Independent Law journalists report on legal news for consumers, litigants & Scotland's legal community including features on justice, access to justice, law reform, the judiciary, politics & in-depth investigations, analysis and commentaries on legal related issues.
Tribunal Judge asks Court to block probe of his conduct. A SIGNIFICANT conflict of interest in how the legal profession investigates itself may play a role in one of three appeals to the Court of Session – after details emerged the Scottish Legal Complaints Commission (SLCC) – is facing legal action to block a regulatory investigation of three members of the Institute and Faculty of Actuaries (IFoA) – one of whom is Benjamin Kemp – the Vice-Chair of the Scottish Solicitors Discipline Tribunal (SSDT).
Material obtained by journalists reveal three separate appeals to the Court of Session against the Scottish Legal Complaints Commission’s decision to investigate Mr Benjamin John Tizzard Kemp and two additional members of the Institute and Faculty of Actuaries. Mr Kemp is represented by Brodies LLP
The two additional IFoA members - Ms Emma Gilpin (Head of Regulation) and Mr Michael Scott (Head of Disciplinary) who also face investigation by the Scottish Legal Complaints Commission in the same complaint – have launched their own, separate appeals to the Court of Session which seek to overturn the SLCC's decision to commence an investigation of their professional conduct.
Details of the complaints lodged against the three Institute and Faculty of Actuaries members appear to relate to IFoA Disciplinary action which was thrown out by a Tribunal, which then awarded costs against the Institute and Faculty of Actuaries for bringing the case.
The complaints, submitted by Mr Rhodri Tomos, former Fellow of the Institute and Faculty of Actuaries to the Scottish Legal Complaints Commission - relate to the bringing of a disciplinary action against Mr Tomos, from October 2019 to January 2021 after which the Disciplinary Tribunal Panel made a final determination the original disciplinary action was "inappropriately brought", "unconscionable" and "not in the public interest".
It has also emerged the Institute and Faculty of Actuaries were required to pay costs for the "inappropriately brought” disciplinary action.
Commenting on the case - Mr Rhodri Tomos, former fellow of the IFoA who submitted the complaints to the Scottish Legal Complaints Commission in relation to the conduct of Mr Kemp and the other IFOA members, said:
"The IFoA Disciplinary Tribunal Panel threw out the IFoA's case against me very quickly in just a couple of hours, when the hearing was listed for 3 days.
The panel, chaired by an experienced Court Judge, criticised the disciplinary as inappropriately brought, unconscionable and not in the public interest. That's the exact opposite of what the IFoA disciplinary scheme is supposed to be there for. The panel awarded costs against IFoA in my favour.
No member of the public had complained about me or my work. It was an internal "executive referral" from IFoA, which triggered my resignation from IFoA in Oct 2019 after working so hard since 2001 to qualify as a Fellow. I then suffered a long and stressful 16 months disciplinary process from IFoA, who used internal and external lawyers, including a QC against me, an unrepresented individual, yet they still lost.
My complaint to SLCC about the lawyers involved is entirely reasonable based on the DTP's findings, which are final, and deserves a full investigation in the public interest. This matter is entirely self-inflicted by IFoA, who along with their oversight body the Financial Reporting Council have failed to investigate my complaints throughout. "
Earlier today, a potentially serious conflict of interest in the appeal by the Institute and Faculty of Actuaries members has been identified by legal sources – where one of the three IFoA members – Mr Benjamin Kemp now under investigation by the SLCC – also holds the position of Vice-Chair of the Scottish Solicitors Discipline Tribunal (SSDT).
The Scottish Solicitors Discipline Tribunal is the third, and effectively the judicial tier of legal regulation in Scotland - which acts on investigations carried out by the Scottish Legal Complaints Commission and hears ‘prosecutions’ of solicitors and advocates - undertaken by the Law Society of Scotland & Faculty of Advocates.
The appointment of Solicitors Discipline Tribunal members by Scotland’s top judge the Lord President, currently Lord Carloway (Colin Sutherland) - effectively makes all Tribunal members including Mr Kemp - judicial appointees.
Commenting on court challenge, a legal source said: “We have a situation developing in this appeal where the Vice Chair of the SSDT, the senior tier of legal regulation in Scotland whose members are appointed by Scotland’s top judge – is now asking the same judiciary to overturn a decision of Scotland’s statutory legal regulator to investigate complaints about his own professional conduct.”
The Scottish Solicitors Discipline Tribunal website confirms the role of Scotland’s top judge in appointing members of the SSDT, stating: “The Tribunal has both solicitor and lay members. All are appointed by the Lord President of the Court of Session – Scotland’s most senior judge. Solicitor members are nominated by the Law Society of Scotland, but may not also be members of the Council of the Law Society. Lay members are drawn from all backgrounds and walks of life, following open advertisement The principles of public appointment are followed by the Scottish Government in making recommendations to the Lord President.”
The Scottish Legal Complaints Commission were asked for comment and issued the following response: “As you are aware, we are legally quite restricted in what we can say – under s43 of our Act we can’t comment on any complaint, with the law making it a criminal offence. This includes confirming or denying whether a specific complaint has been received. We are lobbying for this to be changed so we can be more transparent, but need to abide by the current legislation.”
The Judicial Office and Lord President were asked for comment on the position of Mr Kemp in this Court of Session appeal against the Scottish Legal Complaints Commission, given the inherent conflict of interest of Mr Kemp – effectively a judicial appointee, and Vice Chair of the SSDT - a key organisation in the regulation of solicitors, now asking the judiciary which appointed him - to overturn an investigation of the statutory body the SLCC to investigate complaints against himself.
No statement has been issued by the Judicial Office prior to publication, however any further statement or response will be added to the article.
It has not been confirmed by the Institute and Faculty of Actuaries as to whether the individual lawyers or the Institute and Faculty of Actuaries itself - is funding this appeal in the Court of Session.
In response to media enquiries, the Institute and Faculty of Actuaries said: “The IFoA does not comment on any live proceedings.”
It should be noted that cost orders have been awarded against the Institute and Faculty of Actuaries (IFoA) for investigations previously dismissed by the Disciplinary Tribunal.
These cost orders are referred to in the 2020-2021 Annual report of the Institute and Faculty of Actuaries Disciplinary Board, which states:
“Three cases were dismissed by the Tribunal panel without a hearing of the parties. Determinations where findings of misconduct are not made are not usually published by the Tribunal panels unless requested by the Respondent. Costs were awarded against the IFoA in respect of two of the dismissed cases. The total costs awarded against the IFoA was £69,248.73.”
The Institute and Faculty of Actuaries Disciplinary Board cost guidance states costs are awarded when IFoA bring cases inappropriately or negligently.
So grim was the determination of Prosecutors, Police and the Judiciary itself to see this malicious prosecution through to a result - at one point in November 2017 – the Lord Advocate’s own judge wife – Lady Sarah Wolffe QC – was neatly arranged – by the judiciary – to hear the civil damages claims against her own husband in his role as the Lord Advocate, and similar damages claims against Scotland’s Chief Constable.
Back in February of this year, Scotland’s top law officer – Lord Advocate James Wolffe QC gave a statement at the Scottish Parliament on 9 February 2021 in which Mr Wolffe conceded - the prosecution of Rangers Administrators – by the Crown Office & Police Scotland – was a malicious prosecution.
James Wolffe publicly apologised to the two Administrators who were wrongly prosecuted during a fraud investigation carried out by the Crown Office and Police Scotland, in relation to the sale of Rangers Football Club.
David Whitehouse and Paul Clark acted as administrators during the sale of the football club, settled out of court with the Crown Office in December and were both awarded £10.5 million in damages while legal costs are thought to total more than £3 million – all of which will be paid from public cash.
Lord Advocate James Wolffe publicly apologised for the malicious prosecution, however – Wolffe denied anyone had acted with malice but was accused of “brushing this appalling state of affairs under the carpet” if public confidence isn’t restored through an independent inquiry.
Mr Whitehouse and Mr Clark were arrested in 2014 but the Crown Office has admitted the prosecution that followed was “malicious”.
Mr Wolffe said in his statement to Holyrood that decisions made in the Crown Office probe were “indefensible in law”.
Missing from the statement to MSPs was a key fact in the order of events, in which Lord Advocate James Wolffe had earlier said nothing during court hearings in late 2017 where his judge wife – Lady Sarah Wolffe was scheduled by fellow judges to hear financial claims for damages in this case case against her own husband – Lord Advocate James Wolffe.
The NINE million pound damages claim against Scotland’s top cop and top prosecutor has been lodged by David Whitehouse – a former administrator at Rangers FC – who is seeking financial damages from Police Scotland's Philip Gormley and Lord Advocate James Wolffe QC.
A copy of the Court Rolls handed to the media at the time reveal Lady Sarah Wolffe QC – an outer house senator of the Court of Session – was scheduled to hear the case involving the claim involving the Lord Advocate - her own husband - A295/16 David Whitehouse (represented by Urquharts) v Liam Murphy &c (represented by Ledingham Chambers for SGLD - Scottish Government Legal Directorate) - on November 15 2017.
Liam Murphy was at the time - listed as a Crown Office Procurator Fiscal on “Specialist Casework”.
Claims have since been made Lady Wolffe was suddenly dropped from the hearing when it ‘emerged at the last minute’ her husband – Lord Advocate James Wolffe - was involved in the case.
A report from a source claims a second Court of Session Judge - Lady WiseQC - was then scheduled to hear the case.
However, the silent replacement of Lady Wolffe with Lady Wise - has now raised serious questions as to why there are no references to any note of recusal made by Lady Wolffe – who clearly had a conflict of interest in the case given one of the core participants in the action is her own husband – the Lord Advocate.
