‘Methinks the Lord President doth protest too much’ : Top Judge summoned to Petitions Committee over objections to Register of Interests for Scotland’s Judiciary

Lord Gill protested against proposal to require judges to declare their interests. SCOTLAND’S Lord President Lord Brian Gill is to be invited to the Scottish Parliament Petitions Committee to explain his ‘robust’ opposition to a proposal put forward in a law journalist’s PUBLIC PETITION calling for a Register of Judicial Interests for all members of Scotland's judiciary.

Diary of Injustice has previously reported on the deliberations which took place at the Petitions Committee on 5th March 2013, along with exclusive coverage from the Sunday Mail newspaper, here : SILENCE IN COURT : Scotland’s top judge Lord Gill summoned to Parliament over ‘vested interests’ attempt to block Register of Judicial Interests petition.

As the verbatim transcript of the Petitions Committee meeting of 5th March has now been published by the Scottish Parliament, it is reprinted today as a natter of record, and for readers convenience. The full account of the 5th March meeting can also be viewed online here : PPC Official Report 5 March 2013

Petition PE1458: 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 to 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.

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament (click image below to watch video footage of Petitions Committee debate)

Transcript of PPC meeting 5th March 2013 : Judiciary (Register of Interests) (PE1458) :

The Convener:  The eighth and final current petition is PE1458, by Peter Cherbi, on a register of interests for members of Scotland’s judiciary. Members will have received the clerk’s note and the submissions.

As I am sure other members have, I have looked at this very interesting petition in great detail. Members might be aware that the current position as outlined by the Lord President is that a sheriff or judge who faces a conflict in a case—if, for example, he or she plays golf with the accused or if, as in the case in New Zealand, he or she allegedly owes money to one of the lead defence lawyers, which has triggered one particular issue—is able to recuse themselves, which basically means that they disqualify themselves from presiding in that case.

The Lord President and the Scottish Government have indicated that they have no plans to introduce changes. If they were so minded, the Scottish Government could change the law in this respect—in other words, create the kind of standard register that we, MPs and ministers have to comply with—or the Lord President could introduce administrative changes to the rules but, as I have said, neither is minded to do so.

Interestingly, the petitioner has argued that there  is no real evidence on, for example, the number of judges who have declared an interest in a case and recused themselves or on whether any judges are presiding over cases in which they have an interest but have not declared it. He also wonders why, if many other public groups need a register of interests, judges should be any different.

We find ourselves in quite a difficult dilemma.

The people that the petition seeks to change have made it clear that there is not going to be any change. However, as I said  earlier, this committee has always had a good tradition of going the extra mile for every single petitioner. Do we need any more information from the Lord President on, for example, the number of judges who have recused themselves and the effectiveness of  the system?

We do not actually know that.

There is also a wider issue. Some of the tabloids have reported that, for example, there have been judges with convictions. Future petitions might come to us concerning issues such as whether a judge with a masonic interest has declared it.

There are three areas in which judges already have quite a solid background: the judicial oath; the statement of principles; and the Judiciary and Courts (Scotland) Act 2008. There are some things that judges already have to comply with, which would be set against a registration of interests.

I hope that that is a reasonable summary of the situation.

Jackson Carlaw: When you said that the judge could be playing golf with the accused, convener, I am sure that you did not mean to  discriminate. They could be playing darts or five-a-side football or going out clubbing. We should point that out, to be entirely reasonable.

When I first saw the petition, I was not terribly impressed with it, but I am more impressed with it now, as a consequence of the responses that we have received. The student anarchist in me smells the whiff of vested interests closing doors and turning their backs in an effort to shut the matter down.

In fact, the protest was so great that I found myself thinking, “Methinks the Lord resident doth protest too much.”

I would like us to invite the Lord President to give evidence to the committee, if that is within our competence, along with other vested interests who think that we should close the petition, so that we can ask them to justify their position.

Since it is clear that no one else is examining the issue at the moment, it may be that, on behalf of the petitioner, we should ensure that the issue is aired in public rather than just in writing.

The Convener:  That  is an interesting view. To answer the technical point, it is perfectly competent for us to invite Lord Gill to give evidence.

