Thursday, February 27, 2014

The Dishonesty Factor: Scottish solicitors accused of dishonesty ‘less likely to be struck off’ than dishonest lawyers who face tougher regulation in England & Wales

Contrary to profession’s view, evidence from clients suggests dishonesty in Scots solicitors is rewarded, not punished. SCOTTISH solicitors “make false representations in order to improve their client’s position, not necessarily their own”. This was a claim made by solicitor Alistair Cockburn, Chairman of the Scottish Solicitors Discipline Tribunal (SSDT) in response to key questions raised by BBC Journalist Sam Poling in the recent investigative programme Lawyers Behaving Badly.

The claims made by the tribunal Chief led to startling revelations over how the lawyer led discipline tribunal which is charged with making findings against members of Scotland’s legal profession deals with allegations & evidence of dishonesty against rogue solicitors.

Insisting the discipline tribunal was ‘robust’ and had a duty to the public, the Chair of the SSDT went on to justify his position, stating “One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.” Mr Cockburn went onto claim dishonesty is not commonplace and would result in solicitors being struck off. The SSDT Chair told the BBC journalist: “Normally dishonesty will result in striking-off.”

However, many clients who make complaints about dishonest solicitors will be surprised at the SSDT Chair’s claim, given the fact most complaints involving dishonesty encounter resistance on the part of the legal profession's self regulatory bodies such as the Law Society of Scotland and Scottish Legal Complaints Commission (SLCC).

 Solicitors sometimes make false representations – SSDT Chair Alistair Cockburn speaking to the BBC.

Sam Poling asks: The Scottish Solicitors’ Discipline Tribunal hears all serious conduct cases against solicitors. Last year they struck off nine of them. But is this robust enough?

Alistair Cockburn Chairman, Scottish solicitors discipline tribunal replies: It is robust in the sense that it doesn’t just give convictions on the basis that somebody’s brought before us charged by the Law Society.  We are mindful, particularly when reminded of the lay members, of a duty to the public.

One is always concerned when there is deception but you can have a situation where solicitors simply lose their place. They make false representations in order to improve their client’s position, not necessarily their own. And you would take that into account in deciding what the penalty was but there’s no suggestion that such conduct wasn’t deemed to be professional as conduct. 

Sam Poling: So there are levels of dishonesty which sit comfortably with you, satisfactorily with you?

Alistair Cockburn: No it’s not a question of saying sitting comfortably with me.  I’ve told you…

Sam Poling: OK that you would accept?

Alistair Cockburn: No I’d be concerned on any occasion that a solicitor was guilty of any form of dishonesty.  One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.  But you make it sound as if it’s commonplace.  It isn’t.  Normally dishonesty will result in striking-off.

The position on dishonesty taken by the SSDT boss appears to conflict with that found by many clients who are forced into the unenviable position of having to complain about their solicitor.

After months of waiting on results from regulators run principally by lawyers, most clients who file complaints against their solicitors will be all too aware that regulators often refuse to even look at claims of dishonesty due to the fact a proven case of dishonesty against a solicitor may entitle clients to claim compensation from the Scottish Solicitors Guarantee Fund, and raise potential legal action in Scottish courts.

More often than not, solicitors who are dishonest to their clients, and solicitors who regularly make dishonest representations – even before judges in a court of law, will not be struck off simply because regulators will ensure such cases never appear before the tribunal or see the light of day in a complaints decision found against a fellow solicitor by his colleagues in the profession’s own self regulator.

Unsurprisingly, the Scottish tribunal’s view of claims of dishonesty by solicitors – a common theme in almost all complaints made by members of the public or clients against the legal profession in Scotland, contrasts sharply with the opinions of legal experts in the rest of the UK who insist dishonesty is a striking off offence.

The BBC asked a panel of three legal experts from England & Wales for their opinion on the case of John G O’Donnell and how he was dealt with by the discipline tribunal which related to a case where O’Donnell was accused of borrowing £60K of clients money without consent. The panel easily concluded solicitors accused of dishonesty should be struck off as there was a risk to the reputation of the legal profession and the risk of reoffending was too great.

Dishonesty in the legal profession: Risk factors mean it is a striking off offence – English legal experts.

Andrew Hopper QC said: “I cant get my head round borrowing in this context. Somebody explain to me how you can borrow something without anyone knowing about it. That’s just taking.”

Andrew Boon Professor of Law, City university, London said : “They actually say in the judgement they would have struck him off but the client hadn't complained.”

Andrew Hopper QC “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”

Andrew Boon, Professor of Law: “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”

As Sam Poling went on to report: “but he [O’Donnell] wasn't stopped. The tribunal simply restricted his license so that he had to work under the supervision of another solicitor.”

In Scotland every year and for well over two decades, there are and have been thousands of enquiries and complaints to the Scottish Legal Complaints Commission (SLCC) and the Law Society of Scotland.

Almost all complaints against solicitors indicate at at one stage or another, the solicitor was dishonest to their client, either by making a false representation to them as to the progress of their case, or making false representations to cover their own positions.

More often than not, as in the case of Borders solicitor Andrew Penman, who a Law Society reporter found in 1994 had deliberately deceived a bank, had attempted to put files in order with an implication of dishonesty while doing so, hardly any complaint against a Scottish solicitor which documents dishonesty on a grand scale, has ever resulted in a striking off.

Mr Penman, who still works as a solicitor at Stormonth Darling solicitors in Kelso, was never struck off, and the Law Society along with its most senior staff set out to ensure any legal action against Mr Penman would never make it to court, the case and its history reported in detail HERE.

Contrary to the Law Society’s claims during the 1990’s, the Penman case was not a blip. Evidence from hundreds of complaints since the 90’s show is more common than not for the dishonesty of a solicitor to be rewarded in the Scottish legal profession with a continuing practicing certificate, just as in the O’Donnell case and hundreds, potentially thousands of others, rather than result in a striking off.

Friday, February 21, 2014

MSPs hear Scots Party Litigants face Supreme Court civil appeal lock-out due to "window dressing"measures from Faculty of Advocates & lack of help from top judge

MSPs hear of little help for Scots Party Litigants in Supreme Court appeals. MEMBERS of the Scottish Parliament's Petitions Committee were told earlier this week that measures put in place by the Faculty of Advocates to help Party Litigants raise appeals in civil court cases to the UK Supreme Court – measures which require signatures from two counsel for a Party Litigant’s appeal to proceed, are mere “window dressing” and only serve to further obstruct or block access to justice for people who do not have legal representation.

Kathie Mclean Toremar, who took her Petition 1504 to the Scottish Parliament’s Petitions Committee this week in a quest to obtain reform to the way in which the legal profession make life difficult for unrepresented party litigants to appeal against decisions taken in the Court of Session, detailed the difficulties faced by those who do not have expensive legal teams in place to represent their cases before Scotland's judiciary. The petitioner also revealed to MSPs that the average length of case for the majority of party litigants in Scotland is a shocking 11 years.

And it emerged in answers to further questions from MSPs that Scotland’s top judge Lord President Lord Brian Gill - famed for his own sharp criticism of the Civil Justice system and his Scottish Civil Courts Review can only manage to direct people with no legal representation or experience of the law to a web page, rather than provide help or answers to why no party litigant has ever been able to approach the Supreme Court after enduring lengthy, bruising encounters in front of Scotland’s highest court, the Court of Session.

