Teaching old dogs new tricks ? Judicial Institute for Scotland aims to drag Judges out of “Victorian” era ways with training, technology, & business as usual …

Scotland’s courts, judges  & justice system previously condemned as a failure to society, remain so today. A SENIOR JUDGE from Scotland’s Court of Session was asked at a recent get-together of fellow members of the judiciary, “How do you handle doctors letters or medical reports?”. He tersely replied, murmuring an expletive, “I … completely ignore them”. It turns out the same judge kicked out a test case involving a disabled infant just a few months earlier.

And thus from the ignorance of a few ill-mannered men at the head of Scotland’s courts is born the latest pledge from Scotland’s antiquated judiciary to tidy itself up, to be known as the Judicial Institute for Scotland, it’s launch recently announced by the Judiciary of Scotland.

Nearly FIVE YEARS after Lord Brian Gill, then in his capacity as Lord Justice Clerk branded Scotland’s justice system as an unduly complex, expensive “Victorian” system which fails society, the judiciary has only now seen fit to make a public announcement its members appear to require additional training to handle new legislation, new case law, courtroom ‘technology’ (which has in some cases, such as audio recording equipment been in place for nearly a decade already) and “case management expectations” which may not necessarily include public expectations of the swift, cheaper & wider access to Scotland’s justice system proposed by Lord Gill way back in 2009.

Can court users expect any improvement in the way Scotland’s wealth laden clique of judges treat those mere peasants who appear before them with legal issues often made more complex and unnecessarily expensive by their colleagues in the legal profession ? Let’s say … no. Certainly not when some of Scotland’s judges treat the weakest in society with so much contempt for daring to think the courts are there for everyone to access and receive, at the very least, a measure of justice so far denied to them …

Or, could the new training regime be an answer to the recently revealed criminal habits of some members of Scotland’s judiciary, revealed by Diary of Injustice here : ALL THE LORD PRESIDENT’S MEN : Benefits cheats, drunk drivers & tax dodgers, yet identities of convicted Scottish judges to remain secret for now

The Judiciary of Scotland’s Press Release from last week announcing their latest ‘achievement’ : Official Launch of the Judicial Institute for Scotland

Today sees the official launch of the Judicial Institute for Scotland and the opening of the purpose-built learning suite located within Parliament House.

This new learning suite has been equipped with state-of-the-art technology that will enable the Judicial Institute to deliver a wide range of training courses and to respond quickly to training needs when they arise.

In his speech at the start of the legal year last September, The Lord President, The Right Honourable Lord Gill, emphasised the importance he placed on providing judges in Scotland with high quality training in order to ensure that they are in a position to deal with the raft of new legislation and case law, and that they are fully conversant with courtroom technology and case-management expectations.

“Judicial training is not simply an optional extra for the judiciary,” he said. “We have an obligation individually and collectively to ensure that we maintain a professional approach throughout our judicial life.  This new learning suite will enable us to ensure that judges in Scotland benefit from the latest technology in helping them to meet the challenges that lay ahead”.

Prior to 1997 there was effectively no formal training for judges.  The Sheriffs’ Association took on some training in the 1980s and ’90s but that tended to be organising visits to prison or arranging talks.  Training then began to be delivered in hotels on two or three day residential courses, but such facilities limited the type of training that could be delivered.  Over time it became clear that judges needed a more bespoke relevant, modern and accessible training programme which eventually led to the development of this new training facility.

The Director of the Judicial Institute, Sheriff Welsh QC recently said of the learning suite: “Everything is imbued with the principles of adult education. The plectrum-shaped tables are designed to facilitate interaction among groups of judges. The L-shaped room can be converted into big or small spaces; IT can be configured in different ways. The benches at the end of either leg of the room are fitted with the technology you will find in courts across Scotland to enable judges to practice using modern court equipment designed to help vulnerable witnesses give evidence remotely.”

Being in Parliament House also brings the added advantage of enabling senior judges to engage and take part in training and to meet more readily with JPs and sheriffs on training courses.  Training can also be designed around the particular needs of individual judges and sheriffs, taking into account their previous experience and skill set.

The Deputy Director Sheriff Duff said: “We do have continuing professional development. It isn’t compulsory but I have not encountered any reluctance among judges to opt in for training. Induction training is however compulsory for every new judge.” 

Attending the opening today will be Mr Kenny McAskill Cabinet Secretary for Justice and number of invited guests.  The Lord President will invite The Right Honourable Lord Ross to formally open the Judicial Institute for Scotland.

A week on for Scotland’s judiciary since the press release … and its back to business of fiddling one’s mounting assets and failing to declare financial & other interests in court case after court case …

Scottish Courts remain a “Victorian”, ‘obstructive’ venue for many court users & party litigants despite small rise in ‘satisfaction survey’ results

A two percent rise in court user satisfaction masks deep concerns over poor state of Scotland’s Courts, run by body chaired by Lord President Lord Hamilton. SCOTLAND’S COURTS and the Scots justice system have been called everything from “Victorian”, “Institutionally racist”, “Institutionally sectarian”, “Institutionally corrupt”, & “Institutionally prejudiced” to name but a few of the accusations coming from all sectors of society, from court users, consumer groups and even from the most senior members of the judiciary itself. Put simply, when the Lord Justice Clerk, Lord Gill, calls the Scottish civil justice system “Victorian” and “unfit for purpose”, there is clearly something fundamentally wrong with our courts and how they handle access to justice, a seemingly ever dwindling right of Scots.

Curiously however, this is not the picture painted in the now nearly annual survey of court users carried out by the Scottish Court Service (SCS), in which their latest 2011 study released today claims a high level of “satisfaction” among court users, resting on the back of a small two per cent rise in “satisfaction” with some aspects of the Scottish Court Service. The SCS is the ‘independent’ body which runs Scotland’s courts, established by the Judiciary and Courts (Scotland) Act 2008, governed by a Corporate Board and chaired by the Lord President, the most senior judge in Scotland.