Chic Brodie:  I could not agree more with Jackson Carlaw. The letter from the Lord President says: “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”.

We could replace “judges” with “politicians”. Why should judges be any different from politicians? I agree that we should invite the Lord President, the Lord Advocate and others to speak to us.

John Wilson:  I agree with Jackson Carlaw’s suggestion that we invite Lord Gill to the committee to explain why he has written what he has.

In fairness, the petitioner has responded in a strong manner, and the response to the petitioner would encourage me to write again to the Scottish Government and to the Lord President to seek clarification about how confident they are that the current system is  above reproach and that judges and others recuse themselves when they know someone who is appearing before them, either as a solicitor, advocate, Queen’s counsel or an accused person.

It would be extremely useful for the petitioner, this committee and the  Parliament to have Lord Gill and others give their account of why they think that there is no need for any action at the present moment.

Angus MacDonald:  When I came to the committee this morning, I did not expect the debate to go down this route. However, having heard Jackson Carlaw’s suggestion that Lord Gill and others should appear before the committee, I think that that is an excellent course of action. It would be helpful if we could get further information on the legislation that has been proposed in New Zealand.

The Convener: I think that 10 useful points were set out in New Zealand to weigh up whether it was necessary to introduce any further controls—I would put “controls” in inverted commas.

I suggest that members familiarise themselves with those 10 points before we speak to Lord Gill at any future meeting.

Anne McTaggart: I agree with Jackson Carlaw’s suggestion

Chic Brodie: I know that the petitioner called for a register of judges’ pecuniary interests. However, I am not sure that the investigation should be limited just to that. Perhaps we should consider the issue of a register of judges’ total interests. I do not know whether that would be competent.

The Convener: That is a fair point that we could raise with Lord Gill. However, as I said,  I suggest that members examine closely what is happening in New Zealand. The petitioner makes the point that there is more to the situation than what is happening in New Zealand, but I think that that is a useful point to focus on.

Do we agree to continue  the petition and to invite the Lord President, and any colleagues that he wishes, to speak to us at a future meeting?

Members indicated agreement.

SILENCE IN COURT : Scotland’s top judge Lord Gill summoned to Parliament over ‘vested interests’ attempt to block Register of Judicial Interests petition

Lord Gill to appear before msps over objections to register of judges interests. SCOTLAND’S Lord President Lord Brian Gill is set to appear before the Scottish Parliament to explain why he is so committed to blocking a register of judicial interests which would reveal judges’ wealth, business connections and other relationships including high earning jobs outside of the court and even criminal records which have so far been kept secret from the public scrutiny.

The move by the Scottish Parliament’s Petitions Committee to summon Lord Gill comes after a candid debate last Tuesday 5 March on the strength of the Lord President’s written opposition to a law journalist’s PUBLIC PETITION calling for a Register of Judicial Interests.

Petition PE01458: Register of Interests for members of Scotland's judiciary, which 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.

During last week’s meeting of Holyrood’s Public Petitions Committee, MSPs engaged in a substantive debate on the merits of the petition and gave their reaction to the Lord President’s strongly worded letter to Committee members in which he attacked plans to call for a register of interests for judges. Lord Gill also criticised the petitioner as “naive” and “misguided” over his call to make judges declare their interests in a public register. Lord Gill’s letter followed two others from the Law Society of Scotland and the Scottish Government’s Justice Department who are also attempting to shut down debate on the issue.

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament (click image below to watch video footage of Holyrood debate)

Committee member Jackson Carlaw MSP (Scottish Conservative), said “When I first saw this petition I wasn’t terribly impressed. But I’m more impressed as a consequence of the responses we received.The student anarchist in me slightly smells the whiff of vested interests closing doors and backs being slapped in an effort to shut the whole matter down.”

Mr Carlaw continued : “I would very much like us to commission an evidence session and invite the Lord President, if that’s within our competence, and other vested interests who believe we should close this down to justify their position to the committee. Since it’s quite clear no other area is examining this at present, I think that, on behalf of the petitioner, this is an issue that should be aired in public rather than just in writing.”