The case then took another turn after media reports of the hearing on Wednesday 15 November reveal a third judge – Lord ArthursonQC – eventually heard the case, and has since arranged for a four day hearing for legal arguments.
Questions then arose as to why the Judicial Office avoided publishing any official recusal by Lady Sarah Wolffe QC – the wife of Lord Advocate James Wolffe - in relation to the scheduling of the case to be heard by the Lord Advocate’s.
These events and others, illustrate very well why all members of Scotland’s judiciary should be required to declare and publish their interests in a Register of Judges’ Interests – which is now part of the Scottish Government’s work programme for 2021 –2022.
A Register of Judges’ Interests should contain information on all 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.
Readers can watch the full statement in relation to the malicious prosecutions of the Rangers Administrators - from the Lord Advocate James Wolffe to MSPs on 9 February 2021 here:
Malicious Prosecutions of Rangers FC Administrators by the Crown Office, Lord Advocate & Police Scotland – Scottish Parliament 9 February 2021
The Deputy Presiding Officer (Lewis Macdonald)
The next item of business is a statement by the Lord Advocate, on malicious prosecutions. The Lord Advocate will take questions at the end of his statement, so there should be no interventions or interruptions.
The Lord Advocate (James Wolffe) Thank you, Presiding Officer. I am grateful for the opportunity—[Inaudible.] I am sorry about that sound issue, Presiding Officer.
I am grateful for the opportunity to make a statement following the disposal last week of the actions that David Whitehouse and Paul Clark brought against me. Those actions concerned events that predated my appointment as Lord Advocate, but it was and is my responsibility, as the current incumbent, to account for them. The on-going proceedings that relate to the matter constrain what I can say today, but I welcome the fact that I am now free to begin the process of public and parliamentary accountability and to reiterate the commitment that the Crown has given to that process.
The prosecutions that gave rise to the cases arose from police investigations into the purchase of Rangers Football Club by Craig Whyte in 2011 and into the administration of the club and its sale to Charles Green in 2012. The investigations were large and complex. Ultimately, seven individuals were prosecuted. This statement concerns only the position of Mr Clark and Mr Whitehouse.
On 14 November 2014, Mr Clark and Mr Whitehouse were detained and brought to Glasgow. They were held in custody before appearing in court on 17 November on a petition that contained charges that related to Mr Whyte’s purchase of Rangers. That started the clock for a statutory time bar that, unless extended, required the Crown to serve an indictment in respect of the charges by 16 September 2015.
In High Court cases, after an accused has appeared on petition, the Crown undertakes a process of investigation and analysis that is called precognition. When it is completed, the precognition contains a detailed narrative of the evidence and an analysis of whether the evidence is sufficient to support criminal charges.
The precognition is submitted to Crown counsel for a decision on whether to issue an indictment. Precognition is not a statutory requirement, but it is a long-standing, routine and essential feature of Crown practice in relation to High Court cases. It provides assurance that there is a proper evidential basis for the indictment and, along with Crown counsel’s instruction, it provides a record of the basis for the decision.
This case was exceptional in its scale and complexity. By early September 2015, with the expiry of the time bar approaching, the precognition process was incomplete and essential investigations were still on-going. On 3 September, the Crown applied to the court for a nine-month extension of the time bar; the sheriff granted a three-month extension. An appeal by Mr Clark and Mr Whitehouse against that extension was refused. In the meantime, on 2 and 3 September, Mr Clark and Mr Whitehouse appeared in court again on a second petition that contained new and separate charges that related to the second matter that the police had been investigating—the administration of Rangers and its sale to Charles Green in 2012.
On 16 September 2015, Mr Clark and Mr Whitehouse, with five other accused, were indicted. The charges against them derived from the November 2014 and September 2015 petitions. At that time, the precognition process in relation to the November 2014 petition was still incomplete and there was, demonstrably, no precognition in relation to the September 2015 petition, which had only just been initiated. Essential investigations were still on-going in respect of the charges that derived from the November 2014 petition, and there was evidence available that was—objectively—obviously inconsistent with the charges against these two accused that derived from the September 2015 petition.
On 2 December 2015, a second indictment was served that superseded the first. At a preliminary hearing in February 2016, following legal argument, Crown counsel withdrew certain of the charges. On 22 February, the judge dismissed the remaining charges against Mr Clark and Mr Whitehouse. Crown counsel advised the court that consideration would be given to a further indictment against them. A Crown Office press statement that was issued that day indicated that a fresh indictment would be brought, but that was corrected by a further statement the following day.
On 25 May 2016, the Crown advised Mr Clark and Mr Whitehouse that there would be no further proceedings against them. On 3 June 2016, Crown counsel formally advised the court of that position.
In August 2016, Mr Clark and Mr Whitehouse initiated civil actions against me—I had been appointed on 2 June 2016—to seek damages on the grounds of malicious prosecution and breaches of articles 5 and 8 of the European convention on human rights. They also advanced claims against the chief constable of Police Scotland.
I advanced a defence that relied on established legal authority that the Lord Advocate is immune from common-law liability. That defence was upheld at first instance, but, in October 2019, the inner house of the Court of Session overturned the previous legal authority and allowed the claims to proceed.
On 20 August 2020, I admitted liability to Mr Clark and Mr Whitehouse. Those admissions followed the conclusion of a very substantial and lengthy investigation that was undertaken by the legal team, including external counsel, instructed on my behalf. As a result of that investigation, I concluded that the decisions to place Mr Clark and Mr Whitehouse on petition in September 2015 and to indict them were indefensible in law.
I concluded that those decisions proceeded without probable cause—that is, without a proper evidential basis—in circumstances that met the legal test for malicious prosecution. That legal test can, in certain circumstances, be met even though no individual had malice, in the popular sense of a spiteful motive. My acceptance of liability in this case did not depend on any individual being malicious in that popular sense.
I cannot, at this time, disclose in detail the basis upon which liability was admitted, but, when it is free to do so, the Crown will disclose the basis for those admissions in full—including to this Parliament. What I can say is that there were, in this case, profound departures from the normal practices, including precognition, that are designed to ensure—and routinely do ensure—that any prosecution in the High Court has a proper basis.
I also admitted breaches of article 5 in respect of the detention of Mr Clark and Mr Whitehouse in November 2014 and September 2015, and of article 8 in respect of the incorrect press release of February 2016.
After the admissions of liability, mediations took place with both pursuers, and agreement was reached to settle their claims. Each of them has been paid £10.5 million in damages, and, to date, more than £3 million has been paid to them in aggregate by way of expenses. Those two pursuers were very high-earning professional people and the damages paid reflect a reasonable estimate of the loss that they sustained as a result of being prosecuted. I have written to the Justice Committee about the financial implications.
On 24 December 2020, I issued written apologies to each of Mr Clark and Mr Whitehouse. They should not have been prosecuted, and, as the current Lord Advocate and head of the system of criminal prosecution, I apologised unreservedly for the fact that they had been. I reiterate that unreserved apology publicly to Mr Clark and Mr Whitehouse today.
Although the case involved significant departures from standard practice, lessons have been learned and will continue to be learned. The precognition process has been reinforced, and, in 2018, I established new arrangements for the management and oversight of large and complex cases. Those arrangements are now well established and provide a substantial safeguard against anything like this happening again.
In my JUSTICE human rights day lecture in December 2016, I said this:
“a fair and independent prosecution service, taking decisions rigorously, independently and robustly in accordance with the evidence, is, I believe, essential to the freedom under the law which we enjoy as citizens of this country.”
Scottish prosecutors and the Crown Office and Procurator Fiscal Service have a justified reputation for fairness, integrity and independence. The seriousness of what happened in this case should not obscure the truth that, day in and day out, Scotland’s public prosecutors and the staff who support them fulfil their responsibilities with professionalism and skill. They take hard decisions rigorously, robustly and in accordance with the evidence, and they secure the public interest in the fair, effective and robust administration of criminal justice in Scotland.
In this case, there was a serious failure in the system of prosecution. It did not live up to the standards that I expect, that the public and this Parliament are entitled to expect and that the Crown Office and Procurator Fiscal Service expects of itself.
What happened in this case should not have happened. As the Lord Advocate and head of the system of prosecution in Scotland, I tender my apology to this Parliament and to the public for the fact that it did happen and for the consequent cost to the public purse. I confirm my commitment and that of the Crown to supporting a process of inquiry into what happened in this case once related matters have concluded, and I express my determination that nothing like it should ever happen again.
The Deputy Presiding Officer The Lord Advocate will now take questions on the issues that were raised in his statement. I intend to allow about 20 minutes for questions, after which we will move on to the next item of business.
Liam Kerr (North East Scotland) (Con) I remind members that I am a practising solicitor, and I thank the Lord Advocate for advance sight of his statement.
There has been an extraordinary catalogue of unexplained and profound departures from normal practices. What is “indefensible”, to use the Lord Advocate’s word, is that, given that the
“decisions proceeded without probable cause—that is, without a proper evidential basis”,
the prosecution was malicious.
Let us be absolutely clear: this was not simple human error or an obscure legal mistake. Rather, our system of prosecution has admitted that it acted with malice in its move to throw innocent men behind bars and destroy their reputations. That begs an obvious question: how many times in Scottish legal history has there been a malicious prosecution?
In any event, I note that the Crown is, crucially, committed to a process of inquiry. Can the Lord Advocate confirm that there will be a fully independent, judge-led public inquiry that demands to know why malicious prosecutions were pursued in defiance of evidence? Will it investigate the actions of the Lord Advocate, his predecessor and all agents who were involved? If not, how on earth can the Crown expect the people of Scotland to conclude anything other than that it is brushing this appalling state of affairs under the carpet?
