LORD NO-WAY: Top judge Lord Carloway hits out at judicial interests register proposal - tells Holyrood ‘justice could suffer’ if judges are forced to reveal secret wealth, tax, land ownership & financial links to big business

Lord Carloway – opposes judicial interests register. SCOTLAND’S newly appointed top judge – Lord President Lord Carloway - has attacked proposals before the Scottish Parliament calling for judges to be required to declare their financial interests and links to big business as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The widely backed proposals - debated at the Scottish Parliament on 9 October 2014 - call for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world

However, Scotland’s latest top judge – on a salary of £220,655 a year - has declared his opposition to calls for a register of judges’ interests, with Lord Carloway claiming - the judiciary must remain exempt from the same transparency rules which apply to all other branches of Government, public bodies and the Scottish Parliament.

Writing to Michael McMahon MSP, convener of the Scottish Parliament’s Public Petitions Committee, Lord Carloway said: “It is of great constitutional importance that the judiciary remain functionally distinct from both elected representatives, who make the law, and the Government, who promote changes to the law and take executive decisions in areas involving wide discretionary powers covering many areas of economic interest.

And, the top judge – who recently published a speech on making Scotland’s courts 'fit for the 21st Century' – claimed justice could grind to a halt in a constitutional calamity if judges were forced to declare their vast wealth, property owning interests, professional links and other financial affairs – just like politicians, members of public bodies, local councillors are required to reveal.

Lord Carloway (real name: Colin Sutherland) told MSPs: “The proper administration of justice could be inhibited by the disclosure of the judiciary's otherwise confidential financial arrangements. In that connection, there is the possibility that an individual judge may be the subject of misconceived criticism, deriving from the disclosure of personal financial information, where those interests are tangential and de minimis.”

The move by Scotland’s latest Lord President to undermine the Scottish Parliament’s efforts to increase judicial transparency follows a bitter three year campaign against the petition - led by Carloway’s former boss – Lord Brian Gill – which culminated in an ‘aggressive’ evidence session with the former top judge at Holyrood in November 2015.

Responding to Lord Carloway’s letter, the petitioner told the Committee: “Lord Carloway presents the same view of his predecessor Lord Gill in that a register of interests for the judiciary is unnecessary or undesirable. Similarly, as Lord Gill has already inferred, Lord Carloway speaks of constitutional problems if the judges are asked to declare their interests.”

“In reality, there are no constitutional issues created by this petition, nor is there an impediment to the creation of a register of judicial interests. Such a register already exists for the Scottish Court Service and Tribunals Board, of which Lord Carloway and others declare their interests.”

“As members of the Petitions Committee have already discussed, it would be no great effort to expand the already existing register to include the entire judiciary. The Committee is also well aware other jurisdictions have implemented registers of judicial interests, without difficulty or an end to justice as we know it.”

“It is not enough to say, as the Lord President suggests, the judiciary should be excluded from the public's expectation of transparency, simply because the judiciary say so upon their own rules.”

“Thankfully, there is a general realisation, and acceptance, that registers of interest in public life are required, promote transparency and assist in the process of good government and detection of vested interests where they should not be.”

Lord Carloway added judges were unable to speak out in public or defend themselves against criticism – despite a series of recent headlines where judges have embarked on highly publicised criticisms of Police Scotland, the Crown Office, the media and other public bodies.

Responding to the Lord President's claims of a judiciary under a vow of silence - the petitioner told the Committee: “Lord Carloway suggests in his letter judges are unable to speak out in public. Not so. The media have covered numerous examples where members of Scotland's judiciary have spoken out in public, on government policy, reforms in the courts, cuts to legal aid, or more recently where senior members of the judiciary have become embroiled in public arguments with the Police and Prosecutors on evidence presentation in court.”

The petitioner provided MSPs with examples of judicial public comments, stating: “On the same day the media reported that the Scottish Government announced a moratorium on Shale Gas Fracking, the previous Lord President Lord Gill spoke out, declaring "Our resources of energy may be increased by the retrieval of shale gas, if that should be allowed. It seems to me therefore that the opportunity that our natural resources present should be served by the court system."

“The current Lord President himself was recently reported in the media to have availed himself of opportunities to speak out against certain interests he appeared to believe contributed to blocking Scottish Government policies such as the removal of corroboration - a move rejected by the Scottish Parliament's Justice Committee.”

“Transparency underpins our modern democracy, and should underpin our courts and judiciary in equal measure. A register of judicial interests enhances transparency, and is both in the public's interest, and that of the judiciary.”

The petitioner concluded his response by asking members of the Public Petitions Committee to call the Lord President to give evidence and to contact Law Professor Alan Paterson of the University of Strathclyde – who has published a book and material on judicial interests.

Letter from Lord Carloway to Michael McMahon MSP, Convener, Public Petitions Committee.

Lord Carloway: The proposal for a public register of the judiciary's interests, gifts and hospitality is both unnecessary and undesirable.

I have had the benefit of reading the views offered by my predecessor, Lord Gill, both in correspondence and in evidence on 10 November 2015. I agree with his views regarding:

(i) the sufficiency of current safeguards protecting the impartiality of the judiciary;

(ii) the potential for unintended consequences of the register;

(iii) the impracticality of such a register; and

(iv) the petition not, in fact, achieving its stated aims.

The petition raises the issue of the balance to be struck between the principles of openness and transparency in public life, on the one hand, and the proper administration of justice, on the other. I support the need for openness and transparency, where appropriate. There is a potential for tension between these principles and the proper administration of justice. Within the proposals in this petition there lies the potential only to undermine the latter, without advancing respect for the principles in any meaningful way. For example, it was Lord Gill who made the point, with which I agree, that the vast majority of matters that in theory could undermine judicial impartiality, such as familial and social relationships, would not be addressed by such a register.

The proper administration of justice could be inhibited by the disclosure of the judiciary's otherwise confidential financial arrangements. In that connection, there is the possibility that an individual judge may be the subject of misconceived criticism, deriving from the disclosure of personal financial information, where those interests are tangential and de minimis. It is inappropriate for judges to make public comment beyond their judicial opinions in relation to individual cases. Therefore, unlike an elected representative or a member of the Government, a judge enjoys no right of reply. Judges thus have no scope to remedy unjustified reputational and professional damage by explaining their decisions or responding to criticism.

The appropriate safeguard with regard to the judiciary is not a register of interests, but the obligation to decline jurisdiction in a case ("recuse himself/herself") where he or she has any real or perceptible conflict of interest, whatever the nature of that conflict. In that regard, in the interests of openness and transparency, all instances of (and reasons for) recusals are published on the judiciary's website.

It is of great constitutional importance that the judiciary remain functionally distinct from both elected representatives, who make the law, and the Government, who promote changes to the law and take executive decisions in areas involving wide discretionary powers covering many areas of economic interest. The danger that representatives and the Government could be influenced by personal interest is ameliorated by the relevant disclosure requirements incumbent upon them. The judiciary's function is not that of law-making nor is it equivalent to any kind of executive power. The same considerations do not apply.

