LOOK AFTER LAWYERS: Law Society wants to keep 70 year ‘successful’ system of lawyers investigating themselves - in response to Scottish Parliament petitions calling for UK style independent regulation of legal services in Scotland

Law Society says lawyers should investigate themselves. A PROPOSAL before the Scottish Parliament calling for views on scrapping self regulation of the legal profession in Scotland - has heard claims lawyers have successfully investigated themselves for seventy years - and that this 'arrangement' should continue.

Members of the Scottish Parliament’s Public Petitions Committee have now received the views of the Law Society of Scotland , and Scottish Solicitors Discipline Tribunal  (SSDT) - who both want to continue the current system where lawyers maintain their own ‘standards’, write their own rules, and investigate complaints against themselves.

The Law Society of Scotland stated in a letter to MSPs - PE1660B and PE1661B: Law Society of Scotland - “the dual role of regulation and professional support has been successfully carried out for almost 70 years”

The Law Society goes on to claim “This issue was considered in depth by the Scottish Government ahead of the 2010 Legal Services Act with a clear conclusion that the model of having a single professional body was right for Scotland.”

However, thousands of complaints a year made against solicitors in Scotland by clients who end up considerably worse off financially after bruising encounters with lawyers even on the most common legal services show the profession’s self regulation model as predominantly dishonest.

The Scottish Solicitors Discipline Tribunal – who were exposed in a BBC Scotland documentary for shying away from striking off serially dishonest solicitors – ‘suggested’ in their own letter to MSPs - PE1660 A and PE1661: Scottish Solicitors Discipline Tribunal - that the Scottish Parliament wait until a two year review is complete before considering the petitions.

The Disciplinary Tribunal said in it's letter to the Committee: "The Tribunal considers that the issues raised in Petitions PE1660 and PE1661 are being considered in the current Review which includes an examination of the legal complaints system in Scotland and an analysis of legal complaint handling in other jurisdictions. Perhaps it would be appropriate to await the recommendations of the current Review before there is detailed consideration of the issues raised in these Petitions".

However, the Scottish Government review referred to by the Disciplinary Tribunal -  has already come in for stinging criticism due to it’s dominant complement of vested interests from the legal profession who lobby against any change to the current system of regulation where lawyers investigating themselves.

The letters come in response to petitions being considered by the Public Petitions Committee calling for a radical overhaul of the way complaints against the legal profession are handled in-house by the Law Society and ‘independent’ Scottish Legal Complaints Commission (SLCC).

In September, MSPs called for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.

Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.

Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.

The move by Holyrood to look at the issue of self regulation of lawyers - comes after the Scottish Government announced a ‘review’ of legal services regulation in Scotland, back in April 2017.

However, the Scottish Government ‘review’ – will not report back until the end of 2018 and with non binding recommendations – and has come in for significant criticism after it was found there was only one consumer related interest among the legal related membership.

When the review was announced earlier this year, former Cabinet Minister & SNP MSP Alex Neil said the review remit should also include judges.

Alex Neil said: “I hope it produces radical and robust proposals. I also hope it covers the judiciary as well as lawyers.”

Mr Neil also called for greater fairness in the panel’s membership, to include members from outside the legal establishment.

Mr Neil added: “I hope the membership of this review panel will be expanded to get a better balance between lawyers and non-lawyers”

A full report on the Scottish Government’s review of legal services can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers - Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

During the last debate on the two petitions, members of the Public Petitions  Committee also agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors' Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.

Regulation of legal profession reform - Public Petitions Committee 21 September 2017

If proposals within the petitions go ahead, this would bring regulation of legal services in Scotland into line with independent regulation as practiced in England & Wales.

The full letter from the Law Society of Scotland to the Public Petitions Committee:

PE1660/B PE1661/B Law Society of Scotland submission of 16 October 2017 REGULATION OF THE SCOTTISH LEGAL PROFESSION

Thank you for your letter of 29 September. We are grateful for this opportunity to feed into the Committee’s consideration of petitions PE1660 and PE1661.

As the professional body for Scottish solicitors, we share the petitioners’ desire to improve the regulation of legal services. The Scottish legal sector has evolved considerably since the introduction of the Solicitors (Scotland) Act 1980, which is the main legislative framework governing the regulation of legal services. We are clear that reform is needed, both to protect clients’ interests and to ensure the legal sector, which contributes so significantly to the Scottish economy, can be competitive and continue to thrive.

We approach these issues with almost 70 years’ experience of delivering robust regulation of the legal profession. As the principal regulator of Scottish solicitors, we take our duty to protect the public interest extremely seriously, a fact demonstrated through the range of activity which we carry out.

First and foremost, we set high professional standards which all solicitors must meet, including a robust route to qualification along with practice rules and guidance which is regularly reviewed. Our highly trained financial compliance team inspect around 370 law firms each year to ensure compliance with our strict accounts rules. In 2015/16 and as a result of these inspections, we raised 17 complaints of our own to the Scottish Legal Complaints Commission (SLCC). Additionally we intervene quickly in firms when things go wrong, ensuring clients know who to contact, where their files are and offering the assurances they need. Even when clients choose to no longer pursue an initial complaint against their solicitor, we will raise our own complaint if it is in the public interest and in order to maintain standards. In total we raise around 30 complaints a year against solicitors to the SLCC.

By setting, maintaining and vigorously enforcing standards, we strive to ensure that consumer interests remain the central focus of our regulatory work and that consumer confidence in the Scottish solicitor sector remains high. A poll of the Scottish public in

2016 indicated that 90% of those surveyed are satisfied with the services provided by their solicitor and 82% would recommend their solicitor to others. That poll also demonstrated high levels of trust in the legal profession as a whole.

The case for change: We recognise that, despite the strong system of regulation in place, further work is needed to improve that system. This is particularly true around the area of complaints handling, where processes need to be simpler and consumer protection stronger. Given the regulatory framework and processes involved are set out within primary legislation, we are afforded little flexibility within the existing system. This is why we proactively approached the Scottish Government in 2015, submitting a detailed paper which set out the case for new legislation to better protect consumers and allow the legal services market to thrive . Our proposals include better regulation of legal firms and individual solicitors to improve standards in addition to a wider regulatory reach over other legal professionals.

This is in response to the dramatic changes we are seeing in the Scottish and UK legal services market. New expectations from clients, new business models, the growth of cross border legal firms and increased technology are all serving to reshape that market. Yet most of the legislation covering the operation and regulation of the legal market is approaching 40 years old and did not anticipate the changes we are seeing today.

Whilst taking forward reform, we also believe it vital to preserve the elements and principles of the current regulatory framework which work well - the independence of the legal profession; a single professional body; independent discipline body. These must be protected.

We were delighted that, in response to our proposals, the Scottish Government established the independent review of the regulation of legal services, now being chaired by Esther Roberton. We believe this offers a real opportunity to develop a consensus on what reforms are required and how they can be effectively delivered.

The complaints system: We note the ultimate aim of both petitions is to urge the Scottish Parliament and Scottish Government to review complaints about providers of legal services in Scotland. We share the petitioners’ concerns and frustration in relation to the complex and unwieldy complaints process that currently exists from the existing legislation.

The introduction of the Legal Profession and Legal Aid (Scotland) Act 2007 created the Scottish Legal Complaints Commission (SLCC) which opened on 1 October 2008. The SLCC is a complaints handling body which operates independently of the Law Society and Scottish Government. It has important oversight powers in relation to the handling of conduct complaints by the legal professional bodies, including the power of audit in addition to other consumer protection matters. Under the provisions of the 2007 Act, the Law Society retains the responsibility for managing and investigating complaints relating to the conduct of Scottish solicitors.