The survey, carried out by MVA Consultancy on behalf of the Scottish Court Service shows that 83% of respondents were satisfied overall, the highest ever recorded level, and up from 81% in 2009. Levels were similar for professional and non-professional users, with 85% of professional respondents, and 82% of non-professionals, stating that they were either ‘very’ or ‘fairly’ satisfied overall. The full survey report can be viewed online HERE with a summary HERE or downloaded from the Scottish Court website HERE

Among other findings, almost a third (31%) of respondents stated that they had travelled to court on the day of the survey as a car driver, with a further 15% stating that they were a car passenger. Over three quarters of respondents (78%) had travelled for up to 30 minutes to attend court. The majority of respondents had spoken with court staff on the day that they were surveyed, and most stated that they had found court staff to be either ‘very’ or ‘fairly’ helpful (95%) and either ‘very’ or ‘fairly’ polite (96%).

Less than half (46%) of all respondents stated that court staff had kept them informed about what was happening during the time they were in the court building. However, the majority of respondents (96%) who were given update information said that this information was either ‘very’ or ‘fairly’ helpful. Just over half of all respondents (55%) said that they had had to wait to take part in court proceedings. Waiting times varied considerably by area.

Over half of the respondents said that they were either ‘very’ or ‘fairly’ satisfied (52%) with their wait to take part in court proceedings. A further 19% said they were either ‘very’ or ‘fairly’ dissatisfied. There was a high level of satisfaction with regard to perceived safety and security, ranging from 80% for the cells to 96% for the jury room.

The main factors that appear to be driving users’ overall experience are satisfaction with court staffs’ attempts to keep respondents informed about how much longer they were likely to have to wait and satisfaction with helpfulness of the information provided by the court staff. The results from the survey compare favourably with previous years, with definite improvements in overall satisfaction over time in Lothian and Borders and the High Court and Court of Session.

Since the last survey in 2009, those questioned were more satisfied with the quality of refreshments available and the comfort and cleanliness of both court rooms and waiting areas. A high 96% found Scottish Court Service (SCS) staff polite, while 95% found SCS staff helpful. For the first time security was covered showing that most users felt safe inside Scottish court buildings, ranging from 80% of those who had been in the cells to 96% of jury room users.

Scottish Court Service Chief Executive Eleanor Emberson welcomed the results, saying, ”Achieving an 83% level of satisfaction among users is a credit to all our hard working and dedicated staff. The organisation is fully committed to a Customer Service Excellence programme as a way to develop our services to meets the needs of court users. We will use the constructive comments provided in the survey to continue this improvement.“

The Scottish Court Service has conducted satisfaction surveys with public and professional court users since 2005 although finding anyone who has participated in them has proved to be more difficult than the needle in the haystack scenario. The Scottish Court Service definition of “Court users” include all who enter or transact business within the court building and this includes for example solicitors, advocates, staff, social workers, police, jurors, witnesses, accused and members of the public including those involved in or interested in civil and criminal cases. The survey was conducted across all jurisdictions (Court of Session, High Court, Sheriff Courts and Justice of the Peace Courts).

However, satisfaction levels from growing numbers of party litigants who cannot afford or cannot obtain legal representation for a variety of reasons, do not appear to fit in with the SCS survey findings which do not give one single mention of party litigants or those who appear to be involved in some of the most complicated sectors of litigation such as negligence cases against the professions & public services. There is also no mention of McKenzie Friends, otherwise known as Lay Assistants in Scottish Courts.

In one case of a party litigant currently under investigation by Diary of Injustice, a case liable to show a distinct lack of satisfaction with the Court Service, audio recordings of conversations between court staff & the party litigant appear to show the party litigant being told not to turn up at court hearings involving a highly suspicious ‘fees recovery’ action pursued by a law firm against a former client who the law firm dropped at the last minute during a damages claim against his former employer. Yet while court staff told the now seriously ill party litigant not to show up at court, the law firm at the centre of the wrangle somehow managed to persuade a Sheriff Principal to grant their demands without any regard to a fair hearing for their former client who is now so ill he is excused by doctors from the court hearings.

Further enquiries into seven other long running cases involving party litigants in Scotland’s Court of Session & Sheriff Courts have revealed not one of the party litigants who have been involved in long and difficult legal actions in the courts were consulted by or ever encountered any survey teams acting for the Scottish Court Service.

One solicitor speaking to Diary of Injustice this afternoon said “..the survey was unlikely to restore any confidence in the Scottish courts system” which has, even in the eyes of at least some members of the judiciary, been long overdue for a complete overhaul to put the public first, instead of the professions & vested interests.

Admittedly, there are steady signs of improvement in the SCS in some quarters, where, slowly but surely, parts of the courts system is beginning to open up to reforms, some of which appear to be brought about by increased media & public scrutiny of a domain still regarded by many in the legal profession as its closed shop business window. It is a fact Diary of Injustice has over the years, seen a marked increase in the willingness of the Scottish Court Service to engage the media and public in matters where previously a wall of silence was usually practised.

However, speaking as a journalist who has covered the legal system for many years now, I think we all know Scots satisfaction with the courts system overall, has a long way to go before justice in Scotland can be deemed to be reliable, trustworthy, modern or even honest and whoever is the next Lord President must be a force for change, instead of more stagnation in Scots access to justice.

SCOTS JUDGE DISATTISFIED WITH VICTORIAN JUSTICE & COURTS SYSTEM

The Lord Justice Clerk, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference in 2009, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Victorian Justice : Court of Session set to rule on SIXTEEN YEAR medical injury claim against Motherwell College & North Lanarkshire Council

Court of Session ruling expected on 16 year civil damages claim after 8 weeks of hearings over 2 years. THE COURT OF SESSION is soon expected to issue a ruling in a SIXTEEN YEAR battle for justice in a medical injury case against Motherwell College & North Lanarkshire Council. The case, which is the longest of its kind on record, regarding a workplace injury which occurred in 1995, has taken a staggering sixteen years out of the life of Mr Martin Wilson, a Music Lecturer who suffered severe back injuries after help was denied to him in the course of his duties by its now former Principal Richard Millham, who was dubbed a “Bully Boss” by national newspapers after Motherwell College lost a string of unfair dismissal claims brought by College staff.