Committee chairman and Labour MSP David Stewart (Scottish Labour) said: “The petitioner put quite an interesting argument forward to say that there’s no real evidence here. I mean, how many judges are declaring an interest and recusing during the course of a case? Or are there any judges holding a case in which they’ve got an interest and they’re not declaring an interest? Also, lots of other public groups have to have a register of interests – why are judges any different?”

Chic Brodie MSP (SNP) also took issue with some of the terms of Lord Gill’s protestations in which the Lord President claimed judges should be shielded from the media and more public scrutiny. Mr Brodie said: “If you want to take out ‘judges’ and put in ‘politicians’, why are they different?”

Mr Brodie agreed with Jackson Carlaw’s suggestion the Lord President be called to attend Holyrood, and also went further, asking whether the Committee could look at the wider interests of judges and not just pecuniary interests as proposed in the New Zealand bill which is being used as a comparison for the introduction of a similar register for Scottish judges.

Mr Brodie’s suggestion of a wider investigation into judges interests falls in line with proposals made by the New Zealand Law Commission’s discussion paper on a register of judicial interests, which recommends inclusion of court staff in a register of interests. The New Zealand Law Commission proposals can be downloaded here : NZLC IP21 - Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)

John Wilson MSP (SNP) also agreed with the invite to Lord Gill to attend, and to also seek further information on exactly how the current system functions where judges are supposed to declare their interests if a conflict arises, and for the Lord President to explain why he wrote to the Committee in such opposing terms to the petition.

The Sunday Mail newspaper reported on developments at the Scottish Parliament, here :

Scotland's top judge summoned to appear before MSPs after trying to block register of interests

M’Lud, you’ve a pleading cheek : MSPs demand top judge explains why he tried to block register of interests

EXCLUSIVE : By Russell Findlay, Sunday Mail 10 Mar 2013

A HOLYROOD committee want the law chief to explain why he tried to halt a register which would reveal judges' business, professional and financial links.

SCOTLAND'S top judge is to appear before MSPs after he tried to block a judicial register of interests. Lord Gill – the £214,000-a-year Lord President – dismissed the need for judges to reveal business, professional and financial links.

The identity of a judge convicted of benefit fraud would also be likely to be revealed if such a register existed.

Holyrood’s petitions committee want Gill, 71, to explain his opposition to the transparency motion by legal reform campaigner Peter Cherbi.

Committee member Jackson Carlaw, Scottish Conservative deputy leader, said: “When I first saw this petition I wasn’t terribly impressed. But I’m more impressed as a consequence of the responses we received.

“The student anarchist in me slightly smells the whiff of vested interests closing doors and backs being slapped in an effort to shut the whole matter down.

“I would very much like us to commission an evidence session and invite the Lord President, if that’s within our competence, and other vested interests who believe we should close this down to justify their position to the committee.

“Since it’s quite clear no other area is examining this at present, I think that, on behalf of the petitioner, this is an issue that should be aired in public rather than just in writing.”

Committee chairman and Labour MSP David Stewart plans to ask Gill how many judges have “recused” themselves – stepped down – from cases in which they have an interest.

Stewart said: “The petitioner put quite an interesting argument forward to say that there’s no real evidence here.

“I mean, how many judges are declaring an interest and recusing during the course of a case? Or are there any judges holding a case in which they’ve got an interest and they’re not declaring an interest?

“Also, lots of other public groups have to have a register of interests – why are judges any different?”

Members of the judiciary, including judges, sheriffs and JPs, adhere to various rules including an oath of office. In his written opposition, Gill said he and his colleagues could be abused by “aggressive media or hostile individuals”.

But the SNP’s Chic Brodie said: “If you want to take out ‘judges’ and put in ‘politicians’, why are they different?”

Last year, we revealed that a judge had been convicted of benefit fraud but his or her identity was kept secret. Cherbi believes that a register would have forced the crooked judge to declare his or her conviction. He was inspired by similar moves in New Zealand which were sparked by a judge failing to declare that he owed money to a lawyer involved in a case.