The Lord Advocate (James Wolffe) Given that I have come to Parliament at the first opportunity when I have been free to do so, I hope that nobody would suggest that I could properly be accused of “brushing” anything “under the carpet”. I have committed myself and the Crown to supporting a process of inquiry once related matters have been concluded. Those matters need to be resolved before the process of inquiry can proceed.
On Mr Kerr’s first point, as I observed in my statement, the legal test for malicious prosecution can be met in circumstances even when no individual has malice in the popular sense of their having a spiteful motive. I should make it clear that my acceptance of liability in this case did not depend on any individual being malicious in the popular sense. That is not for a moment to minimise the seriousness of what happened. Quite the reverse is the case; as I observed in my statement, what happened represents a very serious failure in the system of prosecution in Scotland.
I have been asked how many times there has been a malicious prosecution in Scotland. As I emphasised in my statement, a process that is known as precognition is undertaken routinely in High Court cases. That process necessarily involves careful collection, investigation and analysis of evidence. It involves a system of cross-checking and should provide significant reassurance to the public that, in our system of prosecution, cases are routinely brought on a proper basis.
As I explained in my statement, in this case, that process was incomplete when the case was indicted; essential investigations had not been completed. The normal processes that are routinely followed in every High Court case were not followed, but the public should take reassurance from what I have said that the prosecution system in Scotland is robust, fair and independent, and is one on which they can rely.
Rhoda Grant (Highlands and Islands) (Lab) I, too, thank the Lord Advocate for advance sight of his statement.
This case raises serious concerns. That it was thought that the Lord Advocate was immune from common-law liability would suggest that he should also have been beyond reproach. We imagine that there are, in the system, checks and balances between the police and the Crown Office and Procurator Fiscal Service, with both of them challenging and questioning the activities and evidence in a case. That appears either not to have happened or to have gone seriously wrong in this case, with both being sued by David Whitehouse and Paul Clark.
How could that have happened? Were concerns raised, internally or externally, about the actions of both organisations at the time, especially when it came to light that there was inconsistent evidence?
The Lord Advocate said that the system has been improved, but there cannot be proper scrutiny until we know exactly what went wrong in the first place. Until that happens, how can we expect to restore confidence in the system?
The Lord Advocate (James Wolffe) The first thing that I should say is that, at this time, there are continuing live proceedings relating to the matter, which regrettably—I do regret it—constrains what I can say.
I have committed the Crown to engaging fully with public accountability in the matter, and the Crown has committed to making more information available when it is free to do that. That includes the basis upon which liability was admitted in this case and supporting the process of inquiry when it is possible to do that. I hope that that gives some assurance to Rhoda Grant that lessons will be learned and that there will be public understanding of what happened.
Perhaps it is worth noting—I do not say this to minimise, in any sense, what happened in this case—that the court fulfilled its functions in dealing with certain charges and the Crown fulfilled its responsibilities in withdrawing charges and ultimately confirming that no prosecution would proceed. I do not say that to minimise the significance of a prosecution having been brought without proper basis. However, on those issues the checks and balances in the system fulfilled their functions.
As I explained, there is, in the Crown Office, routinely preparation of High Court cases, which involves cross-checking of cases by staff of the Crown Office and Procurator Fiscal Service initially, and ultimately by Crown counsel, on the basis of there being a full narrative of the evidence and analysis of that evidence. Those processes are designed to ensure that we can be confident—I am confident—that, across the system in Scotland, prosecutions are brought properly and that this case was wholly exceptional.
Rona Mackay (Strathkelvin and Bearsden) (SNP) Can the Lord Advocate reiterate what lessons have been learned and what improvements are being made to ensure that this will never happen again?
The Lord Advocate (James Wolffe) The key lesson relates to the management of large and complex cases. As I said in my statement, I have instituted new procedures for internal management and oversight of the particular category of case. The arrangements involve early agreement of the investigation and prosecution strategy; early and continuous engagement with the police; a project management approach to case preparation; a system of case management panels to scrutinise case strategy and to keep under review the progress of the case, with reference to the strategy; and any issues that might emerge being addressed.
All of that aligns with a protocol that the High Court issued in 2018, with my support, in relation to the management of such cases once they are in court. That protocol, again, encourages a proactive approach to the management of such cases.
Murdo Fraser (Mid Scotland and Fife) (Con) The Lord Advocate referred to the payment of £24 million that was made to Whitehouse and Clark, but that sum might well be just the tip of the iceberg, because the report suggests that the total cost of the case could top £100 million, given that there are outstanding cases.
Will the Lord Advocate tell us whether it is correct that, in addition to those payments, Whitehouse and Clark were also given tax indemnities so that, should HM Revenue and Customs pursue them for payment of tax, that demand would be met by the Scottish Crown Office, and that the cost to the Scottish taxpayer will therefore be far higher than the £24 million that has been paid out already?
The Lord Advocate (James Wolffe) I acknowledge the significance of the sum involved. Murdo Fraser is correct in observing that, with other cases pending, the cost to the public purse will increase and the ultimate cost is yet to be seen.
The approach that has been taken in settling cases was to make a reasonable estimate of the actual loss that individuals could demonstrate. An arrangement was entered into such that if—it is “if”—they can properly show that they have sustained additional loss of the type that Mr Fraser described, that loss will be borne.
If that happens, the Crown will account to the Justice Committee, as it did last week, for the costs in the cases.
John Mason (Glasgow Shettleston) (SNP) Now that it has been established that the Lord Advocate does not have absolute immunity from civil liability, will the Crown be more cautious in pursuing prosecutions, and will that mean that criminals are less likely to be convicted?
The Lord Advocate (James Wolffe) I am determined that any change in the law regarding the immunity of the Lord Advocate should not have that effect. That is one reason why I have put in place measures to strengthen the management of large and complex cases.
It is essential that there is a proper basis for prosecutorial decisions in all cases. As I explained in my statement, the process of precognition that is routinely undertaken in all High Court cases provides confidence and assurance both to prosecutors and to the public.
I have confidence in the robustness of Scotland’s prosecutors. They make difficult decisions every day, in exercising their judgment. I am determined to have in place systems that enable prosecutors to continue to take robust decisions in effective prosecution of crime.
James Kelly (Glasgow) (Lab) The decisions that were made in this case might predate the current Lord Advocate, but they raise serious questions about decision making and accountability within the Crown Office. Serious errors were made. The system failed, and we have been told that the cost to the public purse will be at least £24 million. What other area of the Scottish budget has had to be to be raided to fund the incompetence of the Crown Office and Procurator Fiscal Service?
The Lord Advocate (James Wolffe) As the Cabinet Secretary for Finance told Parliament last week, arrangements have been made so that the cases will not affect the Crown Office’s resource budget or its operational effectiveness. The member’s question would be better directed to the finance secretary.
Liam McArthur (Orkney Islands) (LD) This is a true scandal. In monetary terms, it is on a scale with BiFab and the Ferguson Marine shipyard. The colossal waste of taxpayers’ money runs to tens of millions of pounds. That money could have been spent on supporting businesses during the pandemic, on educational catch-up or on investment in mental health. There might be worse news to come, given that we do not yet know the extent of Police Scotland’s exposure or of the additional cases to which the Lord Advocate referred.
Given that the overturning of the Hester v MacDonald decision means that the Lord Advocate can now be held liable for serious errors from the past, what assurance can he offer that there are no other skeletons lurking in the Crown Office closet?
The Lord Advocate (James Wolffe) The principal assurance that I can give is the description that I have already given of the routine precognition processes that are carried out in every High Court case.
It is fair to say that this case was wholly exceptional in all sorts of ways—that is the principal answer to Liam McArthur’s question. We have a system of prosecution that has demonstrated robustness, fairness, effectiveness and integrity. This case was a serious falling below the standards that all of us expect of that system, but the very fact that those expectations are so high and that this case has occasioned the justified reaction that it has is a reflection of the high standards that our prosecutors routinely meet, day in and day out, in courts across the country.
John Finnie (Highlands and Islands) (Green) I, too, thank the Lord Advocate for early sight of his statement. This was a serious failure of the system of prosecution, and public confidence in our justice system is vital. Can the Lord Advocate outline what further steps will be taken to reassure a public that might reasonably think, “Wow! If this can happen in such a high-profile case, with all that publicity, what chance do I have against the system?”
The Lord Advocate (James Wolffe) The first reason why the public should have reassurance is the point that I made a moment ago to Liam McArthur, that routinely—day in and day out—our prosecution system operates effectively, robustly and fairly, and it is understood and seen by the public to do so. Prosecutors take decisions that, if taken to court, are tested in the independent court and by the examination and cross-examination skill of those who represent accused persons. So, not only are there protections and reassurances to be taken from the well-justified recognition of the integrity and skill of our public prosecutors, but the public can also have confidence because of the reputation, integrity and skill of the defence bar in testing prosecutions that are brought—and, ultimately, because of our court system, in which any case that is brought to court is tried fairly and independently.
James Dornan (Glasgow Cathcart) (SNP) Having previously been a precognition officer, I am surprised to see that the lack of precognition appears to have been a major failing in this case. Further to your statement, Lord Advocate, can you give some detail to help provide reassurance that the Crown is, indeed, equipped to deal with complex financial crime going forward?
