Tuesday, September 10, 2013

Lord Untouchable : Judicial Complaints Reviewer reveals Scotland’s transparency dodging top judge has immunity from complaints, cannot be held to account

Lord Gill Moi Ali

Top judge cannot be immune from complaints says Judicial Complaints Reviewer Moi Ali SCOTLAND’S Judicial Complaints Reviewer Moi Ali has called for a change in the law after it emerged the office of Scotland’s top judge, the Lord President of the Court of Session, currently occupied by Lord President Lord Brian Gill has an immunity from the same kind of scrutiny & complaints procedures which apply to all other public servants and even subordinate judicial colleagues of the Lord President.

In a letter released by the Scottish Government, Judicial Complaints Reviewer Moi Ali told Justice Secretary Kenny MacAskill that complaints made to her office about the Lord President could not be investigated or dealt with under the current system, as there are no rules or guidance relating to complaints against Scotland’s top judge.

The omission of any form of scrutiny of the Lord President, discovered by the JCR during the course of her work, and the lack of any powers assigned the JCR to review cases involving complaints against Scotland’s top judge has leaving complainers feeling “outraged that they had no redress, felt disempowered and denied justice.”

Under the current system of what can only be described as less-than-impartial judicial oversight, court users and members of the public who wish to make a complaint against a judge or sheriff can contact the Judicial Office for Scotland (JOFS), which itself is headed by the Lord President. The complaint is then considered by colleagues of the judge being complained against, and the Lord President himself ultimately decides whether any sanction is appropriate.

If complainants remain dissatisfied, they can ask the Judicial Complaints Reviewer to conduct a review of how their complaint against a judge was handled and then the JCR can launch an investigation.

However, given the fact now revealed by the JCR there are no rules or guidance relating to complaints against the Lord President, this imbalance in scrutiny has effectively created a two tier system of regulation where the country’s top judge is immune from scrutiny while all other members of the judiciary can be subject to complaints and an independent review by the JCR of how such complaints were handled.

In the letter to Mr MacAskill, the JCR reinforced this point stating those who had approached her with regards to complaints about the Lord President  felt : “Their view was that the head of the judiciary should be subject to the same rules as those beneath him, and that the public should not be denied access to the complaints process just because their judge happened to be the most senior one.”

JCR Moi Ali added : “I have considerable sympathy for this position, and believe that a fair, independent and proportionate procedure for investigating complaints about the Lord President would enhance public trust and confidence in the judiciary among the public, and would be in the interests of natural justice.”

The JCR said she had raised the matter with Lord Gill and had taken legal advice from senior counsel, which revealed there were no procedures or rules for making a complaint against the current Lord President Lord Brian Gill, other than his "fitness for office".

As an interim measure, Moi Ali has written to the Lord President asking if it could be made clear that conduct complaints cannot be made about him. She also requested clarification of the process for making a "fitness for office" complaint about the judge.

However, she told MacAskill: "The above are interim measures only that do not address the fundamental issue - that there is no provision for the public to make complaints about the Lord President's conduct, including when he is sitting as a judge. I would be grateful if you could give this matter consideration."

Unsurprisingly, the current way judges self regulate themselves and their colleagues is comparable to the way in which lawyers regulate themselves via the Law Society of Scotland and then sanctions if any are applied by the lawyer dominated Scottish Solicitors Discipline Tribunal (SSDT).

However it should be noted the SSDT has managed to strike off a few solicitors, if only due to media pressure whereas no judge has yet been heavily sanctioned or dismissed by the Lord President, even when criminal prosecutions have occurred for drunk driving and even benefits cheating.

Judicial Complaints Reviewer Moi Ali has also registered her support for Petition PE1458: Register of Interests for members of Scotland's judiciary. This has previously been reported in the Sunday Mail newspaper and Diary of Injustice, here : HERE

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

Complaints about the Lord President – JCR seeks change in law (Click image to view letter) The full text of the letter from the Judicial Complaints Reviewer Moi Ali to Justice Secretary Kenny MacAskill :

Dear Cabinet Secretary,

COMPLAINTS ABOUT THE LORD PRESIDENT

I am writing to you about the procedure for members of the public who wish to make complaints about the Lord President.

How the concern arose

This issue was prompted by correspondence I received from three individuals regarding this matter. One wrote to me to inform me that the Rules (Complaints about the Judiciary (Scotland) Rules 2011) appear not to allow complaints about the Lord President. While I was looking into the matter, two unconnected individuals wrote to me with complaints about the conduct of Lord Gill when sitting in the Court of Session as a judge (they were not aware that Lord Gill was the Lord President, nor that complaints about the Lord President could not be made under the Rules).