Mrs Mclean Toremar, who has been through a prolonged & arduous case in front of Scotland’s unsympathetic judiciary told an amazed Petitions Committee: “I approached Lord Gill, but he simply sent a letter from his secretary telling me to go I did not ask for legal advice and I did not ask any unusual questions. I just asked about paragraph 1.8, but he would not answer me.”

In an attempt to secure a fair hearing for her own legal case, Mrs Mclean Toremar also revealed to MSPs she had tried thirty eight different solicitors, all recommended by the Law Society of Scotland in an attempt to secure a fair hearing for an appeal against a decision. However, every single solicitor out of the 38 refused to take the case on, citing reasons  including “conflict of interests, lack of  funding, too many hurdles, and, last but not least, the fact that the pursuer in the appeal has been a party litigant, in relation to which the legalities are a minefield that a solicitor would be reluctant to enter.”

Prior to questions from MSPs in relation to the petition, the Petitions Committee Deputy Convener Chic Brodie criticised the way in which the Scots legal establishment fails to deliver information or help for those who need access to the courts.

Mr Brodie said:  “I will begin with a general point, which does not relate only to the Public Petitions Committee. I am very concerned about how hard it is to get information out of the legal system in Scotland. Given that a number  of approaches have been made and that hardly any replies have been received, I wonder what on earth is going on and how our legal system is being administered. People should at least have the decency to provide a reply, whether we are talking about the Lord President, the cabinet secretary or whoever. I leave that point lying.”

In response to questions from members of the Petitions Committee, Mrs Mclean Toremar also referred to a response from the Faculty of Advocates to the consultation on the Courts Reform (Scotland) Bill which is soon to be heard by the Scottish Parliament’s Justice Committee. In that response, the Faculty of Advocates said it found Party Litigants “Burdensome” and confirmed it was aware party litigants have difficulty with obtaining signatures from counsel.

MSPs also heard evidence from the petitioner, that so far, not one party litigant from Scotland has ever been granted the right to appeal to the Supreme Court, so they cannot fulfil the criteria for making an appeal to the European Court of Human Rights.

The Scottish Government have recognised there is an issue in how party litigants appeals are dealt with in Scotland and have included ‘some’ reforms in the forthcoming Courts Reform (Scotland) Bill. However the current proposals on offer from the Scottish Government do not go far enough and apparently do not even mention the phrase “party litigant” and in response to questions from David Stewart, the Convener of the Petitions Committee, Mrs Mclean Toremar said the proposals from the Scottish Government would not solve the problems raised in her petition.

Video footage and the official report from Tuesday’s Petitions Committee discussion of Petition 1504 by Kathie Mclean Toremar :

Petition PE1504 by Kathie Mclean Toremar on party litigants civil appeals to the Supreme Court

Supreme Court (Civil Appeals) (PE1504)

The Convener:  The next item of business is consideration of one new petition, PE1504, by Kathie Mclean-Toremar, on party litigant civil appeals to the Supreme Court. As previously agreed by the committee, we will take evidence from the petitioner. Members have a  note by the clerk, the Scottish Parliament information centre briefing and the petition.

I welcome the petitioner and Gordon Mclean to the meeting. I invite Ms Mclean-Toremar to make a short presentation of approximately five minutes to set the context for  the petition, after which I will start with some questions and then my colleagues will ask additional questions.

Kathie Mclean-Toremar:  Good morning, ladies and gentlemen. I hope that you understand that the petition is about not just me but a gross imbalance in the law regarding all persons in Scotland who find themselves being a party litigant—that is, someone who has to represent themselves in court. We are lucky enough to live in a democratic society in which that is possible.

As I said in my petition,  in “A guide to bringing a case to The Supreme Court”, paragraph 1.8, which is headed “Appeals from the Court of Session in Scotland”, states that, although “permission to appeal is not required from an interlocutor of the Inner House of the Court of Session”, the appeal “must be signed by two Scottish counsel”.

That is where the flaw is.

As we all know, a party litigant is a person who, for whatever reason, such as a lack of funds for a solicitor, represents themselves. Nowadays, people are more likely  to represent themselves because of a lack of funding for solicitors from the Scottish Legal Aid Board. I myself have seen solicitors demonstrating about the issue. We will have a situation in which more and more people will be forced to represent themselves in court.

When a party litigant represents themselves in the Court of Session, loses their case, then appeals and loses that appeal—I learned through a freedom of information request that there are no statistics on how many party litigants have won their  case in the Court of Session—they are also then denied the right to appeal to the Supreme Court, which, according to the European Court of Human Rights, is deemed to be the highest court in the United Kingdom. On the Court’s website, which is, frequently asked question 26 states that an individual must have taken their case to the highest court in the land before they can put it to the European Court of Human Rights.

The fact is that people are being denied their human rights; in this case, the relevant article is article 6, on equality of arms. Everyone deserves a fair hearing. We should be on a level playing field, not divided between the have and have-nots in society. Party litigants lose their right to appeal because of paragraph 1.8, which states that two Scottish counsel must sign the appeal, while the experience of all party litigants is that they cannot approach Scottish counsel in their chambers or in the Court of Session, and certainly not at the advocates library. The only way to  approach counsel is through a solicitor, which is where the even larger difficulty lies.

The solicitor has only 42 days to read a case that might have been going on for many years. They then need to speak to two counsel and have them read the case, print their opinion and apply for an appeal to the Supreme Court. Although in theory that process can happen, in practice it cannot and does not happen. Legal aid has to be applied for, which takes time. If legal aid is granted, the solicitor can then contact counsel—I said “if” it is granted; the committee should please take into consideration the cuts to legal aid.

The real problem is that solicitors are wary of taking on a case at such a late stage. As part of my research, I obtained a list of 38 solicitors via Law Society of Scotland recommendations.

Having telephoned all 38 with the scenario I have just described, I found that not one of them was willing to take on such a Herculean task. The reasons cited by many of them included conflict of interests, lack of  funding, too many hurdles, and, last but not least, the fact that the pursuer in the appeal has been a party litigant, in relation to which the legalities are a minefield that a solicitor would be reluctant to enter. It is not the solicitors’ fault; it is  the fault of paragraph 1.8, which denies party litigants their rights.

In paragraph 6 of its response to the consultation on the Courts Reform (Scotland) Bill, the Faculty of Advocates states that it knows that party litigants have difficulty with obtaining signatures from counsel. It goes on to say:“It has also become increasingly burdensome. The number of such cases has been increasing: between 2005 and 2010 the Faculty received five such requests from party litigants”.

That is five requests in five years. “Burdensome” is defined as heavy, onerous, troublesome and hard to deal with, so we can deduce that the faculty does not think highly of party litigants I am still waiting for a response from the Faculty of Advocates to my freedom of information request about how many party litigants it has helped to appeal to the Supreme Court, but I have also contacted the Supreme Court and I already know the answer. Not one party litigant from Scotland has ever been granted the right to appeal to the Supreme Court, so they cannot fulfil the criteria for making an appeal to the European Court of Human Rights.