The Lord Advocate (James Wolffe) Yes, indeed. The Crown successfully prosecutes thousands of cases every year, including complex financial crime cases. For example, an accused was prosecuted last year in respect of a £12 million Ponzi scheme fraud involving 140 complainers and laundering the proceeds of the crime. He was convicted and imprisoned for 14 years. Serious financial crime cases are dealt with in accordance with the arrangements that I have described for large and complex cases. Those new arrangements, which were put in place in 2018, should give reassurance that such cases will be effectively and properly investigated and prosecuted. In the course of this Parliament, the budget allocation to the Crown Office and Procurator Fiscal service has increased by some 42 per cent. Although that was to deal with a range of pressures on the system, part of that additional budgetary resource has gone to ensure that the new system for the management of large and complex cases can be operated as it is intended to be.
Adam Tomkins (Glasgow) (Con) What happened was completely indefensible, Lord Advocate. I therefore have a simple question, to which I want an answer: was it incompetence or was it corruption?
The Lord Advocate (James Wolffe) I have said what I can say about the circumstances. There were significant departures from the normal practices that routinely provide safeguards against what happened in this case. I have made it clear that the admission of liability in this case was not predicated on any individual having subjective malice.
I should also say that the investigation that was carried out into the prosecutorial work on the case did not report any criminal conduct to me. Had it done so, I would have taken action. However, should criminal allegations come forward, that does not preclude their being considered and, if appropriate, investigated. I am putting in place arrangements, including the instruction of external senior counsel, so that such a process can happen if that is required.
Alex Neil (Airdrie and Shotts) (SNP) Do the former Lord Advocate, Frank Mulholland, Police Scotland and the team of prosecutors who worked on the case agree with the current Lord Advocate’s decision to pay out millions of pounds of public money on the basis that the prosecution was malicious? Is the Lord Advocate’s decision making in this case up to scratch and robust?
The Lord Advocate (James Wolffe) I have had to take the decision on the civil action that was brought against me. I took that decision following the conclusion of a substantial, lengthy and carefully considered investigation that was undertaken by the legal team, including a team of external counsel instructed on my behalf. That decision fell to me to take, and it is one for which I stand here and account to the Parliament.
Bill Kidd (Glasgow Anniesland) (SNP) Can the Lord Advocate provide reassurance to victims and witnesses that arrangements have been made so that the settlements that are made will not affect the service that the Crown Office provides?
The Lord Advocate (James Wolffe) Yes. A moment ago, I reminded members that the Cabinet Secretary for Finance told Parliament last week that arrangements had been made so that the meeting of the settlements would not have an impact on the resource budget of the Crown Office. Indeed, the budget allocation to the Crown Office this year is significantly larger than it was last year. As ever, that, in part, reflects the commitment of the service to supporting victims and witnesses.
Neil Findlay (Lothian) (Lab) The Lord Advocate admits to a malicious prosecution but says that no one showed malice. That takes political doublespeak to a whole new level. Can the Lord Advocate answer these clear questions? Who is responsible for this expensive fiasco? Who is accountable? Where is the money coming from to pay for it? Those are clear questions. Can I have clear answers, please?
The Lord Advocate (James Wolffe) Yes. I proceeded in addressing the case on the basis of the relevant legal tests. As I explained in my statement, the legal test for malicious prosecution—I appreciate that the wrong has that description—can, in certain circumstances, be met even though no individual had malice in the popular sense of the word. That is the basis on which I accepted liability in this case.
In terms of our responsibility, ultimately, in our constitutional arrangements, it is for the Lord Advocate, as head of the systems of criminal prosecution and the investigation of deaths, to answer for the conduct of criminal prosecutions, whether in court—as I do every day in relation to the prosecutions that are brought in my name—or here, in Parliament, as I am doing today. As the current Lord Advocate, it is my constitutional responsibility to answer to the Parliament for what happened at that time.
I have said what I can say today about the circumstances, given other pending processes. When it is free to do so, the Crown Office will disclose further information.
Gillian Martin (Aberdeenshire East) (SNP) The Lord Advocate has already given quite a lot of detail, but I ask him to outline what additional steps he will take to support public accountability for and understanding of such cases.
The Lord Advocate (James Wolffe) As I have said, as and when the Crown is free to do so, it will disclose further information about what happened in this case. In particular, it will disclose the basis for the admission of liability. I and the Crown will support a process of inquiry once all related matters have been dealt with.
The Deputy Presiding Officer We have a very brief final question from Graham Simpson.
Graham Simpson (Central Scotland) (Con) Will there be a fully independent, judge-led public inquiry?
The Lord Advocate (James Wolffe) We will debate a motion in the name of Murdo Fraser on that subject tomorrow. In my statement, I have made it very clear that I and the Crown will support a process of inquiry when all other related matters have been concluded. The ultimate form of such an inquiry will be a matter for determination at the appropriate time.
Events have since moved on from the now former Lord Advocate’s statement to the Scottish Parliament in February 2021.
Later in March it was confirmed both the Lord Advocate – James Wolffe – and his deputy – Solicitor General Alison Di Rollo (maiden name Lafferty) were to resign from their respective roles at the Crown Office – due to events conceded in relation to the malicious prosecution of the Rangers Administrators.
After James Wolffe and Alison Di Rollo resigned their office, a ‘short’ recruitment process took place, which saw former Advocate Depute Dorothy Bain QC appointed as Lord Advocate to replace James Wolffe, and Ruth Charteris QC replacing Alison Di Rollo as Solicitor General.
However, material passed to journalists revealed Bain was not the first choice to replace James Wolffe.
As the recruitment round took place, a list of several well known legal figures who turned down offers of accepting the Lord Advocate role was passed to journalists.
One legal figure involved in the process - who does not wish to be identified – said he felt the Lord Advocate role was poisoned by the Rangers debacle.
The legal figure added “The Crown Office is badly damaged as an institution”.
After Dorothy Bain’s appointment to the Lord Advocate role, issues of Ms Bain’s involvement in the Rangers case were reported by the media - resulting in claims Ms Bain held a conflict of interest in any involvement in further proceedings relating to the malicious prosecution of the Rangers Admins.
The new conflict of interest which emerged - was that Dorothy Bain had previously acted for a firm of solicitors who represented the Rangers Administrators company - Duff and Phelps.
As a result of increased media scrutiny of the new Lord Advocate’s conflicts of interest in the Rangers case – Dorothy Bain has since recused herself from further involvement in related matters – with the new Solicitor General, Ruth Charteris QC, assigned to issue instructions to the ‘independent’ legal team and senior counsel advising on the remaining Rangers claims cases.
Noting James Wolffe made no mention of matters which arose in court in relation to the judiciary’s scheduling of Lady Wolffe to hear and rule on the financial claims against her husband – Lord Advocate James Wolffe, and damages claims lodged against the Chief Constable of Police Scotland - a report on Lady Sarah Wolffe’s role in the sequence of events and her initial appointment to decide on the claim against her own husband, featured in a Sunday Mail newspaper investigation, here:
Lady Sarah Wolffe was originally scheduled to oversee a hearing in David Whitehouse's £9m lawsuit against Lord Advocate James Wolffe.
By Craig McDonald 24 DEC 2017
A former Rangers administrator’s £9million lawsuit against Lord Advocate James Wolffe was given an emergency judge swap – after it emerged the case was originally handed to his wife.
David Whitehouse, 51, is suing Wolffe, Police Scotland chief Phil Gormley and prosecutor Liam Murphy amid claims he was “unlawfully detained” during an investigation into Craig Whyte’s doomed 2011 club takeover.
Court officials had to draft in a replacement judge when they realised Wolffe’s wife Lady Sarah Wolffe was scheduled to sit on the bench for a procedural hearing at the Court of Session in Edinburgh last month.
The late switch from Lady Wolffe was ordered after the conflict was discovered.
Lady Morag Wise was asked to take her place, although the hearing eventually went ahead in front of Lord Paul Arthurson.
Yet another judge, Lord Neil Brailsford, was on the bench when the case was called again earlier this month. It is scheduled to go ahead next year.
The removal of Lady Wolffe is not noted in the official list of judicial recusals – where a judge declines jurisdiction – as it was reallocated before it was called in court.
A Scottish courts spokesman said: “Lady Wolffe was assigned to hear procedural matters in a number of cases on November 15.
“One of those cases was listed on the court rolls as David Whitehouse v Liam Murphy and others.
“Subsequently, when the papers were checked by the Keeper’s office, it became apparent the Lord Advocate was the third defender and, accordingly, the case was reallocated to a different judge.
“The case was initially reallocated to Lady Wise but, having regard to the level of business and in order to avoid unnecessary delay to the parties, was ultimately dealt with by Lord Arthurson.”
Whitehouse and colleague Paul Clark were arrested during the Rangers probe but charges against the pair were later dropped.
They worked for Duff & Phelps, who were appointed as administrators of the club in February 2012. The business and assets of The Rangers Football Club plc, who entered liquidation later that year, were sold to a consortium led by Charles Green for £5.5million.
Police launched an investigation into the circumstances surrounding the takeover. Whyte was cleared of fraud by a jury at the High Court in Glasgow in June.
Lawyers acting for Whitehouse claimed their client was “unlawfully detained” by detectives in November 2014. They also said that, throughout the period of detention, there were no reasonable grounds to suspect he had broken the law.
Whitehouse claims police and prosecutors didn’t follow correct legal procedure and his arrest damaged his reputation and caused him significant loss of income.
The defenders in the action, including the chief constable and Lord Advocate, claim correct legal procedure was followed and want his case to be dismissed.
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
Justice reforms announced by Scottish Govt.PUBLIC CONSULTATIONS and key reforms to Scotland’s justice sector have been announced in the Scottish Government Work Programme 2021-2022 - including a register requiring all Scottish judges to declare their interests, and long awaited reforms to how Scotland’s lawyers investigate themselves.
