Thursday, January 31, 2013

Teaching old dogs new tricks ? Judicial Institute for Scotland aims to drag Judges out of “Victorian” era ways with training, technology, & business as usual …

Scotland’s courts, judges  & justice system previously condemned as a failure to society, remain so today. A SENIOR JUDGE from Scotland’s Court of Session was asked at a recent get-together of fellow members of the judiciary, “How do you handle doctors letters or medical reports?”. He tersely replied, murmuring an expletive, “I … completely ignore them”. It turns out the same judge kicked out a test case involving a disabled infant just a few months earlier.

And thus from the ignorance of a few ill-mannered men at the head of Scotland’s courts is born the latest pledge from Scotland’s antiquated judiciary to tidy itself up, to be known as the Judicial Institute for Scotland, it’s launch recently announced by the Judiciary of Scotland.

Nearly FIVE YEARS after Lord Brian Gill, then in his capacity as Lord Justice Clerk branded Scotland’s justice system as an unduly complex, expensive “Victorian” system which fails society, the judiciary has only now seen fit to make a public announcement its members appear to require additional training to handle new legislation, new case law, courtroom ‘technology’ (which has in some cases, such as audio recording equipment been in place for nearly a decade already) and “case management expectations” which may not necessarily include public expectations of the swift, cheaper & wider access to Scotland’s justice system proposed by Lord Gill way back in 2009.

Can court users expect any improvement in the way Scotland’s wealth laden clique of judges treat those mere peasants who appear before them with legal issues often made more complex and unnecessarily expensive by their colleagues in the legal profession ? Let’s say … no. Certainly not when some of Scotland’s judges treat the weakest in society with so much contempt for daring to think the courts are there for everyone to access and receive, at the very least, a measure of justice so far denied to them …

Or, could the new training regime be an answer to the recently revealed criminal habits of some members of Scotland’s judiciary, revealed by Diary of Injustice here : ALL THE LORD PRESIDENT’S MEN : Benefits cheats, drunk drivers & tax dodgers, yet identities of convicted Scottish judges to remain secret for now

The Judiciary of Scotland’s Press Release from last week announcing their latest ‘achievement’ : Official Launch of the Judicial Institute for Scotland

Today sees the official launch of the Judicial Institute for Scotland and the opening of the purpose-built learning suite located within Parliament House.

This new learning suite has been equipped with state-of-the-art technology that will enable the Judicial Institute to deliver a wide range of training courses and to respond quickly to training needs when they arise.

In his speech at the start of the legal year last September, The Lord President, The Right Honourable Lord Gill, emphasised the importance he placed on providing judges in Scotland with high quality training in order to ensure that they are in a position to deal with the raft of new legislation and case law, and that they are fully conversant with courtroom technology and case-management expectations.

“Judicial training is not simply an optional extra for the judiciary,” he said. “We have an obligation individually and collectively to ensure that we maintain a professional approach throughout our judicial life.  This new learning suite will enable us to ensure that judges in Scotland benefit from the latest technology in helping them to meet the challenges that lay ahead”.

Prior to 1997 there was effectively no formal training for judges.  The Sheriffs’ Association took on some training in the 1980s and ’90s but that tended to be organising visits to prison or arranging talks.  Training then began to be delivered in hotels on two or three day residential courses, but such facilities limited the type of training that could be delivered.  Over time it became clear that judges needed a more bespoke relevant, modern and accessible training programme which eventually led to the development of this new training facility.

The Director of the Judicial Institute, Sheriff Welsh QC recently said of the learning suite: “Everything is imbued with the principles of adult education. The plectrum-shaped tables are designed to facilitate interaction among groups of judges. The L-shaped room can be converted into big or small spaces; IT can be configured in different ways. The benches at the end of either leg of the room are fitted with the technology you will find in courts across Scotland to enable judges to practice using modern court equipment designed to help vulnerable witnesses give evidence remotely.”

Being in Parliament House also brings the added advantage of enabling senior judges to engage and take part in training and to meet more readily with JPs and sheriffs on training courses.  Training can also be designed around the particular needs of individual judges and sheriffs, taking into account their previous experience and skill set.