Members of staff at Motherwell College were reported to have described ‘a strong climate of fear which is still there’. One of several unanimous decisions by Employment Tribunals against the College confirmed that Mr Wilson was unfairly dismissed while on long term sickness leave.

Lord Woolman is the presiding judge in the present claim of  M.Wilson v North Lanarkshire Council & Others (A1628/01). Investigations conducted by the media have revealed the case has generated thousands of pages of transcripts along with numerous hearings before the Court of Session where internationally acclaimed expert medical witnesses from the UK and abroad disputed the testimony of Motherwell College’s own ‘experts’. As the hearings ‘progressed’, many legal observers to the case indicated matters could & should have been resolved years ago, some expressing opinions the case appeared to have been prolonged by legal teams solely for the purpose of generating legal fees from Motherwell College totalling HUNDREDS OF THOUSANDS OF POUNDS, ultimately paid for by taxpayers.

An in-depth investigation into the case carried out by Scottish Law Reporter, compiled with the help of observers to the legal proceedings and senior legal insiders, berated Motherwell College and its legal representatives for wilfully delaying for THIRTEEN YEARS after Mr Wilson’s injury before commissioning an expert ergonomics report in this manual handling claim, and then only after Mr Wilson had managed to gain access to the defenders premises, something no fewer than FOUR 'normally reliable' law firms which included the well known Edinburgh law firm of Balfour & Manson & the Glasgow based Harper Macleod who had previously 'represented Mr Wilson’s best interests' had failed to do during the thirteen years since the summons was served on Motherwell College.

Damning evidence from interviews with legal observers to the proceedings revealed instances where despite the court suggesting the defenders make the “expert ergonomics report” available to Mr Wilson as soon as possible, the legal agents acting for Motherwell College, Simpson and Marwick, withheld the report until approximately 72 hours before the Proof was scheduled to begin in June of 2008, and then only handing it over on Court premises during a procedural hearing before Lord Penrose.

After being told of the report being withheld from the pursuer, Lord Penrose claimed that the defenders had been “playing fast and loose with due process in an attempt to gain an unfair advantage” and “had rendered the scheduled proof hearing unsafe”. Lord Penrose then invited Motherwell College representatives to apply for a postponement, which they did, and despite the party litigant being prepared to continue regardless - he had paid for distinguished expert witnesses to travel from destinations as far afield as the Western United States.

Taking the defenders legal representatives conduct into account, Lord Penrose described the situation as 'unfortunate' yet amazingly, no penalty was imposed on the defenders and these tactics, widely viewed as cynical delaying tactics, led to a further delay of over a year, the hearings finally getting started in November 2009 at the Court of Session under Lord Woolman. Later that month, and only after the Proof hearings had begun, a ruling in the Wilson v North Lanarkshire Council & others case heralded in the appearance of Scotland’s first Civil Law McKenzie Friend in a Court of Session case.

According to legal observers, hearings in the case continued “sporadically” and one year later in November 2010 Motherwell College’s legal team told the court they were withdrawing their “expert ergonomics report” and would not be relying on it,.leading many observers to view the defender’s case as being “unsustainable”.

The report by Scottish Law Reporter also revealed that out of a total of some SIXTEEN LAY WITNESSES to be called by Motherwell College, only FOUR eventually appeared, and none of those included the key player in Mr Wilson’s earlier successful Employment Tribunal Decision against the College, it’s disgraced former Principal, Richard Millham.

Astonishingly the defenders suddenly decided at the last minute in January 2011 not to call the College's former Health and Safety Officer in a manual handling claim, - a consequence perhaps of the defenders failure to produce a single risk assessment or manual handling record. Observers to hearings of the case described the testimony of Motherwell College’s expert witnesses as “lacking any credibility whatsoever”, “highly scripted”, and “unusually combative”.

North Lanarkshire Council & Motherwell College were represented throughout hearings at the Court of Session by Edinburgh law firm Simpson & Marwick. Senior Counsel for Simpson & Marwick was Ian MacKay QC, Junior Counsel was Calum Wilson both of Compass Chambers.

Political connections ? Former Motherwell College Principal Richard Millham, pictured (left) with the then First Minister Jack McConnell (right) in Motherwell FC awards ceremony. While the Court of Session is expected to issue its ruling soon, there remain significant questions over who or what delayed a civil damages claim for approximately 16 years against scandal hit Motherwell College. Senior legal insiders have indicated the case may well form part of an effort to have the Scottish Parliament look at the regular and unjustifiable delays in access to justice in the Scottish courts while some have raised questions over the possibility influence of a political nature may have been exerted on law firms to delay Mr Wilson’s access to justice.

BACKGROUND TO MOTHERWELL COLLEGE CLIMATE OF FEAR & 16 YEAR JUSTICE BATTLE :

Motherwell College squandered £300K of taxpayers money fighting a string of Tribunal hearings involving bullying allegations against lecturers which the College lost. A number of media reports, referred to in earlier coverage by Scottish Law Reporter, show Motherwell College were involved in a string of Employment Tribunal decisions the college lost during Richard Millham’s term as Principal of Motherwell College. Allegations in newspapers including the Sunday Mail reported that “In 1999, lecturer Martin Wilson won £4000 after a tribunal ruled he had been unfairly fired. He had a back injury and could not work. A close friend said : "He was targeted by Millham. There was a strong climate of fear, which is still there ."

Scottish Law Reporter reported in earlier coverage : “From 1995-1998 Motherwell College opposed Mr Wilson's claim for Unfair Dismissal while on long term sickness leave and lost, to a unanimous decision. Undeterred Motherwell College appealed the decision, and lost again. This was the first of several high profile Employment Tribunal cases lost by the Board of Management of Motherwell College, often to unanimous decisions against it.”