In relation to regulation of the legal profession - the Scottish Govenrment Work Programme document states: “..we will also launch a public consultation on reform of legal services regulation, expected later in 2021, to consider what changes may be required to the statutory framework to protect consumer interests and promote a flourishing legal sector.”
And, on the subject of transparency and accountability in Scotland’s courts – the Ten year investigation of Scotland’s judiciary by the media and a petition to require judges to register and publish all their interests - backed by Scottish Parliament’s Public Petitions Committee – has contributed to action in the form of a committment to create the judicial interests register for all members of Scotland’s judiciary.
The Work Programme document states “To safeguard the independence and reputation of the judiciary, we will begin work on establishing a register of interests of its members to increase public confidence and improve transparency.”
Petition PE1458 was originally lodged at the Scottish Parliament in 2012. The Petition calls for the creation of a publicly available register of judicial interests – containing information on all 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.
The package of measures also include body worn cameras and reforms to complaints handling for Police Scotland, legislation to pardon Miners from convictions & unfair treatment suffered as a result of their participation in the 1980’s strikes, increased access to justice for court users & a re-visit of earlier proposals to reform the law of corroboration – where evidence must be verified from two independent sources.
The full text of the Scottish Government’s Reforming the Justice System to Make Scotland Fairer, Safer & More Equal:
“We are proud of Scotland’s justice system and our distinctive Scots law. We will build on their foundations to bring in targeted reforms aimed at making Scottish justice still stronger and better.
During this year, we will launch a public consultation on the three verdict system and whether the not‑proven verdict should be abolished.
We will also consider reform of the corroboration rule, engaging with justice partners, opposition parties and people with direct experience of the criminal justice system to develop a shared understanding of the evolving legal position, and the implications and potential unintended consequences of corroboration reform, including in relation to sexual crimes.
The Scottish Government’s law officers, amongst other roles, act as the head of the independent prosecution service and as members of the Scottish Government. We will consult on whether the prosecution and government functions of the law officers should be separated.
We have already begun to address the backlog of court cases that accumulated during the pandemic, providing £50 million this year to help drive forward recovery.
We will review how offending is dealt with by the summary justice process, to make access to justice as efficient and effective as possible.
We will engage with both legal professionals and victim support organisations to review the Legal Aid system, and will introduce a Legal Aid Reform Bill in this Parliament, ensuring that the system is flexible, easy to access and meets the needs of those who use it.
And we will also launch a public consultation on reform of legal services regulation, expected later in 2021, to consider what changes may be required to the statutory framework to protect consumer interests and promote a flourishing legal sector.
Access to the courts is an important part of upholding individual rights and the rule of law; but there are times when other non‑litigious means of resolving disputes are preferable, notably in non‑criminal proceedings.
The Scottish Government will work with stakeholders to expand the availability of mediation and arbitration services within the civil justice system. The Scottish Government is working with stakeholders, and will consult on future changes as appropriate, to give people access to flexible, affordable and less stressful means of settling disputes, benefiting them and saving time in courts.
To safeguard the independence and reputation of the judiciary, we will begin work on establishing a register of interests of its members to increase public confidence and improve transparency.
Scotland’s police officers work hard every day to keep their communities safe, and have shown a strong, rights‑based approach to compliance during the pandemic. We will work to build on that model of policing by consent. To better understand and service the needs of our communities, we will support Police Scotland and wider partners to improve the diversity of their workforce and to enhance the quality of data across the justice system.
We will support Police Scotland and wider partners to build on improvement work in response to Dame Elish Angiolini’s review. We intend to accept and implement the majority of Dame Elish’s findings following consultation in 2022. This will include bringing forward a Bill and Regulations to promote fairness and transparency and strengthen public confidence in our Police.
We want Scotland’s police force to benefit from and take advantage of new technologies, such as body‑worn video, but to do so in a controlled way that commands public confidence. The Independent Advisory Group on Emerging Technologies will report to Ministers in 2022, recommending changes that should be made to existing legislative frameworks and policing practices: we will respond to its findings and act to ensure there is robust scrutiny and oversight where new technology is adopted.
We will also address the disproportionate consequences and stigma suffered by many miners as a result of their participation in the 1984‑85 strike. We will bring forward a Miners’ Strike Pardon Bill, and implement the pardon as soon as practicable should it become law – restoring the good name of the miners, and bringing comfort to their friends and families, and to former mining communities.
We will also support and resource the Sheku Bayoh Public Inquiry in its thorough scrutiny of the circumstances of his tragic death.”
With regard to the consultation later this year on how to reform regulation of legal services & solicitors – readers with experience of how complaints are handled by the Scottish Legal Complaints Commission, Law Society of Scotland, and Faculty of Advocates – should ensure their views are made known to the consultation when it is launched by the Scottish Government.
Anyone with cases which involve questions relating to Scotland’s judiciary, the conduct of judges in court, conflicts of interest & related issues should continue to email material to this blog for further study and reporting as appropriate.
Scottish Govt agree to create Judicial Register.A PETITION to create a register of judges’ interests for all members of Scotland’s judiciary - survived a stormy session of the Scottish Parliament’s Justice Committee – after a failed last-minute Tory led attempt to shut down the TEN YEAR judicial probe.
The attempt to close down Petition PE 1458 was led by the now former MSP Justice Committee Convener – Adam Tomkins of the Scottish Conservatives – who launched blistering criticism on questions around judges’ interests during several hard edged statements to fellow members of the Justice Committee.
However, since these events took place on 2 March at the Scottish Parliament’s Justice Committee – the Scottish Government has since indicated they will create the register of judges’ interests as asked for in the petition - Petition PE1458: Register of Interests for members of Scotland's judiciary.
Petition PE1458 was originally lodged at the Scottish Parliament in 2012. The Petition calls for the creation of a publicly available register of judicial interests – containing information on all 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.
The Daily Record article reports: Now Keith Brown, who was appointed by Nicola Sturgeon to be the new Justice Secretary, has confirmed the Government is taking it forward.
He said: “It was a manifesto commitment of the SNP to create a register of interests for members of the judiciary to improve transparency and trust in the justice system. “Now that the new government is in place, we will start looking at ways this register can be introduced and take forward the work needed to achieve this manifesto commitment.”
The Record further reports support for the petition from MSPs and the Scottish Government: SNP MSP Michelle Thomson said: “I support the commitment from the Scottish Government to create a register of interests for the judiciary. Members of the judiciary, like any other public servant in receipt of public funds, must disclose interests that could influence their decisions or give the perception of doing so”.
A Scottish Government spokesperson said: “Introducing a register of interests for members of the judiciary will increase transparency and trust in the justice system. The Scottish Government will now begin work to engage with stakeholders to consider how best to bring forward this justice reform.”
An additional blog report will publish more detail around the latest events relating to the petition and the creation of a register of judges’ interests – which the Scottish Government confirmed will occur.
Back to the events of March 2021 – Adam Tomkins – the now former Justice Committee Convener after having retired as an MSP at the 2021 election - was joined in the well organised effort to shut down the judicial register debate by Annabelle Ewing – who is now the current Deputy Presiding Officer of the Scottish Parliament, and MSP Rona Mackay – formerly of the Petitions Committee.
However, Justice Committee member John Finnie who has since stood down as an MSP launched a scathing rebuttal of the Tory Convener’s concerted effort to shut down debate on Scottish judges interests and demanded the petition be kept open. Mr Finnie was joined in support by MSPs Rhoda Grant (Scottish Labour), Liam Kerr (Conservative) Liam McArthur (Liberal Democrat) & Shona Robinson (SNP).
In response to Tomkins & Ewing’s praise for judges, and their expressed agreement with the Lord President to shut the petition, John Finnie said in response: “I will follow on from the convener’s comments about the separation of powers. Of course, in any liberal democracy, it is absolutely right that we have an independent justiciary. I accept that. However, we are talking about one individual the Lord President.”
“I do not know that individual and I have no axe to grind one way or another, but I will paraphrase the previous exchanges with him. He said, “No, I don’t want it.” The committee decided to write to him again, and he said, “I’ve already told you that I don’t want it, and I’m telling you again that I don’t want it.” There were discussions about his coming to give evidence and even about whether it was appropriate to ask him to come to give evidence. He said, “Well, I could come and give evidence but, as I’ve told you and I’ll tell you for a third time, I don’t want it.” To be perfectly honest, that does not seem to me like a functioning liberal democracy.”
“What is there to fear from disclosing the information that is being asked for? Examples of other jurisdictions have been given where that is done without a problem. Should we be surprised that a Government of whatever persuasion wants to be in accord with the Lord President and does not want to dissent from the Lord President’s position? Perhaps not.”
I am not persuaded by either of those arguments, but there is a more compelling reason why we must keep the petition open. I am supportive of the intention of the petition. As always, the devil will be in the detail, but the detail that has been shared with us is that we are being urged to commission the work that we had already decided on. It is very clearly unfinished work for the committee. We undertook to do things in relation to the petition; we have not done those. For that reason, we must pass it on to our successor committee to pick up on that work, and it will be for it to decide how to proceed thereafter. The petition should be kept open.”
Justice Committee members Shona Robison, Liam McArthur & Rhoda Grant also agreed to keep the petition open.
The Scottish Conservatives Liam Kerr also agreed, to keep the petition open.
A planned motion to close the petition was apparently scrapped at this point and discussions aimed at shutting down the petition - which took place outside the realms of the Justice Committee prior to the hearing - have since been made available to journalists.