The Deputy Director Sheriff Duff said: “We do have continuing professional development. It isn’t compulsory but I have not encountered any reluctance among judges to opt in for training. Induction training is however compulsory for every new judge.” 

Attending the opening today will be Mr Kenny McAskill Cabinet Secretary for Justice and number of invited guests.  The Lord President will invite The Right Honourable Lord Ross to formally open the Judicial Institute for Scotland.

A week on for Scotland’s judiciary since the press release … and its back to business of fiddling one’s mounting assets and failing to declare financial & other interests in court case after court case …

Tuesday, January 29, 2013

LOOKING AFTER THEIR OWN : Tribunal Report finds solicitor gave away home of dementia victim, lawyer keeps job while family forced into court fight for return of house

Law Society of ScotlandAs anti-client as it gets – Lawyers self-regulation leaves many vulnerable clients without legal protection. VULNERABLE & DISABLED CLIENTS of Scottish solicitors should take note of the continuing weakness of self regulation of lawyers in Scotland, revealed in a recent report by the Scottish Solicitors Discipline Tribunal (SSDT) where it was found that a solicitor who failed his client, a dementia sufferer, and gave away her home to relatives, has kept his job while the consequences of the solicitor’s actions and those of others have led to the client’s family being forced into a costly court battle to return the property to its rightful owners.

In a recent case featured in the Sunday Mail newspaper, solicitor Gerard Durkan (45) of the Glasgow based law firm of Harper Macleod LLP appeared before the Scottish Solicitors Discipline Tribunal (SSDT) was found to have committed "serious and reprehensible" misconduct and that he had "clearly demonstrated a failure to act in the best interests of the client".

It was reported that Durkan knew another law firm acted for Catherine Kerr and that her son Robert had legal control of her affairs, yet after receiving instructions he overturned the son’s control and transferred Catherine’s two-thirds share of her £200,000 home to her other two children.

The tribunal found Mr Durkan guilty of Professional Misconduct and fined him £1,500, yet despite the effect Mr Durkan’s actions had on the family, and the necessity of yet more expensive legal action to return the home to its rightful owner, the lawyer run tribunal pointedly REFUSED a compensation claim made by the complainer.

The complaint made to the SSDT by the Law Society of Scotland, who investigated the case put to them by the SLCC against Mr Durkan, stated : that the Respondent (Gerald Durkan) failed to issue a terms of business letter to his mother Mrs  E  (Catherine Kerr) in connection with her instructions to transfer her interest in her  home at  Property 1, which she owned jointly with  the Secondary Complainer (her son);

(2) continued to act on his mother's behalf on 6 May 2009 in connection with the transfer of title and granting a Disposition for her 2/3rds  share of interest in  Property 1, despite acknowledging receipt and implementing the terms of a mandate received from Messrs. Cochran Dickie, Solicitor who had been instructed to act on his mother's behalf, on 30 April 2009;

and (3) failed to act in his mother's best interests by accepting her instructions to transfer her share in property 1, for no consideration, to his siblings  Mr A  and  Ms B.

The tribunal heard that the Scottish Legal Complaints Commission (SLCC) had considered the complaint and, in terms of the Legal Profession and Legal Aid (Scotland) Act 2007 Section 6, remitted the complaint to the Law Society of Scotland to investigate, which culminated in the hearing before the tribunal.

Valerie Johnston, appearing for the Law Society of Scotland in her role as it’s ‘Fiscal’, told the tribunal the complainer’s family had been caused significant concern & distress at Durkan’s actions, and alleged that Durkan had gone along with a scheme concocted by other family members to transfer Catherine Kerr’s house to their interests.

The SSDT report said : Mrs Johnston stated that the Secondary Complainer and his family were present at the Tribunal hearing and they consider that the Respondent’s failures have caused a lot of distress, concern and difficulties. Mrs Johnston explained that  the Secondary Complainer’s perception was that there was a scheme devised by his brother to secure his inheritance which his sister went along with. The Respondent allowed himself to become involved in this scheme which caused a great deal of concern to other members of the family.