Normally I would refer any complaints to the Judicial Office (as I do not handle complaints; I merely review their handling). However, on this occasion there seemed little point in referring complaints that I knew could not be considered under the Rules. I wrote explaining the situation to the two individuals. They were outraged that they had no redress, felt disempowered and denied justice. Their view was that the head of the judiciary should be subject to the same rules as those beneath him, and that the public should not be denied access to the complaints process just because their judge happened to be the most senior one. I have considerable sympathy for this position, and believe that a fair, independent and proportionate procedure for investigating complaints about the Lord President would enhance public trust and confidence in the judiciary among the public, and would be in the interests of natural justice.

I have discussed this matter with the Judicial Office and officials at Scottish Government. I have also taken senior Counsel's advice (which I have shared with your officials) and I have written to the Lord President about the matter.

The current situation

I have given your officials a copy of my legal advice. In summary, while the Act (Judiciary and Courts (Scotland) Act 2008), at Section 35, allows for consideration of matters concerning fitness for office of the Lord President, there appears to be no procedure for members of the public to make complaints about matters that are not of a removal-from-office magnitude. Indeed, it is also not clear what the existing process is for the public to raise complaints that are of that magnitude. Nor is it clear from any published guidance that complaints about the Lord President cannot be made under the Rules.

I had wondered if the Rules might be amended to allow for conduct complaints about the Lord President to be considered, but Section 29 of the Act on the imposition of sanctions means that even if the Rules were amended to allow for the independent investigation of complaints about the Lord President (as happens in Northern Ireland), only the Lord President may impose sanctions (in this case, on himself).

Action taken

As an interim measure I have written to the Lord President asking if he would consider revising the published guidance, complaints leaflet and website so that it explains to the public that complaints about the Lord President cannot be accepted under the Rules, and explains why this is so.

I have written both to the Lord President and to your officials at Scottish Government asking that they consider producing published guidance for the public which clarifies what the procedure is for referral by the Judicial Office to the First Minister of fitness for office complaints about the Lord President.

The above are interim measures only that do not address the fundamental issue: that there is no provision for the public to make complaints about the Lord President’s conduct, including when he is sitting as a judge. I would be grateful if you could give this matter consideration.

Annual report 2012/13

Finally, I am nearing the end of my second year in office and I would like to produce an annual report. There has been much activity this year that I would like to report on, much of it positive, including more complaints reviewed and an MoU signed with the Judicial Office. You may recall that I may publish a report only if directed to do so by Scottish Ministers. I would be grateful if you would consider providing such direction, perhaps even a more open ended direction that I must publish such a report every year. This will save me (and my successors) from having to approach you about this annually. It also ensures that the Judicial Complaints Reviewer remains accountable to Ministers, to the judiciary, and to the public.

Yours sincerely,
Moi Ali
Judicial Complaints Reviewer
 

In response to media enquiries on the matter, a spokesperson for the Scottish Government said "The Lord President's office is highly respected and is in a unique position as the head of the Scottish judiciary, whose independence is enshrined in law through the Judiciary and Courts (Scotland) Act 2008. Because it is the head role, the Act takes a different approach to oversight in the Lord President's case - and would require the constitution of a tribunal. This recognises that a balance has to be struck in terms of how oversight of the Lord President's role should ultimately be achieved in a way which fiercely protects its independence."

TRANSPARENCY NOT : JUDICIAL COMPLAINTS REVIEWER’S TOUGH TIME WITH JUDGES

The Sunday Mail newspaper revealed how Judges have treated the Judicial Complaints Reviewer's requests for files on complaints against the judiciary :

Judicial Investigator Moi Ali left in the dark over complaints against Scottish Judges - NO She May Not 10 Feb 2013 Sunday MailJUDICIAL INVESTIGATOR LEFT IN THE DARK

May the watchdog appointed by the Scottish Government to investigate complaints against judges have leave to approach the bench, Your Honours?  NO.. SHE MAY NOT

SILENCE IN COURT Lord Gill has not met judicial investigator so far.
EXCLUSIVE, By Russell Findlay, Sunday Mail 10 Feb 2013

A watchdog appointed to look into complaints against Scotland's judges fears she is being frozen out.

Moi Ali has accused the country's most senior judge, Lord President Lord Gill, of undermining her work by blocking access to vital documents.

She revealed her frustration in her first annual report since taking up the newly-created role of Judicial Complaints Reviewer.

Ali said she was only seeing the correspondence between the Judicial Office, who act for the judges, and the complainers.

