advice and Assistance Scheme where the value of the subject matter rendered it inappropriate to do so having regard to the terms of Regulation 17(1) of the Legal Advice and Assistance (Scotland) Regulations 1996, or where the client claimed to have means that placed him beyond the scope of the Advice and Assistance Scheme;

(v) by granting legal advice and assistance to persons already in receipt of Legal Aid for the relevant subject matter contrary to the Legal Aid (Scotland) Act 1996 Section 7(2); and

(vi) by submitting accounts twice in respect of single pieces of work; Order that the name of the Respondent be struck off the Roll of Solicitors in Scotland;

Anderson, a Glasgow based solicitor had previously appeared before the tribunal on two separate occasions, once in 1999 where complaints were thrown out, and again in 2008 where the tribunal found Anderson guilty of Professional Misconduct in respect of his failure to respond to correspondence and statutory notices from the Law Society, but let him continue working as a solicitor.

Clearly, much of the detail contained in the tribunal’s reports in relation to the above solicitors, will be all too familiar to clients and regular readers who have been forced to file complaints regarding similar poor conduct by their solicitors.

Time and again, particularly throughout the last twenty years, the same serious issues of lawyers deceiving their clients, taking the legal aid board for a ride, solicitors fiddling their own accounts, embezzlement, negligence, dishonesty, fraud, etc … crop up in case after case of complaints made by clients against their solicitors.

As things currently stand, this trend will continue as there are increasing numbers of solicitors and others in the legal profession who appear to have little incentive to be honest, and certainly do not fear the current, discredited system of self regulation where the old boys club of the Law Society of Scotland, the Scottish Legal Complaints Commission and the Scottish Solicitors Discipline Tribunal do their best to protect their colleagues in arms.

Add to that, a courts system headed by vested interests with an unhealthy opposition to transparency, those same vested interests who are too busy flying around the globe at taxpayers expense, increasing their undeclared earnings, connections & personal wealth by using connections with big name law firms who use the regulatory system to dodge complaints and ruin clients, you have the perfect recipe for the situation the Scottish legal profession now finds itself in – akin to groups of sharks on the hunt for a quick buck, some valuable trinkets left on a client’s mantelpiece, and a few nice properties once owned by deceased clients … and not one single criminal charge or investigation to worry about.

Dishonest in Name & Nature : Law Society of Scotland announces review of dodgy Scottish Solicitors Guarantee Fund, where clients claiming compensation ‘are made to feel like criminals’

Law Society of Scotland to review its own dodgy claims fund. THE Law Society of Scotland has announced a ‘root & branch review’ of the infamously corrupt Scottish Solicitors Guarantee Fund, a fund paid into by all members of the legal profession. The Guarantee Fund, which the society claims will be ‘independently’ reviewed, differs from the equally corrupt Master Policy in that the former pays out for victims of dishonest solicitors, while the latter is supposed to pay out for victims of negligent solicitors.

The Law Society claimed in an announcement its latest “wide ranging and independent review of the compensation fund”, to be carried out independently following an open tender process. will study the purpose of the Guarantee Fund along with the cover and benefits it provides to consumers.  It will also consider the funding and governance arrangements and how these fit with the rapidly changing legal marketplace.  The review is expected to be completed over the next 12 months with a report and recommendations made to the Society's regulatory committee.

Diary of Injustice has previously reported on how victims of crooked lawyers are poorly treated by the Scottish Solicitors Guarantee Fund, which has a poor track record at honouring its claim to compensate victims of corrupt solicitors : Law Society's 'Guarantee Fund' for clients of crooked lawyers revealed as multi million pound masterpiece of claims dodging corruption

However, in an attempt to counter previous and well publicised evidence against the Guarantee Fund’s integrity, Carole Ford, the non-solicitor convener of the Society's regulatory committee claimed in a statement issued by the Law Society : "By setting high standards for solicitors and regularly inspecting firms, our first responsibility is to try and prevent problems from arising in the first place.  However, we also need a robust scheme that protects innocent clients when things do go wrong, particularly when clients lose money through no fault of their own and as a result of a solicitor's dishonesty.”