We regularly engage with the SLCC and enjoy a close working relationship of mutual respect and recognition. We discuss shared matters of concern and ideas for improving the complaints process to the benefit of complainants and the legal profession. We are frequently in discussions with the SLCC and other stakeholders with regard to the various challenges which the 2007 Act raises in relation to legal complaints, in particular the complex processes at the gateway / eligibility stage which result in unacceptable delays.

We believe the whole system for managing legal complaints needs to be changed to make the processes involved easier and quicker for the consumer. We are currently in discussions with the SLCC regarding an interim solution which could be delivered through secondary legislation. This offers the chance to improve the system by speeding up the eligibility stage of the complaints process until such time as more permanent changes can be made.

Given that there is no ability for a complainer to make a complaint on the SLCC’s handling of a service complaint, we strongly believe there should also be independent oversight of the SLCC, particularly as the SLCC perform the oversight functions of the Law Society of Scotland and Faculty of Advocates relating to conduct complaints.

We note that during the Committee’s meeting of 21 September 2017 a number of members referred to the Law Society’s campaign which resulted in many solicitors contacting their local MSPs to express concerns over the increase in the SLCC’s budget for 2017/18. During this campaign, we raised concerns that the SLCC’s budget could not be formally objected to by Ministers or by Parliament. This emphasises the challenge about the lack of effective independent oversight of the SLCC. I enclose a copy of the standard letter which formed the basis for many of the emails sent to MSPs earlier in the year. We would be happy to provide further background information or meet members of the Committee to further clarify the circumstances that led to the campaign and our position.

We have provided some further information on each petition below:

PE1660:  The petitioner argues that the existing appeals route against decisions by the SLCC, via the Court of Session, forms a barrier to those who wish to appeal.

We fully agree with this view. We recognise that the concept of pursuing legal action against a public body via the court can be a difficult and daunting process.

The requirement to obtain the leave of the Court of Session can put the appeal option out of reach for the majority of complainers, even where they may have fully justified grounds for appealing. This compares starkly to the situation regarding conduct complaints dealt with by the Law Society. Here, if a complainer is not happy with the way we have handled a complaint then they have the option of taking a ‘handling complaint’ to the SLCC. Whilst this does not amount to an appeal, the SLCC can recommend the matter be re-opened for further consideration if due process has not been followed or the decision lacks reasoning. Furthermore, a complainer can appeal a decision directly to the separate and independent Scottish Solicitors’ Discipline Tribunal (SSDT).

There is no equivalent process for those complaints dealt with by the SLCC. The only recourse is through seeking leave of the Court of Session. We believe there is a case for reviewing this and hope the work being undertaken by Esther Robertson and her review group will consider this point.

The petitioner also states that the Law Society ‘appears to desire no involvement, nor introduce quality control’ in the SLCC’s handling of complaints’. It is important to stress that the current legislative framework provides us no role of oversight of the SLCC, its processes or its decisions. Even where there may be occasions that we disagree with a service complaint decision of the SLCC, there are no special mechanisms which allow us to challenge or raise this other than the general provision which are available to the general public.

We also note that comment is made in the background notes on the process by which the SLCC lays reports before Parliament for information only. The provisions of the 2007 Act (Schedule 1 paragraph 16) provide that the SLCC must lay their annual report before Parliament at the end of each financial year. This is in addition to the laying before the Scottish Parliament of the SLCC budget by the end of April each year. These are laid for information only and Parliament has no statutory powers to comment on or amend these in any way. As I have already outlined, we do believe that greater oversight is needed of the SLCC and its performance, a fact which came into stark focus during the budget issues earlier this year.

PE1661: Central to this petition is the call for a wholly independent regulator of legal services in Scotland with no ties to the profession.

The Law Society of Scotland’s dual role of regulation and professional support has been successfully carried out for almost 70 years. This issue was considered in depth by the Scottish Government ahead of the 2010 Legal Services Act with a clear conclusion that the model of having a single professional body was right for Scotland.

At the core of any profession is a commitment to provide the best possible service to the consumer while recognising it has a responsibility to act in the public interest in all that it does. The regulation of the profession is the means by which the profession ensures these aspirations are met.

Our dual role is essential in ensuring that Scottish solicitors deliver the highest practical and ethical standards. To ensure we maintain a practical distinction between our two roles, our regulatory function is clearly separated and works independently of our professional support work. That regulatory activity is overseen by the Regulatory Committee in accordance with the provisions of the Legal Services (Scotland) Act 2010. This means it is an independent committee. The Law Society Council is not permitted to unduly interfere with the work of the Regulatory Committee, nor with the work of its sub- committees which are responsible for taking specific regulatory decisions. This is all clearly set out in legislation. To strengthen that independence, the Convener of the Regulatory Committee is chosen by the committee and must be a lay member. Our current convener Carole Ford comes from the teaching profession, bringing both an expertise in standards setting and enforcement but also a clear commitment to the public interest. The committee she chairs has an equal number of solicitor and non-­solicitor members - another element set out in legislation.

The concept of a single professional body, with both regulatory and professional support functions, is a model seen in other sectors in Scotland and also in other legal jurisdictions around the world.

Here in Scotland, we have the Institute of Chartered Accountants of Scotland (ICAS), the Royal Incorporation of Architects in Scotland (RIAS) and the Royal Institution of Chartered Surveyors (RICS). The teaching profession in Scotland recently moved from separate bodies into the single professional body that is the General Teaching Council. There is clear recognition across a number of professions that having a single professional body is the right approach, particularly given the size of Scotland.

Further afield, Law Societies and Bar Associations around the world have dual responsibility for regulation and professional support. These include the Law Society of Ireland, Law Societies in the provinces of Canada and states of Australia as well as bar associations in US states such as California, Florida and Texas. It provides a cost effective, practical, and coordinated professional approach which works in the interests of the consumer.

Nevertheless, we recognise the specific areas of concern which the petitioner highlights. The petitioner’s background information notes how the Law Society of Scotland cannot become involved in the decisions of the independent complaints handling body, the SLCC. If there is concern over the accountability of the existing independent complaints body, we do not agree that the way to correct this is to create a new regulatory body. Rather it would be better to create the kind of effective oversight of the SLCC which I have described earlier, the kind of oversight which the Law Society faces from our own Regulatory Committee, the SLCC, the SSDT and the Courts.

The background notes also assert that over 600 complaints were dismissed as a result of the court ruling in Anderson Strathern vs. SLCC (CSIH 71XA16/15). As a result of the ruling, which affected around 250 complaints already in the system, the Court of Session has now made a further judgment on the way these cases should be dealt with . We are working with the SLCC to implement the judgment which centres on the way the SLCC have categorised complaints.

We have worked constructively and collaboratively with the Parliament and other organisations throughout the passage of the Acts of the Scottish Parliament referred to in the petition background notes. As a professional body which has a statutory duty to protect and further the interests of the public and consumers, we have put forward proposals which demonstrate our commitment to these values.

As I have noted, the Scottish Government appointed an independent group to review the provision and regulation of legal services in Scotland, chaired by Esther Roberton. The Committee may wish to consider contacting the review group regarding opportunities for the public, including the petitioners, to present their views on the complaints process for consideration.

Thank you again for the opportunity to respond to these petitions. If we can provide any further points of clarification or aid the Committee’s consideration of these petitions further, please contact our Legislative Change Executive.

The letter from the Scottish Solicitors Disciplinary Tribunal (SSDT) to the Public Petitions Committee:

PE1660/A PE1661/A  Scottish Solicitors’ Discipline Tribunal submission of 13 October 2017

Introduction: The Public Petitions Committee met on 21 September 2017 to discuss petitions PE1660 and PE1661. In short, these conjoined petitions call on Parliament to urge the Government to review and reform the system of legal complaints in Scotland by comparing it to the system in operation in England and Wales. The Committee determined to seek the views of various stakeholders including the Scottish Solicitors ’ Discipline Tribunal.