But she was not allowed to see the internal memos and reports between the office and the judges about complaints.

She said: "I believe that in order to conduct a review, and to make wider recommendations on complaints handling, I need to see files in their entirety. "Without this, it is difficult to satisfy myself, let alone complainers, as to the fairness of the process. "I have continued to complete reviews but have made it clear to complainers that I have not had access to all documentation in their complaint file."

Justice Secretary Kenny MacAskill defied judicial opposition to create the part-time job to monitor how complaints against judges, sheriffs and justices of the peace are handled.

And Ali fears there is still resistance from within the judiciary to her role as an independent investigator.

She said: "With any profession, there's a feeling that regulation should come from within. "But this is the first time that the judiciary have been exposed to this kind of scrutiny, which other professional groups are more used to. "Most have accepted there is some kind of mechanism to scrutinise their conduct. That doesn't mean that we don't have a free and independent judiciary."

Ali also revealed that she has still not met 70-year-old Lord Gill, who was appointed to his £214,165-a-year post last June, and did not meet his predecessor Lord Hamilton.

She said: "I'm not overly concerned but I'm slightly surprised that the Lord President did not proactively suggest a meeting. I don't need to meet him but I think it would have sent out a positive message."

Ali is more concerned at the decision to block her access to documents.

She said: "This came to light because in review number one I was sent all the documents but then I didn't get the same ones for the second review. "At that point I discovered that I had been given them in error the first time. "I can't see any reason why and that worries me because I can't understand it."

Ali also voiced concerns that judges being investigated could evade punishment by quitting before the probe is complete. And she found there has been a breach in the rules in the way one of the four complaints she reviewed had been handled. Ali also urged the judiciary staff to use plain English when dealing with the public.

Her lack of administrative support was also highlighted - on her first day, she did not have a computer, printer, phone, email address or stationery - and she said it meant she was "unable to give the level of service that I would like to provide".

A Judicial Office for Scotland spokeswoman said: "In the short time the JCR has been in the post, we have worked very closely with Ms Ali in implementing, developing and reviewing the rules and how they are applied.

"With any new system, there is always a period of adaptation and adjustment and we are grateful to Ms Ali for the helpful suggestions and recommendations she has put forward and which, for the most part, have been implemented.

"A review of the rules is due to take place shortly and the Lord President is committed to working constructively to ensure the complaints procedure develops effectively."

34 comments:

Anonymous said...

Little wonder he treats the Scottish Parliament with such disdain if he/his office has an immunity from everything.

Good on Moi Ali for bringing this up!

Anonymous said...

Regardless of how good or bad this judge actually is,the word "Immunity" is the new spelling for "Corruption" in this age.

Anonymous said...

A Judicial Office for Scotland spokeswoman said: "In the short time the JCR has been in the post, we have worked very closely with Ms Ali in implementing, developing and reviewing the rules and how they are applied.

"With any new system, there is always a period of adaptation and adjustment and we are grateful to Ms Ali for the helpful suggestions and recommendations she has put forward and which, for the most part, have been implemented.

"A review of the rules is due to take place shortly and the Lord President is committed to working constructively to ensure the complaints procedure develops effectively."

Obviously not.

The Sunday Mail story is from February and here we are seven months on in September with a Lord President and an immunity from scrutiny and complaints.

Time the judges are brought into line like everyone else.

Anonymous said...

Imagine what anyone with a case being heard by this Lord Gill must think after reading all this!

Anonymous said...

Nice to know our judges cannot be trusted

Anonymous said...

It is not simply that the Lord President is seemingly above reproach which concerns me. This omnipotence is transferred to his decisions regarding the conduct and appointment of his fellow judges.

What is required is a truly independent and transparent process, entirely separate from the legal profession and the Law Society of Scotland, to examine complaints and appoint judges.

Anonymous said...

Usually when you hear someone has an immunity from prosecution it is some drug dealer or terrorist about to rat out his mates.First time I've ever heard a judge needs an immunity from prosecution or whatever and just as sleazy!

Anonymous said...

Less of the Victorian and more of the Medieval by the sounds of these judges and who is to say this immunity has not been used by other judges?After all you wrote there has not been one judge sacked yet or suspended in fact has there ever actually been a complaint found against a judge?Probably not so the whole complaints about judges thing is about as credible as the lawyers version of complaints.

Anonymous said...

Why should he have immunity??must have a lot to hide.What if someone being prosecuted in court jumped up and said I have an immunity and you cant send me to jail???same thing isnt it so take away his immunity and he must be like everybody else not perfect and able to be complained about if he does wrong like everyone else.

Anonymous said...