Instead – The Tory Justice Committee convener Adam Tomkins managed a final spat at the TEN YEAR probe of judges interests and plans to create a register – displaying visible concern that Justice Committee members had kept the petition open
A very animated Adam Tomkins ended the terse, at times bitter hearing on the petition by stating “I will close by saying that just because it is appropriate for elected members in the legislature to have a register of interests, that does not mean that it is appropriate for members of the judiciary to have a similar register of interests. The function of the separation of powers is to treat different branches of government differently, according to their institutional function.I hope that that is a fair summary albeit with a gloss from me at the end of the committee’s decision.”
Petition PE1458: Register of Interests for members of Scotland's judiciary – originally lodged at the Scottish Parliament in 2012 – calls for the creation of a publicly available register of judicial interests – containing information on all 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.
Video coverage of the Justice Committee meeting of 2 March 2021 and discussions relating to the register of judicial interests petition can be viewed here:
Judiciary (Register of Interests) (PE1458) Tuesday 2 March 2021
Convener Adam Tomkins (Scottish Conservative, Glasgow): The second of the petitions before us is PE1458, which concerns a register of judicial interests. The petition, from Peter Cherbi, calls on the Scottish Parliament to urge the Scottish Government to create a register of pecuniary interests of judges bill or to amend the present legislation to require all members of the judiciary in Scotland to submit their interests and information on any hospitality received to a publicly available register of interests. I refer members to the relevant papers, which include submissions from supporters of the petition.
As with the previous petition, the committee has had PE1458 before it for a long time the petition was lodged in December 2012. The last time that the committee considered the petition, it agreed to seek further information on other potential conflicts of interest relating to key stakeholders in the Scottish judicial system and to hold a round-table session on the matter with constitutional and academic witnesses. I am afraid that the pressures of competing work have meant that we have not been able to organise a round-table event on the subject, so that remains undone.
I open the discussion to members. As with the previous petition, we need to decide whether to close the petition or to keep it open for session 6. If we take the latter course, we need to justify our decision.
Annabelle Ewing (Scottish National Party, Cowdenbeath): I am mindful of the fact that I should probably have waited for my colleagues to indicate that they wished to speak first, because that might have been more appropriate, given that I am a newish member of the committee. In any event, I have read the clerk’s note and have been peripherally aware of the petition over the course of several years.
I cite a few points. First, as far as I can see, the statement of principles of judicial ethics is a comprehensive set of requirements. The idea that there is nothing in place is a fallacy. Secondly, I note that additional safeguards have been put in place during the time that the petition has been open. I cite the register of recusals and the publication of judicial expenses and overseas travel. Thirdly, and most importantly, I was struck by the letter from the Lord President and the key point about the need for the independence of the judiciary, which is not comparable to any other profession. The independence of the judiciary of the country is a fundamental tenet of our laws and our society. I agree with the Lord President on those matters, so I do not support the continuation of the petition.
Convener Adam Tomkins (Scottish Conservative, Glasgow): Thank you, Annabelle. The Official Report will not show this, but I was nodding vigorously as you commented on the fundamental importance of the independence of the judiciary as a tenet of the separation of powers. That is the principle that should be front and centre when we consider questions such as this one.
For a register of judicial interests to be created, either the Lord President would need to set that up or Parliament would need to legislate to do so. As Annabelle Ewing has just said, the Lord President has said that he does not see the need for such a register. That is also the view of the current Scottish Government, which has said that it does not support a register.
Liam Kerr (North East Scotland) (Scottish Conservative): For complete transparency, I make the usual declaration that I am a member of the Law Society of Scotland.
I listened carefully to Annabelle Ewing and the convener, who spoke very persuasively. It is an interesting debate. I have not, as yet, heard a convincing argument against the proposal. I think that there is something in what Annabelle Ewing and the convener said, but I need to hear more. Some of the recent debates that the convener and I have been involved in give me pause for thought about the petition.
The convener prefaced his comments by saying that the committee was previously interested in obtaining more information on the issue, and that we talked about having a round-table session. I want to hear and learn more about the issue before I decide what I think about a register of interests. For that reason, I am inclined to think that we should keep the petition open with a view to me or whoever has the privilege of coming back and being on the committee looking at the issue again in the cold light of day of the new session of Parliament.
Convener Adam Tomkins (Scottish Conservative, Glasgow): Annabelle Ewing has asked me to remind members that, like Liam Kerr, she is a member of the Law Society of Scotland, although, again, like Liam Kerr, she has never been not yet, at least on the bench. Thank you, Annabelle.
Liam McArthur (Liberal Democrat, Orkney Islands): I have no such declaration to make. I agree whole-heartedly with what you said, convener, and with what Annabelle Ewing said in opening the debate. It is indisputable that steps have been taken to address at least some of the principles of the concerns that were raised in the petition.
The point where I am slightly anxious here, I refer back to Annabelle Ewing’s comments on the earlier petition about the value and benefits of consistency is that, having sisted the petition previously on the basis that the committee would hold a round-table session to solicit wider views from stakeholders, but then not having done so, it would be difficult to make an argument for closing the petition. Again, that argument seems to be for administrative neatness. We made a commitment as a committee. If, after the election, the incoming committee does not feel that it needs to be beholden to that commitment, that is a decision for it, but it would be passing strange for us to abandon, simply because of the prospect of an election, the conclusion that we reached when we considered the petition previously.
On that basis, as with the earlier petition, I am minded to suggest that we keep this one open until the next session.
Deputy Convener Rona Mackay (Scottish National Party, Strathkelvin and Bearsden): I was on the Public Petitions Committee when the petition started its journey before it came to the Justice Committee, and I am supportive of it I am on record as saying that. However, given that the Lord President and the cabinet secretary have made their views clear on it several times, at this stage, we should close it, with the knowledge that the petitioner can bring it back in the next session of Parliament if he wants to carry on with it.
I do not think that that would be inconsistent. The petition is different from the previous one, which we decided to keep open, because the circumstances are different. At this stage, my preference is to close the petition, and the petitioner can always bring it back. However, I am sympathetic to the subject.
John Finnie (Scottish Green Party, Highlands & Islands): I will follow on from the convener’s comments about the separation of powers. Of course, in any liberal democracy, it is absolutely right that we have an independent justiciary. I accept that. However, we are talking about one individual the Lord President.
I do not know that individual and I have no axe to grind one way or another, but I will paraphrase the previous exchanges with him. He said, “No, I don’t want it.” The committee decided to write to him again, and he said, “I’ve already told you that I don’t want it, and I’m telling you again that I don’t want it.” There were discussions about his coming to give evidence and even about whether it was appropriate to ask him to come to give evidence. He said, “Well, I could come and give evidence but, as I’ve told you and I’ll tell you for a third time, I don’t want it.” To be perfectly honest, that does not seem to me like a functioning liberal democracy.
What is there to fear from disclosing the information that is being asked for? Examples of other jurisdictions have been given where that is done without a problem. Should we be surprised that a Government of whatever persuasion wants to be in accord with the Lord President and does not want to dissent from the Lord President’s position? Perhaps not.
I am not persuaded by either of those arguments, but there is a more compelling reason why we must keep the petition open. I am supportive of the intention of the petition. As always, the devil will be in the detail, but the detail that has been shared with us is that we are being urged to commission the work that we had already decided on. It is very clearly unfinished work for the committee. We undertook to do things in relation to the petition; we have not done those. For that reason, we must pass it on to our successor committee to pick up on that work, and it will be for it to decide how to proceed thereafter. The petition should be kept open.
Shona Robison (Scottish National Party, Dundee City East): I do not have strong views on the petition. I have some sympathy with Annabelle Ewing’s comments about the additional safeguards, and I think that we all agree on the independence of the judiciary. However, I also have some sympathy with what John Finnie has said, in that we should be consistent if we feel that there is some unfinished business for our successor committee to take forward, even if that is just the holding of a round-table session and the gathering of further evidence, it might be in a better position to make a definitive call on whether there is more that should be done here.
I hope that we can reach a consensus. I would be content for the petition to be included in our legacy report as something for our successor committee to consider further.
Rhoda Grant (Scottish Labour, Highlands & Islands): I agree with what John Finnie said and proposed.
Convener Adam Tomkins) Scottish Conservative, Glasgow: I am grateful to colleagues for what has been a very helpful debate. My sense of the discussion is that members of the committee do not feel as strongly about this petition as they did about the previous one. Some modest and minor disagreement has been expressed about whether to keep the petition open or to close it. However, I think that the balance of opinion is in favour of keeping it open, if only because there is a sense of unfinished business. However unfinished the business is, though, I think that everybody who has expressed a view on the matter is clearly of the view that that business needs to be transacted subject to and in the light of the fundamentally important principles of the separation of powers and the independence of the judiciary.
I think that the body of opinion is that the petition should not be closed at the moment, but that our successor committee in session 6 should be invited to consider the matter, if only to hear views and perhaps to explore a little why the Lord President is opposed or why the judiciary, who are represented by the Lord President, are opposed to the creation of such a register.
I will close by saying that just because it is appropriate for elected members in the legislature to have a register of interests, that does not mean that it is appropriate for members of the judiciary to have a similar register of interests. The function of the separation of powers is to treat different branches of government differently, according to their institutional function.
I hope that that is a fair summary albeit with a gloss from me at the end of the committee’s decision.
A reference in the Justice Committee’s Annual report for 2020 to 2021 states the following: Petition PE1458 - is a petition by Peter Cherbi calling on the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill or amend present legislation to require all members of the Judiciary in Scotland to submit their interests and hospitality received to a publicly available Register of Interests.
The Report states the Petition, and another will be kept open for the next session of the Scottish Parliament: At its meeting of 2 March 2021, the Committee considered these two petitions for the final time this session and agreed to keep both petitions open for a new committee to consider in session 6.