Paragraph 1.8 denies a party litigant the right to appeal to the Supreme Court and to appeal to the European Court of Human Rights. That is a blatant human rights issue. The theory is there but, as I say, the practicalities deny a party litigant the right of appeal. Everyone must be treated equally, with fairness and respect. The current situation contradicts the Human Rights Act 1998 severely.

This is a flaw in Scottish justice. The system that is in place is not fit for purpose. It places insurmountable barriers in the way of the party litigant. That happens in any civil case, and civil appeals show that party litigants have fewer rights. The Scottish Government  has clearly recognised that there is a problem. Mr MacAskill mentions the issue in the Courts Reform (Scotland) Bill, but nowhere do the two words “party litigant” appear in the bill.

I believe that my petition could serve to support any further planned measures to bring relief in such cases, so I feel that it is in the interests of justice and of all party litigants for the committee to consider it.

The Convener: Thank you very much. If Mr Mclean would like to respond to any of the questions that we ask,  I encourage him to catch my eye.You have probably dealt with my first question, but I will ask it anyway, just for the record. You mentioned the two-counsel rule, which seems to be crucial. Are you arguing that article 6 of the European convention on human rights, which is on the right to a fair hearing, is being breached?

Kathie Mclean-Toremar:  I am saying that a party litigant does not have the right to approach counsel. That is a breach of equality of arms, for which article 6 provides, so people’s human rights are being breached. A party litigant cannot approach counsel directly—they must go through a solicitor.

The Convener:  My second question is about future legislation. You mentioned the Government’s Courts Reform (Scotland) Bill, which will be considered by the Justice Committee, and you hinted at what it could do. My understanding is that that bill will take away the two-counsel rule and that it will be for the inner house to decide whether there are sufficient grounds for someone to go to the Supreme Court. What is your view of that assessment? If the bill went through, would it solve your problem?

Kathie Mclean-Toremar:  No, it would not. The bill, which I believe was introduced on 6 February, does not mention party litigants, and I think that that  is a gross problem. The phrase “party litigant” does not appear in the bill. Will the bill provide a big umbrella, under which everyone will fit, or will it provide for people who are legally represented? That is where the problem lies. If someone is not legally represented, how will they be able to go to the inner house, which is what it is proposed will happen?

The Convener:  So you are arguing that the bill would not solve your problem.

Kathie Mclean-Toremar:  It would not cover party litigants.

The Convener: Okay—thank you for that.

Chic Brodie:  I will begin with a general point, which does not relate only to the Public Petitions Committee. I am very concerned about how hard it is to get information out of the legal system in Scotland. Given that a number  of approaches have been made and that hardly any replies have been received, I wonder what on earth is going on and how our legal system is being administered. People should at least have the decency to provide a reply, whether we are talking about the Lord President, the cabinet secretary or whoever. I leave that point lying.

What is your view of the proposed change, whereby someone would be able to approach the Faculty of Advocates, rather than having to have two solicitors approve their appeal to the inner house?

Kathie Mclean-Toremar:  At the moment, a party litigant has to get two signatures from Scottish counsel. That is where the problem lies. It is not possible to approach counsel, to go to the Court of Session to speak to counsel or to phone up counsel. They will have nothing whatever to do with you. It is necessary to go to a solicitor, who will go on your behalf to counsel.

Chic Brodie:  I am sorry to interrupt, but in the petition you say:“only a solicitor practising in Edinburgh can contact a counsel.”

Kathie Mclean-Toremar:  Yes, that is another problem.

Chic Brodie: Where is the evidence for that?

Kathie Mclean-Toremar:  I believe that a solicitor from Glasgow submitted a petition a few months ago on the problem whereby a Glasgow solicitor has to instruct an Edinburgh solicitor in order to be able to go to the Court of Session. That is my understanding—that is the way in which the situation was explained to me. I went to a Glasgow solicitor who told me that. A solicitor cannot do that unless they have what I think is called the right of audience.

Chic Brodie:  If that is the case, I find it most disconcerting. I have one last question. I know that we cannot go into the detail of your case, but do you agree that there has to be some filtering out of the number of cases in which the inner house might be approached, other than through the two solicitor rule? Have you any idea how that process might be performed?

Kathie Mclean-Toremar:  We do not know how long it will take for the Courts Reform (Scotland) Bill to go through. It could be changed so that a party litigant who had gone through the Court of Session, appealed and lost their appeal would have the right to go directly to counsel.

It might be argued that there is already a free legal services unit. You can go to various agencies and ask them to make an application to the FLSU, which is run by certain advocates on a pro bono basis, but the unit can give people only three days. Many cases have taken years to go through the Court of Session, so three days is not enough. It takes more than three days to read the case and do research. The FLSU does not cover a party litigant in that regard.

Angus MacDonald:  I appreciate your bringing these anomalies to the Parliament’s attention. It seems unfair that  party litigants can approach counsel only through a solicitor, which defeats the purpose of the individual having the right to represent themselves.

I agree with you that the 42-day period for filing a notice of appeal seems excessively short. You did not really touch on that in your preamble. It has been noted that the Courts Reform (Scotland) Bill seeks to introduce a provision that requires litigants to seek leave to appeal, rather than there being a requirement for two counsel to certify appeals. I understand that, in the bill, there is no intention to increase the 42-day period for filing a notice of appeal, although I could be wrong. Clearly you would wish that period to be increased.

Kathie Mclean-Toremar: Yes, if possible.

The Convener: As you probably know, we get a briefing from our information service—SPICe—on every single petition that is lodged. Our briefing states:“the Faculty of Advocates suggests that party litigants can approach the Faculty directly for assistance in this regard.”Do you have any comments on that?

Kathie Mclean-Toremar:  I have tried—and I know of three other party litigants who have tried—to address the Faculty of Advocates. The faculty does not reply.I sent a freedom of information request on the matter eight weeks ago, but I have not had a reply. As it says in its response to the Government consultation, the Faculty of Advocates finds party litigants “burdensome”. That is shocking. That means that we are not on a level playing field where everyone has the right to represent themselves. The system does not work.

The Convener:  Is it reasonable to say that there is an outstanding issue around the Faculty of Advocates? We have picked up that it is offering to provide help and advice, but you are saying that you have found it difficult to get a response.

Kathie Mclean-Toremar:  It does not respond. That is where the free legal services unit comes in, which the Faculty of Advocates runs on a pro bono basis. The problem is that you have to find an agency, which could be Strathclyde  law clinic or a citizens advice bureau, to make the application to the free legal services unit at the advocates library, and somebody will read it and say yes or no. However, as you can have only three days from the unit, and they take perhaps one day to read it and one day to do a bit of research, when will they stand in court and do the proof? There is no time. I hate to say this, but I feel that the Faculty of Advocates is just doing some window dressing and not addressing the problem. It does not respond to freedom of information requests.

I made an FOI request to the Supreme Court in London, which told me that not one party litigant from Scotland has ever been able to appeal. Why?

The Convener:  I am not putting words in the mouth of our information service, but the general comments that we get through it are that the two advocates or counsel that you refer to will not sign an appeal unless they feel that there is a valid issue in law for the case to go to the next stage. That is the general legal position. Do you accept that that summarises where we are in the law?