There is no honest reason a judge needing an immunity to carry out his work he should give it up immediately and now we all need to know how many times this immunity has saved top judges from complaints or scrutiny of what they did in the past/are doing now.

Anonymous said...

Fascinating insight into the JCR from the letter you have published.

The last part of Moi Ali's letter to the Cabinet Secretary for Justice is extremely interesting regarding the requirement of her office to request permission from Scottish Ministers to publish an annual report.

Reading through the Judiciary and Courts (Scotland) Act 2008 http://www.legislation.gov.uk/asp/2008/6 with regard to the sections covering the JCR there seem to be overly strong requirements to consult the Lord President on just about every aspect of the JCR's function.

Surely with this recently discovered immunity of the Lord President to complaints,such consultation with the Lord President must be viewed in the context of a vested interest having an undue influence on an impartial JCR rather than such consultation carrying any legal merit associated with maintaining transparency.

Additionally,the rather odd clause in Section 30 of Scottish Ministers having to give an annual permission for the JCR to publish a report seems to be another insert at the behest of vested interests in the judiciary.

It will be interesting to see how this plays out.

Anonymous said...

No one should be untouchable if a country is a democracy. It is rule by the people, not domination from an unelected minority faction which has a position at the top where the port holder is immune. Now we know why he does not want a register of interests.

Anonymous said...

Yes very interesting stuff about these judges and their immunity.No wonder they go on in court like something out of this world - because they are unaccountable.
Also the argument put forward by the Scottish Government that a top judge needs immunity to remain independent is utter rubbish.

Actually this statement is very worrying because if the Scottish Gov get independence for Scotland are they going to go around giving immunity to themselves to maintain their view of independence?

Very dangerous indeed.

Anonymous said...

The man gets £220K a year from taxpayers and also has an immunity from complaints!
How can any of this be fair or honest?

Anonymous said...

Anyone with an immunity from complaints or external scrutiny should not have a say in how laws are drafted or passed and now we know this has been the case for a long time some people should be looking into any law the Lord President's office has been consulted on or any amendment insisted or drafted by the Lord President.

Easy argument - if a law is drafted or amended by someone who is not subject to scrutiny or so on then surely this must breach ECHR.

Anonymous said...

Impressive coverage.What a pity Scotland's legal system is as backward as those who run it.I imagine much of Scots society will sadly be exactly the same.

Anonymous said...

People like Lord Gill used to their own way they think how dare you question me. I have said it before he is only a man, he must therefore be accountable like the rest of us. Keep up the pressure everyone.

Anonymous said...

Anonymous said...

Anyone with an immunity from complaints or external scrutiny should not have a say in how laws are drafted or passed and now we know this has been the case for a long time some people should be looking into any law the Lord President's office has been consulted on or any amendment insisted or drafted by the Lord President.

Easy argument - if a law is drafted or amended by someone who is not subject to scrutiny or so on then surely this must breach ECHR.

12 September 2013 15:17

100% correct but dont expect any leech lawyer to jump on this unless there is some pigswill case full of legal aid bungs to take it to court

Anonymous said...

Fully agree with Moi Ali and what you have been writing about these judges.If they had any shred of decency they would show up at the parliament and also end this immunity to keep them clean when we know now they are not!

Anonymous said...

To answer your article and some of the comments here the fact is all judges have an immunity from complaints.I have been party to a long running case in the Court of Session and some of the judges have acted stupidly in hearings while others have shown nothing but blatant bias for the defenders (a law firm and an advocate). Having read many of your reports this morning about registers of interest (on the advice of my solicitor) I also have to tell you my QC told me he is aware one of the judges who dismissed several key pleadings in my case is a great friend of one of the directors of the law firm (defenders) and has done paid work for the same firm.I have tried to make a complaint about some of the bias shown by the judges against my case to no avail and basically been blocked at every step by the office of the judges to the point it is useless complaining.Yesterday afternoon my solicitor emailed me a link to this blog and said "all judges are immune from complaints as you will see from this blog on Scots law"
I have read the petition page at the Scottish parliament and wish you all the best also will send you more information on my case and pages about what is going on with my case in court.

Anonymous said...

Anonymous said...
To answer your article and some of the comments here the fact is all judges have an immunity from complaints.I have been party to a long running case in the Court of Session and some of the judges have acted stupidly in hearings while others have shown nothing but blatant bias for the defenders (a law firm and an advocate). Having read many of your reports this morning about registers of interest (on the advice of my solicitor) I also have to tell you my QC told me he is aware one of the judges who dismissed several key pleadings in my case is a great friend of one of the directors of the law firm (defenders) and has done paid work for the same firm.I have tried to make a complaint about some of the bias shown by the judges against my case to no avail and basically been blocked at every step by the office of the judges to the point it is useless complaining.Yesterday afternoon my solicitor emailed me a link to this blog and said "all judges are immune from complaints as you will see from this blog on Scots law"
I have read the petition page at the Scottish parliament and wish you all the best also will send you more information on my case and pages about what is going on with my case in court.