Ms Ford continued : "For over 60 years, the Guarantee Fund has been a cornerstone of the Scottish solicitor profession, giving assurance to consumers and being funded entirely by solicitors without the use of taxpayers' money. Maintaining the Fund and considering applications for payments from affected clients are just some of the many ways in which the Law Society works to protect the public interest. However, we know the legal market is changing and changing rapidly.  That is why now is the right time to have a root and branch review of the Fund and consider whether the arrangements put in place by legislation are still effective and appropriate for today."

Commenting on Ms Ford’s claims, a legal insider retorted :”Well, now you know why financial claims against crooked lawyers have failed for the past sixty years – because lawyers and the Law Society of Scotland have been looking after their own and covering their own backs.”

The latest review of the Guarantee Fund, which has been mired in fraud, controversy and allegations of discrimination against clients who were placed in the unenviable position of having to claim for compensation against their dishonest solicitor, comes after various earlier reports from the powerless Scottish Legal Complaints Commission (SLCC) found the fund lacking in its claims & provisions to pay out when the situation of almost financially ruined clients clearly merited compensation.

Over two years ago in September 2011, Diary of Injustice reported on the SLCC’s last attempt at a report into the Guarantee Fund, here : DISASTER REPORT : Scottish Legal Complaints Commission study of Law Society “Guarantee Fund” suffers 13% turnout, finds clients ‘treated as criminals’

The floundering attempt by Scotland’s ‘independent’, lawyer dominated SLCC to produce a report into the Guarantee Fund was hit by a poor response rate, partly due to the bungled arrangements put in place by the SLCC to research problems of the Guarantee Fund, and arguments between the regulator, the Law Society of Scotland and other lawyers lobby groups.

Report heard Law Society staff made Guarantee Fund claimants feel like criminals. The SLCC's Report carried out by the SLCC into the Scottish Solicitors Guarantee Fund heard from clients they were made to feel criminals by the Law Society of Scotland staff who controlled the compensation scheme. The SLCC survey was also hit by problems over the arrangements for distribution of the questionnaires, where almost unbelievably, the SLCC were forced to rely on the Law Society of Scotland to distribute the forms themselves, after refusing to hand over the identities of claimants to the Scottish Legal Complaints Commission.

One respondent to the survey stated : “It seemed as if the Scottish Solicitor’s Guarantee Fund were trying to pay as little as possible and were looking after their own interests. Again you were made to feel like a criminal at the hearing.”

Another respondent said : “I was not fully compensated for a fraud that was not my fault but my solicitor's, who was now in jail and yet I had to suffer financially and with stress.”

Comments from the five people who provided reasons for their satisfaction expressed relief that the process had come to an end and they perceived that the Fund had worked well for them.

One respondent said : “Achieved desired outcome although would have preferred not to have gone through the process at all.”Another respondent said : “[Because] I felt that I could move forward and bring closure to the whole affair [as] I had felt very let down by the solicitor involved in my particular case.”

Diary of Injustice featured a report on the SLCC’s Guarantee Fund research project as it took shape, HERE and upon publication of the SLCC’s report, carried out by Progressive, a research company based in Edinburgh, final figures revealed an abysmally low response rate of only 13%, where the research company contracted by the SLCC ultimately received only 19 replies out of 145 questionnaires sent out by the Law Society of Scotland.

The research firm conducting the survey on behalf of the SLCC said in their report : “Progressive was not able to receive a database of contact details from the Law Society of Scotland. As such the questionnaire packs were sent to LSS for labelling and distribution.”

The company were further critical of the Law Society’s methods of distribution, stating “A large proportion of questionnaires were not sent directly to claimants. Sending questionnaires first to solicitors to pass on to their clients would have affected the likelihood of the questionnaires reaching them and also their likelihood of completing them.” Progressive further warned : “This is likely to impact response rates.”

The report also claims : “Missing information on labels. A few solicitors fed back that there was no client contact on the packs they were sent so were unable to forward these on, again, affecting the final response rate (at least 4 reported this to be the case)” and that some clients who were sent questionnaires by the Law Society of Scotland could not be traced because they had moved address.