Current system: It may assist the Public Petitions Committee to understand the place of the Tribunal in the system of legal complaints. Complaints against solicitors in Scotland are channelled first through the Scottish Legal Complaints Commission (SLCC). The SLCC deals with matters of inadequate professional services itself. It refers conduct matters to the Law Society. The Law Society has powers to deal with unsatisfactory professional conduct itself. The Law Society may appoint a Fiscal to prosecute the most serious cases before the Scottish Solicitors’ Discipline Tribunal as professional misconduct. Individuals cannot make complaints direct to the Tribunal.

The Scottish Solicitors’ Discipline Tribunal: The Tribunal is an independent formal judicial body constituted under statute and subject to the appellate jurisdiction of the Court of Session. The Tribunal deals with complaints of professional misconduct, complaints that a solicitor has been convicted of an offence involving dishonesty or any other more serious criminal offence, appeals stemming from the Law Society’s determinations regarding unsatisfactory professional conduct, and applications for restoration to the roll of solicitors in Scotland. The Tribunal is made up of 12 solicitor and 12 non-solicitor members. At each hearing the Tribunal comprises two solicitor and two non-solicitor members. Hearings are generally held in public.

The sanctions which the Tribunal can impose are censure, fines of up to £10,000, restriction of a solicitor’s practising certificate, suspension, strike off or prohibition on restoration to the roll, and compensation of up to £5,000 for loss, inconvenience or distress if a Secondary Complainer has been directly affected by the misconduct. Every decision of the Tribunal is published in full subject to the terms of paragraph 14A of Schedule 4 to the Solicitors (Scotland) Act 1980. Occasionally publicity is deferred, for example, pending the conclusion of criminal proceedings.

The Tribunal’s mission statement is to ensure so far as possible that all cases brought before the Tribunal are dealt with in accordance with the legislative framework and the principles of natural justice, bearing in mind the importance of protecting the public from harm and maintaining public confidence in the legal profession. The Tribunal endeavours to deal with cases efficiently and expeditiously. The Tribunal has a duty to be independent, impartial and transparent.

The Tribunal is responsible for the most serious cases of misconduct relating to Scottish Solicitors. Consequently, it deals with far fewer cases than either the Law Society or the SLCC. In the year 1 November 2015 to 31 October 2016, the Tribunal met on 45 days to hear Complaints. 32 new Complaints were received during that year. The Tribunal made 22 findings of professional misconduct and one under section 53(1)(b). The Tribunal made four findings of not guilty and two were remitted to the Law Society to consider as unsatisfactory professional conduct.

PE1660 and PE1661: The Tribunal considers that the system of legal complaints in Scotland can be complicated, lengthy and expensive. To a limited extent, the procedure has been simplified following the Court of Session judgements in Anderson Strathern v SLCC [2016] CSIH 71 and Law Society v SLCC [2017] CSIH 36. However, there are still areas for improvement.

The Tribunal is currently participating in the Review of Regulation of Legal Services; its Chairman is a member of the Review. The remit of the Review is to make independent recommendations to reform and modernise the framework for the regulation of legal services and complaints handling. The Tribunal hopes that this would modernise and streamline complaints handling. The Review’s remit is to focus on the current regulatory framework and the complaints process. Its aims therefore directly cover Petition PE1660 which calls for a review of the operation of the SLCC with a view to making the process of legal complaints more transparent and independent. .

The Review also overlaps Petition PE1661 which calls for reform of the regulation of legal complaints. However, the author of PE1661 calls for this to be done by creating a new independent regulator of legal services with similar powers those held by the SRA, Legal Ombudsman, BSB and SDT in England and Wales. The Tribunal observes that the Scottish Solicitors Discipline Tribunal is the direct counterpart of the SDT in England and Wales. Similarly, the SLCC performs a broadly similar though not identical role to the Legal Ombudsman. The Law Society of Scotland’s Regulation Department performs comparable functions to the SRA. The Faculty of Advocates Disciplinary Tribunal and the Bar Standards Board also have related responsibilities. The role of these bodies in the complaints system is included in the current Review and the Review may make recommendations for changes in this.

Therefore, the Tribunal considers that the issues raised in Petitions PE1660 and PE1661 are being considered in the current Review which includes an examination of the legal complaints system in Scotland and an analysis of legal complaint handling in other jurisdictions. Perhaps it would be appropriate to await the recommendations of the current Review before there is detailed consideration of the issues raised in these Petitions.

LAWYERS REVIEW THEIR OWN REGULATION: Third attempt by SCottish Government at reforming biased system of solicitors self regulation.

The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.

In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.

The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.

However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.

A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.

The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.

A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.

Regulating the legal profession: Usual suspects selected by legal profession to carry out independent review on regulation of solicitors:

The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.

The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life.  She is also currently a board member of the Scottish Ambulance Service (2014-18).  She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).

The review panel have confirmed their participation as follows:

•      Christine McLintock - immediate past president Law Society of Scotland
•      Alistair Morris - chief executive of the management board, Pagan Osborne (Law Society of Scotland)
•      Laura Dunlop QC - Hastie Stables (Faculty of Advocates)
•      Derek Ogg QC - MacKinnon Advocates (Faculty of Advocates)
•      Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
•      Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
•      Ray Macfarlane –  chair of the Scottish Legal Aid Board
•      Jim Martin – outgoing Scottish Public Services Ombudsman
•      Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
•      Prof Lorne Crerar - chairman, Harper Macleod LLP
•     Prof Russel Griggs - chair of the Scottish Government’s Independent Regulatory Review Group
•      Trisha McAuley OBE - independent consumer expert

TRIBUNAL INTERESTS: Calls for wealthy, well connected interests & professions who dominate tribunals & appeals system to be brought into line with transparency & declarations in published register of interests

Tribunals are dominated by wealthy, powerful individuals & professional groups. AMID an ongoing media probe into the undeclared, and significant interests of individuals and professional groups who dominate public tribunals, a call has been made for all tribunal members to declare and register their interests.

The manner in which tribunals are created and governed in Scotland, is a familiar model of professionals within the same groups and spheres of influence - awarding jobs to colleagues, the favoured, and vested interests.

A no expenses spared approach for tribunal members who tow the line is often the case, enhanced with office accommodation such as the new tribunals centre being created in Glasgow at 3 Atlantic Quay, a high-quality office development close to the River Clyde in the centre of the city.

Last week, the Scottish Courts & Tribunals Service (SCTS) confirmed they and Her Majesty’s Courts and Tribunals Service (HMCTS) have decided to rationalise their accommodation and move jointly into the new centre – which is being rented out at nearly £2million a year from the Moorfield Group and partners Resonance Capital.

The moves planned to start next year will also mean that accommodation is ready for the tribunals that are going to be devolved to the SCTS.

Members of tribunals are recruited by the Judicial Appointments Board (JAB) during appointments rounds regularly held to fill vacancies in the murky world of the Scottish Courts and Tribunals Service and Judiciary of Scotland.

Applicants face interviews from their peers across the legal, professional, charitable and public service world & industries awash with public cash, junkets, charity interests, coaching, arbitration & consultancy profits.

Successful candidates are subsequently appointed by Scottish Ministers.

An example of a recent appointments round run by the Judicial Appointments Board saw 30 new Legal Members and 19 Ordinary Members appointed by the Scottish Ministers to the First-tier Tribunal for Scotland and assigned to the Housing and Property Chamber by the President of Scottish Tribunals, Lady Smith.