I have reported on this case in previous articles, here : FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day and here : Access to Justice ? Law Society's insurers Marsh UK linked to SIXTEEN YEAR Court of Session civil damages claim against Motherwell College

Victorian,prejudiced,politicised & definitely a little crooked, yet First Minister feels Scotland’s justice system should be its own final arbiter

Scotland’s “Victorian” justice system in the dock after UK’s Supreme Court overturns yet another criminal conviction. AS the ash cloud caused by the Supreme Court’s ruling on Nat Fraser’s appeal continues to spark protests from First Minister Alex Salmond & Justice Secretary MacAskill of the necessity of the Scottish legal system being the final arbiter of cases brought before it, we would all do well to remember that Scotland’s justice system which has been branded Victorian, prejudiced, restrictive, most certainly a little crooked, open to political manipulation and by all accounts certainly racist and even sectarian, cannot in any circumstances be regarded as a justice system fit for a modern democracy which gives those brought before it in criminal law, or those who must use it for civil law, a right to a fair hearing or even a right to access to justice itself.

Yesterday’s ruling by the UK Supreme Court which overturned Nat Fraser’s conviction after a jury at the High Court in Edinburgh in 2003 found him guilty of killing his wife Arlene who vanished from home in April 1998 has led to accusations yet again that the Supreme Court in London threatens the independence of Scotland’s criminal legal system. However, the only real threat to the independence, (and don't forget the integrity & credibility) of Scottish justice and Scots Law, is Scots Law itself.

First Minister Alex Salmond being sworn in by .. Scottish judges. Predictably, the First Minister reacted bitterly to the perceived intervention of a court outside Scotland which decided Mr Fraser’s rights to a fair hearing had been breeched. Mr Salmond said : “I have no comment on the specifics of the case, which is live. But what needs to be addressed is the underlying issue - the principle that Scotland has, for hundreds of years, been a distinct criminal jurisdiction, and the High Court of Justiciary should be the final arbiter of criminal cases in Scotland, as was always the case.”

Mr Salmond continued : "Before devolution, the House of Lords had no jurisdiction whatever in matters of Scots criminal law. The increasing involvement of the UK Supreme Court in second guessing Scotland's highest criminal court of appeal is totally unsatisfactory, and creates additional delay and complexity which cannot serve the interests of justice.As we said in our evidence to the Scotland Bill Committee, the Scottish Government believe that the UK Supreme Court should have no role in matters of Scots criminal law, whether by way of devolution issues or appeal."

A legal observer, commenting on the ruling & the criticisms of the Supreme Court by the First Minister pointed out the Scottish legal system, with Scotland currently a member of the EU must be ECHR compliant. He said : “First thing is that the London Supreme Court was simply upholding the ECHR, which applies to the UK and by direct application, Scotland.”

Criticising the now notorious woes of Scots Law, he continued : “The Scottish legal and political system is the worst in the British Isles, even worse than the system in the Republic of Ireland. I´m all for further intrusion by the Supreme Court in the Scottish criminal system.”

Let us take a closer look at the Charges facing Scotland’s Justice system, both criminal & civil :and judge for ourselves whether it is fit for a modern democracy as we are supposed to be.

VICTORIAN.

Lord Justice Clerk, Lord Gill branded Scots civil law “Victorian” yet clearly Scots criminal law also has major problems. It wasn't too long ago Scotland’s Lord Justice Clerk, Lord Brian Gill said in a speech to a Law Society of Scotland conference which preceded publication of his Civil Courts Review, branded Scotland’s civil justice system as “a Victorian model that had survived by means of periodic piecemeal reforms … in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.” Clearly the judge said it, so it must be true. Lord Gill said a lot more and put forward many recommendations to fix Scotland’s “Victorian” justice system yet the reaction of the Scottish Government to Lord Gill’s damning indictment of Scotland’s civil justice system was to launch another review of Lord Gill’s review, which I reported on here : Scottish Government delay reforms on costs of litigation & access to justice as Minister announces 18 month 'time wasting' review by retired sheriff.

Many of the same failings of the civil justice system are also true of Scotland’s criminal law system, which is clearly out of touch on many occasions with human rights issues, so out of touch the Supreme Court also had to correct the rights of accused to be able to consult a solicitor when being interrogated by Police, as occurred in the Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf) ruling which caused similar huffing & puffing from Mr Salmond & Mr MacAskill, who were apparently keen to maintain the lack of such rights to accused, before the Supreme Court’s ruling.

A review of a very damning review and attempts to restrict the rights of individuals already accepted across Europe does not inspire confidence in the need to update a justice system Mr Salmond claims is already fair and should be its own final arbiter.

PREJUDICED, RESTRICTIVE, SELECTIVE.

Do you need legal aid to fund legal representation ? Whether its a civil or even a criminal case, the Scottish Legal Aid Board may very well refuse it, clearly hindering your right to a fair hearing or a fair trial. Legal Aid refusals appear to be based more on personal prejudices of some in the justice system rather than whether a case stands a chance of success or not.

Don't have a lawyer ? then don't expect to get into court, and expect a lot of grief if you try to do it. Try taking a civil case to the Court of Session as a party litigant after being denied legal representation simply because solicitors do not wish (for a variety of reasons including orders from on-high) to progress your case. Never has a class of litigant been so prejudiced in the entire UK as party litigants are in Scottish courts. The eyes of the £200,000 a year judge and equally costly defending counsel before you in the court say it all “Why does this person exist. What gives this person the right to intrude into our cosy club and challenge our right to stand here with the full backing of the legal establishment and decide who should come before us.”

EVEN A LITTLE CROOKED.

From the Law Society personally targeting the lives of those who complain against their solicitors, to our judges being controlled by male prostitutes, to Police Officers leaking data to criminals to fingerprints being planted at murder scenes, to lawyers getting away with legal aid fiddles, to the law itself being manipulated by its servants to bring charges against individuals, one may argue the Scottish justice system is a lot more crooked than the media can keep up with all the scandals requiring exposure.

OPEN TO POLITICAL MANIPULATION.

The Lockerbie Trial, and the controversy that will never go away over the hearings at Camp Zeist and the subsequent conviction of Abdelbaset Al Megrahi for the bombing of Pan Am Flight 103 over Lockerbie, Scotland in December 1988. Just imagine what may have happened if, rather than being conveniently released on compassionate grounds by Justice Secretary Kenny MacAskill, who was obviously keen on avoiding making the Scottish Court of Appeal look even more a fool than it is, Abdelbaset Al Megrahi had finally been able to take his appeal to the Supreme Court in London ? If the court had ruled in his favour and quashed his conviction, how much huffing & puffing would the First Minister and Justice Secretary done in that event ?