Lord Gill said that judges, "by their imaginative development of the law, [...] improve and extend the law, explaining it in their judgments". I echo this characterisation, but it is not reasonable to suggest that a judge, through the means Lord Gill explained, would be able to dispense jurisprudence over a period of time that would advantage a particular financial interest which he or she had.

I hope that this assists the Committee.

Amid calls for Lord Carloway to be called to give evidence and take questions on his opposition to judicial transparency, the Scottish Parliament’s Public Petitions Committee will consider the petition again next week, on Tuesday 23 February 2016.

In a previous session of the Public Petitions Committee MSPs took evidence from the current Judicial Complaints Reviewer (JCR) – Gillian Thompson – who said: “I do not see that there is a reasonable argument to be made against people who are in public service—I might go further and say, in particular, people who are paid by the public pound—providing information, within reason, about their other activities.”

MSP Jackson Carlaw (Scottish Conservative, West Scotland) told colleagues during the same hearing: “The clerk has advised me that it is not competent for the committee to initiate a bill of its own. Of course, it is open to any member of the Parliament to do so, in this session or the next.”

“As Ms Thompson has said, there seems to be a clear public interest in the issue, which has found expression. In the absence of a more substantive argument than the impression that it is not something that people want, the committee should be reluctant to allow the petition to run into the sand. We should do all that we can to sustain it and pursue its objectives for as long as we feel able to do so.”

Scotland’s first Judicial Complaints Reviewer, Moi Ali, also backed the petition.

During an evidence session held at Holyrood in September 2013 - Moi Ali provided a first hand, honest and highly detailed account of the workings of Scotland’s judiciary and lack of judicial transparency & accountability.

Ms Ali wrote a further letter to MSPs while she held the post of Judicial Complaints Reviewer – writing of the “incredibly powerful” nature of the judiciary and why a register of judicial interests would help judicial transparency and public confidence in the justice system.

Moi Ali said: “I write not from the viewpoint of the judiciary, who have a vested interest in this issue. I write from the perspective of the Scottish public. I write not on behalf of those who hand down justice, but those who are on the receiving end. It is important that their voice is heard. They have a right to know that justice is being done, an essential component of which is that it is seen to be done. A register of interests is a tangible way of showing that justice is being done.”

“Given the position of power held by the judiciary, it is essential not only that they have absolute integrity but crucially, that they are seen to have absolute integrity. Again, a register of interests is a way of demonstrating that a judicial office holder is impartial and has no vested interest in a case –financially, through family connections, club/society membership or in any other way. Conversely, the refusal to institute a register of interests creates suspicion that in turn undermines judicial credibility. So once more, a register of interests is good for the judiciary and good for the public.”

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

REGULATION ROBBER: Lawyer who ripped off clients & embezzled £1.04m from Bank escapes Proceeds of Crime prosecution - thanks to solicitors' self regulation stitch-up

No charges for lawyer who stole from clients & bank – Crown Office. A SOLICITOR who embezzled over £1 million from a bank has escaped criminal charges – because the Law Society of Scotland - who control self regulation of solicitors and the tribunals who ‘prosecute’ rogue lawyers - did not call for the case to be taken up by Police or prosecutors.

David Lyons (64) – who has appeared numerous times before the Scottish Solicitors Discipline Tribunal (SSDT) was struck off from the roll of solicitors after the tribunal heard in a recent case Lyons had consistently ripped-off clients and executry estates by charging excessive amounts for work and fees.

It also emerged during an investigation Lyons had secured a £1,010,000 property loan from the Bank of Ireland - but kept the cash for himself.

His business partner - Duncan Drummond, of Pollokshields, Glasgow, who was also found guilty of ripping off clients - was struck off at the same hearing.

In one case Drummond charged £15,700 for work he’d carried out which auditors calculated should actually have totalled £2,350 – a mark up of 568%. In another case he sent out a £4,000 bill for £1,125 worth of work.

Despite the severity of fraud and consistent breach of client trust,  there is no mention in the tribunal’s findings of any move to refer the case to Police Scotland or the Crown Office – who have both since confirmed no action is being taken against Mr Lyons or anyone from the now defunct law firm of Lyons Laing, which had offices in Greenock and Glasgow.

The ‘independent’ Scottish Legal Complaints Commission (SLCC) has also not issued any comment on the case or the lack of action against Lyons and his business partner.

The Scottish Sun newspaper reports:

'Untouchable' lawyer fury: Bent brief in £1m bank theft let-off

CROOK DODGES CASH GRAB

EXCLUSIVE by RUSSELL FINDLAY 14 Feb 2016

A CROOKED lawyer dodged prosecution despite nicking more than £1million.

David Lyons, 64, was struck off after embezzling the money from the Bank of Ireland.

But the Crown Office will not put him in the dock or use proceeds of crime laws to claw back the cash.

Former Labour minister Brian Wilson blasted the decision.

He said: “There are people in jail for embezzling £1,000 but as a lawyer he’s untouchable.

“It’s an example of the madness where lawyers are treated as a separate class of citizen.”

Lyons, of Kilmacolm, Renfrewshire, was struck off over eight counts of professional misconduct, including pocketing the £1.04million in a commercial property deal.

The Dublin-based bank — bailed out with 3.5billion euros of taxpayers’ cash after the 2008 economic crash — would not discuss the case.

But Fergus O’Dowd, who is on the Irish parliament’s justice committee, said: “If they won’t pursue him in Scotland’s criminal courts they should go after the money.”

He added: “It’s a disgrace the bank won’t comment.”

Lyons ran Lyons Laing in Greenock, where clients were ripped off with hugely inflated fees over a decade.

His colleague Duncan Drummond, of Pollokshields, Glasgow, was also struck off over four counts of misconduct.

Mr Wilson is also calling for an end to self-regulation by legal watchdog the Law Society of Scotland.

An LSS spokesman said a judicial factor was appointed in 2009 to run Lyons’ company.

He added: “The factor has an obligation to report findings to the Law Society and Crown Office.”

The Crown said: “There are no criminal or civil recovery proceedings against someone of that name.”

Scottish Solicitors Discipline Tribunal Hearing & Decision: Having heard submissions on behalf of the Complainers and the Second Respondent in mitigation and having noted three previous Findings of professional misconduct against the First Respondent and one previous Finding of professional misconduct against the Second Respondent, the Tribunal pronounced an Interlocutor in the following terms:-

The Tribunal having considered the Complaint dated 9 April 2015 at the instance of the Council of the Law Society of Scotland against David Richard Blair Lyons, residing at Greenways, Pacemuir Road, Kilmalcolm ("the First Respondent") and Duncan Hugh Drummond, residing at Flat 1/2, 80 Kirkcaldy Road, Pollockshields, Glasgow ("the Second Respondent");

Find the First Respondent guilty of professional misconduct in respect of his failure to respond to correspondence from the Complainers, his failure to obtemper statutory notices, his taking of grossly excessive fees from executry estates, his failure to comply with the requirements of the Accounts Rules, his taking of fees from the sale proceeds of a property to which he was not entitled, his failure to obtemper letters of obligation, his taking of fees without rendering fee notes, and his embezzlement of the sum of £1,040,000 from the Bank of Ireland;

Find the Second Respondent guilty of professional misconduct in respect of his taking of grossly excessive fees from executry estates, his taking of fees without rendering fee notes, his failure to comply with the requirements of the Accounts Rules and his failure to supervise his firm's assistant, in breach of the undertaking given by him to the Complainers; Order that the name of the First Respondent be Struck Off the Roll of Solicitors in Scotland; Order that the name of the Second Respondent be Struck Off the Roll of Solicitors in Scotland.