A full report on the appointments can be found here: TRIBUNAL REGISTER: Calls for transparency as legal & wealthy, well connected interests dominate Tribunals system membership - Register of Recusals & Interests should be extended to cover all Tribunals in Scotland

The names of those appointed are:

Legal Members: Yvonne McKenna; Lesley-Anne Mulholland; Nairn Young; Shirley Evans; Alastair Houston; Steven Quither; Petra Hennig McFatridge; Colin Dunipace; Lesley Johnston; Anne Mathie; Kay Springham; Alan Strain; Aidan O’Neill; Jan Todd; Alison Kelly; Valerie Bremner; Eleanor Mannion; Virgil Crawford; Pamela Woodman; Lynsey MacDonald; Karen Kirk; Neil Kinnear; Fiona Watson; Nicola Irvine; Graham Dunlop; Andrew Upton; Joel Conn; Melanie Barbour; Lesley Ward; Andrew McLaughlin.

Ordinary Members: Eileen Shand; Elizabeth Williams; Janine Green; Jennifer Moore; Linda Reid; Angus Lamont; David Fotheringham; David MacIver; David Wilson; Gerard Darroch; Gordon Laurie; James Battye; Leslie Forrest; Tony Cain; Elizabeth Currie; Frances Wood; Jane Heppenstall; Melanie Booth; Sandra Brydon.

Not one of these members  - the thirty lawyers – or the nineteen ‘ordinary’ members - has declared any interests in a publicly available register of interests – as there is currently no requirement to do so.

The Judicial Appointments Board publish a version of a register of interests,- available here: Judicial Appointments Board - Register of Interests

However, the JAB register of interests leaves out any mention of property wealth and many other interests known to be held by those serving on the quango tasked with recruiting Scotland’s judiciary and tribunal members.

A legal insider commenting on the JAB register observed: “It appears as if members are poor souls sitting round a table with little to declare, whereas the undeclared financial wealth and status on this list is significant and ought to be declared”

The world of Disability Living Allowance appeals and PIP appeals has too come under the spotlight - after a study of appeal panels revealed members wealth and property totalling in the millions compared to disabled applicants who were being ‘knocked back’ on applications for a few extra pounds a month.

The tribunal structure which covers benefits appeals are riven with huge, wealthy interests, yet there is no register and no ability for those appearing before them to inspect those who sit in judgement upon their claims.

In one look at a DWP Tribunal comprising a surgeon, a lawyer and a 'disabled' tribunal member - accumulated wealth between the three, their partners and businesses and properties totalled well into the millions, yet claimants, some with no limbs who are struggling to claim an extra £30 a month and get knocked back while tribunal members are paid expenses & remuneration know nothing of it.

An adviser who assists those facing benefits appeal tribunals gave an example of a benefits tribunal membership:

A surgeon tribunal member - of 25 years experience as a medical practitioner owned several properties, has several positions on public bodies, has a long history of advising Government departments on medical legislation, has appeared as an expert witness on many occasions for NHS trusts and assisted Medical Defence Unions in the UK against hospital negligence claims.

His partner has a similar level of interests in terms of wealth and property, has a wide variety of positions in advising and acting for quangos,public bodies, professions, local and central government.

A solicitor member of the tribunal, who has over 20 years experience of a solicitor owns numerous properties, holds several other positions on tribunals and has made a lucrative career of advising and representing quangos, public bodies and has fought and won cases for professional groups.

However, the third member – the disability member of the tribunal – proved to be the most interesting.

The disability member, who is in receipt of DLA – holds significant assets and property well out of the reach of any typical DLA or PIP claimant.

This same disability member appears to hold several positions on public bodies and has frequently travelled on publicly funded junkets.

And, the same disability member has been the author of written reports on individuals – one which was described by a former local Government employee as “a personal vendetta” against a claimant from the same town in which the tribunal was held.

The former benefits adviser also recalled a recorded hearing – in which the same disability member became aggressive during a benefits appeal hearing - and demanded an assisted blind claimant remove their black glasses.

The net worth of the three members of this particular DLA tribunal was estimated at around £5.2m – taking into account the tribunal members partners, whose interests often coincided with public bodies, professions, local and central government.

It has also been alleged remuneration and expenses for benefits appeal tribunal members include payments for “knocking back applicants”.

A former Local Government employee who worked in the benefits section of a council told of how he had been part of a discussion at his former workplace where a senior member of staff claimed DLA tribunal members had on occasion been paid hundreds of pounds more for throwing out DLA applications.

Clearly, those before such a tribunal have the right to know who they face, and the interests of those who judge them.

The National reports further:

Call for change to tribunals - Legal campaigner says recusal register myst be extended

Martin Hannan Journalist 14 October 2017 The National

THE man who is leading the transparency campaign for Scotland’s judges to register their interests now says the idea should be extended to everyone who sits on a public tribunal.

Peter Cherbi will shortly pass the five-year mark in his campaign via the Scottish Parliament’s Petitions Committee for there to be a judicial register of interests, similar to those registers already in existence to which all elected politicians and police officers must conform.

The register proposal has been strongly resisted by senior judges and other top lawyers, but is supported by politicians from all parties – the Petitions Committee has taken considerable amounts of evidence and is due to debate the plan again shortly.

Now Cherbi, who is well-known in Scottish legal circles for his blogging and campaigning for reform of the Scots law system, says that tribunal members should also have to declare their interests.

Under the present system of appointments to tribunals it is up to members themselves to declare an interest if, for example, they have personal relationships with those appearing before them, and step aside from a case – known as recusal.

There has been considerable re-organisation of the tribunal system in Scotland since the Tribunals (Scotland) Act 2014 simplified the statutory framework.

The First-tier Tribunal is organised into a series of chambers. From December 1, 2016, the Housing and Property Chamber was established and took on the functions of the former Home Owner and Housing Panel and the Private Rented Housing Panel.

From April 24 this year, the Tax Chamber was established and took on the functions of the former Tax Tribunals for Scotland.

The Upper Tribunal hears appeals from the First-tier Tribunals and the head of the whole system is Scotland’s most senior judge, the Lord President, Lord Carloway, with the Rt Hon Lady Smith as president of the Scottish Tribunals.

Others tribunals include the Mental Health Tribunal, the Additional Support Needs Tribunal, the Council Tax Reduction Review Panel and the Lands Tribunal. More tribunals will come with greater devolved powers but employment tribunals are still under the control of the Westminster Government.

Cherbi says all such public tribunals should be open and transparent about their members’ interests and points out that there is no register of recusals for any of the tribunals.

He said: “As should the judiciary now declare their interests in a publicly available register, members of tribunals who are engaged in the business of judging others should declare their full interests and any instances of recusals in a publicly available register.

“The business of judging others – for it surely has become a business over the years – must now be subject to the same public expectation of transparency and accountability as tribunals apply to those appearing before them.

“The public, the media and our democratically elected politicians in our Parliament, as well as those who are judged, have the right to view, be informed about, and inspect those who judge society with unchallenged power in equal light.

“And this is not just about Scottish Tribunals. Take for instance DLA appeals and PIP appeals. The tribunal structure which covers those are riven with huge, wealthy interests, yet there is no register and no ability for those appearing before them to inspect those who sit in judgement upon their claims.

“I looked at a Department of Work and Pensions Tribunal comprising a surgeon, a lawyer and a ‘disabled’ tribunal member – accumulated wealth between the three, their partners and businesses and properties totalled well into the millions, yet claimants, some with no limbs who are struggling to claim an extra £30 a month, get knocked back while tribunal members are paid expenses and remuneration and we know nothing of it.”

A Scottish Government spokesman said: “We consider that a specific register of interests is not needed. Existing safeguards, including the Judicial Oath, the Statement of Principles of Judicial Interests and the system of complaints against the judiciary, are sufficient to ensure the impartiality of the judiciary in Scotland.”