Kathie Mclean-Toremar:  Yes. The average length of case for the majority of party litigants is 11 years. I think that they have a point in law; otherwise, they would not have kept going for more than 11 years and their cases would have been thrown out of court. It is up to the party litigant to put forward the points of law to the advocate, which is not done lightly. However, they are not paying for the advocate or counsel, and I think that money really speaks.

The Convener:  Mr McLean, do you have anything to add at this point?

Gordon Mclean: No.

Kathie Mclean-Toremar:  Might I add something?

The Convener: Sure.

Kathie Mclean-Toremar:  I approached Lord Gill, but he simply sent a letter from his secretary telling me to go I did not ask for legal advice and I did not ask any unusual questions. I just asked about paragraph 1.8, but he would not answer me. Everybody whom I have asked in the legal system has told me to go to paragraph 1.8.

The Convener:  Thank you for that. We have come to the end of questions, but we want you to stay while we look at how to deal with your petition.

You have raised a lot of very interesting points and shown that there is real frustration among party  litigants, particularly about getting to the Supreme Court and using ECHR. Normally, the committee wants to go as far as we can with each petition. There are some exceptions, however, such as where another committee is looking at legislation that is relevant to the petition. As you will know, the Justice Committee is looking at the Courts Reform (Scotland) Bill. It would therefore make a lot of sense for us to refer the petition to that committee so that it can consider whether the bill could help you.

My advice to the committee is that we refer the petition as soon as possible to the Justice Committee so that, as part of its consideration of the bill, it can look at the issues raised by the petitioner. I think that the petition raises quite a lot of questions, and I would be pleased if our colleagues in the Justice Committee could have a look at it. However, that is a matter for committee members to decide. What are members’ views?

Chic Brodie:  I agree with your view. However, sometimes we forget why we are  here, which is to respond to people who have genuine issues. I fail to understand why the powers that be are not responding, at least with some degree of courtesy, to the petitioner. Personally, I find it wholly unacceptable that information is not being provided—there is not even the courtesy of a letter. I hope that the message that we send from here, whether formally or not, is that we are here to represent petitioners, whether they are right or wrong, and that they should be treated with courtesy, no matter what part of Government is involved. Frankly, in my opinion, some of the answers—indeed, the lack of answers—that have been received in this case are wholly unacceptable.

The Convener:  Mr Brodie makes an excellent point. Do members agree with the recommendation that we refer the petition to the Justice Committee? Members indicated agreement.

The Convener:  As the petitioners will have heard, we are keen to ensure that the committee focusing on the bill also focuses on your petition. We will therefore arrange for it to be transferred immediately to the Justice Committee, which will keep you up to date with progress. The petition is still active in the Scottish Parliament; it is simply being referred to the appropriate committee that is considering the legislation.

Kathie Mclean-Toremar:  When I went to my local MSP, Michael Russell, he informed me that he had spoken to Kenny MacAskill, who said that the law will be changed when Scotland gets independence.

The Convener: Right.

Kathie Mclean-Toremar:  I just wanted to put that on the record.

The Convener: I have to say that that is slightly beyond my pay grade. Mr Russell is entitled to his comments but, as far as what the Public Petitions Committee can do—

Jackson Carlaw:  I am sorry, convener, but I must ask the witness whether that comment was communicated to her in writing.

Kathie Mclean-Toremar:  Well, my husband was there—

Jackson Carlaw:  But do you have written confirmation of it?

Kathie Mclean-Toremar: No.

Jackson Carlaw:  It would be very interesting if you were able to obtain that commitment in writing and shared it with the committee.

The Convener: Thank you, Mr Carlaw.

As I have said, the petition is still active and will be referred to our colleagues on the Justice Committee, who will consider it alongside the bill.I thank the petitioners for coming along and raising a number of very worrying points. I hope that the Justice Committee will be able to look at the matter in more detail.I suspend the meeting for a minute to allow our witnesses to leave.

Gordon Mclean: Thank you.

Kathie Mclean-Toremar: Thank you very much for listening to us.

The Committee agreed to refer the petition, under Rule 15.6.2, to the Justice Committee as part of its scrutiny of the Courts Reform (Scotland) Bill.

Tuesday, February 18, 2014

Sufficient evidence: Crown Office refuse to release details on cases involving dodgy legal aid claims lawyers as Advocate found guilty of legal aid fraud

Increasing numbers of legal aid fraud cases ‘under consideration by Lord Advocate’s prosecutors. FOLLOWING last week’s conviction of Advocate Mark Strachan for actual and attempted fraud against the Legal Aid fund of £49,545 at Edinburgh Sheriff Court after a 10 day jury trial, it has emerged that Scotland’s Crown Office & Procurator Fiscal Service (COPFS) has a further fourteen cases “under consideration” involving additional allegations of legal aid fraud against both members of the public and the legal profession.

Information obtained from the Crown Office under Freedom of Information legislation has revealed that in 2012, one case of legal aid fraud received a “direct measure” fine, while another went to prosecution, ending up in the accused being found guilty and sentenced to a community payback order. A further five reports of cases involving legal aid fraud allegations were indicated as being “under consideration”.

In 2013, one case of legal aid fraud reported to prosecutors was marked “no proceedings”, the Crown Office claiming this was due to “insufficient evidence”. Another case of alleged legal aid fraud received a “direct measure”, with a further twelve cases being marked as “under consideration”.

Crown Office refused to release details on legal aid fraud lawyers. However, while the Crown Office was content to supply information relation to cases of legal aid fraud involving members of the public, COPFS refused to supply information on two cases involving legal aid fraud allegations against solicitors, citing fears that if information was provided it may lead to the identity of the solicitors who were accused of dodgy legal aid claims.

The Crown Office stated in their response: “I can advise you that two of the reports received in 2012 related to solicitors. All of the other reports received since 2012 relate to members of the public. With regard to the outcome of the two reports received relating to solicitors, I am of the view that due to the small number of individuals that this information relates to, there is a substantial risk that the release of the information you have requested would enable these individuals to be identified.”

The Crown Office supplied no information on how much publicly funded legal aid money was alleged to be involved in any of the cases of alleged legal aid fraud reported to prosecutors.

While no statement from the Crown Office has been released in relation to the conviction last week of Mr Strachan, the Scottish Legal Aid Board (SLAB) have issued a Press Release stating:

A jury at the Sheriff Court in Edinburgh has found Mark Strachan, Advocate, guilty of actual and attempted fraud against the Legal Aid fund of £49,545.

A spokesperson for the Scottish Legal Aid Board (SLAB) said: “Today’s verdict in finding Mr Strachan guilty of dishonesty is the culmination of excellent work by the Board’s senior accounts and investigations staff, who first identified the problem. Over the last three years we have worked very closely with both the Crown and Police Scotland on this case. The court decided Mr Strachan deliberately tried to defraud the taxpayer by attempting to be paid for journeys he did not make.”

The spokesperson continued: “The vast majority of solicitors and members of Faculty act with honesty and integrity. However, today’s verdict demonstrates the importance of SLAB’s efforts to prevent fraud or abuse of the legal aid fund, and the serious consequences for anyone attempting to do so.We will now consider what further action may be appropriate in this case.”