14 September 2013 13:07
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This is what they refer to their stance as being deliberately obtuse, where they take a view so as to humiliate you and where your facts in law are pushed to the side?

Anonymous said...

QC openly admits to client the judge has an conflict of interest - which I take it has not been declared.

The Scottish justice house of cards beginning to crumble a little due to this blog???Please speak out more!!!

Anonymous said...

This Judiciary and Courts Act is just another protection mechanism for judges the courts and lawyers.

A question.

Does Kenny MacStooge have to consult Lord Gill on what to say before he replies to Moi Ali?

If you read the act it seems no one can do anything about the justice system without getting the say so of the Lord President who has this immunity from everything and is so untouchable he can tell the parliament to get stuffed about judges interests and no action is taken!

Anonymous said...

Anonymous 14 September 2013 13:07,

Yes indeed I agree but most of the legal profession are immune from complaints, they have their colleagues in every bureaucracy to protect them. No one on this planet can shock me about this profession, they control everything.

Anonymous said...

Given that Lord Gill continues to defend the indefensible, has no trustworthy rules in place to force Scottish Judges to stop presiding in cases where there is a conflict of interest (most recently when lady Smith interfered with Justice in the Bowen Scandal to do with the Robert Green fiasco, which he oversaw), continues to defend and support a Scottish Judicial System that is hopelessly broken, corrupt and not fit for purpose, has made a rule that he is above the law and does not have to answer to anyone (least of all the Scottish People), has allowed the circumstances to prevail where Scottish Judges are the highest paid in Europe providing the worst standard of service, can Lord Gill be considered to have a character above reproach and fit to be a Scottish Judge?

Anonymous said...

Do the public know that a solicitor conducting a court case is immune from any claim by a client for mistakes or errors made when conducting a court case. A website clearly shows this, it describes in great detail how a Troubleshooter lawyer " a lecturer in Law at Aberdeen University" appointed by the Law Society to investigate a complaint gives this advice to the client, so it is not only the Judges who have immunity.

Anonymous said...

In the interests of accountability it is not appropriate for Scotland's top judge or his colleagues to be immune from anything and especially not immune from scrutiny regarding their actions in office or in the courts.

Anonymous said...

I agree with the last comment this immunity you are talking about extends to all judges.If it were not so there would by now be a string of judges who have been disciplined,sanctioned or sacked.Name me one.Zero.Correct.There are none.Immunity for all the judiciary by default unless the immune from everything Lord President decides otherwise and he has never decided otherwise and is not likely to.

Anonymous said...

Incredible really to read all this about Scotland.Not the image presented over here but of course every country has its own view of what it wants others to see.
Well you have done a great job of exposing Scots law as a big fake and these judges well it is the icing on the cake.They are acting more like racketeers than what judges and justice is supposed to represent.Keep up the good work!

Anonymous said...

Your top judge seems not to like someone looking over his shoulder..could this be because all the judges are being let off the hook when found out for being in the wrong?!

Anonymous said...

Why do Scottish judges need the protection of immunity if they have a character above reproach, necessary to do their job?

Anonymous said...

Yes 16th Sept 9.14 the website also clearly shows how the police bend over backwards and tie themselves in knots to avoid facing up to solicitor criminality and also how the politicians dodge reality by inventing false legislation, it is almost unbelievable ,well worth looking at.

Anonymous said...

The Scottish Government spokesperson seems to have forgotten their Justice Minister Kenny MacAskill intervened in the judiciary with the Cadder fiasco.Did he not brand the judges as spectators at the Edinburgh Fringe and say something about he who pays the piper calls the tune?

It is about time these judges stopped calling the tune anyway.Scotland is not about judges or being run by judges on big pay packets and immunity from anything coming their way.

Anonymous said...

Anonymous said...
Your top judge seems not to like someone looking over his shoulder..could this be because all the judges are being let off the hook when found out for being in the wrong?!

17 September 2013 17:28
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You have hit the nail on the head.

Their whole belief system over many years of waste, decay and sloth has ended up being, 'As Scottish Judges we have to be seen as being incapable of committing crime, therefore we shall need to make a rule whereby we are immune from prosecution'?

Get the backwards logic?