THE LYONS SHARE - How law firm employed legal industry’s commonly used overcharging scams to rip off wills & executry estates:

In the executry of Mr E, the Respondents took fees totaling £15,950.00 excluding VAT during the period 21 June 2007 to 7 April 2009. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £8,597.00 excluding VAT. The overcharge was 86%. The Second Respondent was principally in charge of this case.

In the executry of Mr AE, the Respondents took fees totaling £12,500.00 excluding VAT during the period 6 December 2004 and 26 June 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £4,338.05 excluding VAT. The overcharge was 188%. The First Respondent was principally in charge of this case.

In the executry of Mr F, the Respondents took fees totalling £15,700 excluding VAT during the period 3 April 2007 to 23 December 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £2,350.00 excluding VAT. The overcharge was 568%. The Second Respondent was principally in charge of this case.

In the executry of Mrs G, the Respondents took fees totalling £13,100.00 excluding VAT during the period 12 April 2006 and 4 August 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £5,917.03 excluding VAT. The overcharge was 121%. The Second Respondent was principally in charge of this case.

In the executry of Mrs H, the Respondents took fees totalling £8,000.00 excluding VAT during the period 5 July 2007 and 6 April 2009. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £4,642 excluding VAT. The overcharge was 72%. The Second Respondent was principally in charge of this case.

In the executry of Mr I, the Respondents took fees totalling £4,000.00 excluding VAT during the period 26 February 2008 to April 2009. A file audit by the Auditor of Court at Glasgow assessed the fees due to the firm for that period to be £1,125 excluding VAT. The overcharge was 256%. The Second Respondent was principally in charge of this case.

In the executry of Mr J the Respondents took fees between November 2004 and May 2008 which exceeded by £90,000 or thereby the value of the work as assessed by the Auditor of Greenock sheriff court. The Second Respondent was principally in charge of this case.

In the executry of Mr M, the Respondents took fees of £2,000.00 plus VAT in December 2006 and £2,500.00 plus VAT in November 2007. On neither occasion did the Respondents issue a fee note. The Auditor of Court assessed the fees due to the Respondents as £3,397.00 plus VAT. The overcharge is therefore £603.00 plus VAT. The First Respondent was principally in charge of this case.

Also in relation to this case, the assistance of the Complainers having been invoked by Ms N, the executor, and the files having been provided to the Complainers, on 15 August 2008 the First Respondent wrote to the Complainers asking for the files to be returned for Taxation. The files were sent to the First Respondent on 1 September 2008. Thereafter the Complainers wrote to the First Respondent requesting return of the files on 10 and 21 October 2008, 10 November 2008 and 7 January 2009. No response was ever sent by the First Respondent. On 16 January 2009 the Complainers issued a notice under Section 42C of the Solicitors (Scotland) Act 1980 requiring return of the file. The First Respondent did not return the file. The Complainers wrote with a list of conduct issues to the First Respondent on 25 February 2009 arising out of this executry. No response was ever received from the First Respondent. The files were eventually recovered from the Judicial Factor.

In the executry of Ms O between 20 May 2008 and 28 May the Respondents deducted fees without rendering fee notes to the executor, Mr P, in breach of Rule 6(d) of the Solicitors (Scotland) Accounts etc Rules 2001. The Second Respondent was principally in charge of this case.

ASSISTED INTERESTS, M’LORD: Files reveal appearance of Lord Gill’s ex legal secretary at Holyrood judicial interests probe - was arranged during secret video conference with former Lord President

Secret Video chat - Top judge requested help to defeat judicial interests register. KEY EVIDENCE given by Scotland’s former top judge Lord Brian Gill to a Scottish Parliament probe on secretive judicial interests during an evidence session held in November 2015 – received the assistance of a key Judicial Office employee at the request of his former boss during a secret video conference.

Documents now released to the media under Freedom of Information legislation reveal Lord Gill – who had since retired as Scotland’s top judge - requested help from his former legal secretary – Roddy Flinn - to attend a key evidence session at Holyrood in which the judge demanded closure of a three year investigation by MSPs of proposals to require judges to declare their interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The request for Flinn’s personal attendance - came during a previously undisclosed secret video conference held between Gill and his former member of staff on 5 November – just days prior to the meeting with MSPs at Holyrood on 10 November 2015.

During the stormy evidence session with MSPs on the complete lack of judicial transparency on interests, Lord Gill faced questions from John WIlson MSP on the appearance of his former legal secretary Roddy Flinn.

Gill (73) – who remains bitterly opposed to proposals requiring the judiciary to declare their interests - angrily denied Mr Flinn was present at the hearing as a witness – even though papers prepared by the Petitions Committee and published in advance said so.

In response to a grilling from MSPs on Mr Flinn’s status, the top judge incredibly claimed the agenda for the meeting – prepared by the Parliament team - was “wrong”.

And, during the entire evidence session, Mr Flinn did not take or answer any questions from MSPs – despite Gill’s insistence Flinn attend the hearing with him.

The revelation in the documents - of top judges arranging their former staff to show up at Parliamentary hearings in order to oppose calls for increased judicial transparency indicates how concerned the judiciary are on proposals to require judges to declare their financial investments and links to business.

Earlier today, the Judicial Office for Scotland confirmed Mr Flinn – who assisted Lord Gill during the former Lord President’s two year battle against Petition PE1458 - is now the legal secretary to the new Lord President, Lord Carloway.

Letter reveals Legal Secretary required to appear alongside former top judge.

An internal letter from Roddy Flinn to Judicial Office Policy Chief, released via FOI, states: May I advise, firstly, that I am the Lord President's Legal Secretary, not his Private Secretary; that is a different role, currently held by Mr Paul Gilmour. I continue in my role as Legal Secretary notwithstanding the fact that we are currently awaiting the appointment of a Lord President, as section 4(2) of the Judiciary and Courts (Scotland) Act 2008 provides that while of the office of Lord President is vacant his functions are exercisable instead by the Lord Justice Clerk, I therefore work to the direction of the Lord Justice Clerk,

I have no documents or other written communications relating to my appearance, with Lord Gill, before the Petitions Committee.

The matter was mentioned briefly in a video-linked discussion with Lord Gill on 5 November, when he indicated that it would be helpful if I attended with him, to assist him in referring to the documentation relevant to the petition under discussion. It is not the sort of detail one would formally record.

I had no difficulty in agreeing to do so.

I considered it important to provide assistance to Lord Gill, and therefore to Parliament, given that I was familiar with the issues and documentation pertaining to the petition.

At the time of the previously undisclosed video conference, Lord Gill was no longer Lord President. 

Mr Flinn had ceased to be his legal secretary after his former boss unexpectedly walked out of the top judicial post in May 2015  - giving First Minister Nicola Sturgeon 30 days notice he intended to quit the role as Scotland’s top judge.