RACIST.

In the case of Surjit Singh Chhokar, the Crown Office was and still is, branded as “institutionally racist”. There is little doubt race and racial discrimination places a huge part in Scotland’s justice system today, no matter how many statistics the Crown Office may tout on hate crimes or race crimes.

As the Telegraph newspaper reported at the time : “SCOTLAND'S most senior lawyer announced sweeping reforms of the Scottish criminal justice system yesterday following the publication of two damning reports into the murder of an Asian man. Although the reports reached conflicting conclusions on institutionalised racism, both investigations uncovered serious mistakes by the prosecution service in its handling of the Surjit Singh Chhokar case.”

“Comparisons between the Chhokar case and that of Stephen Lawrence had been made following the acquittal of three men accused of murdering the Sikh waiter three years ago. Addressing the Scottish Parliament, Colin Boyd, the Lord Advocate, admitted that the legal system had "failed the Chhokar family" and offered his apologies to them. Mr Boyd accepted the findings of a report by Raj Jandoo, Scotland's most senior Asian advocate, which found evidence of institutionalised racism in the way police officers and the Procurator Fiscal dealt with the bereaved family.”

We all of course remember what happened to Scotland’s most Senior Asian Advocate Raj Jandoo after he wrote the report, BBC News reported Mr Jandoo was convicted of endangering an aircraft and breach of the peace for mentioning a bomb and being regarded as terrorist causing fear and alarm to passengers and crew. Meanwhile other [white] Scottish legal luminaries dragged off aircraft & charged with offences, had their charges dropped.

Racism is still very much alive in the Scottish justice system today.

SECTARIAN.

Surprise ! Even though no one wants to admit it, Scotland’s justice system is just as sectarian as those individuals or groups the Justice Secretary now seeks to legislate against with what will probably be poorly thought out laws rushed through the Scottish Parliament which may well end up being challenged on ECHR compliance later on, possibly in the Supreme Court once again.

According to a report authored by Dr Susan Wiltshire of Glasgow University for the Scottish Parliament’s Petitions Committee, there is firm evidence to show the Scottish Justice system is itself sectarian, holding harsher positions, verdicts & gives out longer term sentences against catholic defendants and other religious minorities than other groups who come before it on criminal (and quite possibly civil) matters, according to coverage from Scottish Law Reporter, available here : Report published by Holyrood Committee says justice system may be prejudiced against Catholics, confirms higher numbers in Scots jails.

The report, which msps were reluctant to publish, presumably because it revealed there were indeed sectarian issues in the Scottish justice system itself, can be downloaded from the Scottish Parliament’s website, here : Offender Demographics and Sentencing Patterns in Scotland and the UK: Research commissioned by the Public Petitions Committee in consideration of PE1073 (203KB pdf)

Is such a justice system worth defending when clearly it fails to serve Scotland and the Scottish people, rather only serving its own vested interests and of those who support it ?

First Minister Alex Salmond’s criticisms of yesterday’s Supreme Court ruling and his views on Scotland’s justice system being its own final arbiter are not consistent with the realty of justice in Scotland. Little wonder therefore that those who require a fair hearing in criminal or civil law should now look to the Supreme Court and even Europe because Scottish justice is unfair and all the things above.

Of course, Mr Salmond, you’d know all this anyway if you actually spent some time in the justice system yourself …

Scottish Government delay reforms on costs of litigation & access to justice as Minister announces 18 month 'time wasting' review by retired sheriff

Scottish Govt. Minister Fergus Ewing announces 18 month review of costs of litigation & justice in Scotland. THE SNP minority Scottish Government today stand accused of obstructing Scots access to justice by intentionally delaying reforms to the infamously staggeringly high costs of using Scotland’s justice system, after it was announced on Friday that a review of the costs & funding of litigation in Scotland, an area of major concern highlighted by Scottish judge Lord Gill in his 2009 Civil Courts Review, will finally take place ‘sometime after April 2011’, some two years after the Lord Justice Clerk severely criticised much of Scotland’s civil justice system which he himself branded “Victorian”.

However, those hoping for the Scottish Government to introduce speedy reforms as recommended in the Civil Courts Review to reduce the extortionate costs of getting to court or using any legal services in Scotland will be in for an even greater shock, as the review itself is to take a staggering e-i-g-h-t-e-e-n months to complete.

The announcement from the Scottish Government, made by the Minister for Community Safety, Mr Ewing, stated : “A review of the costs and funding of litigation in Scotland will be undertaken by Sheriff Principal James Taylor. This review was recommended by the Lord Justice Clerk, Lord Gill in his report of the Review of the Scottish Civil Courts. Sheriff Principal Taylor will begin the review when he retires from the bench in April. It is anticipated that the review will take around 18 months and the final report will be sent to the Scottish Ministers for consideration of further action, on completion.”

Mr Ewing, making an announcement one might normally expect from the Justice Secretary, said : "It is this Government's desire to make Scotland a forum of choice for litigation and to ensure Access to Justice for all Scotland's population. This review will better inform the costs of litigation, the barriers which prevent access to the courts for some and consider what alternative options there may in the context of the Scottish Civil Courts Review conducted by Lord Gill."