CONDUCT OF REGULATOR PREJUDICED CONSUMER CLAIMS

Former SLCC Board Member Margaret Scanlan branded Guarantee Fund claimants as “chancers”. Previous investigations in to the SLCC’s attitude towards clients and compensations claims against solicitors have revealed prejudice against consumers at the very heart of the SLCC itself, which spilled out into the media when now former SLCC Board Member Margaret Scanlan raged against claimants to the Guarantee Fund, branding them “chancers” in a series of bitter emails revealed through a Freedom of Information investigation here : HERE& HERE

Continuing investigations into the SLCC by Diary of Injustice further revealed another board member, David Smith , married to Court of Session judge Lady Smith, had described claimants to the Master Policy, the Law Society of Scotland’s equally corrupt Personal Indemnity Insurance coverage for negligent solicitors, as “frequent flyers”.

The SLCC had attempted to withhold the identity of the board member who made the anti-client remarks, however, the regulator was ordered to release the information by a decision of the Scottish Information Commissioner. Diary of Injustice reported on the move by the then Information Commissioner, Kevin Dunion (who is now a board member of the SLCC), here : FOI Chief Dunion orders Scottish Legal Complaints Commission to release board member’s anti-client jibes, Master Policy study details

Two earlier reports published by Diary of Injustice featured findings of the University of Manchester 2009 report into the Guarantee Fund & Master Policy, here : 'Ground-breaking' investigation into Law Society's Master Policy insurance reveals realities of corrupt claims process against crooked lawyers and here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

If you have a claim against the Scottish Solicitors Guarantee Fund, or the Master Insurance Policy, tell us at Diary of Injustice at scottishlawreporters@gmail.com

CONFLICTING INTEREST : Anti-transparency top judge Lord Gill will head new ‘independent’ unified Scottish Courts and Tribunals Service

Vested Interests must not be declared – Lord Gill. SCOTLAND’S top judge, Lord President Lord Brian Gill who is challenging parliamentary moves to create a register of judicial interests, and has three times refused to attend the Scottish Parliament to give evidence on the undeclared interests, secret earnings, business relationships & other matters involving members of the Scottish judiciary, is to be made the head of a new ‘independent’ body which will merge the Scottish Court Service (SCS) and the Scottish Tribunals Service (STS) into a new body called the Scottish Courts and Tribunals Service.

Last Friday, the Scottish Government announced in a Press Release that legislation to merge the Scottish Court Service (SCS) and the Scottish Tribunals Service (STS) into a unified body to be called the Scottish Courts and Tribunals Service will be brought forward early next year, creating an ‘independent’ joint administration for courts and devolved tribunals headed by a board which will be chaired by the Lord President as head of courts and tribunals judiciary.

Presently has STS has around 100 staff the majority of whom are based in Hamilton.  Staff support hearings held for different Tribunals across Scotland. It is envisaged that the front-line operational delivery of courts and tribunals business will not be affected as the current specialist staff and venues for tribunals and courts will remain.

The following tribunals currently administered by the Scottish Tribunals Service (STS) will pass into control of the new unified Scottish Courts and Tribunals Service headed by Lord Gill :

• The Additional Support Needs Tribunals for Scotland (ASNTS)
• The Lands Tribunal for Scotland (LTS)
• The Mental Health Tribunal for Scotland (MHTS)
• The Pensions Appeal Tribunal Scotland (PATS)
• The Scottish Charity Appeals Panel (SCAP)
• The Private Rented Housing Panel (PRHP)
• The Homeowner Housing Panel (HOHP)
• The Council Tax Reduction Review Panel (CTRRP)

Commenting on consultation responses to the Scottish Government’s plans to merge the two, already disreputable parts of the judiciary into one, Legal Affairs Minister Roseanna Cunningham said: “The majority of responses to the consultation supported a single body to serve both courts and devolved tribunals in Scotland. A joint body will ensure continued independence, with a joint body corporate chaired by the Lord President, while enabling on-going improvement and sharing of best practice.

Miss Cuningham continued : "It is paramount that the specialism of courts and tribunals continues to be supported by their specialist staff in a merged organisation. That’s why we aim to bring forward legislation early in the New Year to bring about this change and ensure a board structure which supports the business of both courts and tribunals.”