Lord Gill - who spent two of his three year term fighting the judicial transparency proposals - was dubbed “Lord No-No” for his refusals to give evidence to MSPs on judges’ undeclared links to big business, secret criminal records & hidden wealth, handed the claim to the Scottish Parliament.

Preferring not to attend the Petitions Committee in person, the top judge sent a series of letters to MSPs - demanding the judiciary remain exempt from the public’s expectation of transparency in Government and those in public life.

As the petition was debated at Holyrood in the Lord President’s absence, it was revealed Lord Gill billed taxpayers for a five day state visit to Qatar. The top judge also travelled to numerous other international destinations – all charged to taxpayers.

An investigation by the Scottish Sun newspaper also revealed Scotland's top judges spent £26,000 on thirty three international trips funded by taxpayers - including journeys to destinations such as Russia, Israel, Switzerland,Germany, France, Bulgaria, Lithuania.

JUDICIAL INTERESTS ON THE BLOCK:

Evidence of Lord Gill before the Scottish Parliament 10 November 2015

During  tough exchanges between the ‘retired’ Lord Gill and MSPs last November at the Scottish Parliament’s Public Petitions Committee – Lord Gill became embroiled in arguments with MSPs on lines of questioning - reflecting Gill’s underlying aggressive tone at being hauled before MSPs he twice refused to meet.

In an angry exchange with MSP Jackson Carlaw, Lord Gill demanded to control the kinds of questions he was being asked. Replying to Lord Gill,  Mr Carlaw said he would ask his own questions instead of ones suggested to him by the judge.

And, in responses to independent MSP John Wilson, Lord Gill dismissed media reports on scandals within the judiciary and brushed aside evidence from Scotland’s independent Judicial Complaints Reviewers – Moi Ali & Gillian Thompson OBE – both of whom previously gave evidence to MSPs in support of a register of judges’ interests.

Inn a key moment during further questions from committee member Mr Wilson on the integrity of the judiciary, Lord Gill angrily claimed he had never suspended any judicial office holders.

The top judge was then forced to admit he had suspended judicial office holders after being reminded of the suspension of Sheriff Peter Watson.

A statement issued by Lord Gill at the time of Watson’s suspension said: “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”

Several times during the hearing, the retired top judge demanded MSPs show a sign of trust in the judiciary by closing down the petition.

During the hearing Lord Gill also told MSPs Scotland should not be out of step with the rest of the UK on how judges’ interests are kept secret from the public.

Questioned on the matter of judicial recusals, Gill told MSPs he preferred court clerks should handle information on judicial interests rather than the details appearing in a publicly available register of interests.

Lord Gill also slammed the transparency of judicial appointments in the USA - after it was drawn to his attention judges in the United States are required to register their interests.

In angry exchanges, Lord Gill accused American judges of being elected by corporate and vested interests and said he did not want to see that here.

However, the situation is almost identical in Scotland where Scottish judges who refuse to disclose their interests, are elected by legal vested interests with hidden links to corporations.

The proposals to require judges to declare their interests have received widescale cross party backing from MSPs after the issue was debated in the Parliament’s main chamber last October 2014 - Debating the Judges. 

The proposals call for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations on judicial interests including reports from the media, 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

A QUESTION OF TRUST: Should solicitors be independently regulated? UK public say “Yes” - according to research conducted by the Solicitors Regulation Authority

Lawyers cannot be trusted to regulate themselves – say public. RESEARCH conducted by the Solicitors Regulation Authority (SRA) – the body charged with investigating solicitors in England & Wales, shows there is strong support in the rest of the UK for a move to make the SRA fully independent of the Law Society of England & Wales.

And, unlike Scotland, where the Law Society of Scotland ‘fronted’ regulation model – the  Scottish Legal Complaints Commission (SLCC) – continues to be driven by former Law Society staff - the English based Solicitors Regulation Authority wants a complete break from the over arching power & influence of the legal profession’s representative body – to enable it to conduct fully independent regulation of legal practitioners.

Proposals from the UK Government to fully separate legal regulators from professional bodies have been backed by polls reporting that 82 percent of adults in England and Wales say solicitors should be regulated independently.

Research conducted by ComRes - a leading research consultancy on behalf of the SRA, has found that 86 percent of adults in England and Wales believe solicitors should be regulated—similar to doctors and more than for other professions such as dentists and accountants.

And when asked about the type of regulation, there is overwhelming support for independent regulation.

Looking at how regulation affected public trust in solicitors, 68 percent of respondents said they were more likely to trust an independently regulated profession.

When asked directly about the proposals to deliver fully independent regulation, 77 percent agreed that they support the Government's attempts to do so.

Commenting on the research, Chief Executive of the SRA, Paul Philip, said: "This research shows that the public overwhelmingly support independent regulation. Public confidence is key and, as this polling shows, people say they will have greater trust in their solicitor if they know they are independently regulated.

“I am clear that separating out regulator and representative body would not only meet public expectations, but would enhance the important role of the Law Society in making sure the voice of solicitors is heard and respected.”

The Solicitors Regulation Authority recently ran a campaign titled “A Question of Trust” – which invited the public and profession to share their views on what should happen when solicitors fall short of the professional standards set out in the SRA Handbook.

The campaign used scenarios based on real-life cases to ask how serious the issues are and what action should be taken.

The response has been impressive with thousands of people getting involved.

In total the campaign secured: More than 2,350 online survey responses, 6.5m impressions on social media, including 10,000 engagements on Twitter and 1,636 answers via our Twitter polls, Almost 4,500 visitors to our website's "Hot topics" page, where the Question of Trust toolkit for firms could be found, 3,000 attendees to our events around England and Wales.

The input from the four-month campaign will help with the development of a reference framework for our staff to use when making regulatory decisions, including whether to refer to the Solicitors Disciplinary Tribunal.

Commenting on the campaign, SRA CEO, Paul Philip, said: "This is a landmark campaign that has really engaged people. Regulation is part of the social contract between the profession and the public and it important that we calibrate and validate what we do. Thank you to the thousands of solicitors and members of the public who have helped us with this.

"We asked people about what should happen when things go wrong. I believe that clear, consistent and transparent decision making is fundamental to good regulation and we are reviewing our end to end procedures accordingly. Our new reference framework will help staff and the profession alike.

"We refer the most serious cases to the SDT. The Tribunal is rightly independent and our campaign was not about how it operates. It was about stimulating a debate on the standards the public can expect of solicitors. Of course, each case must turn on its merits and we have a right of appeal where we think the Tribunal has got it wrong.

"A Question of Trust addressed the big issues at the heart of regulation and shows that there is real public interest in the high standards expected of solicitors. Testing what we do with the profession and the public increases public confidence, not only in regulation but in the profession itself."

The Solicitors Regulation Authority is due to report further on their campaign later this year.

Responding to the SRA statement on regulatory independence, Law Society chief executive Catherine Dixon said: “We support independent regulation. Regulation is about the minimum regulatory rules which should apply to the whole market to protect consumers. This is very different from professional standards of behaviour, conduct and ethics, which should be the responsibility of the profession, as they are best placed to raise these standards.”