YOUR TRIBUNAL: A publicly funded adversarial environment full of vested interests:

Next year, tribunals will move to an expensive new home in the centre of Glasgow.

The Scottish Courts and Tribunals Service (SCTS) and Her Majesty’s Courts and Tribunals Service (HMCTS) are to rationalise accommodation in Glasgow and the new Tribunals Centre will be located at 3 Atlantic Quay. 

The SCTS claim the 34 hearing rooms for cases to be heard, the design of the centre will provide excellent facilities for all tribunal users, and specific  support for young users with additional support needs.  Additionally, the centre will provide facilities for vulnerable witnesses to give evidence to both Glasgow Sheriff Court and the High Court.

During 2018, the SCTS-supported Housing and Property and Health and Education Tribunal Chambers will move into the new Centre. The HMCTS-operated social security tribunal will move at a similar time with other tribunals HMCTS services to follow at a later date.

The SCTS provides support to many of Scotland’s devolved tribunals and is making preparations for the future transfer of the UK reserved tribunals operations in Scotland, currently provided by HMCTS.

Lady Smith, President of Scottish Tribunals – who is in charge of the £7.8million Scottish Child Abuse Inquiry – claimed:  “The creation of the new Tribunals Centre in Glasgow is the latest important development in the evolution of the Scottish Tribunals. The premises will act as a hub for tribunals supported by SCTS, providing a range of modern facilities and services for tribunals users. They will also offer a separate, appropriately designed space, for vulnerable witnesses and users, including for witnesses providing evidence for Sheriff and High Court cases in Glasgow. This co-located approach to provision for the tribunals should be regarded as a flagship for the administration of justice in Scotland in the 21st century.”

Eric McQueen, Chief Executive, SCTS said: "This has been an exciting opportunity with SCTS and HMCTS working together to create a bespoke tribunals centre, improving the services we provide for tribunals, while reducing costs.  It also provides an early opportunity to bring together SCTS and HMCTS staff to prepare for forthcoming tribunal reforms.”

Kevin Sadler, Deputy Chief Executive, HMCTS said: “We are committed to improving people’s experience of the justice system by providing facilities that are modern, comfortable and accessible.We have worked collaboratively with SCTS on this opportunity and we look forward to creating a joint tribunals centre with them in the heart of Glasgow.”

If you have any experience before any of these Tribunals, or information in relation to cases, Diary of Injustice journalists would like to hear about it. All information and sources will be treated in strict confidence, contact us at scottishlawreporters@gmail.com

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.

Previous reports on moves to publish judicial recusals in Scotland and a media investigation which prompted further reforms of the Scottish Register of Judicial Recusals can be found here: Judicial Recusals in Scotland - Cases where judges have stood down over conflicts of interest

DECLARE YOUR JUSTICE: Judicial Office consults with Lord Carloway on including Justices of the Peace in Register of Judicial Recusals - as questions surface over Lord Gill’s omission of 500 JPs from judicial transparency probe

Calls to include Justices of the Peace in Recusals Register. SCOTLAND’S top judge has been called upon to include nearly five hundred members of the Judiciary of Scotland in a Register of Judicial Recusals which was created in response to a five year Scottish Parliament probe on lack of transparency within the judiciary.

The Lord President – Lord Carloway (real name Colin Sutherland) - is currently being consulted by the Head of Strategy and Governance of the Judicial Office on collecting recusal data from Justices of the Peace courts.

The move comes after journalists queried why JPs were not included in the current register of recusals listing when judges stand down from a case due to conflicts of interest.

The addition of Justices of the Peace to the recusals register follows recent development where Lord Carloway conceded to calls for full transparency on judicial recusals, reported here: RECUSALS JUST GOT REAL: Judicial Office concedes to reforms for Judicial Recusals Register, full case details where judges stand down from court hearings to be entered after media & FOI probe success

However, amid an ongoing probe on Justices of the Peace – where it has now been established some JPs have undeclared criminal convictions - there has been no explanation provided by the Judicial Office as to why some five hundred Justices of the Peace who comprise the bulk of membership of the Judiciary of Scotland - were left out of the publication of recusals by Lord Gill during the register’s creation in April 2014.

Moves by Scotland’s judiciary to become more transparent and open up the workings of Scotland’s courts and judiciary to the public, have come in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The petition, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.

The creation of such a register would ensure full transparency for the most powerful people in the justice system – the judiciary.

The resulting publicly available register of judicial interests would contain information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, 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.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 - ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

A full listing of evidence in support of the petition calling for a register of judicial interests can be found here: JUDICIAL REGISTER: Evidence lodged by Judicial Investigators, campaigners, judges & journalists in four year Holyrood probe on judges’ interests - points to increased public awareness of judiciary, expectation of transparency in court.

The move to create a register of judicial interests has also secured the support of two Judicial Complaints Reviewers.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) - appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013.

At the hearing, Ms Ali supported the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Scotland’s second Judicial Complaints Reviewer Gillian Thompson OBE also backed the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

Both of Scotland’s recent top judges - former Lord President Lord Brian Gill, and current Lord President Lord Carloway, have testified before the Scottish Parliament on the petition, both failing to prove any case against creating a register of judicial interests.

A report on Lord Brian Gill’s evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests - Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

A report on Lord Carloway’s widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency - Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

The National newspaper reports on the call to include Justices of the Peace in the Judiciary of Scotland Register of Judicial Recusals.

Campaigner calls on Scotland's top judge to extend register of recusals

Exclusive by Martin Hannan Journalist The National 3rd October 2017

SCOTLAND’S Justices of the Peace should have to register their recusals when they step aside from cases in their courts due to conflicts of interests, according to the man who is leading a campaign on judges’ interests.

The judicial register of recusals was established by Scotland’s most senior judge in April 2014, former Lord President Lord Gill, and the judiciary website shows all such recusals by judges and sheriffs and the reasons why they stepped away from a case.

Now legal campaigner Peter Cherbi has called for the register to be extended to Justices of the Peace, who are lay magistrates dealing with less serious cases such as breach of the peace or minor driving offences.

For five years Cherbi has been petitioning the Scottish Parliament on the issue of judges’ interests, and he sees a register of recusals as vital for public confidence in all the judiciary.

Cherbi said: “Given there are nearly 500 Justices of the Peace in Scotland who must act in accordance with the same rules laid down for other members of the judiciary, JPs should now be included in the Register of Recusals.

“I am surprised Lord Gill omitted Justices of the Peace when he created the Register of Recusals in April 2014. This was a significant omission, given the numbers of JPs across Scotland, and Lord Gill should have corrected this flaw before he left office in May 2015.

“I note Lord Carloway (left) has not attended to this glaring omission since taking office as Lord President in January 2016 until now being asked to do so.

“The omission of Justices of the Peace from the Register of Recusals has left out a significant portion of the judiciary and therefore concealed a more truer representation of numbers of recusals and interests across Scotland’s judges and courts, which are of significant public interest.

“I shall be informing the Public Petitions Committee of this development and if the need should arise, I will request MSPs write to the Judicial Office and Scottish Justices Association to make enquiries as to when JPs will be added to the Register of Recusals, and to seek an explanation why they were originally left out from the data, despite it being a relatively simple operation to include JPs in the recusals statistics.”

The National contacted the Scottish Justices Association, which represents the Justices of the Peace, but no reply had been received by the time we went to press.

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.

CRIME ON, CROWN: Historical Abuse probe dropped as Crown Office forced to pay £10K to law firm Clyde & Co - after judge suspends Police search warrant to obtain evidence relating to accusations against ‘influential’ clients

Crown Office paid £10K to law firm subject of Police raid. SCOTLAND’S Crown Office & Procurator Fiscal Service (COPFS) has been forced to pay £10K public cash in legal and ‘other fees’ to a law firm representing a ‘important client’ in relation to a botched search blocked by a judge.