During the ten day trial, Strachan (55) had denied falsely claiming travel allowances and mileage fees on 341 instances between March 2006 and November 2010. In evidence, the court heard that Strachan had homes in Aberdeenshire, West Lothian and Edinburgh and that when he was in Aberdeen on business, he would sometimes see a number of people on the same day. He then charged the board the full fee of £100 travel allowance and £108.80 mileage for a 272-mile return journey to the central belt, at 40p a mile, for each person he saw. However, legal aid rules indicate he was entitled to claim only one travel and mileage allowance.

The Crown heard that Strachan was not making the return journey to Linlithgow or Edinburgh every trip, as he claimed, but was staying with his wife, Elaine, at their home in Old Leslie, 30 miles from Aberdeen. Despite denials by Strachan and his wife, Strachan was convicted of actual and attempted fraud for the mileage claims.

Strachan's defence counsel, Brian McConnachie QC, had told the jury his client was no longer practising as an advocate, but was studying for a degree in oil and gas law at Aberdeen University. Meanwhile the Fiscal Depute, Keith O'Mahony, told Sheriff Kenneth Maciver that Strachan had no previous convictions. The court also heard from the Fiscal Depute that the Faculty of Advocates' financial section had repaid £4,509, but nothing more had been received by the board since September 2011. The Prosecutor also indicated to  the court the Crown was seeking a confiscation order under the Proceeds of Crime Act.

Deferring sentence until 14 March for reports, Sheriff Maciver told Strachan it had been a serious and significant fraud, adding "The court has to consider not only the scale and nature of the crime, but also the issue of a breach of trust, because as an advocate you are in a special position". The sheriff went onto warn Strachan: "You must prepare yourself for the possibility the court may require custody."

Crown Office have history of failing to prosecute solicitors accused of legal aid fraud:

In 2011 it was revealed by Scott Pattison, the Director of Operations for the Crown Office in response to a Freedom of Information request from Diary of Injustice that FOURTEEN lawyers had escaped prosecution for alleged legal aid fraud :

FOI Reply_Page1• Since the start of 2005, SLAB has submitted nine reports to Crown Office alleging criminal offences by a total of thirteen solicitors. One report related to a firm of five solicitors;

• The allegations relating to eleven of these solicitors were marked for no action on the basis of an insufficiency of evidence. This related to seven separate reports (for which Crown Counsel’s Instructions were obtained in three);

• A report relating to one of the eleven solicitors referred to above was referred to the Civil Recovery Unit for their consideration;

• One solicitor died before criminal proceedings were commenced;

• One solicitor was placed on indictment for Sheriff and Jury proceedings for fraud. That solicitor entered a preliminary plea in bar of trial on the grounds of insanity which was sustained by the Court.  In light of that decision, the case was deserted pro loco et tempore; and

• In relation to the final solicitor, the matter remains under consideration.

The revelations were reported at the time in the Sunday Mail newspaper:


Five years .. not one prosecution

Jul 17 2011 Russell Findlay, Sunday Mail

LEGAL aid bosses have reported 14 lawyers to prosecutors for allegedly fiddling a fortune in taxpayers' cash - but not a single one has been put in the dock.

Eleven suspected fraud cases were marked no proceedings, one lawyer was declared insane, one died and the other is still being considered.

Crown officials did not identify any of the lawyers involved or reveal the scale of their alleged fraud. The revelations were made by Crown Office and Procurator Fiscal Service director of operations Scott Pattison in response to a freedom of information request.

His first reply identified 13 cases reported to the Crown Office since 2005. He later revealed there had been a 14th case. He said: "The Scottish Legal Aid Board did not submit a crime report but were assisted by the police in carrying out further inquiries."

Mr Pattison added that this case was also marked no proceedings by the procurator fiscal.

Last year, Scottish lawyers were given £155million of taxpayers' money for legal aid work. Despite public spending cuts biting elsewhere, they have opposed justice secretary Kenny MacAskill's attempt to reduce legal aid costs.

Legal reform campaigner Peter Cherbi said: "It seems that the Crown Office - which is run by lawyers - has one rule for the legal profession and another for the rest of us. "If you receive taxpayers' money, you should be open to full public scrutiny."

And MP Brian Donohoe added: "This is outrageous but hardly surprising given that it's lawyers regulating lawyers. "We need an independent system of regulation. Until that happens, people will have no confidence."

Friday, February 14, 2014

JUDICIAL INTERESTS: Recap of Scottish Parliament Public Petitions Committee hearings on Register of Judicial Interests transparency proposal

MSPs have been debating transparency call for declarations of all judicial interests. MEMBERS of the Scottish Parliament’s Public Petitions Committee have been hearing evidence and debating the merits of Petition PE1458: Register of Interests for members of Scotland's judiciary, a public petition calling for all members of Scotland’s judiciary to be subject to a full and publicly available register of judicial interests.

The proposal envisages creating a single independently regulated publicly available source containing current information on judges backgrounds, their positions on personal wealth, so-far undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information which is routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Petition PE1458 has so far recorded six debates at the Scottish Parliament’s Public Petitions Committee, one deferral (on account of the earlier postponed meeting with the Lord President last November), and three strongly worded letters from Lord President Lord Brian Gill who continues to protest against the call for greater transparency of judges undeclared interests.

The Lord President has twice refused to show up at the Scottish Parliament to answer questions from MSPs on how the current system of oaths and rules regarding recusals operates. In refusing to attend the Petitions Committee in public, Lord Gill has also avoided any questions to justify the strength of his opposition to the transparency proposal.

The petition has also received submissions from other interests in the legal system including the Law Society of Scotland, the Crown Office, the Scottish Court Service, the Scottish Government, the Judicial Appointments Board, the Judicial Complaints Reviewer and a Member of the New Zealand Parliament who is also involved in creating a register of interests for judicial figures in New Zealand.

The petition has also received submissions from individuals who have had their lives seriously impacted by the lack of judicial transparency including now widely reported failures of judges failing to recuse themselves and failures to declare interests.

A key evidence session on the petition took place in September 2013, attended by Scotland’s Judicial Complaints Reviewer who appeared before the full Petitions Committee to answer questions on the remit of her office. The JCR also supports Petition 1458, as reported previously here: As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

During the last debate on the petition, members of the Committee heard an account of a controversial private meeting held at the Parliament itself with Lord Brian Gill which excluded all but two members of the Petitions Committee. The release of notes of the private meeting have since revealed that Stephen Humphreys, the Executive Director of the Judicial Office for Scotland also attended the “unofficial meeting”, reported here: Judicial Transparency is “not workable” claims Scotland’s top judge Brian Gill in private meeting with Holyrood msps on register of judicial interests petition

Petition PE1458, which has been opposed by the vested interests of the judiciary itself and other anti-transparency figures in the justice system, is due to be heard again at the Petitions Committee after a fourth letter from Scotland’s top judge is received by the Public Petitions Committee. However, three weeks on from the private meeting between msps, Lord Gill and the Director of the Judicial Office, no such letter from the Lord President has been made publicly available.