“There is an opportunity to put in place better and simpler regulation which applies to all legal services, as currently many legal services providers are not regulated. This means that purchasers of some legal services are not protected.”

“Currently the regulatory maze is complex. There are numerous regulators of legal services and there is an opportunity to consolidate to save cost. There is also confusion because currently there is a very broad definition of regulation, which includes regulatory rules, professional standards and conduct, ethics, entry into the profession and awarding the professional title.”

“Paradoxically, the most qualified and trained are the most regulated; the least qualified and trained are not regulated. This is a mistake. There is an opportunity to redefine what regulation should cover to ensure that it is simple and better, and applies to all legal services. Regulation should not include professional standards and conduct, nor entry into the profession and awarding a professional title. In order to drive professional standards, the responsibility needs to be with the profession. This will ensure that the reputation of the profession at home and internationally is secured and that England and Wales remains the jurisdiction of choice, and that the legal profession is seen to be independent from government, enabling it to uphold the rule of law.”

The Times newspaper reported on the research conducted by the Solicitors Regulation Authority, excerpt follows here:

 It's time to have an independent body to police solicitors February 3, 2016

Should solicitors be independently regulated? The public certainly thinks so, according to a new poll this week, Frances Gibb writes. In the latest move in the current battleground between the Solicitors Regulation Authority (SRA), the profession's watchdog and the Law Society, the professional body for 160,000 solicitors in England and Wales, the SRA has published a poll showing strong support for its wish to become fully independent of the society.

The move could radically change the role and funding of the society — at present bound with the SRA. How it works is that the SRA tells the society what it needs and the society agrees the figure. The society's council then adds a sum for activities that it is authorised to conduct and together the figure determines what solicitors pay for their practising certificate fee.

Paul Philip, SRA chief executive, says: "The present arrangement is not understandable to the man or woman on the street. Most people would be surprised to know that the people who regulate solicitors are part of the body that represents the profession. In terms of public trust, you might have a question mark about that."

Meanwhile, the SRA is ready to make a strong case when ministers consult on regulation in March. "There's an inherent conflict between representing the profession and the public," Philip says. "When push comes to shove, we're part of the Law Society. If independent, we'd be less expensive and confidence in the profession would be bolstered."

SCOTLAND – Where the legal profession ensures solicitors look after their own:

In the past eight years of investigating complaints about legal services practitioners in Scotland, the allegedly ‘independent’ Scottish Legal Complaints Commission (SLCC has amassed a lengthy history of abusing clients expectations of action against wayward, rogue and corrupt Scots solicitors.

In attempts to placate calls to scrap the SLCC in current form and replace it with a fully independent regulator, the Law Society of Scotland has embarked on regular polls, one of which was widely published in the media claiming huge levels of client satisfaction with legal practitioners.

However, a media investigation by Diary of Injustice into the solicitor satisfaction survey uncovered evidence the Law Society had rigged the poll, and kept details of the SLCC’s involvement a secret, reported here: LAW POLL FIDDLE: Law Society of Scotland survey on client satisfaction used scripted replies, question rigging & involvement of ‘independent’ legal regulator SLCC was kept secret.

The full extent of how the poll had been rigged -  featured in an investigation by DOI reported here: OWNED POLL: Law Society ‘scripted’ survey criticised by Scottish Legal Complaints Commission - new data reveals few clients of dodgy lawyers ask legal regulators for help.

After the series of rigged polls, and the resignation of the SLCC’s then Chief Executive, Matthew Vickers,  the Law Society of Scotland took charge of the ‘independent’ SLCC by appointing one of their own former Directors - Neil Stevenson as the latest Chief Executive of the SLCC.

The move came after a challenging year for self regulation of Scotland’s legal profession – left reeling from the effects of the damaging BBC Scotland investigation “Lawyers Behaving Badly” -  which blew the mask off lawyers investigating their own and legal aid fraud.

A further media investigation into the Scottish Legal Complaints Commission recently revealed most of the SLCC’s key staff and investigators are in-fact families, friends & business associates of solicitors, reported here: 'Independent' Scots legal watchdog consists of solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers.

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission - A history of pro-lawyer regulation.

THE DEPUTY: Search is on for a new Lord Justice Clerk as First Minister convenes selection panel to appoint Scotland’s second most powerful judge

Legal figures begin secret selection process for new Lord Justice Clerk. AMID the turmoil caused by the sudden retirement in May 2015 of Lord Brian Gill from the post of Lord President - and the subsequent elevation of his deputy - Lord Carloway to the top judicial post, Scotland’s First Minister Nicola Sturgeon has been forced to initiate another recruitment round to fill the post of Scotland’s second most senior judge – the position of Lord Justice Clerk.

A two week window for applications for the number two judicial role in Scotland -  which comes with a salary of £213,125 a year - was announced late last month by the Scottish Government – with a closing date of this Sunday, 7 February 2016.

The Lord Justice Clerk is the second most senior judge in Scotland and has a particular role in relation to the criminal justice system. In addition to its judicial duties, the office carries with it certain statutory duties relative to the provision of support to the Lord President in the discharge of his responsibilities as Head of the Judiciary.

The office brings with it responsibilities for providing leadership to the judiciary, not only in supporting the Lord President but also, separately, as a member and deputy chair of the Scottish Courts and Tribunals Service (SCTS), in providing leadership to the staff of the SCTS.

The Lord Justice Clerk is also chair of the Scottish Sentencing Council.

Sitting on the latest behind-closed-doors selection panel are: The Rt Hon Lord Carloway – Lord President, Sir Muir Russell – Judicial Appointments Board for Scotland, Alison Mitchell – Judicial Appointments Board for Scotland, The Hon Lady Stacey – Senator of the College of Justice.

A sift of applications for the post of Lord justice Clerk will take place on Thursday 11 February 2016 in order to provide a short list of candidates for interview. Invitations to interview will be issued by Friday 12 February 2016. The interviews will take place on 29 February 2016 in central Edinburgh, at a venue to be confirmed.

The selection panel will make recommendations to the First Minister by early March, who then makes her nomination to the Prime Minister after statutory consultation with the Lord President. The Prime Minister recommends a name for the new Lord Justice Clerk to Her Majesty, but may not recommend anybody who has not been nominated by the First Minister.

Eligibility for appointment as Lord Justice Clerk is the same as that for a Judge of the Court of Session. Serving judges of the Court of Session are eligible for appointment as Lord Justice Clerk.

Article xix of the Union with England Act 1707 and section 20A of the Judiciary and Courts (Scotland) Act 2008 provide that:  sheriffs principal and sheriffs who have held continuous office for at least 5 years immediately preceding the appointment;  solicitors who have had rights of audience in both the Court of Session and the High Court of Justiciary for a continuous period of at least 5 years immediately preceding the appointment; advocates of 5 years standing; and Writers to the Signet of 10 years standing who have passed an examination in civil law set by the Faculty of Advocates 2 years before appointment - are eligible to apply for the office of judge of the Court of Session and therefore appointment as Lord Justice Clerk.