SCOTTISH PARLIAMENT JUDICIAL INTERESTS PROBE:
The judicial register petition - first debated at the Scottish Parliament’sPublic Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.
A full debate on the proposal to require judges to declare their interests was heldat 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.
UNCONVINCING TOP SCOTS JUDGES WHO REFUSED TO BE TRANSPARENT:
Scotland’s most recent two top judges failed to convince MSPs that a register of interests is not required for Scotland’s judiciary
Former Lord President Brian Gill, and current Lord President Lord Carloway consistently argued the existence of judicial oaths and ethics – which are both written, and approved by judges negate any requirement for further transparency in the judiciary.
However, both the Scottish Parliament’s Public Petitions Committee – who investigated the judicial interests petition for six years, and the Justice Committee – who have considered the petition since 2018, found the judiciary’s arguments against transparency to be “unconvincing”.
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
Legal regulator reveals sexual offence cases.SCOTLAND’S ‘independent’ legal services regulator – the Scottish Legal Complaints Commission (SLCC) - has revealed it received at least five cases containing allegations of a sexual nature against members of the legal profession since 2017.
In response to a media investigation of allegations of serious sexual assault and related offences alleged to be committed by solicitors & advocates – the Scottish Legal Complaints Commission disclosed the information in response to a series of Freedom of Information requests for relevant data from 2017 to 2021.
In one of three FOI responses, the legal regulator revealed: “Five cases containing an allegation of a sexual nature have been made to the SLCC within the time period specified”
However, the Scottish Legal Complaints Commission went on to state their response came with a caveat - in that the regulator’s search may not have captured all allegations of a sexual offence nature made against solicitors & advocates
The SLCC’s Information Officer stated: “I would reiterate that the SLCC cannot determine what criminal behaviour is and therefore this figure relates to allegations of a sexual nature and we make no comment on whether they would amount to a crime. These figures are subject to a caveat that the SLCC does not record if a crime has been committed or alleged in a recordable format, therefore the above represents a search within the summary of complaint and may not capture all allegations made.”
The SLCC further confirmed four cases were referred to the relevant professional bodies for investigation by the SLCC.
However – the Scottish Legal Complaints Commission went on to admit the regulator does not hold a record of reporting any matters directly to Police Scotland or the Crown Office.
The SLCC stated: “The SLCC does not consistently record if a complaint has also been made to Police Scotland or the Crown Office, however it may be referred to by the complainer at any point. It is entirely for the complainer if they decide to inform the SLCC that they have reported the matter to any other agencies. In respect of the cases identified above, the SlCc was made aware that two of the cases were reported to another agency.”
The SLCC were asked for information in the following questions using Freedom of Information legislation to obtain responses:
1. allegations of, complaints of - and evidence provided to the SLCC of; sexual offences including alleged rape, abuse and assault - committed by solicitors and Advocates/QCs
and information contained in;
2. How many such cases have been reported to the SLCC since January 2017 to the date of this FOI request
3. How many such cases have included evidence material handed to the SLCC since January 2017 to the date of this FOI request
4. How many of these cases resulted in the SLCC reporting matters to - Police Scotland and Crown Office and Faculty of Advocates & Law Society of Scotland
How many of these cases were the SLCC aware or had been made aware these cases had also been reported to - Police Scotland and/or Crown Office, and the Faculty of Advocates and the Law Society of Scotland
The SLCC Response:
I confirm that the SLCC holds some of the information that you have requested and I have responded to each point in turn below. The SLCC endeavours to release as much information as possible. However, it has decided that some of the information you have requested is exempt from disclosure under the exemption(s) found in section(s) 25 (1) of FOISA. I have explained below the reasons for the application of the exemption(s).
1. The SLCC procedure for dealing with allegations of a criminal nature are contained within the Policy and Procedure for the SLCC Complaints Process, s 3. 4. 28. I have included a link here. The SLCC and RPOs are unable to consider an allegation of crime as such as outlined in the Manual, however we can consider if specific actions have breached the professional standards. If a member of the public is of the opinion that a criminal act has occurred, SLCC staff will advise them to contact the Police in the first instance.
2. Five cases containing an allegation of a sexual nature have been made to the SLCC within the time period specified. I would reiterate that the SLCC cannot determine what criminal behaviour is and therefore this figure relates to allegations of a sexual nature and we make no comment on whether they would amount to a crime. These figures are subject to a caveat that the SLCC does not record if a crime has been committed or alleged in a recordable format, therefore the above represents a search within the summary of complaint and may not capture all allegations made.
3. The SLCC is not able to state what would constitute evidence of a crime as it is not a criminal reporting agency. All complaints to the SLCC to be properly made must be submitted on a complaint form outlining what the complaint is and a complainer may provide whatever supporting evidence they feel appropriate. The SLCC is unable to answer this point for the above reason as we do not hold this information. As the SLCC holds no information in relation to the scope of your request, and in line with the Freedom of Information (Scotland) Act 2002, I am issuing you with a Section 17 (1) (b) Notice stating that the information is not held.
4. Four cases were referred to the relevant professional bodies for investigation by the SLCC. Please note the SLCC does not hold a record of reporting any matters directly to Police Scotland or the Crown Office.
5. The SLCC is the gateway for all legal complaints. The SLCC does not consistently record if a complaint has also been made to Police Scotland or the Crown Office, however it may be referred to by the complainer at any point. It is entirely for the complainer if they decide to inform the SLCC that they have reported the matter to any other agencies. In respect of the cases identified above, the SlCc was made aware that two of the cases were reported to another agency.
A second FOI request to the Scottish Legal Complaints Commission sought information in response to the following questions:
1. I would like to make a Freedom of Information request for information contained in; the SLCC's procedures for how to deal with allegations of, complaints of - and evidence provided to the SLCC of; acts of a criminal nature which can be prosecuted under criminal law - committed by solicitors and Advocates/QCs and information contained in;
2. How many such cases have been reported to the SLCC since January 2017 to the date of this FOI request
3. How many such cases have included evidence material handed to the SLCC since January 2017 to the date of this FOI request
4. How many of these cases resulted in the SLCC reporting matters to - Police Scotland and Crown Office and Faculty of Advocates & Law Society of Scotland
5. How many of these cases were the SLCC aware or had been made aware these cases had also been reported to - Police Scotland and/or Crown Office, and the Faculty of Advocates and the Law Society of Scotland
The SLCC Response
I confirm that the SLCC holds some of the information that you have requested. The SLCC endeavours to release as much information as possible. However, it has decided that some of the information you have requested is exempt from disclosure under the exemption(s) found in section 25 (1) of FOISA. I have explained below the reasons for the application of the exemption(s).
1. The SLCC procedure for dealing with allegations of a criminal nature are contained within the Policy and Procedure for the SLCC Complaints Process, s 3. 4. 28. I have included a link here. The SLCC and RPOs are unable to consider an allegation of crime as such as outlined in the Manual, however we can consider if specific actions have breached the professional standards. If a member of the public is of the opinion that a criminal act has occurred, SLCC staff will advise them to contact the Police in the first instance.
2. The SLCC cannot determine what criminal acts are, however I have identified 12 cases where the complainer has made reference to crimes allegedly being committed by practitioners. The SLCC can only look at complaints in terms of the Rules and Standards applicable to solicitors and advocates in Scotland and we do not consistently record where a crime has occurred or been alleged in a searchable manner. These figures are subject to a caveat that the SLCC does not record if a crime has been committed or alleged in a recordable format, therefore the above represents a search within the summary of complaint and may not capture all allegations made.
3. The SLCC is not able to state what would constitute evidence of a crime as it is not a criminal reporting agency. All complaints to the SLCC to be properly made must be submitted on a complaint form outlining what the complaint is. The SLCC is unable answer this point for the above reason as we do not hold this information. As the SLCC holds no information in relation to the scope of your request, and in line with the Freedom of Information (Scotland) Act 2002, I am issuing you with a Section 17 (1) (b) Notice stating that the information is not held.
4. With the caveat of point 2, 5 of the 12 cases were referred to the relevant professional bodies for investigation by the SLCC. Please note the SLCC does not hold a record of reporting any matters directly to Police Scotland or the Crown Office. As the SLCC holds no information in relation to the scope of your request, and in line with the Freedom of Information (Scotland) Act 2002, I am issuing you with a Section 17 (1) (b) Notice stating that the information is not held.
5. The SLCC is the gateway for all legal complaints and therefore it is not possible to make a complaint directly to the Law Society of Scotland to the Faculty of Advocates.The SLCC does not consistently record if a complaint has also been made to Police Scotland or the Crown Office, however it may be referred to by the complainer at any point. It is entirely for the complainer if they decide to inform the SLCC that they have reported the matter to any other agencies.
Given the nature of several cases where serious allegations of sexuual offences committed by members of the legal profession have been reported to the Scottish Legal Complaints Commission, and material has been provided to regulators to support such allegations – clients, and members of the public may have cause for concern - given the SLCC appears to operate a deliberate policy of failing to record such incidents or notify Police Scotland and the Crown Office.
Information which has been provided to regulators in relation to allegations of sexual offences committed by lawyers and advocates - is currently being investigated by journalists as part of a wide ranging probe of how the legal profession in Scotland deal with offences of a sexual nature committed by solicitors and advocates.
From documents and material handed to the media - which currently cannot be published for legal reasons – there are strong indications both solicitors and advocates have remained in practice, and continued to represent clients in civil hearings, and criminal trials and criminal appeals – while their clients, and accused persons - remained oblivious and uninformed as to to the nature of serious criminal allegations made against their legal representatives.