A recap of video footage of previous Petitions Committee hearings on Petition PE1458:

Petition 1458 Register of Interests for Scotland’s Judiciary 28th January 2014 Scottish Parliament

28 January 2014: The Committee agreed to defer consideration of the petition pending receipt of a letter from the Lord President. Link to Official Report 28 January 2014 (547KB pdf)

26 November 2013: The Committee agreed to defer future consideration of the petition until after the meeting between the Convener, Deputy Convener and the Lord President. Link to Official Report 26 November 2013 (515KB pdf)

Judicial Complaints Reviewer Moi Ali evidence session Petition PE1458 Register of Interests for Scotland's Judiciary Scottish Parliament

17 September 2013: The Committee took evidence from Moi Ali, Judicial Complaints Reviewer. The Committee agreed to write to Dr Kennedy Graham MP, New Zealand Parliament, the Crown Office and Procurator Fiscal Service, the Scottish Court Service and the Scottish Government. The Committee also agreed to consider the debate that took place during the passage of the Scotland Act 1998 on section 23. Link to Official Report 17 September 2013 (597KB pdf)

Petition 1458 Register of Interests for Scotland’s Judiciary 25 June 2013 Scottish Parliament

25 June 2013: The Committee agreed to invite the Judicial Complaints Reviewer to give evidence at a future meeting. The Committee also agreed to write to Dr Kennedy Graham MP, New Zealand Parliament. Link to Official Report 25 June 2013 (499KB pdf)

Petition 1458 Register of Interests for Scotland's Judiciary 16 April 2013 Scottish Parliament

16 April 2013: The Committee agreed to write again to the Lord President and seek views from the Judicial Appointments Board for Scotland and the Judicial Complaints Reviewer. Link to Official Report 16 April 2013 (472KB pdf) Letter from the Convener to the Lord President of 18 April 2013 (56KB pdf)

Petition PE1458 Register of Interests for Scotland’s Judiciary 5 March 2013 Scottish Parliament

5 March 2013: The Committee agreed to invite the Lord President to give evidence at a future meeting and seek further information on the proposed New Zealand legislation. Link to Official Report 5 March 2013 (361KB pdf)

Petition PE1458 Register of Interests for Scotland’s Judiciary 8 January 2013 Scottish Parliament

8 January 2013: The Committee agreed to write to the Scottish Government, the Lord President, the Faculty of Advocates and the Law Society of Scotland. Link to Official Report 8 January 2013 (474KB pdf)

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

Tuesday, February 11, 2014

Judicial Transparency is “not workable” claims Scotland’s top judge Brian Gill in private meeting with Holyrood msps on register of judicial interests petition

Top judge set on fighting msps over judicial transparency register proposal. NOTES of a private meeting between Lord Gill and two msps from the Scottish Parliament’s Public Petitions Committee have now been published,  leaving little doubt Scotland’s top judge Lord President Lord Brian Gill is set on fighting any move by Holyrood to bring in a major reform in transparency for Scotland’s judges by creating a register of judicial interests as called for Petition PE1458: Register of Interests for members of Scotland's judiciary.

The notes of points made by Lord Gill, taken by Anne Peat, Clerk to the Public Petitions Committee, reveal the top judge continues to insist there is no need for a register of interests for the judiciary. Lord Gill claimed that judges are exempt from transparency because they are bound by oaths written by themselves, that judges do recuse themselves and notes are recorded of this, and that if the public wanted to find out about recusals, they could use Freedom of Information legislation.

At the private meeting, the clerk’s notes indicate Lord Gill went on to claim a register of interest is “not workable” as judges have so many interests it would not be possible for them to identify what should be declared or be withheld from public gaze. However, the “unworkable” myth spun by the top judge at the private meeting has apparently not prevented thousands of other registers of interest operating smoothly in public life both at home and abroad.

The top judge also claimed “Much work” went into a letter of February 2013 in which the Lord President set out his position on the transparency reforms. However, in this same letter, Lord Gill accused the media of being “aggressive”, branded litigants & court users as “hostile”, claimed judges privacy would be breached if their interests became a matter of public debate and warned that such an application of transparency may make it more difficult to recruit judges in the future.

PE1458 Register of interests for members of Scotland’s judiciary Clerk’s notes from informal meeting with Lord Gill Tuesday 21 January 2014, Q1.03 Holyrood

In attendance: David Stewart (convener) Chic Brodie (deputy convener), Lord Gill, Anne Peat (clerk) Stephen Humphreys (Executive Director, Judicial Office for Scotland) Points made by Lord Gill:

If a judge recuses him or herself it is recorded in the minute of court proceedings, part of the formal court process. No tally is kept of figures.  Lord Gill had recused himself twice. Any interested person could make an FOI request with respect to a particular judicial office holder to seek information on that person’s recusal record.

No need for a register of interests as there are currently 3 safeguards in place which are deemed sufficient as set out in the letter of February 2013. Lord Gill has confidence in the integrity of judges and sheriffs. Much work went in to the letter of Feb and it was felt by Lord Gill that this was the best help and explanation for his stance that could be provided.

A Register of Interests would not be workable as it could not be predicted what might arise in a court case and it could not be anticipated what might need to be recorded. Not practical to try to think of every situation that might arise.

The petition seeks a register of pecuniary interests. This would not address the concerns, for example about undeclared family relationships, and would not achieve the purpose sought as problems cited would not be caught by such a register.

The legislation being proposed in New Zealand was in response to a particular issue that would not have been revealed by having a register of pecuniary interests.

If it was practicable and helpful the courts admin could be asked to investigate whether its software could be adapted to provide aggregated information on recusals.

Recusal does not cover monetary considerations but relationships.

3 judges sit on the Board of SCS. The SCS annual report notes the offices and interests held by the Board members.

The notes, as published above appear to have added little to the debate about a judicial interests register taking place at the Scottish Parliament’s Petitions Committee, where it is hoped to hear the petition again sometime in the coming weeks.

Also, it was revealed earlier last week by the Judicial Office and prior to the parliament’s publication of the meeting notes, that Stephen Humphreys, the Executive Director of the Judiciary of Scotland attended what was supposedly a private informal meeting in an official role to support the Lord President.

However, no mention whatsoever of Mr Humphreys presence at the meeting was made during discussions with msps attending the last session of the Public Petitions Committee, nor does any reference to Mr Humphreys attendance appear in the official record of the meeting, published here: CLOSED ENCOUNTER OF THE JUDICIAL KIND: Private meeting with msps, top judge over judicial interests petition raises fears judiciary are dodging official remit of Holyrood committee

Speaking for the Judicial Office, Elizabeth Cutting said of Mr Humphreys presence along with Lord Gill: “He was there in his capacity as Director of the Judicial Office for Scotland.That office was established to provide support to the Lord President under his various roles as set out In the Judiciary and Courts Scotland Act.”

In response to further questions Ms Cutting stated: “The Lord President met the Convenor and Deputy Convenor and the Clerk to the Committee in the Scottish Parliament Building at Holyrood. Steve Humphreys, Director of the Judicial Office attended with him. No prior agreement was reached between the parties on what was to be discussed, referred to or excluded from the discussion.The Lord President saw no need to require an independent record of the meeting.”

“Much Work”: Lord President’s letter made accusations over transparency register proposal:

Lord Gill’s letter of Feb 2013 to MSPs voiced vociferous opposition to transparency. In Lord Gill’s opening letter to MSPs on the call for a register of judicial interests, the judge claimed “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.”