The Lord Justice Clerk must be acknowledged by the judiciary and the legal profession to be among the most able lawyers of his or her generation. The holder of the office must have the capacity to command public confidence in the justice system and the confidence and respect of judicial colleagues, and to develop positive and productive relationships with judicial colleagues and others in the justice system. He or she must have the necessary knowledge, experience and judgement to be able to give authoritative opinions in the most complex and important cases both in civil appeals and in criminal cases at first instance and on appeal. Successful candidates will therefore have to demonstrate that they meet the criteria listed below to an appropriately high level

Personal Qualities and criteria for appointment: Legal and Judicial: A candidate shall: be an outstanding lawyer in the main areas of law that come to be determined in the Court of Session and the High Court of Justiciary; possess a thorough understanding of the theory and principles on which the law is based, its practical application and an ability to analyse and explore legal problems creatively and imaginatively; be able to set out complex legal issues clearly and succinctly, both orally and in writing, and to explain the reasoned basis for any decision; and be aware of the areas in which the law is developing and demonstrate a desire to master new and unfamiliar areas.

Leadership and Management: A candidate shall be able to: provide leadership and strategic direction across the full range of management issues, including through appropriate delegation, to ensure the effective and efficient delivery of the courts and tribunals service across Scotland in support of the Lord President; demonstrate an inclusive management style which builds consensus and facilitates the management of change; set and promote the highest standards of judicial behaviour in and out of court; inspire confidence, command respect and gain commitment from others; and ensure that decisions are taken and implemented to deliver an effective and efficient courts and tribunals service across Scotland.

Personal Qualities: A candidate should be able to demonstrate: Integrity, independence of mind, moral courage and the ability to command respect; Social awareness and understanding of the contemporary world; Resilience; Sound temperament, consideration and courtesy; Excellent communications skills which support the representational role on behalf of the SCTS; Fairness, impartiality and a responsible attitude.

WHO’LL BE THE JUDGE:

Diary of Injustice previously reported on the recruitment round for the role of Lord President,and featured reports from the Scottish Sun newspaper on the hunt for a new top judge, here: TO PLAY THE PRESIDENT: Hunt begins for Scotland’s next top judge & Lord President of the Court of Session.

The position of Scotland’s top judge became vacant after Lord Brian Gill – who served a short term as Lord President from 2012-2015 unexpectedly walked out of the top judicial post in May 2015 – giving only 30 days notice he intended to quit.

Lord Carloway was appointed to replace Lord Gill, in late December 2015, reported here: TOP JUDGE OF PARLIAMENT HOUSE: Lord Carloway appointed as Scotland’s Lord President & Lord Justice General of the Court of Session.

The elevation of the Lord Justice Clerk to the top job of Lord President came after recommendations were received from a secretive panel constituted by First Minister Nicola Sturgeon under the Judiciary and Courts (Scotland) Act 2008.

The behind-closed-doors panel, comprising of Sir Muir Russell & Mrs Deirdre Fulton from the Judicial Appointments Board for Scotland, Lord Reed of the UK Supreme Court and Court of Session judge Lady Dorrian - began a search in July for a new top judge in July 2015, with orders to recommend a name to the First Minister by 30 October 2015.

Lord Carloway was officially installed as Lord President in a ceremony at the Court of Session in Edinburgh on 8 January 2016, reported here: NEW JUDGE ON THE BLOCK: Lord Carloway installed as Lord Justice General & Lord President of the Court of Session.

HI TECH, M’LORD: Lord President Lord Carloway sets out vision for digital courts and redesign of Scotland’s “Victorian” justice system for the 21st Century

Lord Carloway - Scots law to be more digital than Victorian. SCOTLAND’S top judge, Lord President Lord Carloway has set out his plans for a technologically advanced digital view of justice in Scotland.

Addressing the Law Society of Scotland’s Council late last week, Friday 29 January 2016, the Lord President spoke of his vision for courtrooms ‘fit for the 21st century - echoing earlier calls for reform in 2009 by his predecessor Lord Brian Gill (73) - who branded Scotland’s justice system as “Victorian” and unfit for purpose.

Speaking in his introduction, Lord Carloway said: “Over the next 5 years plans will be developed which will see the court room, and its ancillary offices, redesigned in light of modern ideas and technology.  It will be changed from its current Victorian form into something fit for the 21st century.  The direction of travel may differ between the civil and criminal processes, but there will be themes common to both.  In all of this, a particularly important factor is your, the practitioner’s, attitude to the proposed modernisation; the view that you have about the efficiency and effectiveness of the current systems.”

Lord Carloway continued: “Do you see the civil courts as modern institutions which adequately deal with the disputes commonly arising in today’s Scotland?  Do you consider that the criminal courts are producing fair trials which properly balance the rights of the accused with those of others?  If the answer to each question is “well maybe not entirely”, the next question is what is to be done about it.”

An earlier attempt to reform Scotland’s antiquated civil justice system – Lord Brian Gill’s Scottish Civil Courts Review, ended in watered down ‘tinkering around the edges’ after Gill’s initial proposals had been put through the Taylor Review and then further diluted by the legal profession & Scottish Government.

Coincidentally, on the same day Lord Carloway addressed the Law Society’s Council with his plans to shake up Scotland’s justice system, three appeal judges dealt the new Lord President a blow on a headline rape trial, heard by Lord Carloway in 2014.

Lord Eassie, sitting with Lady Clark of Calton and Lady Smith, issued an opinion in the high profile case, quashing the convictions of Andrew Clark - who was jailed for eight years for raping two women and sexually abusing two others in Glasgow, Clydebank and Dumbarton between 2001 and 2012

In the appeal opinion, available on the Scottish Courts & Tribunals website HERE, the appeal judges stated Lord Carloway had misdirected the jury in the rape trial, finding “.. We consider that counsel for the appellant was correct in stating that this instruction to the jury did not constitute an entirely correct statement of the law.  While a witness may be cross‑examined as to credit in respect of a prior inconsistent statement, we do not consider that it is admissible to lead evidence of a prior extra judicial consistent statement or statements in order to bolster the witness’ evidence.”

Lord Eassie wrote: "In these circumstances we have come to the conclusion that the jury were misdirected on a matter which was central to the position of the defence at trial and that we are unable to say that no miscarriage of justice may have occurred.” "We shall therefore allow the appeal against conviction."

Lord Eassie wrote that he and his fellow judges now wanted to be addressed by lawyers about what Clark's new sentence should be.

Now, Lord Carloway – who served as Lord Justice Clerk under previous Lord President Lord Gill - is to be asked to give evidence to the Scottish Parliament’s Public Petitions Committee in connection with three year probe on proposals to require judges to register their interests, in which a publicly available register will contain information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The proposal to require judges to declare their interests enjoys cross party support, and is widely backed by MSPs who debated the proposals in the Scottish Parliament’s main chamber on 9 October 2014 - reported in full with video footage of MSPs and Scottish Ministers here: Debating the Judges.

Lord Carloway’s speech on digital justice and reforming Scotland's “Victorian” courts is reproduced below, in full:

Over the next 5 years plans will be developed which will see the court room, and its ancillary offices, redesigned in light of modern ideas and technology.  It will be changed from its current Victorian form into something fit for the 21st century.  The direction of travel may differ between the civil and criminal processes, but there will be themes common to both.  In all of this, a particularly important factor is your, the practitioner’s, attitude to the proposed modernisation; the view that you have about the efficiency and effectiveness of the current systems.