The payment of £10,021.38 to Edinburgh law firm Clyde & Co (formerly Simpson & Marwick) was revealed by prosecutors in response to a Freedom of Information request amid ongoing media enquiries which have now established any possible criminal prosecution in connection with the allegations of abuse is “dead in the water”.

The events surrounding the search warrant occurred last summer, in which Police Officers obtained a search warrant to raid the premises of Edinburgh law firm Clyde & Co, in relation to material officers believed the firm held relating to evidence of historical sexual abuse of minors.

A search warrant issued by a Sheriff upon an application from the Crown Office to raid the law firm, resulting in two police officers attending the offices of Clyde & Co at 58 Albany Street, Edinburgh, at 10am on 22 July 2016 with a search warrant to obtain the evidence.

However, a stand off ensued while Clyde & Co applied to the court for a judge to revoke the search warrant.

The search warrant was subsequently revoked blocked by senior judge Lord Brodie after counsel for Clyde & Co claimed legal professional privilege was attached to the alleged evidence of abuse.

While the Crown Office have now admitted they were required to pay legal & other fees to Clyde & Co, prosecutors refused to divulge any further information on the case, citing the information was held as part of a criminal investigation – which has now been dropped.

Christine Lazzarin for the Crown Office stated in the FOI response: “Firstly I should clarify that a Bill of Suspension hearing emanates from criminal proceedings and any correspondence held between COPFS, the Scottish Courts and Tribunal Service (SCTS), Police Scotland and Clyde & Co in relation to this hearing is exempt.”

“By way of explanation, this correspondence is held by a Scottish Public Authority, namely the Procurator Fiscal, for the purposes of an investigation which the Procurator Fiscal had a duty to conduct to ascertain whether a person should be prosecuted for an offence and it is therefore exempt from release in terms of Section 34(1)(a)(i) of FOISA.”

“This is not an absolute exemption and I have therefore considered whether the public interest favours disclosure of the information, notwithstanding the exemption.”

“Whilst I appreciate that there is a great deal of information in relation to the hearing publically accessible on the SCTS web-site, I consider that there is a strong public interest in maintaining the confidentiality of correspondence in connection with allegations of criminality and consequently the Bill of Suspension hearing.”

“The confidentiality of such information ensures that the agencies involved in the criminal justice process can report to the Procurator Fiscal in a manner which is free and frank and for this reason I consider that the public interest favours upholding the exemption.”

“You have also asked for information about fees, costs, legal expenses or other funds paid by COPFS to SCTS and Clyde & Co. I can advise that COPFS paid a total of £10,021.38 in fees, and other legal costs to Clyde & Co after the hearing.”

Further enquiries into the case by the media have now established the investigation into the case of alleged abuse has now been dropped – with legal insiders at the Crown Office blaming the Crown Office handling of the search warrant, and the effect of Lord Brodie’s order cancelling the search warrant.

Legal sources have also speculated Police Scotland may have been forced to pay the same law firm – Clyde & Co – for their actions in seeking to serve the warrant and obtain the alleged evidence of abuse.

During the Financial year 2016 to 2017, a mysteriously large sum of public cash - £213,933.24 was paid to Clyde & Co by Police Scotland according to figures obtained in a recent media investigation into Police payments to law firms, reported in more detail here: Concerns on Public Bodies Legal Fees spending as figures reveal Scottish Police Authority fork out over £1m in legal fees, Police Scotland spend at least £1.3 million on external lawyers

However, faced with further searching enquiries, Police Scotland have point blank refused to disclose any further information about their payments to Clyde & Co and other law firms.

While the Crown Office have now dropped a prosecution in relation to the alleged abuse, the media are eager to speak to anyone involved in the investigation, or the victims themselves, who can if they wish come forward to DOI, by way of contacting the blog at scottishlawreporters@gmail.com

This latest floundered investigation into what is alleged to be an influential figure in relation to historical abuse crimes - is another blow for the failing leadership of the Crown Office - under current Lord Advocate James Wolffe QC & Solicitor General Alison Di Rollo (sister of Glasgow solicitor & former Law Society of Scotland President - Austin Lafferty)

Last month, it was revealed the Crown Office has given jobs – without interview – to relatives of high ranking Crown Office staff, who then went on to be charged with drug dealing offences – information which came to light in an ongoing investigation into Prosecutors interests and a secret Crown Office register of interests, reported in more detail here: DECLARE THE CROWN: Secrecy block on Crown Office Register of Interests - after fears info will reveal crooked staff, dodgy business dealings, prosecutors links to judiciary, criminals, drugs dealers and dodgy law firms

The Sunday Mail newspaper reported the payments from the Crown Office to Clyde & Co here:

Court chiefs fork out £10k to law firm after botched raid in abuse probe

'Standards were not met' when cops turned up with a warrant at Clyde and Co's Edinburgh office and tried to seize 'privileged and confidential' material.

By Craig McDonald Sunday Mail 8 OCT 2017

Prosecutors have paid £10,000 to a law firm after a botched raid on their offices.

Police wanted to seize files from Clyde and Co lawyers that they believed related to an abuse investigation.

But the firm objected, stating the material was “privileged and confidential”.

Despite this, two officers turned up at the firm’s Edinburgh branch with a search warrant in July last year. The warrant was eventually blocked after a court hearing.

Judge Lord Brodie later ruled “standards were not met” regarding prosecutors’ handling of the case.

The Crown Office have now paid £10,021 in legal fees and costs to Clyde and Co.

Detective Constable Nicola Gow called Clyde and Co by phone on July 7 last year to tell the firm they had information in their files that might be relevant to a criminal inquiry.

Graeme Watson, a partner, told her he would check what information he could provide but that “client files were privileged and confidential”.

Gow said she would discuss it with her superior officer but told the firm “a search warrant might be sought”.

Watson wrote to the sheriff clerk in Edinburgh stating the files were covered by the “Data Protection Act, confidentiality and agent-client privilege”.

Two police officers turned up at the firm’s building in the city’s Albany Street with a warrant at 10am on July 22.

Clyde and Co went to court to have it blocked. In his judgment, Lord Brodie found the procurator fiscal’s actions in applying for the warrant “to have been oppressive”.

He said the wording was “misleading, if not simply inaccurate” and “requisite standards were not met”.

The Crown Office said last week: “We note the terms of Lord Brodie’s decision. The Lord Advocate has taken steps to ensure there will be no repeat of this situation.”

Police Scotland said: “As this is a matter for the Crown Office, it would be inappropriate for us to comment.”

Clyde and Co declined to comment.

POLICE STAND OFF AS JUDGE BLOCKS SEARCH WARRANT:

A full report on the opinion by Lord Brodie and his revocation of the Police Scotland search warrant was published by Scottish Law Reporter here: Police raid on Edinburgh law firm halted by judge - Lord Brodie hits out at Crown search warrant tactics against Clyde & Co over historic sex crimes investigation 

An excerpt from the Bill of Suspension, signed by Lord Brodie in relation to the search warrant follows:

NOTE BY LORD BRODIE in BILL OF SUSPENSION by CLYDE AND CO (SCOTLAND) LLP Complainers;

against THE PROCURATOR FISCAL, EDINBURGH Respondent:

Complainers:  Smith QC; Clyde & Co

Respondent:  No appearance (Crown Office did not appear at hearing)

22 July 2016

[1]        The complainers in this bill of suspension are a limited liability partnership, being solicitors with a place of business at Albany House, 58 Albany Street, Edinburgh. The respondent is the Procurator Fiscal, Edinburgh. The complainers seek suspension of a search warrant granted by the sheriff at Edinburgh on the application of the respondent, dated 21 July 2016 and timed at 1537 hours (“the search warrant”). The application which came before me, on 22 July 2016 not long before 1700 hours in chambers, was for interim suspension of the warrant. As at that time the bill had not been warranted for service. Having heard Mr  Smith on behalf of the complainers, I adjourned in order to allow my clerk to advise Crown Office that the application had been presented and to invite the attendance of an advocate depute to represent the respondent. That invitation was made by telephone at a little after 1700 hours. It was not taken up. Having heard Mr Smith further, I suspended the search warrant ad interim, granted warrant for service of the bill and continued the matter to a date to be fixed.