In what was surely a hint of the sheer hostility felt by the judiciary against a call to bring transparency to judges interests, Lord Gill went onto accuse the media, press, litigants, court users and just about everyone else with an interest in transparency of being potentially hostile and aggressive, simply because someone may wish to raise questions of judges interests similar to the same kinds of questions which are raised of interests in other public officials and those in public life, politics & government.

Clearly angered by the call for transparency, Lord Gill’s letter to MSPs stated: “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.”

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

Friday, February 07, 2014

Seven years on, Lord Gill’s Civil courts reforms head to Parliament as Scots face prospect of little change on access to poor quality, expensive & selective civil justice system

Victorian and late, Civil Courts reform will change little in Scots justice system. SEVEN YEARS after Lord President Lord Brian Gill (then Lord Justice Clerk) was commissioned in 2007 to study Scotland's expensive closed shop civil justice system which culminated in the unremarkable 2009 Civil Courts Review conclusion that ‘things had to change’, the Scottish Government have today finally announced plans to bring the Courts Reform (Scotland) Bill to the Scottish Parliament for consideration by MSPs later this year.

The much heralded Gill Civil Courts Review published in 2009 which can be viewed online here : Scottish Civil Courts Review Synopsis, Scottish Civil Courts Review Vol1 Chapters 1-9 & Scottish Civil Courts Review Vol2 Chapters 10-15 has so far impacted little on how Scots are able to access justice in the Scottish courts. At the time, Lord Gill branded Scotland’s civil justice as “Victorian” and “failing society”. Little has changed from those criticisms some seven years on.

However, many of the reforms proposed by Lord Gill in 2009 which could have helped the man on the street gain a hearing in court have unsurprisingly been opposed by the legal profession and solicitors who are concerned they will lose their long held almost exclusive rights of audience and ability to charge whatever they want for legal services.

If anything, several of Lord Gill’s key recommendations published over four years ago including those which criticised the justice system as being expensive and out of reach in 2009, are now long out of date, due to the shocking and ever rising costs of legal representation and costs of court time and services which litigants have compared being akin to “extortion charges demanded by protection rackets.”

Published today, in what is clear an attempt to take the sting of the embarrassment suffered by Justice Secretary who yesterday lost his battle to the long held safeguard of corroboration of evidence from the criminal justice system, the Scottish Government have heralded a number of changes which are claimed as a substantial improvement on what is currently nothing short of a money spinning closed shop Civil justice business model for the legal profession, and the judiciary.

The Scottish Government claims the Courts Reform (Scotland) Bill implements many of the recommendations of the Scottish Civil Courts Review, led by principal reviewer Lord Gill and commissioned in 2007. Lord Gill recommended substantial changes to modernise and improve the structure and operation of the courts, which he described in the review as ‘slow, inefficient and expensive’.

The Bill will also modernise Scotland’s courts by introducing greater specialisation and enabling more user-friendly procedures. Key provisions in the bill include:

• Increasing the threshold under which the sheriff court can deal with civil cases from £5,000 to £150,000 - freeing up the Court of Session to deal with the most challenging civil disputes. This is expected to strengthen the role of the sheriff court, while reducing costs and delays for litigants.

• Creation of a new national personal injury sheriff court, where such cases will be heard by specialist sheriffs.

• Creation of a national Sheriff Appeal Court to deal with summary criminal appeals from sheriff and justice of the peace courts, and civil appeals from sheriff courts. This will help avoid the need for some civil appeals to be heard in the Court of Session and some criminal appeals in the High Court, delivering more proportionate costs, while preserving the right to appeal to the higher courts.

• Creation of a new judicial post – the summary sheriff - to resolve lower value civil cases such as debt cases more swiftly and efficiently, while also dealing with summary criminal cases.

• Plans for specialist sheriffs and specialist summary sheriffs in areas of law such as family, housing, personal injury and commercial law, with the expertise to deal with these issues as swiftly as possible.

• New procedures for judicial review cases in the Court of Session including a three month time limit, and new procedures for appeals within the Court of Session and some appeals to the UK Supreme Court to improve efficiency.

Justice Secretary Kenny MacAskill said: “As highlighted by Lord Gill, our civil justice courts have remained relatively unchanged for more than a generation and need to be made more effective and efficient. This bill takes forward our commitment to ensure that Scotland’s civil justice system becomes more accessible, affordable and efficient for those people who need to resolve civil disputes.

He continued: “At present many lower value personal injury cases are raised in the Court of Session costing the parties a disproportionate amount and clogging up the court. In future, most of these cases will be able to be raised in the specialist personal injury court with specialist sheriffs and procedures designed to achieve settlement swiftly and at a proportionate cost to the parties. The sheriff courts are well placed to handle this transfer as the total cases coming out of the Court of Session is only around three per cent of the civil caseload in the sheriff courts.

MacAskill, who was once a High Street solicitor went on to claim: “Our reforms will help us ensure that the right cases are heard in the right places - reducing delays, cost and bureaucracy. They will also offer clearer routes to justice and more specialisation for a range of cases, from personal injury cases to family law.”

The Lord President, Lord Gill, said: “With the introduction of this Bill Scotland has the opportunity to have a civil justice system that is fit for a modern Scotland. Delay and cost have been the bane of Scottish justice for decades. These reforms will enable the courts to deliver the quality of justice to which the public is entitled. I am grateful to the Cabinet Secretary for Justice for his support for the proposals of the Scottish Civil Courts Review and for his vision in promoting this legislation.”

Which? Executive Director Richard Lloyd said: "Getting the courts working better for people must mean cases being dealt with quickly and cost-effectively. Which? supports the plans under the Courts Reform Bill to move business below the value of £150,000 in to the Sheriff Courts as this will mean more consumers will be able to seek redress for poor services or faulty goods. That will be good for consumers and good for the many businesses that play fair with their customers."

The Scottish Government did not provide any supportive comments directly from litigants who have found it difficult to gain hearings in court, however Diary of Injustice can.

Commenting on the Scottish Government’s civil justice reform proposals, a personal litigant who has recently been charged tens of thousands of pounds for incomplete transcripts of court hearings before Scotland’s senior judges claimed the reforms do not go far enough.

He said: “It is all very well to produce press releases claiming advancements in justice but when litigants really need to use court services and find they cannot obtain legal representation, it is often the case court fees are too expensive, and of such poor quality that justice is unobtainable in the Scottish courts.”

He continued: “And even if you do have a solicitor, it will end up costing you thousands of pounds to achieve very little if anything.”

Speaking to Diary of Injustice today, a legal insider claimed the Civil Courts reforms will not serve to improve the image of Scotland’s expensive yet poor quality justice system at home or abroad.

He  said: “If the Justice Secretary hopes these piecemeal reforms will attract civil cases and other business to the Scottish courts, he will be sadly disappointed.”

He continued: “London’s courts, internationally respected and much less problematic than Scotland will continue to have clear advantages over the Scots model which is after all based upon a small jurisdiction widely associated with excessive legal fees, inferior legal services, and mounting problems with its judiciary.”


Lord Gill Lord Justice ClerkThe Lord Justice Clerk, now Lord President, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.

“It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Previous articles on the Civil Courts Review and reforms of Scotland's antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.