The terms of reference for the review announced by the Scottish Government are :

To review the costs and funding of civil litigation in the Court of Session and Sheriff Court in the context of the recommendations of the Scottish Civil Courts Review, and the response of the Scottish Government to that review. In undertaking this review, to:

* consult widely, gather evidence, compare our expenses regime with those of other jurisdictions and have regard to research and previous enquiries into costs and funding, including the Civil Litigation Costs Review of Lord Justice Jackson

* consider issues in relation to the affordability of litigation; the recoverability and assessment of expenses; and different models of funding litigation (including contingency, speculative and conditional fees, before and after the event insurance, referral fees and claims management)

* consider the extent to which alternatives to public funding may secure appropriate access to justice, and pay particular attention to the potential impact of any recommendations on publically funded legal assistance

* have regard to the principles of civil justice outlined in Chapter 1, paragraph 5 of the Civil Courts Review

* consider other factors and reasons why parties may not litigate in Scotland

* report with recommendations to Scottish Ministers, together with supporting evidence within 18 months of the work commencing

However, according to Scottish Government inside sources speaking to Diary of Injustice yesterday, the review when finally completed may have little or no impact or bring any real reductions in court costs because by the time its conclusions are handed over to Scottish Ministers by the end of 2012 at the earliest, possibly taking until 2013, inflation, higher legal fees, dwindling personal wealth & reductions in legal aid availability will combine with a whopping four or even five years on since Lord Gill made his initial recommendations in 2009 to put an end to any consumer hopes of lower costs of using Scotland’s “Victorian” justice system.

A court user & experienced party litigant commenting on the Scottish Government’s latest proposals branded the review as little more than a delaying tactic.

He said : "The latest proposal is just another example of the wilful delay which has previously been used by vested interests when defending the status quo.”

He continued : “First we had to wait many years for Lord Gill's Civil Court's Review, which is now 18 months old, now we have to wait for the Sheriff Principal to retire followed by a further 18 months for his review to be completed. No doubt this will be followed by yet further delay from Parliament, and all to investigate failings long since identified by the Scottish Public and a number of consumer organisations.”

“Given this record of procrastination some might credibly maintain that there is no sincere desire within the Legal and political communities to remedy the conspicuous defects of the Civil Justice System in Scotland, the powers that be preferring instead to engage in numerous 'window dressing' exercises.”

A consumer official who spoke to Diary of Injustice described the Scottish Government’s eighteen month review proposals as “an exercise in time wasting”. He also criticised the terms of the review, claiming it would not answer the root causes of high costs within the justice system or recommend effective solutions to the affordability of access to justice in Scotland.

He said “Everyone is well aware the costs of using the courts in Scotland are far too high. However, I really don't think Lord Gill had it in mind he would write his conclusions only to find after four years nothing would be done to remedy the financial burdens placed on those consumers seeking access to legal services in Scotland.

He continued : “People may well begin to believe, with good cause that the Scottish Government’s 18 month review of litigation costs is little more than an attempt to appease the legal establishment amid their concerns Lord Gill’s Civil Courts Review overreached itself and was overly critical of many lucrative areas of business in the courts. Personally, I have little faith in Mr Ewing’s review.”

Clearly there is no appetite in this Scottish Government for providing access to justice for ordinary Scots, who through bitter experiences of using the justice system are finding more often than not that access to justice is more like access to extortion. Perhaps Lord Gill may be well advised to speak out once again on the progress of civil justice reform.

BACKGROUND TO CIVIL JUSTICE REFORM IN SCOTLAND

The Lord Justice Clerk, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference last year, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Against the background of Lord Gill’s criticisms of Scotland’s “Victorian” civil justice system, in which some cases continue to be heard by judges some fifteen years after they first entered the court system, the current Scottish Government have a poor track record of responding to the many recommendations contained in Lord Gill’s 2009 Civil Courts Review, as I have previously reported, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests & here : Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’.

Sadly, many of the Scottish Parliament’s msps failed to push the SNP administration to address much of the 100 year plus malaise of Scotland’s civil courts system. Only a handful of Scottish politicians rose to the occasion to challenge the Scottish Government over Lord Gill’s recommendations. Video footage of those Holyrood debates on civil justice reform & Lord Gill’s Civil Courts Review can be viewed at LawyerTV.

Readers can find out more & download a copy of the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

• Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb)

• Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)

• Synopsis (215Kb)

My coverage of the Civil Courts Review from its publication to the present, and the pace of reforms to civil justice in Scotland can be found here : Civil Courts Review - The story so far.

Court Transcripts in Scotland : Prohibitive costs & profits are hindering Scots access to justice say litigants, lawyers & consumer groups

Lord Gill’s two year investigation of Scotland’s ‘Victorian’ Civil Justice system recommended major legal reforms. NEARLY two years on from a speech to a Law Society of Scotland conference in which the Lord Justice Clerk, Lord Gill branded Scotland’s civil justice system as “Victorian”, having structures and procedures of a century and a half ago & failing society and litigants, calls to act now & implement Lord Gill’s Civil Courts Review recommendations to digitally record evidence in all court cases are being made by consumers & legal insiders after several litigants, a solicitor and a consumer group agreed that the huge costs of court transcripts and the complicated, sometimes awkward procedures needed to go through to obtain them are effectively blocking Scots access to justice.

The Scottish Court Service were asked for information on how users could obtain copies of court transcripts. A Scottish Court Service (SCS) spokesperson said: "There is no published list of costs for court transcriptions. In many instances transcriptions are requested by the court and the costs are met by the SCS. Costs will vary according to the length and complexity of each transcription. There are also instances when an individual may seek a transcription. The procedure to follow in criminal cases is provided by statute in section 94 of the Criminal Procedure (Scotland) Act 1995. In these instances the applicant is liable for payment of the transcription costs and an estimate of that charge will be provided before hand. Currently, the standard rate for the transcription of one hour of court proceedings is £126."

Curiously, while Scots litigants appear to be having a harder time obtaining what are generally expensive transcripts of court hearings, which leading Scots QC Donald Findlay once described as “Bloody Awful” in terms of their quality in a Scotsman newspaper article, and which have been condemned in other circles as being incomplete, inconsistent and even omitting key evidence or rulings, court users in England & Wales apparently have an easier set of well publicised online procedures to follow for obtaining the same kinds of transcripts of court proceedings.