[2]        The circumstances in which that application was made, as I understood them from what appeared in the bill, in two telephone attendance notes and the explanation provided by Mr Andrew Smith QC, who was accompanied and instructed by Mr Graeme Watson, Solicitor Advocate, a partner in the complainers, are as follows.

[3]        A client of the complainers is S.  The complainers have acted for S in relation to claims for damages against it by individuals on the basis of its vicarious liability for alleged acts which occurred at a particular location, L.  These claims have been discontinued on account of an acceptance that any claims were time-barred. It is averred by the complainers that in course of taking instructions from representatives of S these representatives “disclosed certain matters and were provided with advice... which advice and information being disclosed was privileged.” As I understood matters, the complainers retain in their possession documents and files, both paper and digital, generated in the course of acting for S which include information and advice in respect of which S, whose specific instructions have been taken on the point, asserts legal privilege.

[4]        On 7 July 2016 Detective Constable Nicola Gow contacted the complainers by telephone. She spoke to Mr Watson. There were at least three telephone calls between DC Gow and Mr Watson on that day. I was shown copies of Mr Watson’s telephone attendance notes. DC Gow indicated that she was aware that the complainers held certain information in their client files for S that might be relevant to a criminal inquiry which was currently being undertaken.  She already had copies of some documents but wished to obtain originals of these (including what she described as “originals” of unsigned statements held digitally), the litigation files and such other documents which were in the possession of the complainers. Mr Watson advised that the complainers would check what information they had access to with a view to establishing its whereabouts and what might be capable of being produced. Mr Watson indicated that the client files were privileged and confidential. Mr Watson advised that in the event of him receiving instructions to do so, he was willing to excise from the file certain material in order to assist the police inquiry. DC Gow suggested that they might arrange a time to look at the files together. Mr Watson said that he would need to take instructions on that proposal but that a provisional date for such a joint consideration of the files could be arranged. DC Gow indicated that she would discuss matters with her superior officer but that a search warrant might be sought.

[5]        On 11 July 2016, in anticipation that an application for a warrant might be made, Mr Watson, on behalf of S wrote to the Sheriff Clerk in Edinburgh requesting that the Sheriff Clerk contact the complainers in the event of any application to the sheriff with a view to S being represented at any hearing before the sheriff. Mr Watson explained in that letter that the complainers and S had provided such assistance to Police Scotland as they could within the confines of the Data Protection Act 1998, confidentiality and agent-client privilege. The letter included the sentence: “In our submission it would be oppressive and prejudicial for a warrant to be granted without first hearing from [S].” No reply has been received to that letter.

[6]        Subsequent to the conversations between Mr Watson and DC Gow and prior to 22 July 2016 neither the police, the respondent nor any other representative of the Crown contacted the complainers in relation to recovery of documents held by the complainers.

[7]        At about 1000 hours on 22 July 2016 two police officers attended at the offices of the complainers at 58 Albany Street, Edinburgh, claiming to be in possession of the search warrant which they proposed to execute. Initially they were reluctant to allow Mr Watson to read the search warrant and then they were reluctant to allow him to copy it. Once Mr Watson had succeeded in persuading the police officers to allow him to read and copy the search warrant he was able to ascertain that it had been granted at common law in terms of the crave of a petition at the instance of the respondent in these terms:

“to any Constable of Police Service of Scotland and/or members of staff from the Scottish Police Authority or any other Officer of Law with such assistance as they may deem necessary, to enter and search the offices, out buildings and storage facilities of Clyde & Co, Albany House, 58 Albany Street, Edinburgh and to be at liberty to secure and take possession of any papers relating to L whether in electronic or paper format, and any other evidence which may be material to the investigation into the alleged abuse at L held by said Clyde & Co, whether in a computer system or otherwise.”

Insofar as material to the issues raised in the bill, the averments in the petition were as follows:

“[S] have provided copies of documents referring to a code of conduct for staff … a punishment book, lists … statements, including what purports to be a statement taken from [a named person] and signed by her …

[S] have indicated that the originals of these documents are held by their legal representatives, Clyde & Co, Albany House, 58 Albany Street, Edinburgh. A request has been made to have these documents released to Police Scotland, however, the solicitor has refused to release these documents, citing reasons of client confidentiality.

The solicitor has indicated that they will provide the originals of the documents already provided in copy format only.

“There are reasonable grounds for believing that evidence material to the investigation … is found within the documents being withheld by the solicitor.  The solicitor has indicated to an officer of Police Scotland that there are two boxes of papers and electronic records relating to [L].”

The full note by Lord Brodie – which was published three months after the events of the search warrant took place, can be found here: COPFS Bill of Suspension - Clyde & Co - Lord Brodie

It is also worth noting the Scottish Government have recently announced the scrapping of time bar on historical sexual abuse cases, as the case referred to Lord Brodie does contain references to claims in relation to allegations of abuse becoming time barred.

The Scottish Government announcement on scrapping time bar for claims in relation to historical sexual abuse states the following:

The Limitation (Childhood Abuse) (Scotland) Act 2017 is a piece of legislation which changes the rules around the time limits within which you can make a claim for compensation in the civil courts. Usually you have to make your claim within three years of the injury, or (if it is later) three years from your sixteenth birthday.

This change will mean that there will no longer be a time bar on childhood abuse claims in the civil courts. (It applies to abuse of a person under the age of 18.) There will no longer be a requirement to make a claim within the three years or to ask the court to use its discretion to allow the case to go ahead after that period.

The law usually prevents claims being taken to court more than once. The Act makes a limited change to this for childhood abuse claims. If you took a claim to court before the Act became law, but lost because of the time bar, the Act means that you should not be prevented from taking another claim to court.

This change is in relation to the three year limitation period, which is relevant to abuse that took place on or after 26 September 1964.

The commencement of the Limitation (Childhood Abuse) (Scotland) Act 2017 means survivors of child abuse no longer face the ‘time-bar’ that requires personal injury actions for civil damages to be made within three years of the related incident.

Minister for Community Safety & Legal Affairs Annabelle Ewing, who took the legislation through Parliament, said the move was an important part of wider Scottish Government action to support survivors of childhood abuse.

Ms Ewing said: “Child abuse is the most horrific betrayal of our young people and, even where such crimes were committed decades ago, we will do all we can to help survivors get the justice they deserve. Police Scotland and the Crown continue to work tirelessly to bring perpetrators to justice through our criminal courts. And, while it may not be the right way forward for all, survivors may now be considering the option of accessing justice through the civil courts.

“This legal milestone would not have happened but for the courage of many adult survivors whose persistence and dedication have shone a light on the dark realities of child abuse. Through their brave testimonies they have made clear the great hurt and damage caused by the very individuals and institutions who should have cared for them.

“Alongside our national survivor support fund, the establishment of the independent public Inquiry into in-care childhood abuse, and the current consultation on a potential financial redress scheme, this removal of the civil time-bar underlines the Government’s commitment to ensuring Scotland is beginning to make amends for the grave failings of the past.”