Mrs Johnston then advised that the Secondary Complainer and his family are not able to distinguish between the Respondent’s role in facilitating and the role of  Mr A  in devising the scheme. Mrs Johnston stated that she had looked at the file from Harper Macleod and had lodged this to give the Tribunal an idea of the tone of the  correspondence from  Mr A  which was terse to say the least. Mrs Johnston submitted that he was very much a driving force in this transaction. Mrs Johnston stated that Mr A was pushing for the transfer of title to go ahead without delay but the problems ought to have been clear to the Respondent.

It was also established the solicitor,Gerard Durkan, had been communicating with his vulnerable client via her son, identified in the SSDT report as Mr A, sending correspondence to her via his address, rather than at her home and the solicitor did not seek a meeting with his client to establish whether her instructions were her

The SSDT report said : Mrs Johnston accepted that the tenor of the correspondence was aggressive. She submitted that the Respondent’s main failure was to identify that he should have ensured that Mrs  E was acting independently. Mrs Johnston submitted that the Respondent should have issued a letter to Mrs E at the address where she lived. She stated that he did not do that. He sent all the correspondence to Mrs E at Mr A’s address. Mrs Johnston submitted that the Respondent should have seen Mrs E on her own and ought to have given her clear advice and followed that advice up with clear written advice and sent that to her home address.

Mrs Johnston stated that on receipt of the mandate from Cochran Dickie the Respondent should have had further concerns about Mrs  E’s instructions. However what he did was to write to Mrs E at her son, Mr A’s address and email a copy to  Mr A. Thereafter the Respondent ignored the mandate and proceeded with the transaction to dispose of Mrs E’s two thirds share of her home and left her in a position where the only remedy is proceedings in the Court of Session to reduce that Disposition.

Mrs Johnston stated that she had obtained information from  the Secondary Complainer  about the position regarding the action in  the Court of Session. She advised that defences have been lodged by  Mr A  although not by his sister, that the adjustment period expires on 19 September 2012 and therefore the action is very much still ongoing. She explained that the action is to reduce the Disposition and both sides have Legal Aid. Mrs Johnston advised that the problem is that if Mrs  E  requires to go in to residential care, the local social work department have stated that they regard her two thirds of the property as her asset and so she  would have to be self funded.

In response to a question from the Chairman,  the Secondary Complainer  advised that if his mother has to go in to social work care,  and the disposition is not reduced  the social work department have advised that they would pursue his brother and sister for the costs of that care.

After hearing lengthy submissions from the solicitor’s representative, William Macreath, who also brought along Professor Robert Rennie, the Client Relations Partner in Harper to support their solicitor Mr Durkan, the tribunal found that Durkan had failed to meet Catherine on her own to try to establish her true wishes. The tribunal went onto state that the solicitor should have been "aware of the possibility of manipulation of Mrs Kerr" by relatives.

Diary of Injustice readers will be familiar with solicitor William Macreath, a senior partner in the Glasgow law firm of Levy McRae who are a controlling force of the shady Legal Defence Union (LDU), an organisation set up to defend solicitors accused of failing their clients. Diary of Injustice has featured numerous reports on the Legal Defence Union HERE

William Macreath also stands accused of SEVEN COUNTS of MISCONDUCT by a Law Society reporter, and featured in a related DOI article here : Court of Session hears Legal Defence Union boss who met SLCC complaints Chief stands accused of SEVEN counts of misconduct by Law Society reporter

An independent report  authored by the University of Manchester’s Law School for the Scottish Legal Complaints Commission linked the Legal Defence Union to the suicides of clients who had attempted to make claims against the Law Society of Scotland’s sinister Master Insurance Policy which protects solicitors accused of negligence. More on the University of Manchester’s report can be found here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

Diary of Injustice also investigated & reported on secret meetings held between Mr Macreath and the Scottish Legal Complaints Commission. Evidence gained via FOI requests & insider tips was published by DOI in an earlier report here : Investigation reveals Scottish Legal Complaints Commission's links, secret 'off the record' dealings with lawyers lobby group Legal Defence Union