Not in Scotland : Court users in England & Wales can download a form (pictured) with costs & guidance on how to apply for court transcripts. While the Scottish Court Service currently do not publish costs for court transcriptions, court users in England & Wales need only visit the HMCS website to find the necessary forms and guidance on how to apply for court transcripts. These forms, which are of little use to Scots court users although readers may wish to download them to compare the services offered in the English courts to those of Scotland, can be found at the following links : EX107 Info (Guidance, transcription panel list and prices) & EX107 Tape Transcription Request

While most people generally assume recordings or transcripts of courtroom testimony are easy to come by, applying to the court for these highly prized verbatim accounts of courtroom activity is a far from clear exercise in Scotland, a fact confirmed by a litigant who spoke to Diary of Injustice yesterday, who produced letters confirming his legal team had informed him they were facing problems in acquiring transcripts of court proceedings in a long running action, where claims & counter claims disputing the accuracy of testimony & court interlocutors have arisen in an action which connects back to the legal profession itself.

In this digital age, it appears goings-on in the courts, particularly the Scottish courts have been left far behind in terms of the ability of the courts system to accurately and perhaps as importantly, within a sensible cost, record and make available access to transcripts to litigants, whether they be represented or unrepresented, a matter which was investigated by Scotland’s Lord Justice Clerk, Lord Gill during his two year study of the civil justice system.

Lord Gill recommended significant upgrades to the information technology although with the pace of change & reform in the Scots justice system being itself, “Victorian” it will come as no surprise Lord Gill’s recommendations have as yet, not been acted upon.

Lord Gill noted in Chapter 6 of his Civil Courts Review : “Currently where evidence is recorded in civil cases this is done manually by a shorthand writer. In our view it would be more efficient to record digitally all evidence in civil cases, as happens in criminal cases. The cost of this should be borne by the SCS. The availability of digital recording facilities in all courtrooms would contribute to more flexible usage of accommodation. We understand, however, that to equip a court fully for digital recording could cost up to £15,000. That may be prohibitive in smaller courts. Mobile facilities could be made available in those courts when required. If parties required a transcript of the evidence a charge would be made for this service. In many instances a recording of the evidence would be all that would be required.”

Lord Gill later concluded in his recommendations on the increased use of information technology, specifically on the recording of evidence that “All evidence in civil cases, apart from those under the simplified procedure should be recorded digitally.”

A party litigant who recently approached Diary of Injustice over the matter of the huge costs of court transcripts revealed he is facing a staggering bill for nearly nine thousand pounds to obtain transcripts of court hearings, a bill he cannot afford to pay. The litigant is not wealthy, has not been able to obtain legal representation, and does not have access to legal aid funding.

After studying the litigant’s case and letters exchanged with the pursuers, which appear to detail several differing views on what transpired in court, it does appear the litigant’s access to justice is being obstructed by the exorbitant costs of obtaining courtroom transcripts, where a cheap digital recorder purchased for a few pounds and used under supervision of the court, would have provided the litigant a verbatim record of actual events in court to assist the progress of his case. In my view, the litigant’s access to justice has been denied by the costs of the transcripts.

Another court user who has also encountered difficulties in obtaining transcripts commented : “One thing is certain, digital recording is ubiquitous and software transferring cassette recordings and converting these simultaneously into digital files has long been available. Simply put there should be no need for any cost to parties, far less denying them access to recordings of evidence in their own case.”

A solicitor who spoke to Diary of Injustice on the issue said he was aware of Lord Gill’s recommendations to digitally record all proceedings & evidence in civil cases. However he feared the judge’s recommendations would take ‘some time’ to be implemented or arrangements put in place where litigants could request a copy ‘without having to pay through the nose’ due to a general reluctance by the courts system to embrace new technology.

He said : “Lord Gill is certainly on the right track with his review, however the technology to digitally record for lengthy periods without causing undue fuss or diversion to the court process is now available to all at a considerably reduced cost than the services provided by those who transcribe the current system of recordings used in Scottish courts. With regard to civil actions such as damages claims, small claims etc, I personally believe party litigants should be able to take their own digital recorder into court and use it, depending of course on the circumstances & nature of the case.”

An official with one of Scotland’s consumer organisations speaking on the matter said he was aware of the difficulties & costs incurred by court users who sought copies of courtroom transcripts.

He said : “The current system of providing transcripts of court proceedings in Scotland to party litigants is unclear, complicated & costly to the point of discouragement. Such a set of circumstances has a negative impact on consumers access to justice. There must be a fairer & cheaper way of making transcripts available in cases especially where party litigants who are unrepresented in court because they cannot afford legal representation have a genuine need to obtain them. I would therefore urge the Scottish Government to deliver on Lord Gill’s recommendations in this area.”

BACKGROUND

The Lord Justice Clerk, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference last year, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Readers can find out more & download a copy of the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

• Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb)

• Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)

• Synopsis (215Kb)

My coverage of the Civil Courts Review from its publication to the present, and the pace of reforms to civil justice in Scotland can be found here : Civil Courts Review - The story so far.

Review of 2010 : Scots legal system ‘remains Victorian’, party litigants, court users & consumers face a continued battle for access to justice

Scotland’s Court of Session still rules over ‘Victorian’ justice system. WHILE 2010 has brought a few, welcome, if ever-so-slightly-forced-by-media-attention reforms & changes in Scotland’s creaking ‘Victorian’ civil justice system, there is still, undeniably a long way to go for the Scottish Government, Scottish Parliament & Scottish Courts in ensuring access to justice, legal services & access to the courts for all Scots, especially those who cannot obtain or afford the services & typically outlandish fees of law firms who offer little in the way of speedy dispute resolution or even a modicum of success in many common types of legal disputes.

Over a year and a half on since the high profile announcement & publishing of the Civil Courts Review, the two year plus investigation of Scotland’s civil justice system undertaken by the Lord Justice Clerk, Lord Gill, and the high hopes many pinned on a speedy implementation of the hundreds of recommendations made by the Lord Gill, many consumer organisations, court users, and even solicitors themselves see the past sixteen months as providing Scots with little more than a talking shop for justice reforms. I reported on the lack of developments on the Civil Courts Review back in August 2010, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests

Lord Hamilton enacted McKenzie Friends in Scotland 40 years after the rest of the UK had the facility. For instance, one of the few tangible-to-court-users reforms enacted to-date has been that of allowing McKenzie Friends to operate in the Court of Session, a right hard won after a campaign mounted by consumer organisations, campaigners, continued reporting by the media, an original recommendation by Lord Gill himself to allow McKenzie Friends, and all spurred on by a ruling in the Court of Session last November which eventually led to the Lord President, Lord Hamilton enacting an Act of Sederunt in June 2010, allowing Scots (who, in April 2010 he branded too ignorant to know what a McKenzie Friend is), a facility the English & Welsh courts & public had enjoyed for a full forty years before and it should be noted that Scottish Sheriff Courts are still to enact McKenzie Friends, expected eventually in February 2011.