Do you see the civil courts as modern institutions which adequately deal with the disputes commonly arising in today’s Scotland?  Do you consider that the criminal courts are producing fair trials which properly balance the rights of the accused with those of others?  If the answer to each question is “well maybe not entirely”, the next question is what is to be done about it.

I have a number of ideas.  These may occasionally be expressions of my own personal utopia, but generally they are conclusions based upon considered, albeit inevitably incomplete, research by others.  Many of the central changes require primary legislation.  Their introduction will not therefore be my decision.  All I can do is recommend. The proposals will then go forward for deliberation in the public forum and democratic determination.  I remain, however, convinced of their ultimate utility.

Civil Procedure: I have said elsewhere that “Court reform is never complete.  Our courts must be ready to adapt and respond to progressions and innovations in society ... with a modern outlook but ... reflecting upon historical experience”[1].  The last major reforms before the Gill Review were in the first quarter of the 19th century.  We now need to capture the benefits which 200 years of technological advances have given us.  We certainly have not done so yet.

Over a year ago, Lady Dorrian cited Ofcom research which found that we are now in an era in which we spend more time using technology devices than sleeping[2].  She observed:

“If people and businesses communicate instantly by email, Skype or Facebook, they will expect public services to do likewise.  They will increasingly fail to understand, or have sympathy with, any system that still relies on extensive documentation, sent by post, and by the requirement to appear in person for the handling of routine matters”.

The Gill Report has a chapter devoted to the use of IT in the civil courts.  It cites the Government’s policy commitment to increase the use of IT in the public sector[3].  I too have previously called for “clear sky thinking” on the use of IT in Scottish courts in the interests of justice, given the particular advances in the last twenty years or so[4].  We now need to make concrete progress in the harnessing of new devices to reconfigure our practices and procedures in a radical way.

The electronic process: The Gill report noted that a paperless litigation system had been all but achieved in several jurisdictions[5]. Such systems typically produce a number of advantages: the facility to lodge documents electronically; the supersession of paper processes with electronic document management systems; the introduction of electronic case files incorporating legal databases and other research tools; the use of routine correspondence with the court by email; the conduct of procedural hearings by video conference; the taking of evidence by video link; the display of documents and other materials on screen; the digital recording of oral evidence; and the electronic issue of court orders[6].   In due course, the one which deserves most attention, and which may be the most challenging, is the digital recording of testimony.

Drawing upon the experiences of other jurisdictions, the Gill report identified a number of significant advantages of using this technology, including: reduced waiting and travelling time; the overcoming of the tyranny of distance[7]; a stricter adherence to time estimates and hearing start times; the involvement of principal solicitors with full instructions; reduction of expense; and generally increased accessibility of the civil justice system, particularly for private individuals, firms and smaller corporate litigants[8].

In Scotland, there was widespread take up some time ago, in commercial causes at Glasgow Sheriff Court, of case management conferences by telephone[9], The Inner House put a bit of a damper on this in couple of cases some seven years ago[10]. This caused some retrenchment, but the idea is still a good one. The desirability of conducting procedural hearings by conference call, preferably on video, will depend upon the facts and circumstances of each case.  As the European Court of Human Rights has explained[11], a distinction can be drawn between these cases where the hearing involves a decision on the merits, and procedural hearings, such as case management diets.  The Convention right to a public hearing does not carry with it a requirement that every procedural hearing needs to be in open court. Procedural hearings do not involve the determination of civil rights or obligations[12].  There ought to be no difficulty in principle with procedural hearings being conducted by means of telephone or video conferencing, provided certain safeguards are in place.

The electronic process for use in the Court of Session and the sheriff courts is in the late stages of development by the Scottish Courts and Tribunal Service.  It may be ready for piloting as early as the Summer.  It is envisaged that this system will have all the advantages envisaged in the Gill report.  In time, it is anticipated that the system will be expanded to facilitate the taking and hearing of evidence by recorded video.

Modes of Proof: Our system of proof is founded upon the primacy of oral testimony, that is, an account given upon oath from the witnesses in court.  The apparent reason is, as the editor of Dickson put it at the end of the 19th century “that an examination and cross-examination in open Court, under the solemn sanction of an oath, are the best means of securing truth and detecting falsehood”[13].  Certainly, the perceived significance of a witness answering for his or her testimony at the Great Day of Judgment, as the original form of oath prescribed[14], was considerable in these God fearing days.

This mode of inquiry, or truth finding, is inherited from the Victorian age and earlier, when there was a need for litigants, their representatives and witnesses, to appear before the courts at a specific cited time and place.  Those considerations are losing relevance today, when information can be assembled and presented in recorded form using modern technology.  Yet, the rules on the admissibility of evidence, other than the formal removal of the prohibition on hearsay, remain substantially similar to those set out in 1887 by Dickson[15].  Many forms of what should be admissible evidence of fact today – video recordings of witness accounts, for example – would have been beyond the then realms of contemplation.  Although it may be competent to use these as evidence, that does not routinely occur. In our age of technology, we must seize the moment and hold that, in the future, evidence might be presented to the court in a quite different, more advanced manner, than the appearance of the witness at court.

Today, what a person says can be recorded electronically and accurately at any time in audio and video format.  Events can be caught, contemporaneously, on CCTV or on portable devices.  In the ascertainment of fact, the question then is: which is more likely to be true: a record of an event as caught on camera and a video recorded statement made by a witness in the minutes or hours immediately following an event; or the oral testimony of a witness at a proof months or perhaps years later?  Why should it not be the norm, employing a procedure akin to a commission[16], for all evidence to be taken, in advance, in the form of a video recordings of witnesses’ accounts or of the relevant event or thing?  Our system has long recognised the competency of taking the evidence of a witness, which is in danger of being lost, to lie in retentis or the evidence of a witness who will be unavailable for the proof diet[17].  Provided that there is suitable oversight of the procedure and the witness can be, if judicially deemed necessary, cross-examined, this material should in principle be admissible as the primary method of proof of fact[18].

The task of evaluating credibility and reliability would, where required, remain with the judge.   If the final hearing proceeds, the video recordings can be submitted to the judge who will have examined all of the evidence in advance.  Excepting cases with special features, the diet would be restricted to oral submissions.  The judge, having had the opportunity to digest the evidence in advance, would be in a better, more informed position to engage with these submissions.  The diet itself would be much shorter, reducing expense and waiting times in other cases, thereby increasing the general accessibility of the civil courts. 

This process would offer the additional benefit that witnesses could provide their testimony at a time and place convenient to themselves, as well as the parties’ representatives, and the court.  Once the evidence has been heard and recorded, parties would have an opportunity to consider the advantages or otherwise of proceeding any further.  In this way, the reform might serve a dual function as a dispute resolution procedure whereby parties could evaluate the merits of their respective cases at a much earlier stage, without incurring the risk and expense of proceeding to the conventional final diet.