The full findings of the Disciplinary Tribunal in the complaint against Mr Durkan and the lengthy defences submitted by the solicitor’s Legal Defence Union representative can be read online here SSDT report : Law Society of Scotland v Gerard Durkan : or at the SSDT website here : Law Society v Gerard Durkan

The Interlocutor issued by the SSDT on 30 August 2012, although curiously only published recently, states: The Tribunal having considered the Complaint dated 4 June 2012 at the instance of the Council of the Law Society of Scotland against Gerard Durkan, Solicitor, Harper Macleod LLP, Solicitors, The Ca’D’Oro, 45 Gordon Street, Glasgow;

Find the Respondent guilty of Professional Misconduct cumulatively but not severally in respect of :

(1) his failure to issue a terms of business letter to a client for work undertaken on her behalf in respect of the transfer of title to her home with the result that the client, whom he knew or ought to have known was a vulnerable person, his partner having identified a diagnosis of dementia, and therefore susceptible to manipulation by her family, and could not safely or reasonably have been assumed by the Respondent to be fully aware of what actions in respects of her rights in the property or otherwise the Respondent was undertaking on her behalf or the consequences thereof;

(2) his failure to act in the best interests of his client , a vulnerable person who was susceptible to manipulation by her family;

(3) his taking instructions from her through her son who was to benefit from the transfer of the title to her home without providing her directly with advice at any time on the implications of her actions or the alternatives available to her;

(4) his continuing with the transfer of title in the face of a mandate terminating his agency;

(5) his writing to the client after receiving the mandate without the consent of the new solicitors she had instructed;

(6) his failure to meet with his client on her own to satisfy himself of her instructions;

(7) his arranging for his client to sign the documentation for the transfer of title without providing her with advice particularly about the consequences of this in relation to her right of residence;

(8) his remitting the signed documentation to solicitors acting for the disponees notwithstanding that he had received and had purported to obtemper a mandate which terminated his agency;

Censure the Respondent; Fine him in the sum of £1,500 to be forfeit to Her Majesty; Find the Respondent liable in the expenses of the Complainers and of the Tribunal including expenses of the Clerk, chargeable on a time and line basis as the same may be taxed by the Auditor of the Court of Session on an agent and client, client paying basis in terms of Chapter Three of the last published Law Society’s Table of Fees for general business with a unit rate of £14.00; and Direct that publicity will be given to this decision and that this publicity should include the name of the Respondent.

Edinburgh 30 August 2012. The Tribunal having considered the Complaint dated 4 June 2012 at the instance of the Council of the Law Society of Scotland against Gerard Durkan, Solicitor, Harper Macleod LLP, Solicitors, The Ca’D’Oro, 45 Gordon Street, Glasgow; and having considered the Secondary Complainer’s claim for compensation make no order for compensation.

The Sunday Mail report on the case :

Lawyer who took dementia victim's home keeps job Sunday Mail 13 January 2013Lawyer who took dementia victim's home keeps job

Sunday Mail, January 13 2013

A lawyer who handed over an 86-year-old dementia sufferer's home for free has been fined for misconduct.

Gerry Durkan, 45, knew another law firm acted for Catherine Kerr and that her son Robert had legal control of her affairs.

But he overturned Robert's control after being given instructions, then transferred Catherine's two-thirds share of her £200,000 home to her other two children.

Durkan, a partner in law firm Harper Macleod, denied wrongdoing over the 2009 event but has now admitted his guilt.

Instead of striking him off for what they called his "serious and reprehensible" misconduct, the Scottish Solicitors Discipline Tribunal fined Durkan £1,500.

They said his conduct was a "single failing" and was unlikely to be repeated.

The panel found that Durkan had failed to meet Catherine on her own to try to establish her true wishes.

He had "clearly demonstrated a failure to act in the best interests of the client". They added that Durkan should have been "aware of the possibility of manipulation of Mrs Kerr" by relatives.

Robert has launched a court action to try to have the house in Bishopton, Renfrewshire, returned to his mum. Durkan was unavailable for comment.