Welcoming the introduction of the Act, Joanne McMeeking, Head of Improving Care Experiences at CELCIS at the University of Strathclyde, said: “The abolishment of the time bar is the result of many years of successful campaigning by survivors. It is a welcome addition to the package of effective reparation as outlined in the Action Plan on Justice for victims of Historic Abuse of Children in Care.”

For previous articles on the Crown Office, read more here: Scotland's Crown Office - in Crown detail

KEEN TO TALK: Advocate General with criminal conviction for firearms offence promotes ‘UK Legal Services are best’ campaign in Singapore - in effort to attract Asian customers to Brexit-hit UK legal market

Lord Keen of Elie in Singapore. A GOVERNMENT minister with a conviction for a firearms offence is currently in Singapore on a taxpayer funded bash - promoting a UK Legal Services are great campaign in the hope of attracting Asian customers to the UK’s dwindling legal services sector and courts.

Lord Keen – real name Richard Sanderson Keen - who joined the Lords on 8 June 2015 and was appointed Advocate General for Scotland – has flown to Singapore to promote the UK legal industry in a social media & twitter #LegalServicesAreGREAT campaign to promote the UK as a hub of legal excellence.

However, the same Lord Keen was convicted of a firearms related offence in March 2017.

The campaign, hosted at the UK High Commission and other venues in Singapore - brings together lobby groups such as the Law Society of England & Wales, the Law Society of Scotland, a host of legal firms, and so-called ‘independent’ legal regulators – the Legal Ombudsman, Bar Council and others.

Asian customers attending the Singapore conference are invited to “Discover what makes UK legal services great - The UK's legal system has inspired and influenced similar legal systems worldwide. Every year, we attract many international businesses who want to take advantage of the UK’s globally respected legal services.”

Attendees to the conference have listened to Lord Keen promoting UK legal services and the so-called world respected UK legal profession & industry.

However, in March 2017, Lord Keen – who also once held the post of Dean of the Faculty of Advocates - was fined £1,000 after admitting a firearms offence at Edinburgh Sheriff Court.

Earlier this year, Advocate General for Scotland Richard Keen QC pleaded guilty – by letter - to breaching section two of the Firearms Act 1968 by ‘failing to secure a shotgun’.

Police investigating a ‘break-in’ at one of Mr Keen’s properties – a house in Edinburgh - found that the weapon had been left outside a secure cabinet.

The weapon, a Stephen Grant 12 Gauge shotgun - was outside its required storage area and was in a position to have been made use of, should the need have arisen – observed one firearms expert.

The incident & related court hearings,-  which sources claim contained “incredulous assertions” prompted a media investigation revealing the extent of firearms ownership by top lawyers & judges, reported here:  SILENCERS IN COURT: ‘Guns & Ammo’ rife in Scotland’s legal elite - Police Scotland disclose firearms ownership of judges, sheriffs, lawyers, advocates, QCs & Crown Office prosecutors

The new Legal Services Are Great campaign, staged by the UK Government and funded by taxpayers cash – in which Lord Keen plays a role - comes amid fears Brexit could turn to Lexit – where legal firms & litigants may chose to conduct arbitration & court business in other jurisdictions.

A post by the Ministry of Justice on Medium.com titled “Why UK legal services are GREAT”  claims: The UK is home to the best legal services in the world. That is the message of our new global campaign to promote the UK’s legal services. With over 200 international law firms, the UK is a global hub of legal expertise

From nearly four decades in the legal profession and as a UK Government minister and Advocate General for Scotland, I have seen first-hand the exceptional talent and expertise within our legal services sector across the whole of the UK.

In a global and competitive marketplace, we know what international clients want when they’re looking for legal services.

Clients want to choose a law to govern their contracts that gives them the flexibility, confidence and certainty they need. They want legal firms that have a track record in and reputation for providing expert advice. They want judges that are not only experts but also incorruptible and fair when it comes to settling disputes. They want courts that are expeditious and that harness the latest technology. These qualities are all woven into the fabric of the UK’s legal services.

The Ministry of Justice campaign goes onto claim:

Experienced judges: Our judges are renowned for their independence, rigour and commercial expertise in all aspects of the law. As a result, UK court judgments carry a guarantee of excellence which is respected internationally.

Professional expertise: The UK’s regulated barristers and solicitors represent clients worldwide. From helping you close cross-border business deals and manage financial transactions to resolving international disputes, our lawyers have the global expertise to help you build your business.

Robust contract law: English law is the most popular choice of law for commercial contracts. Valued for its clarity, it’s the world’s most enduring common law system and can provide certainty and security for your business deals.

UK: the cradle of the rule of law: The UK is the cradle of the rule of law. The roots of English law are deep; its adoption and influence is wide. It is the product of hundreds of years of evolution — of gradual refinement, development and extension, precedent after precedent.

As a result, English common law is clear, predictable and familiar. It underpins over a quarter of the world’s jurisdictions. It is the most popular choice of law in the world for commercial contracts and governs about 40% of all global corporate arbitrations.

UK: home to great law firms, expert judges and modern courts: But it is not just the pedigree of English law that makes the UK attractive. Our law firms, our judges and our courts that administer, interpret and arbitrate on the law are world-renowned.

Take UK law firms. With four of the top ten law firms in the world and with over 16,000 barristers, the UK has a wealth of talent and top legal expertise and advocacy.

Take UK Judges. They are respected internationally for their intellect, independence and commercial expertise, with many having specialist knowledge and practical understanding of commercial matters they are judging.

Take the UK’s judicial processes and courts. They do not just have hundreds of years of history behind them, they are among the best in the world in terms of being digitally-enabled.

The UK’s legal heritage, together with its expertise and innovation, makes it a popular choice for clients around the world. London brings access to the world’s biggest specialist legal centre for dispute resolution and commercial litigation.

However, the carefully worded claims make no mention of the fact parts of the UK judiciary has been engaged in a five year fight against proposals to require the judiciary to declare their vast wealth, and business interests – which have resulted in countless conflicts of interest in case after case.

And, more recently it has been uncovered the Ministry of Justice has been concealing statistics on judicial recusals in England & Wales – despite the same information being published in Scotland as paret of the Register of Judicial Recusals - now made available after the work of journalists, Judicial Complaints Reviewer Moi Ali, and members of the Scottish Parliament’s Public Petitions Committee.

The battle between members of the Judiciary of Scotland and the Scottish Parliament over a petition calling on judges to declare their interests has sparked ire among judges, amid concerns the judiciary are deliberately concealing significant conflicts of interest which has led to injustice across the spectrum of criminal, and civil cases in Scotland’s courts.

The Register of Recusals was created by Lord Brian Gill in April 2014 as a response to a probe by the Scottish Parliament’s Public Petitions Committee’s deliberations on Petition PE1458: Register of Interests for members of Scotland's judiciary.

The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, 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.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 - ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

Of further note - all of the claims currently published by the Ministry of Justice in the #LegalServicesAreGREAT campaign - have been challenged by two successive Lord Justice Generals – the ranking top judge in Scotland -  where both Lord Presidents Lord Gill, and recently Lord Carloway - branding Scotland’s justice system as stuck in the “Victorian” era, and centuries behind the rest of the world.

Further studies by the EU have ranked Scotland’s justice system as one of the slowest, and most expensive in the world – with the most highly paid judges delivering the poorest results on civil and criminal justice – reported here: Scots Legal Aid ‘a £161Million public subsidy for legal profession’ as EU report reveals judges salaries & lawyers legal aid claims come before public's access to justice

While keen to promote legal services to the world, the Ministry of Justice could not offer any further comment on the campaign or answer questions on how much public cash was allocated to the project.

The Ministry of Justice have refused to confirm claims attendees first, & business class flights & travel to the Singapore conference, hotel stays & hospitality have been paid by taxpayers.