A register could be created by the Scottish Parliament or by the Judicial Office for Scotland, which incorporates the Lord President’s office. Typically, such registers reveal details of hospitality, gifts, property ownership, shareholdings and personal or financial connections to outside organisations.

Cherbi, from Edinburgh, who campaigns against Scotland’s legal self-regulation and secretive justice, said: “Lord Gill’s style might have worked in 1813 but clearly does not work in 2013.” In a written submission to the committee, Cherbi said: “It is plainly wrong to suggest that, just because someone is a judge, they are above transparency and accountability.”

The Judicial Office for ­Scotland said: “The Lord President has not received any approach from the committee following its consideration of the relevant ­petition, and while the members’ comments are noted it would not be appropriate to comment at this stage.”

Last month, the country’s first Judicial Complaints Reviewer, Moi Ali, accused Gill of blocking access to vital documents. Three years ago, he delivered a damning report on Scotland’s “Victorian” civil courts. That led to last month’s Courts Reform (Scotland) Bill, which it is hoped will make access to justice cheaper and faster.

Lord Gill factfile

BRIAN GILL was raised in Riddrie, Glasgow, and was educated at the fee-paying Jesuit Catholic school St Aloysius’ College. After studying at Glasgow and Edinburgh universities, he became a law lecturer. As a farming law expert, he became a QC in 1981 and a judge 13 years later. He quickly caused controversy by branding Scotland’s civil justice a “relic of a vanished age”. Those views were echoed in his 2009 report which has sparked an overhaul of the civil courts.

The dad of six has featured in many high-profile cases. He let the widow of a lung cancer victim pursue a damages claim against a cigarette firm without putting up a penny in security. He ruled that two gay men could not adopt a handicapped boy. He also rejected a compensation claim over a failed vasectomy. Gill presided over the appeal court’s quashing of the convictions of Tommy Campbell and Joe Steele for the Ice Cream Wars murders.

In 2011, then Cardinal Keith O’Brien presented him with the Papal Knighthood for outstanding service to public life”. Gill has a love of church music and his other interests include children’s and youth charities and architecture.

A MATTER OF TRUST : Scotland’s top judge Lord Gill attacks Scottish Parliament petition calling for a Register of Interests for Scots Judiciary

Lord President Lord Gill branded Scots justice Victorian & unfit for purpose, yet transparency of judges interests seems a step too far. THE SPECTACLE of a country’s most senior judge arguing against public expectations of transparency & accountability in the justice system and indeed public life, makes for an uncomfortable feeling that judges have something to hide. And so, in response to calls for greater transparency of the country’s judiciary, Scotland’s Lord President Lord Brian Gill, the author of the much acclaimed Civil Courts Review which has yet to bear fruit four years on for Scots locked in bitter court disputes, has issued a stern rebuke of a PUBLIC PETITION filed by a law journalist & campaigner calling for a Register of Judicial Interests.

In a sharp letter to MSP members of the Scottish Parliament’s Public Petitions Committee, the Lord President, Lord Gill condemned calls for greater transparency & public accountability of Scotland’s judiciary, and went on to attack proposals calling for judges to declare their interests, financial or pecuniary wealth, and other connections in a publicly available register as “misguided” and “naive”.

Even more worryingly, the Lord President goes so far in his letter to claim transparency across the courts system is not desirable in the form of a registrar of interests, as judges' privacy should be protected to prevent the media or individuals gaining knowledge of judges invariably significant wealth, criminal records, undeclared business connections, work, & wealth earning or otherwise relationships outside and even inside the courtroom.

In a terse, bitter tirade against media investigations into the judiciary which revealed several of Scotland’s judges have criminal records, and one judge convicted of benefits cheating Lord Gill went on to brand those enquiring of judges secrets as “aggressive media” and “hostile individuals”. He also claimed that if a register of interests for judges existed, it may be more difficult to recruit judges in the future.

Given judges must be above reproach, and must uphold the values of transparency & accountability they hold those appearing before them in court, and that decisions taken by the judiciary can have a huge impact on public life, even contesting legislation passed by our elected politicians, can judges who refuse to be held to the same standards as everyone else in public life, be trusted ?