Tuesday, January 08, 2013

DECLARE YOUR INTERESTS M’LORDS : Scottish Parliament seek views on Public Petition calling for a Register of Interests of Scotland’s wealthy Judges & Sheriffs

Courts Judges Scotland montageScotland’s judges to be asked for views on their own lack of transparency over personal interests, vast wealth. BY WHAT PRIVILEGE are highly paid Scottish Judges & Sheriffs allowed to conceal their substantial wealth, the origin of their investments, interests and other undeclared earnings according to rules written by themselves, asks a PUBLIC PETITION heard today by MSPs at the Scottish Parliament’s Petitions Committee.

The petition, inspired by legislation currently under consideration in New Zealand, calls for a published Register of Interests for Scotland’s highly paid Judges & Sheriffs who currently prefer to keep their vast and somewhat “interestingly arranged” wealth and in some cases, criminal records, hidden from public gaze, even when there are clear indications such wealth & interests conflict with the interests criminal & civil cases, being heard in Scotland’s courts.

However, and somewhat ironically, while the meeting of the Petitions Committee began with declarations of interests from its various members, a requirement politicians must comply with, a somewhat stony silence descended on the Committee when members were asked for their views on the petition which calls for members of the judiciary to be required to comply with similar rules of disclosing their financial & other interests in court.

MSPs ask legal profession, Scottish Govt. for views on a Petition PE1458 : Register of Interests for Judges Petition (Click video to view the debate)

Petitions Committee Convener David Stewart MSP (Scottish Labour) opened debate on the petition : The fourth and final new petition is Petition PE1458 by Peter Cherbi on the register of interests for members of Scotland's judiciary and members have a note by the clerks spice briefing and the petition and like other members i think there is some additional papers from the petitioner and that involves some press coverage and the press coverage involved some comments about six judges who have been convicted of crimes since 2005 i think the petitioner was very keen that was made public in terms of the interests of his particular petition.

Convener : Can I throw this open and ask for members views on this petition

Jackson Carlaw MSP (Conservative) said : I have to say similar to the last petition I find this slightly clumsy and unnecessary and at this stage as far as i can see on the basis  of something that is envisaged potentially but not actually currently being implemented in New Zealand however I am quite happy for us to at this stage to seek the advice of the Scottish Government and the  Lord President as to what his view would be on this and perhaps actually ask for some sort of indication or report as to what information has been forthcoming in terms of the way in which any system that's been operating up to this point has been functioning.

Convener : Thank you for that. Are members agreeable?

John Wilson MSP (SNP) said : Can I also add if we are going to write out seeking views we write to the Faculty of Advocates and the Law Society of Scotland for their views o this issue because clearly as Jackson Carlaw indicated the petition makes reference to the New Zealand case which arose because the very fact that a judge was judging a case where there was a lawyer before him where it is alleged the judge owed a substantial amount of money to and that could have created a [something] the case in terms of before the New Zealand courts so could I  suggest we also write to the Faculty of Advocates and the Law Society just to get their views on whether otr not they think this would be appropriate at this time to go forward with any legislation.

Convener : Thank you for that. Are members agreeable ?

Given that the Petitions Committee have now decided to ask the Scottish Government, the Lord President Lord Gill, the Faculty of Advocates and the Law Society of Scotland for their views on this petition, it will be interesting to see just what arguments the professions, the judiciary and the Scottish Government put forward for excluding Judges from the accepted norms of full transparency of those key decision makers in Scots public life.

If the Judges have nothing to hide from a register of interests, then they have nothing to fear. We are often told the same as members of the public, therefore the same criteria should apply to those in the courts who are making decisions which affect us all in one way or another.


Petition PE01458: Register of Interests for members of Scotland's judiciary 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 also features references to debate in the Parliament of New Zealand who are considering legislation to create a register of interests for the judiciary. 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.

The New Zealand Law Commission’s discussion paper on a register of judicial interests which recommends further inclusion of court staff in a register of 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

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 Sunday Mail November 04 2012Petition 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.”