Chief Executive of the Scottish Court Service, Eric McQueen, said: “The Scottish Court Service Board carefully considered the feasibility of a merger with the Scottish Tribunals Service and has approved the proposal.”

Mr McQueen continued : “It is sensible to create a joint administration based on the current SCS model and we will work with the Scottish Tribunals Service to deliver this new organisation, recognising the unique requirements of courts and tribunals and taking account of the needs of their individual users.“

Chief Executive of the Scottish Tribunals Service, Martin McKenna, said: “I see this as a positive step for the Scottish Tribunals Service and those of us who work within it. This puts the administration of tribunals on the same independent statutory footing as courts whilst protecting the unique nature of tribunals for the people that use them.”

The Scottish Government claimed their ‘Justice Strategy for Scotland’ sets out the vision of a justice system in Scotland that is fit for the 21st century and that as part of this programme the Scottish Government are transforming the civil and administrative justice systems and this includes a tribunals reform project to ensure the best structures are in place for people who use tribunals.

However, neither Mr McQueen, Mr McKenna or the Legal Affairs Minister gave any idea in their public statements contained in the Scottish Government’s Press Release as to whether members of the new unified Scottish Courts and Tribunals Service including the Lord President himself, will be required to declare their full interests in a properly maintained and updated register of judicial interests as has been proposed in Petition PE1458: Register of Interests for members of Scotland's judiciary

So far, Lord Gill has bitterly resisted calls for members of Scotland’s judiciary to declare their interests, citing unacceptable breaches of judges privacy, and potential challenges to judicial authority from litigants if it were discovered that the judge in their case had failed to recuse themselves from hearings due to overly cosy relationships, and in some cases, money earning relationships with opposing counsel.

Lord Gill branded such challenges by “aggressive media” and “hostile individuals including dissatisfied litigants ” as “harassment” even though most people and politicians accept that judges who have clear conflicts of interest must recuse themselves when circumstances demand.

The Lord President previously told MSPs in a letter : “Consideration requires to be given to judges' privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary"

However, in spite of the Lord President’s stubborn refusal to speak in public on the lack of a register of interests, and serious, systemic problems with judges failing or even refusing to recuse themselves in court hearings, it has now been established through the Scottish Parliament’s investigation into Petition 1458, that the problem of judges failing to declare their interests or recuse themselves in court affects both the civil justice system and cases involving Scotland’s criminal justice system.

Recently the Sunday Mail newspaper reported that judges have sat in their own cause in criminal cases and have thrown out appeals against convictions handed down by other family members in the judiciary – without declaring any interests or recusing themselves in the case. The article from the Sunday Mail can be viewed here : 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

Even more alarmingly it was revealed in the same article that judges such as Lord Osborne (now retired)  have thrown out appeals against cases they prosecuted themselves while working at Scotland’s Crown Office & Procurator Fiscal Service, without declaring an interest in relevant appeal hearings or recusing themselves as appropriate.

The move to unify the tribunals with the Scottish Courts Service has not received 100% support from all quarters. Significant criticism and the downside of this merging was reported in yesterday’s Guardian newspaper in an article by Richard Henderson, a former President of the Law Society of Scotland, here : Merging Scottish tribunals and courts – the unintended consequences

If a new unified Scottish Courts and Tribunals Service is to be created, transparency must be at its heart, and certainly all members of the board, members of the judiciary, those who serve on the tribunals and employees of the new unified courts & tribunal service must be required to declare their interests in a published, fully maintained and regularly updated register of interests.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, 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

The vested interests of secrecy : Justice Secretary sides with anti-transparency top judge, refuses plea for more powers, wider remit of Judicial Complaints Reviewer

MacAskill sides with secrecy for judges, rejects plea for increased powers for Judicial Investigator. IN A MOVE likely to increase concerns about the lack of openness in the Scottish legal system, Justice Secretary Kenny MacAskill has sided with the position of Scotland’s anti-transparency top judge, Lord President Lord Brian Gill who has issued a stark refusal to share detailed information with Moi Ali, Scotland’s independent Judicial Complaints Reviewer (JCR) about outcomes of decisions on complaints made against judges.