Lord Gill’s letter to the Scottish Parliament in full, is available online here PE1458_B Lord President 05.02.13 or at the Scottish Parliament website HERE (pdf) :

RESPONSE FROM LORD PRESIDENT LORD GILL : PUBLIC PETITION PE1458: REGISTER OF JUDICIAL INTERESTS

Thank you for your letter dated 9 January 2013 in respect of the above. I am firmly of the view that a Register of Judicial Interests is unnecessary and I do not support the terms of the petition.

Is there a practical need for a register of judges' pecuniary interests?

The catalyst for this petition appears to be New Zealand legislation prepared following a case where a judge failed to recuse himself. To my knowledge, no such situation has arisen within my tenure as Lord President. The Council of Europe Group of States against Corruption (GRECO) considered the need for a Judicial Register of interests as part of their First Evaluation Round Report on the United Kingdom dated 14 September 2001' and concluded as follows

"As regards the institutions that are entrusted with the fight against corruption the GET noted that judges in the United Kingdom are not required to register their interests. Given, however, that the United Kingdom judiciary is generally perceived as conforming to social demands for observance of high integrity standards, the GET did not consider it necessary to address a recommendation in this connection." (paragraph 87)

Although yet to be published, I understand that having reconsidered this issue in their Fourth Evaluation Round Report last year, they remain of the view that a register or asset declaration system for members of the Judiciary is unnecessary.

Another reason why there is no practical need for this measure is that there are currently sufficient safeguards to ensure that judicial impartiality is maintained. The current safeguards in place in Scotland are established by the terms of the Judicial Oath, the Statement of Principles of Judicial Ethics for the Scottish Judiciary and the Judiciary and Courts (Scotland) Act 2008. I refer to the SPICe Briefing which details these provisions but would wish to draw the Committee's attention to the following points

* The Judicial Oath, is taken by all judicial office holders, and requires judges to do right to all manner of people without fear or favour, affection or ill-will..

* The Statement of Principles of Judicial Ethics, issued in April 2010, states at principle 5 that all judicial office holders have a general duty to act impartially and,in particular, notes that "Plainly it is not acceptable for a judge to adjudicate upon any matter in which he, or she, or any members of his or her family has a pecuniary interest...".

* The Judiciary and Courts (Scotland) Act 2008 contains provisions in section 28 and section 35 to regulate and investigate the conduct of judicial office holders. The Complaints about the Judiciary (Scotland) Rules 2011 came into force in 2011. To date there have been no substantiated complaints alleging judicial bias. In addition,the Conduct Committee of the Judicial Council intends to consult in the Spring of this year on rules under section 35 in respect of fitness for judicial office in tribunals.

In my view there is no need for the further measure of a "Register of Judicial Pecuniary Interests" as advocated in this petition.

Misconceptions within the petition

The petition appears to proceed on an apparent misconception that equal treatment in terms of disclosure obligations of each of the three branches of Government is desirable. The three branches have significantly different roles to perform. The judicial role requires independence and impartiality in relation to the individual case which the judge has to decide. In this context, the potential for conflict of interest or apparent bias extends beyond pecuniary interests alone. The judge's duty of disclosure is more far-reaching than a bare listing of particular pecuniary interests identified by legislation as warranting disclosure. For example, a judge's disclosure duties, as set out in the Statement of Principles of Judicial Ethics, will extend to material relationships

The petitioner is also incorrect in his assumption that "being obliged to declare pecuniary interests ... would relieve a judge from a repetitive weight of responsibility to make discretionary judgments about his or her personal affairs as each case arises." This is a naive interpretation that does not appreciate the role of a judge. Judicial conflicts of interest based on a judge's pecuniary interests arise infrequently but, when they do, the existence of an entry on a judicial register of pecuniary interests would not relieve the judge concerned from his or her obligations to make full disclosure and to reach a principled decision as to whether recusal is warranted. For that reason, I do not consider that the vehicle that the petitioner proposes would achieve its stated purpose of "providing greater transparency within the judicial system and to avoid any conflict of interest in the judicial role."

Practical considerations

In practical terms it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case. The terms of the Judicial Oath and the Statement of Principles of Judicial Ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.