Wednesday, February 05, 2014

Scotland’s top judge, a private meeting to dodge remit of full Holyrood Petitions Committee questions and the call for a register of judicial interests

Transparency gained little from private meeting with Lord Gill, MSPs. THE tiny concession of a promise to look at the lumbering Scottish Court Service computer system is all Scotland’s top judge, Lord President Lord Brian Gill managed to concede in a private meeting with two MSPs from the Scottish Parliament’s Public Petitions Committee who are currently investigating a call to declare judges’ full and complete interests in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The private meeting, of which there is now speculation and debate about exactly what was recorded, what was left out and whether or not the Lord President objected to notes being taken at all, was discussed at last week’s Public Petitions Committee hearing on Tuesday the 28th January, reported in a previous article HERE

The situation on a further point, relating to declarations by judges Gill, Carloway, Bannatyne and Sheriff Principal Alistair Dunlop and three other judicial colleagues who serve on the board of the Scottish Court Service also became murkier when it was claimed that information of this nature had come as a revelation to the msps who privately met the Lord President and would be part of an expected letter from Gill to the Petitions Committee.

Sunday Herald reports:

Scotland's top judge offers tiny concession as calls grow for judicial transparency

Paul Hutcheon
Sunday Herald 2 February 2014

SCOTLAND'S top judge, who refuses to back a register of interest for members of the judiciary, has conceded a minor reform to boost transparency.

The Lord President, currently Lord Gill, is looking at pulling together information about judges declining to rule on cases due to a perceived conflict of interest.

MSPs who have criticised the lack of openness in the judiciary welcomed the shift in direction.

Holyrood's Public Petitions Committee is considering a proposal that would require judges and sheriffs to file a register of financial interests, which could include shareholdings and directorships.

Unlike other public servants such as MPs, MSPs and quango board members, judicial office-holders do not have to give details of their outside interests.

Gill, head of the Judicial Office for Scotland, told MSPs last year there were "sufficient safeguards" in place to ensure judicial impartiality.

He added that a register could infringe a judge's "freedom from harassment" from "aggressive media or hostile individuals".

The row deepened after Gill refused to give oral evidence to the committee: MSPs cannot legally compel a judge to attend.

As a compromise, committee convener Dave Stewart MSP and his deputy Chic Brodie held a private meeting with Gill at Holyrood.

At last week's Public Petitions Committee, Stewart revealed progress had been made with Gill.

He said the senior judge, while maintaining his opposition to a register of financial interests, had promised to "check whether the IT systems can be adapted to provide aggregate information about recusals".

A recusal is when a judge takes himself off a case due to a perceived conflict of interest. No list of them exists, but Gill is looking at pulling together the information.

Stewart added that such an outcome would mean "ordinary individuals with an interest here could find out how many recusals there were across Scotland".

He said that Gill would write to MSPs with further details.

Jackson Carlaw, a Tory member of the committee, said at the meeting: "But for the belligerence of this committee in pursuing the issue, there would be no letter forthcoming, and there would be no investigation. I think it rather vindicates the tenacity with which we pursued the matter."

However, SNP MSP John Wilson, who also sits on the committee, had concerns about the private meeting.

He told the committee it "should not be in a position to hold private discussions with individuals who we ask evidence from".

Wilson also asked for the note of the meeting to be made public.

A spokeswoman for the Judicial Office for Scotland said: "The Lord President is examining whether it is possible to capture the information on formal recusal to enable it to be made public.

"The Lord President will write to the convener [Stewart] in due course and no further comment can be made at this time."


It is always welcome when senior figures in public life agree to positive change.

The Lord President, who is the country's top judge, is against requiring his colleagues to list their financial interests, but he seems to have recognised political concerns about a lack of transparency.

To this end, he is investigating the possibility of compiling a register of "recusals", which means examples of judges ceasing an interest in a court case due to a perceived conflict.

However, the concession is only a tiny step forward and does not compensate for the way the Lord President has dealt with the bigger issue over the past six months.

To recap, Holyrood’s Public Petitions Committee is considering a call for judges and sheriffs to submit a full list of their "pecuniary" interests.

Such a requirement is not unusual in the public sector, where MPs, MSPs and a host of other public servants have to provide details of shareholdings and directorships.

However, the Lord President believes the judiciary is different.

In written evidence to the committee, he argued that the disclosure of financial information could infringe a judge's privacy and encourage harassment from "aggressive media or hostile individuals".

MSPs on the committee wanted to question the Lord President about these views in person - an entirely reasonable expectation.

However, our most senior judge had other ideas and cited a little known legislative clause that means judges cannot be compelled to give parliamentary evidence.

In other words, he dodged scrutiny.

The standoff led to two MSPs on the committee holding a private meeting with Gill: out of sight, and out of mind.

It was in this context that Lord Gill made his concession.

This is clearly not an appropriate way to conduct public debate, and should prompt the government to do two things.

The first is to launch a consultation on whether legislation should be introduced requiring judges to lodge a register of interest.

The second is to open talks with the UK Government about closing the bizarre loophole that allows members of the judiciary to refuse requests to give parliamentary evidence.

Judges, like everyone else in society, are not above scrutiny.

Scotland's most senior judge finally agrees to meet MSPs after snubbing Parliament

Here comes the Judge? I really don’t think so. Lord Gill finally deigns to see MSPs in private after snubbing Parliament

By Russell Findlay Sunday Mail 2 February 2014

LORD Gill met petitions committee members behind closed doors to discuss conflict of interests - but no minutes were taken.

SCOTLAND'S top judge has met two MSPs in private after twice snubbing requests to give evidence in front of their committee.

The Lord President Lord Gill spoke with the Scottish Parliament’s petitions committee convenor and his deputy – Labour’s David Stewart and the SNP’s Chic Brodie – behind closed doors. But no minutes were taken of what was said in a meeting room at the Parliament's Queensberry House.

Last year, the country’s most senior judge was criticised when he rejected an invitation from the committee to discuss campaigner Peter Cherbi’s call for a register of interests for judges.

Stewart admitted that only a “summary of key points” was made by the committee clerk.

Committee member John Wilson is demanding that the notes be made public. The SNP MSP said: “What I’m interested in is that we have something which we can put on official record to declare what took place at that meeting.”

And he said that, to protect public confidence in the committee system, they should make sure meetings with anyone asked to give evidence are in public and properly minuted and made public.

Cherbi said: “Surely this is not what the public expect when our elected representatives are meant to be debating a petition calling for greater transparency?”

Gill claimed the Scotland Act allows judges to shun parliament as it ensures judicial independence from political meddling. But critics said the law is meant to protect judges from being quizzed about court decisions, not administrative issues.

Gill has agreed to investigate how many judges have stood down over conflicts of interest.

The Judicial Office for Scotland said: “The meeting was informal. The convenor indicated a summary of key points would be recorded and made publicly available. Lord Gill was content with the approach proposed by the convenor.”

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

Petition PE1458: Register of Interests for members of Scotland's judiciary is due to be heard again at the Scottish Parliament in some weeks time after a letter has been received from the Lord President, who is apparently still refusing to attend the Scottish Parliament and face open questions from all Committee members regarding judges hidden undeclared interests.