In a letter to David Stewart MSP, the Convener of the Scottish Parliament’s Public Petitions Committee, Justice Secretary Kenny MacAskill rejected pleas to increase the remit and powers of Moi Ali, who is tasked with reviewing how complaints made by members of the public against the judiciary are handled by the judiciary themselves.

Protests from Scottish judiciary limited powers of independent Judicial Investigator. Mr MacAskill was responding to concerns raised by JCR Moi Ali in evidence to MSPs who are considering Petition PE1458: Register of Interests for members of Scotland's judiciary in which the JCR told the Scottish Parliament’s Petitions Committee there was little point to the existence of her office, created by the Justice Secretary in the Judiciary and Courts (Scotland) Act 2008.

In spite of detailed evidence heard at Holyrood that the lack of powers was hampering the work of the Judicial Complaints Reviewer, the Cabinet Secretary for Justice said in his letter : “I consider that given the relatively short time the post of JCR has been in existence, and the modest number of reviews that have been handled in that time, it is premature to review the powers of the role. I am therefore not persuaded of the need for any change to the role or its functions at this moment in time.”

A detailed report on the evidence given by Judicial Complaints Reviewer Moi Ali to MSPs at Holyrood on the role of her office & remit along with the benefits of a register of judicial interests, can be viewed in an earlier report here : As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

The Justice Secretary’s refusal to grant further powers comes in the wake of Lord Gill’s refusal to share further information with Moi Ali’s office on what happens to a complaint after there has been a referral made by the JCR.

In a report featured on Diary of Injustice last month, it was revealed the Judicial Complaints Reviewer recently wrote to MSPs on the Petitions Committee informing them she was being treated as a “third party” by the Lord President over how information is shared about decisions taken with regards to complaints made about judges.

The JCR told MSPs the Lord President had informed her “You have a clear but limited remit. The nature of your work and the terms of your remit do not involve any follow-up.”

First Annual Report of JCR revealed Scotland’s top judge froze out independent Judicial Investigator. This latest refusal of the Lord President to share information with the JCR came after it had been previously reported in February by the Sunday Mail newspaper and featured on Diary of Injustice that the JCR’s first Annual Report revealed Lord President Lord Gill ‘froze out’ Judicial Complaints Reviewer amid series of revoked findings, secret unshared memos & dismissed complaints.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, 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

The Sunday Mail newspaper has featured a report on the Justice Secretary’s refusal to grant more powers to the Judicial Complaints Reviewer, and put Scotland on a parity with the rest of the UK, regarding how complaints against the judiciary are handled.

MacAskill snub for Justice Watchdog

By Russell Findlay, Sunday Mail 10 November 2013

Justice secretary Kenny MacAskill has rejected a plea to give teeth to a watchdog who probe complaints about judges.

The move comes after Moi Ali revealed there was “little point” to her role as Scotland’s first Judicial Complaints Reviewer (JCR).

But MacAskill won’t grant Ali the same power as her equivalent in England and Wales.

He said: “I consider that given the relatively short time the post of JCR has been in existence, and the modest number of reviews that have been handled in that time, it is premature to review the powers of the role.”

MacAskill created the JCR post in 2011 but critics blame fierce judicial opposition for its lack of teeth.

In England and Wales, Moi’s equivalent can overturn decisions, order reinvestigations and ask for victims to be compensated.

But she can only ask the Judicial Office for Scotland - headed by top judge Lord President Lord Gill - to review how complaints were handled.

Ali told the Holyrood petitions committee in September: “There’s no real independent oversight. If you provide oversight without powers, then there’s almost little point to it.”

She added: “The real issue is how the public and the judiciary are best served, and in my view that would be by independent oversight with teeth - an ombudsman.”

Mr MacAskill’s letter to David Stewart MSP, the Convener of the Public Petitions Committee in full :

Justice Secretary tells msps : No further powers for Judicial Investigator. Writing to the Convener of the Petitions Committee the Cabinet Secretary for Justice, Kenny MacAskill said : Thank you for your letter of 24 September 2013 in relation to the role of the Judicial Complaints Reviewer, her powers and resources available to her.