This is a view shared and supported by the Justices of the Supreme Court who have publicly stated that "it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believe to be compete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound and which is now publically available on the UKSC website."

Unintended consequences

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. 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.

AS OTHERS SEE IT - A PETITION FOR A REGISTER OF JUDICIAL INTERESTS BACKGROUND :

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

IN THE PUBLIC INTEREST : Questions over solicitors self-regulation after Crown Office abandoned prosecution of £500k fraud accused lawyer now struck off for theft of client funds

Scot-Free? Lord Advocate is letting crooked lawyers off the hook say politicians. THE COLLAPSE of an earlier criminal prosecution led by Scotland’s top Law Officer Lord Advocate Frank Mulholland of a Carnoustie based lawyer recently struck off by the Scottish Solicitors Discipline Tribunal (SSDT) for stealing clients cash including the theft of assets from deceased clients estates, has been called into question by politicians reports the Sunday Mail newspaper.

As the numbers of ‘failed’ criminal prosecutions of solicitors for taking clients funds, or in other cases, millions of pounds of taxpayer funded legal aid, reaches an all time high, concerns are being expressed the Crown Office & Procurator Fiscal Service (COPFS), and Lord Advocate are not applying the law evenly to all, especially when it comes to cases involving crooks in Scotland’s legal profession.

In this latest case, reported in the Sunday Mail newspaper, solicitor Walter Ruark, a former Rotary Club President and church elder used cash to finance loans to other clients and stole cash to pay to another client before "falsifying records to conceal his dishonesty". Also, in a now common fraud typical of many Scottish solicitors who wind up of executries & wills, it was discovered Ruark twice took funds from the estates of deceased clients and falsified ledger entries to cover his tracks.

Walter Ruark was also accused of a £500,000 fraud was accused along with ex-policeman Owen Hughes. Both appeared at Arbroath Sheriff Court in November 2011 yet the case dropped a year later when the Lord Advocate who led the case himself, abandoned the prosecution.

The SSDT findings & report can be viewed online here : Council of the Law Society of Scotland v Walter Forbes Ruark or at the SSDT’s own website here : 1586_Ruark_WF

The SSDT’s Judgement states : The Tribunal having considered the Complaint dated 20 April 2012 at the instance of the Council of the Law Society of Scotland against Walter Forbes Ruark, Solicitor, 42 Ireland Street, Carnoustie; Find the Respondent guilty of Professional Misconduct in respect of

(1) his failure to maintain accurate and adequate records to show his dealings with client monies and to identify the funds of each individual client, and his failure to obtain authority for payment of client funds to the benefit of other clients; (2) his use of clients’ funds for the benefit of other clients without appropriate authority and his falsifying of records to hide these misappropriations; (3) his having a deficit on his client account; (4) his failure to account for the funds to the executry of the late Mr VV; (5) his repeated delay and/or failure to register or record timeously dispositions, standard securities and discharges whereby the lenders remained unsecured for the funds advanced and clients remained uninfeft; (6) his failure to comply with the terms of the Money Laundering Regulations; (7) his use of funds entrusted to him by lenders and his failure to discharge existing securities for properties re-mortgaged resulting in a loss to the lenders and a claim on the indemnity insurance; (8) his rendering fee notes for work which had not been undertaken; (9) his failure to obtemper a letter of obligation; (10) his failure to respond to correspondence from fellow solicitors and his knowingly misleading fellow solicitors (11) his repeated and numerous failures to respond to the Complainers; and (12) his breach of Rules 4, 6, 8 and 24 of the Solicitors (Scotland) Accounts etc Rules 2001;

Disgrace, Dishonour, Dishonesty .. but case DISMISSED

Charges dropped on £500K fraud rap lawyer

By Russell Findlay Sunday Mail 03 March 2013

Politicians have demanded to know why the Crown dropped a prosecution against a £500,000 fraud rap lawyer. Walter Ruark, 62, has now been struck off by the Scottish Solicitors' Discipline Tribunal, who branded him a danger to the public for stealing clients cash. Ruark was arrested, charged and appeared in court but the Crown Office - led by Lord Advocate Frank Mulholland - abandoned the case.