And, it appears from scrutiny of the material – which is also in the possession of MSPs – the Law Society of Scotland, the Scottish Legal Complaints Commission, and the Faculty of Advocates – have all sat on cases where allegations of a specific nature of rape, and other serious sexual assault – alleged to have been committed by named individuals within the Scottish legal profession – have been reported by clients, and victims.
In some cases currently being investigated, it can be revealed allegations reported to legal regulators – alleging serious sexual offences committed by named legal practitioners, and potential sexual misconduct committed over lengthy periods of time relating to lawyers working in the courts, and also those working for the prosecution service - have provided credible testimony where legal representatives have broken legal professional privilege in discussing cases related to clients, and accused – and have in writing – actively sought to undermine criminal trials and appeals by breaking confidentiality rules on multiple occasions.
The Judicial Office for Scotland were asked for comment on how the courts and judges should deal with legal representatives facing criminal allegations and investigations while the accused legal representative continues to represent clients, and appear in cases in court.
The media enquiry to the Judicial Office, submitted on 6 April 2021 is as follows:
Can the Judicial Office, Lord President, and Scottish Courts & Tribunals Service provide detail on what your procedures are for dealing with cases where you have been informed or become aware of: criminal complaints (including allegations of serious sexual offences) have been made against QCs, Advocates & solicitors who are representing clients in current court cases, criminal trials and appeals.
and can the Judicial Office, Lord President, and Scottish Courts & Tribunals Service comment on what steps you take to inform & notify:
current cases, criminal trials, appeals, presiding judges, clients & their legal representatives:
that allegations of criminal complaints (including allegations of serious sexual offences) against QCs, Advocates & solicitors have been notified to the Judicial Office, Lord President, and Scottish Courts & Tribunals Service
Additionally When allegations of criminal complaints (including allegations of serious sexual offences) are made to, or notified to the Judicial Office, and Scottish Courts & Tribunals Service by any or all of the following -
legal regulators such as the Faculty of Advocates, SLCC & Law Society of Scotland,PoliceScotland,Crown Office & Procurator Fiscal Service, a victim who has reported such allegations against QCs, Advocates, solicitors or law firms
What steps are then taken by the Judicial Office, Lord President and Scottish Courts & Tribunals service to ensure;
the allegations, Police investigations and any potential criminal charges do not impact on, or impede:
current cases, criminal trials & appeals currently represented by or involving the QC, Advocate or solicitor who is/are subject of criminal complaints (including allegations of serious sexual offences) ?
Does the Judicial Office, Lord President, and Scottish Courts & Tribunals Service require an Advocate or QC or solicitor who is subject to criminal complaints (including allegations of serious sexual offences) to notify:
current clients, the Scottish Courts & Tribunal Service,Crown Office,Advocate's chambers, law firm, the Judicial Office, and Lord President,The Faculty of Advocates,Scottish Legal Complaints Commission,Law Society of Scotland,and any presiding judges in current cases or criminal trials - that they are subject to a report of allegations of a criminal nature (including allegations of serious sexual offences) ?
As of date of publication, no response has been received from the Judicial Office in relation to the above media enquiry.
A Freedom of Information request to Police Scotland for information in relation to allegations of sexual offences committed by members of Scotland’s legal profession - resulted in a blanket refusal to disclose any information – on the grounds of cost of recovery of such information.
Police Scotland were asked for information in relation to:
allegations of, complaints of - and evidence provided to Police Scotland of;
sexual offences including alleged rape, abuse and assault - committed by solicitors and Advocates/QCs
and information contained in the following (from January 2017 to the date of this FOI request);
How many such cases have been reported since January 2017 to the date of this FOI request
How many such cases have included evidence material handed to Police Scotland since January 2017 to the date of this FOI request
How many of these cases resulted in Police Scotland reporting matters to - Crown Office and legal regulators Faculty of Advocates & Law Society of Scotland
How many of these cases were Police Scotland aware or had been made aware - cases reported to Police Scotland had also been reported to - the Crown Office directly, and reported by complainants to the Faculty of Advocates and the Law Society of Scotland
Police Scotland response:
Having considered your request in terms of the Act, I regret to inform you that I am unable to provide you with the information you have requested, as it would prove too costly to do so within the context of the fee regulations.
As you may be aware the current cost threshold is £600 and I estimate that it would cost well in excess of this amount to process your request.
As such, and in terms of Section 16(4) of the Freedom of Information (Scotland) Act 2002 where Section 12(1) of the Act (Excessive Cost of Compliance) has been applied, this represents a refusal notice for the information sought.
By way of explanation, it is not mandatory to record an individual’s occupation. I can further advise you that even when an occupation is recorded the only way to access this information is via each crime report. There are no relevant markers which allow the automatic retrieval of this level of information. As such this is an exercise which I estimate would far exceed the cost limit set out in the Fees Regulations.
However, Andrew Coyle, Communications Manger for the Crown Office replied, stating “As per previous discussions with the Media Relations team, I'm passing your enquiry on to our Freedom of Information team for a response.”
COPFS intentionally converted the media enquiry into Freedom of Information request – with the goal of delaying a response for as long as possible.
The media enquiry to the Crown Office read as follows:
1. Can the Crown Office provide detail on your procedures for dealing with criminal complaints involving allegations of serious sexual offences against members of Scotland's legal profession
2. And, what procedures exist (including procedures for averting conflict of interest) for investigating allegations of, or criminal complaints of serious sexual offences against members of Scotland's legal profession (including Advocates & solicitors) who have previously worked at the Crown Office & Procurator Fiscal Service in any role including Advocate Depute
3. and can the Crown Office offer comment on how COPFS handle cases of, & allegations of criminal complaints (including allegations of serious sexual offences) against Advocates and QCs who have previously worked for COPFS and represented COPFS in court.
4. If the Lord Advocate and Crown Office become aware an Advocate or QC (and also an Advocate or QC who currently works for, or has previously worked for the Crown Office in any capacity) has become the subject of criminal complaints (including allegations of serious sexual offences)
Is the Crown Office & Lord Advocate obliged, or required to notify: the Scottish Courts & Tribunal Service, the Judicial Office, and Lord President,The Faculty of Advocates, Scottish Legal Complaints Commission
H Hart of the Crown Office Information and Response Unit replied on query 1 only – stating the following:
There is a general requirement that where an accused or potential accused is a member of the Crown Office & Procurator Fiscal Service (COPFS) staff the case must be reported to the office of the Deputy Crown Agent for Serious Casework (DCA SC). The case will be referred to Crown Counsel for instructions. If an allegation relates to a serving Advocate Depute, then external counsel can be appointed to oversee the investigation.
Where police report a case in which a Justice, Sheriff or other officer of the court is involved as an accused or is implicated in unlawful activities, then a report is required to be made to the DCA SC. Decisions around case marking do not require to be referred to Crown Counsel, although there are occasions where Crown Counsel’s Instructions (CCIs) are sought if the case is deemed to merit it. Factors that would be considered would include the seriousness of the alleged offending.
When a solicitor or trainee solicitor is reported to the Procurator Fiscal for criminal conduct, the DCA SCG will report the case to the Secretary of the Law Society of Scotland. Decisions around case marking do not need to be referred to Crown Counsel, although, again, there are occasions where CCIs are sought if the case is deemed to merit it. Factors that would be considered would include the seriousness of the alleged offending.
If COPFS receives a case in which an Advocate is an accused, following receipt of CCIs, the DCA SCG would write to the Dean of Faculty to make them aware. Similarly, information could be shared with the Judicial Office and/or Lord President if the accused under investigation is a serving member of the judiciary.
Media enquiries to the Faculty of Advocates on the specific nature of how the Faculty handle complaints and allegations relating to serious sexual offences involving advocates and QCs, resulted in the Faculty providing a link to their own procedures.
Can the Faculty of Advocates provide detail on what your procedures are for dealing with criminal complaints (including allegations of serious sexual offences) against your members and can the Faculty of Advocates comment on how you handle cases of, & allegations of criminal complaints (including allegations of serious sexual offences) against your members
Additionally When allegations of a criminal complaints (including allegations of serious sexual offences) are made to, or notified to the Faculty of Advocates by - legal regulators such as the SLCC & Law Society of Scotland,Police Scotland,Crown Office & Procurator Fiscal Service, or a victim who has reported such allegations against your members
Does the Faculty notify the Advocate or QC who is the subject of the allegations?, and what steps are then taken by the Faculty?
Also, if there are allegations of serious sexual offences made against members of the Faculty of Advocates -
Is the Advocate or QC who is subject to the allegations allowed to continue practising in cases related to sexual offences, and/or any other criminal cases?
Is the Advocate or QC who is subject to the allegations obliged to notify their clients that they are subject to a report of allegations of a criminal nature (including allegations of serious sexual offences) ?
Is the Advocate or QC who is subject to allegations of a criminal nature (including allegations of serious sexual offences) obliged, or required to notify: the Scottish Courts & Tribunal Service, Crown Office, the Judicial Office, and Lord President, Scottish Legal Complaints Commission, Law Society of Scotland - that they are subject to a report of allegations of a criminal nature (including allegations of serious sexual offences)?
Fay McIsaac, Communications Officer for the Faculty of Advocates responded by email with the following short statement:
Efforts to investigate the blanket silence by legal regulators, Police Scotland, Crown Office and the Judicial Office on cases involving allegations of a serious sexual nature and other allegations of serious criminal conduct committed by members of Scotland’s legal profession - has not hampered the ongoing media probe, which continues to review new material related to allegations of criminal offences against solicitors, advocates and QCs.