By way of background, Ms Moi Ali, the first Judicial Complaints Reviewer (JCR), was appointed under the Judiciary and Courts (Scotland) Act 2008 (the 2008 Act) by Scottish Ministers, with the consent of the Lord President, for a period of three years from 1 September 2011 until 31 August 2014. The 2008 Act makes provision for a scheme to be established to handle complaints about the conduct of the judiciary. The mechanism is set out, in rules made by the Lord President (Complaints about the Judiciary (Scotland) Rules 2011), which provide that complaints about the personal conduct of a judicial office holder should be sent to the Judicial Office. If, after investigation by a nominated judge, the complaint is upheld the Lord President may decide to take disciplinary action against the judge who has been the subject of the complaint.

The 2008 Act provides a right for either the complainer or the judicial office holder who has been the subject of a complaint to refer the matter to the JCR to review the handling of the case to ensure that the set procedures have been followed. The JCR has no power to consider either the merits of any complaint or the disposal of the complaint: the role is limited to considering whether the appropriate procedures have been followed.

During the lead up to and passage of the 2008 Act, consideration was given to options regarding the role and functions of an independent reviewer as part of the scheme for dealing with complaints. For instance, consideration was given as to whether or not the Scottish Public Sector Ombudsman ought to be involved but this was rejected on the basis that conferring this function on the Ombudsman would not sit well with the constitutional position of the judiciary.An independent ombudsman, as there is in England and Wales (who also has functions in relation to the judicial appointments process), was also rejected. It was considered that given the relatively smaller number of likely complaints in Scotland the public expenditure involved in establishing and maintaining an independent ombudsman would be not justified. Parliament concluded that the powers in the 2008 Act were both appropriate and proportionate.

I consider that given the relatively short time the post of JCR has been in existence, and the modest number of reviews that have been handled in that time, it is premature to review the powers of the role. I am therefore not persuaded of the need for any change to the role or its functions at this moment in time.

As far as resources are concerned, the JCR was initially paid a daily rate for 3 days work per month. The terms and conditions of appointment provide that additional remuneration can be agreed if extra duties involve a greater commitment of time and, following representations from Ms Ali, we have recently increased payment to 4 days per month for the remainder of this calendar year. The JCR also receives funding for office and travel expenses, and for other larger expenses, including the cost of setting up her website. Premises within the Scottish Legal Complaints Commission’s offices were secured for the JCR to allow her access to all workplace essentials and some administrative staff support. However, Ms Ali elected to work from home. Having reviewed the matter, I consider that the current remuneration package is sufficient to enable the JCR to adequately perform her role.

Vested Interests : Protests of Scotland’s anti-transparency top judge questioned as Courts Chief tells MSPs register of interests cause no problems for court staff

Courts Chief admission to Holyrood contradicts anti-transparency protests of top judge. CLAIMS made by Scotland’s top judge, Lord President Lord Brian Gill that forcing judges to disclose their hidden wealth, secret earnings, business & personal relationships, directorships, offshore finances, gifts & hospitality in a published register of interests may cause undue harm & harassment and made it difficult to recruit for the judiciary, have been dealt a blow by the Chief Executive of the Scottish Court Service (SCS) who has been forced to admit to MSPs that no problems have been caused to all other court workers who are required to declare their interests & hospitality.

Responding to queries from MSPs on the subject of Petition PE1458: Register of Interests for members of Scotland's judiciary, Mr Eric McQueen, Chief Executive of the SCS, who recently gave testimony to the Scottish Parliament’s Justice Committee Parliament along with Lord Gill regarding court closures across Scotland, told the Scottish Parliament’s Petitions Committee in a letter last week the SCS implementation of a register of interests & hospitality for its own employees “has not posed any difficulties and staff register their interests as appropriate.”

Court Chief tells MSPs in letter : No harm has come to staff who declare interests. Thank you for your letter of 25 September 2013 in which you seek the Scottish Court Service,s views on what the petition is seeking. You also asked whether there have been any issues for the SCS in operation a register of interests for the people within the SCS.