Ruark's former partners in Carnoustie based Gourlay McBain raised the alarm in 2008 but it took five years for him to be banned from the profession. His actions sparked a £666,000 insurance pay out to clients but the Crown did not launch a proceeds of crime case against him.

Labour Justice spokesman Lewis Macdonald said : "The Crown have questions to answer. I believe the Government have not resourced them well enough to pursue every case."But in a case of this kind, there's a public interest in an allegedly fraudulent lawyer being brought to book and not just dealt with by the legal profession. Five years is an inordinately long time."

Labour MP for Central Ayrshire Brian Donohoe said: "The Crown have dropped this case with no explanation and they need to provide one. If what the SSDT are saying is true, he should be in jail, not just drummed out of the Brownies. An independent body is needed to oversee lawyers in the same way doctors are monitored by the General Medical Council. There needs to be a root and branch reform of the legal profession and an end to self-regulation."

Ruark was president of Carnoustie Rotary Club and an elder at the town's Panbride Church. He remained involved with the Rotary Club while facing the probe but has now quit. He and ex-policeman Owen Hughes, 33, appeared at Arbroath Sheriff Court in November 2011 accused of a £500,000 fraud. The case was dropped a year later.

Last week's SSDT report stated "In this case the Respondent [Ruark] misappropriated clients' funds on a number of occasions and also falsified records to hide his dishonesty."The tribunal considered his conduct disgraceful and dishonourable. His conduct was persistent and spanned a long period of time." His dishonest acts taken to cover his behaviour, his lack of response to correspondence and the repeated nature of his conduct disclosed a lack of remorse."His actions presented a clear danger to the public and will inevitably tarnish the good reputation of the profession."

In 2007, a sheriff branded Ruark an unreliable witness when his firm were successfully sued by a client over a botched land deal. Ruark's former partner Alex Small said: "I don't want to say any more than the SSDT report speaks for itself. Only the Crown Office can answer why they took that decision."

The Crown Office said: "It is our duty to keep cases under review and after full and careful consideration of the facts and circumstances of the case. Crown counsel instructed that there be no further proceedings in relation to this matter. The standard of proof for a criminal prosecution is substantially higher than that required for civil proceedings and tribunals."

LORD ADVOCATE & CROWN OFFICE FIDDLE AS CROOKED LAWYERS ESCAPE JUSTICE

Given the now sizeable number of cases where Scotland’s unfit-for-purpose Crown Office & Procurator Fiscal Service (COPFS) have failed to prosecute solicitors on charges of financial wrongdoing with clients money, and even larger frauds involving millions of pounds of legal aid, there is a clear concern Scotland’s prosecutors are operating a policy of avoiding criminal prosecutions of members of Scotland’s legal profession.

Legal Aid Fraud riddle as Crown Office fail to prosecute lawyers in 14 cases. In a series of reports, Diary of Injustice and the Sunday Mail newspaper revealed a host of cases where Scotland’s Crown Office refused to prosecute solicitors even though significant evidence of legal aid fraud had been handed over to prosecutors by the Scottish Legal Aid Board.

The revelations came as a result of an investigation backed up by Freedom of Information requests, reported in more detail by Diary of Injustice here : FOURTEEN lawyers accused of multi-million pound legal aid fraud escape justice as Scotland’s Crown Office fail to prosecute all cases in 5 years

In another case, it was also revealed Thomas Hugh Murray, a Scottish lawyer now based in Lucca, Italy, who is still being chased by the Law Society of Scotland, also escaped a criminal prosecution after Stirling’s Procurator Fiscal Office told the victim “A decision was taken by the Crown Office to take no further proceedings in this case: this decision was not taken lightly as we realise the seriousness of this crime.”

Diary of Injustice reported on the Murray case in more detail and published a copy of the Crown Office letter confirming no prosecution yet referring to ‘the seriousness of the crime’, here : NO JUSTICE for clients as Crown Office & Law Society ‘cosy deal’ allowed FRAUD accused lawyer to slip criminal prosecution & move to Lucca, Italy