Article 6 confers, in civil cases, the right to a fair trial.  There is no breach of that essential guarantee inherent in these proposals.  There would be sufficient safeguards.  Even in criminal matters, the European Court has held that Article 6(3)(d), which contains the accused’s right to examine or have examined witnesses against him, is not absolute.  It does not entail a right to cross-examine every, or indeed, any witness in the conventional domestic sense in open court.[19]  There must, of course, be an opportunity to pose questions to a party or a witness, but that is the extent of the Convention entitlement.  The proposed new procedure would need to guarantee an opportunity to ask questions of a witness and, where appropriate, use cross examination as a forensic technique.

It is unlikely that the civil justice system, or the parties, can afford to have the luxury of the long proof, other than in the most exceptional of circumstances.  Restrictions in oral examination and cross-examination, along the chess game model, may have to be considered in the not too distant future.  The days of the lengthy proof may soon be over.  Such diets are time consuming, expensive and unnecessary.  They do not operate in the matter best suited to the ascertainment of truth.  They are not consistent with modern ideas of justice.

Appropriate level: Significant structural changes to our civil court system are underway.  The essential consideration is the promotion of justice, more particularly access to justice, through the quality and efficiency of our courts.  The objective is “rationalisation”; improved organisation, not only of the court structure, but also in the allocation of cases to be heard.  Cases must be given, but given only, the appropriate level of scrutiny.  They must be determined in accordance with our principles of law and justice but, in the promotion of justice for all, they must also be determined expeditiously and affordably.

Suffice it to say, the devolution of a large chunk of civil first instance business from the Court of Session to the Sheriff Courts by virtue of the increased privative limit is the headline reform, or was the main concern of the Bar and certain agents based in Edinburgh.  It may promote local justice, but the new All Scotland Sheriff Personal Injuries Court is likely to process most of the devolved work

One consequence will be that the Court of Session will be appropriately placed to function, as it should, as the supreme civil court in Scotland.  An increasing volume of public, and public interest litigation, important and developing areas of jurisprudence, is anticipated, especially as more reserved matters are devolved to Holyrood.  It is important that the Court of Session is in a position to deal with the new business promptly and effectively.   Although it is beyond the scope of this address, the affordability of litigation is a crucial consideration underlying the reforms.  Increased efficiency and cost-effectiveness will be achieved from the allocation to, and hearing of cases before, courts commensurate with their nature and subject-matter.

Leave provisions: The right of appeal to the Sheriff Principal against all final judgments and those involving for example interim interdicts and decrees, and that traditional staple, the refusal of the reponing note, is preserved[20].  Otherwise, leave from the sheriff is required to take matters further[21].  Whether an appeal will be heard before one or three Appeal Sheriffs is for determination by the Sheriff Appeal Court[22], as is whether it may be leap frogged, where an appeal raises a complex or novel point of law[23]. 

Appeals against a decision constituting a final judgment to the Court of Session from the Sheriff Appeal Court may be taken only with leave granted by the Sheriff Appeal Court, which failing the Court of Session, but only if the appeal raises an important point of principle or practice or there is some other compelling reason for the Court of Session to hear the appeal[24].  Thus, appeals from decisions of fact or discretionary determinations taken in the sheriff court are now unlikely to reach the Inner House.  Those that do must have a wider procedural or practical significance.  This test is intended to cause a significant drop in the number of unmeritorious appeals reaching the Divisions, often presented without the benefit of professional legal advice.

The automatic right of appeal from the Court of Session to the United Kingdom Supreme Court has ceased to exist.  The substitution of the new sections 40 and 40A of the Court of Session Act 1988[25] brings Scotland into line with the other UK legal systems in civil appeals at least in so far as final judgments are concerned.  Leave to appeal must be sought from the Inner House.  Permission will be granted only if “the appeal raises an arguable point of law of general importance which ought to be considered by the Supreme Court”[26].  Such a test is already familiar from recent cases, notably Lord Reed’s dictum in Uprichard v Scottish Ministers[27].  The timing of applications continues to be relevant.[28]

Criminal Law: I turn briefly to criminal law; briefly because, first, I have largely covered most of what I want to say in this field in relation to the use of pre-recorded testimony; secondly, I have spoken on this topic frequently; and, thirdly, very shortly, I hope that the Scottish Courts and Tribunal Service will publish its Evidence and Procedure Report; a culmination of an examination of the solemn and summary criminal systems with conclusions on the best way forward.  This is not specifically designed to save money. The proposals have not been costed.  It is an attempt to improve our fundamental way in which we ascertain fact, or, more accurately, truth, in criminal trials.

The problems within the summary criminal system were highlighted recently in the Audit Scotland Report, with its pointed statistics on the number of prosecutions mounted, trials fixed and trials conducted. The pace of change in society threatens to leave criminal procedure behind.  There requires to be a significant re-design of summary criminal procedure to take full advantage of the new technologies which are available. Along the lines which I have already mentioned in the civil context, work must be undertaken to develop the detailed requirements of a Digital Evidence Vault which can store and manage evidence and other information relevant to individual criminal cases.  The numbers of witnesses who require to attend court must be radically reduced.  There requires to be a more streamlined, digitally enabled justice system which enables cases to be managed judicially and administratively prior to trial so that personal appearances of accused and representatives are reduced to a minimum. Pleas of guilty should be capable of being submitted easily, at any time, on-line. Trials must only be fixed when the parties are ready to engage in that process.

Advanced systems must be introduced to deal properly, that is fairly, with cases involving children and vulnerable witnesses. It must be presumed that in such cases the evidence in chief and cross must be in pre-trial recorded form The court has already recommended a system whereby, in cases where there has been a Joint Investigative Interview, there ought to facilities to hold any cross-examination at any point after the service of the petition or complaint. Improvements in the training of those conducting JIIs must be made.  Advocates or solicitors engaged in the examination or cross-examination of children must prove that they have the proper skills to do so. Their work must be closely supervised by the court.

The Bowen Reforms, which introduce the High Court system of procedure into the sheriff courts, notably in connection with the fixing of trials, must be properly and effectively implemented. As I have recently made clear in the Practice Note, the First Diet in solemn cases must normally be regarded as the end point in preparing for a case and not its starting gun. The courts must deal with all preliminary points in advance of trial at diets having sufficient allocated time. The jury trial diet must be regarded as a precious resource, not to be interfered with.

Conclusion: Much of this will be achieved in our professional lives, provided that we do not take a cantankerous and obstructive approach to it. Ultimately, it is much better that we have a legal profession that enjoys working in a civil or criminal justice system which works fairly and efficiently; not one which may be seen by some as failing in certain areas. It is my hope that you will all engage in this process so we can have a system in which, when the questions I asked at the beginning of this talk are asked, we can say “well, just about”.

Lord Carloway, Lord President, 29 January 2016

Civil Courts Review : Scots Justice still “Victorian” years after judge called for reforms:

The Scottish Civil Courts Review of 2009 authored by then Lord Justice Clerk, Lord Brian Gill, castigated Scotland’s Civil Justice System as being Victorian, costly, and unfit for purpose, yet years on from the review, little of the proposed reforms have been implemented due to pressure from vested interests in the legal world, and a lack of political will to deliver access to justice to all Scots.

The Civil Courts Review 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

In a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here Lord Gill 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.