The Committee will be aware that the Scottish Courts Service is a body corporate established by the Judiciary and Courts (Scotland) Act 2008. The statutory function of the SCS is to provide the resources and support to the courts of Scotland and the judiciary in those courts. It also provides support to the Lord President and other members of the judiciary who have leadership functions.

The subject matter of the petition is not a matter which has been discussed by the Scottish Court Service Board. It is not a matter within the statutory responsibility of the SCS and as such it is not appropriate that the SCS expresses any view on the subject matter of the petition.

The Scottish Court Service has maintained a register of interests for staff for many years in line with standard practice across the civil service. It has not posed any difficulties and staff register interests, as appropriate.

The admission from the Chief Executive of Scotland’s courts that staff work within a register of their own interests without causing personal harm, raises serious questions over outlandish claims presented by Lord Gill in earlier written submissions to MSPs that bringing similar transparency to the judiciary and requiring judges to comply with a register of interests may have “unintended consequences” and somehow damage the judiciary.

Writing to MSPs earlier this year in February, Lord Gill – who opposes greater transparency of judges interests, said he feared judges could be harassed by the media and their privacy ruined. Diary of Injustice reported on Lord Gill’s attack against transparency calls, here : A MATTER OF TRUST : Scotland’s top judge Lord Gill attacks Scottish Parliament petition calling for a Register of Interests for Scots Judiciary

Top judge tells MSPs forcing judiciary to be honest about their interests may have unintended consequences. Lord Gill protested : “The introduction of such a register could also have unintended consequences. Consideration requires to be given to judges' privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns.

Lord Gill continued : “If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary.”

In two further letters to MSPs, the Lord President went on to refuse to attend the Scottish Parliament to answer questions on his opposition to Petition PE1458: Register of Interests for members of Scotland's judiciary and even went so far as to inform MSPs they could not insist he attend an evidence session because of loopholes in the Scotland Act.

However, MSPs on the Scottish Parliament’s Petitions Committee have already heard from Judicial Complaints Reviewer (JCR) Moi Ali – who supports a register of judicial interests, that increased transparency of the judiciary can only increase public confidence in the justice system. Moi Ali told MSPs in a letter : “Better transparency would enhance the standing of that judiciary and bring judicial office holders into line with other holders of important roles in public life.”

Further reporting on JCR Moi Ali’s submission to the Petitions Committee was featured here : ‘Better Transparency would enhance Judiciary’ as Scotland’s independent Judicial Complaints Reviewer issues support for Register of interests for judges

Video footage of testimony given by the Judicial Complaints Reviewer has been previously reported here : As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

Given the admission of the Chief Executive of the SCS, who’s job it is to keep the courts working, Lord Gill’s arguments that more transparency in the form of a register of interests could cause harm to the judiciary are now seriously in doubt, given the fact registers of interest are common in public life and that there is no honest reason why the judiciary should be exempt from declaring their interests.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations of the judiciary by Diary of Injustice including reports from the Sunday Mail newspaper, 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

LORD EVADER : Battle over Register of Interests sees Scotland’s top judge refuse to reveal information to Judicial Complaints Reviewer, brands JCR as “third party” in effort to shield judges from scrutiny

Scotland’s top judge declares he will not inform Judicial Investigator of complaints outcomes. SCOTLAND’S top judge, Lord President Lord Brian Gill has told Judicial Complaints Reviewer (JCR) Moi Ali she is not to be informed of the outcomes of complaints against judges which are referred back to the Lord President by the JCR for further action.

Eager to keep questions & complaints regarding the conduct of judges in court hidden from public scrutiny, Lord Gill branded the office of JCR as a “third party” which data could not be shared with for reasons of confidentiality.

The latest development came to light in a submission to the Scottish Parliament’s Petitions Committee by JCR Moi Ali in response to Petition PE1458: Register of Interests for members of Scotland's judiciary.

JCR told MSPs in letter the Lord President is treating her office as “third party” on complaints follow up information. Writing to MSP members of the Petitions Committee, Judicial Complaints Reviewer Moi Ali stated : The other matter that I wished to follow up on relates to the Lord President’s procedure for informing the Judicial Complaints Reviewer of outcomes following referrals.

When I gave my evidence I explained to the Committee that I had written to the Lord President asking for clarity on what information would be given to me. I have since received a reply, so I am now in a position to clarify the process.

The Lord President has confirmed: “You have a clear but limited remit. The nature of your work and the terms of your remit do not involve any follow-up.”

So the situation is that when I make a referral to the Lord President that the complaints Rules have been breached, I will be told what the Lord President proposes to do - for example, to reinvestigate the complaint – but thereafter I will be given no further information, such as whether the complaint was subsequently upheld, as this data cannot be shared with “third parties” for reasons of confidentiality.

I am surprised at this response for two reasons: I do not regard the JCR as a “third party” but as an integral part of the complaints process; and in England and Wales, the outcomes of investigations, when upheld, are published on the Judicial Conduct and Investigations Office’s (JCIO) website.

The JCIO is the closest equivalent body to the Judicial Office for Scotland, in that it supports the Lord Chancellor and the Lord Chief Justice (the equivalent of the Lord President, as head of the judiciary) in their joint responsibility for judicial discipline. It seeks to ensure that all judicial disciplinary issues are dealt with consistently, fairly and efficiently. Like the Judicial Office, it can only address complaints about a judicial office-holder's personal conduct and cannot deal with complaints about judicial decisions or about case management.

Although the Office of Judicial Complaints Reviewer was created by an Act of the Scottish Parliament in 2008, principally highlighted in Section 30, S31 and S32 of the Judiciary and Courts (Scotland) Act 2008, protests from Scotland’s judges over proposals in the 2008 legislation resulted in Justice Minister MacAskill creating the powerless Judicial Complaints Reviewer, who works for three days a month on an annual budget of £2000 and no staff.

Also contained in the JCR’s recent response to MSPs was a suggestion of a proposal put forward by a “member of the public” regarding the gathering of data on recusals, information which has not been made available to MSPs on the Public Petitions Committee even though MSPs have three times requested the data from the Lord President himself.

Moi Ali told MSPs in her letter : I was contacted by a member of the public with an understanding of the court system. They informed me that they thought it unlikely that the Lord President would hold information on recusals, as the judiciary deal with perceived conflicts of interest in different ways and there is a lack of clarity about how such matters should be handled. I am informed that sometimes concerns about potential conflict of interest are aired publicly in court; at other times it's done behind the scenes.

They made a suggestion that seems to be a sensible and pragmatic step in the right direction. Their idea was that rules could be produced by the Court placing an express duty on a judge to declare any potential conflict in open court. Parties’ views could be heard and a judicial decision made on any objections. Thus, with almost immediate effect (subject to the approach taken by the Scottish Civil Justice Council) there could be in place a more open and consistent system than the present practice.

I stress that although I do not think that such a suggestion does away with the need for a register of interests, it does take things a step closer to greater transparency and accountability, could be implemented fairly quickly, and it would provide a basis for the collection of data on the number of recusals.

While the proposal to collect data on recusals is welcome, it is more probably that worried judges who are concerned about public exposure of their undeclared vast wealth, secret financial earnings outside their judicial duties and undeclared links & relationships, even memberships or directorships of organisations, companies & other vested interests, would use it as an excuse to delay the implementation of a full register of interests.

Commenting on the idea, a legal insider said “If judges are able to convince politicians all that needs to be done is the collecting of data on recusals and that it should be left to run for a few years, this will be used by the same judges who opposed statutory powers for the JCR to kill off any idea of a register of interests.”

He continued : “There is clearly an expectation of transparency in all public life including transparency for those sitting on the bench. There is a clear benefit in the implementation of a register of judicial interests and the sooner the better.”

The Judicial Complaints Reviewer has given her support the terms of Petition PE1458: Register of Interests for members of Scotland's judiciary, reported in the Sunday Mail newspaper and Diary of Injustice, HERE.

The Judicial Complaints Reviewer recently gave testimony to MSPs at Holyrood on the benefits of a register of judicial interests, reported along with video footage of the testimony, here : As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, 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