Scots Judiciary’s new website – a welcome move in bringing transparency to the judiciary, but like scenery, you cant eat it. Some may say, oh but what about the new Judiciary of Scotland website, the new GUIDE FOR PARTY LITIGANTS ; “Raising & Defending ordinary actions in the Court of Session” (pdf), increased competition by way of the Legal Services (Scotland) Act 2010 (pdf) etc etc .. but after forty, fifty, sixty plus years, its just not enough to tinker with the curtains and hope everyone falls into line, proclaiming a new era in Scots justice, especially when the UK’s Supreme Court based in London, can, in a few hours, change Scots criminal law in an instant, as I reported in late October, here : Access to justice ? Scots criminal law changed by UK Supreme Court in a day, ‘Victorian’ civil justice reform proposals ‘growing older by the year’

There are, of course, some little gems from the new Judiciary of Scotland website, such as Scots now being able to see for ourselves how much the justice system costs us, despite most of us apparently not having access to it : Part-time Sheriffs beat full-time colleagues & senior judges in expenses claims as Scots judiciary finally publish judicial expenses online although again, these little gems appear to have been reared for publication after a dose of media attention and with the helpful assistance of Freedom of Information legislation.

The Scots judiciary’s shiny new website, as welcome as it is, has existed in an equivalent, perhaps better organised format in England & Wales for years, as well as the guide for party litigants, and the Scottish version Legal Services (Scotland) Act 2010 asp 16 (pdf) of the Legal Services Act (2007) for England & Wales has been so brutalised, butchered, twisted, tortured & re-written by the Scottish legal profession itself, eventually being passed by msps who were more concerned with doffing their caps to the Law Society’s influence in politics than the public’s right to justice, it has given Scots little more rights or choice against the legal services monopoly controlled by the legal profession after its near two year talking-shop passage in the Scottish Parliament.

Indeed, comparing the Legal Services (Scotland) Act 2010 asp 16 (pdf) and the Legal Services Act (2007) for England & Wales is like comparing a horse & cart to an Aston Martin DBS … with the Scottish Government & Parliament version giving the appearance of trying to fit the Aston’s Bridgestone tyres onto a wooden cart pulled by a donkey, such is the value they place on the Scots public’s access to justice and meanwhile the Law Society of Scotland was busy worming its way onto the Calman Implementation Group to ensure it had a say in giving the Scottish Parliament some tax raising (and doubtless expenses claims raising) powers, while also lobbying for the Society to be made an ‘approved regulator’, giving crooked lawyers an eternal Christmas.

In truth therefore, at the end of 2010, Scots access to justice, access to legal services or even access to the courts itself has changed little at the end of this year, with solicitors, advocates and law firms still effectively the gate keepers of the doors of justice, which remain so obviously closed in the face of anyone the legal profession doesn't care for, or takes a slight to.

Current Dean of the Faculty of Advocates Richard Keen called for Class Actions two years ago, little happened since. Whatever happened to multi-party actions (Class Actions) being speedily introduced to the Scots justice system so the legal profession could, under the clarion call (made two years ago in January 2009) of the Dean of Faculty of Advocates, Richard Keen QC, take on the might of the banks and allegedly represent & protect the interests of consumers so robbed by many of Scotland’s financial instructions who themselves coincidentally sponsor many events within the legal profession itself ? Nothing, that's what happened, nothing. Class Actions are still being talked about, talked about, talked about … with little movement made on the issue in the past sixteen months Lord Gill originally said Class Actions should become a reality and two years since the dean himself started shouting about it in the newspapers.

Of course, Mr Keen has been busy with other things since January 2009, such as representing the insurance industry against paying out damages in asbestos claims cases & challenging the new legislation (the Damages (Asbestos-related Conditions) (Scotland) Act 2009) which brought pleural plaques into the scope of asbestos claims. Mr Keen and the insurance industry, many of whom also coincidentally fund or have financial interests in the Law Society of Scotland’s Professional Indemnity Insurance scheme, the Master Policy, went onto lose their court challenge against the new asbestos compensation laws, as I reported at the beginning of the year, here : Lord Emslie defeats legal challenge over pleural plaques as Insurers ‘big name’ legal team fail to overturn Holyrood’s Asbestos compensation law

Just think if Scots could enter into Class Actions in such cases as asbestos claims, instead of victims having to approach only a few select law firms which end up dealing with the claims on a case by case basis while piling on the fees & time-to-claim-resolution to the point their clients end up dying before receiving any compensation. Of course, we are told it may come in 2011, or 2012 or 2013 … so as the clock ticks on and the years fly by, the next hope for developments in the long running saga of bringing Class Actions to Scotland, apparently lies with the considerations of the Civil Justice Advisory Group, under the chairmanship of the Right Honourable Lord Coulsfield. The CJAG is due to publish a report with recommendations for the way forward in early 2011.

Scottish Government eventually agreed to introduce Class Actions & other reforms to civil justice system ‘over years’. The Scottish Government, ‘ever swift’ to claim the high ground in all things Scottish, announced its intentions in late November to implement ‘some’ of Lord Gill’s Civil Courts review recommendations to reform the Scots ‘Victorian’ civil justice system, bringing Class Actions, a new tier of judge & ‘more effective’ case management to Scotland’s courts system, which I reported on here : Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’.

The Lord Justice Clerk, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference last year, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Lord Gill continued : "Unless there is major reform and soon, individual litigants will be prevented from securing their rights, commercial litigants will continue to look elsewhere for a forum for their claims, public confidence in the judicial system will be further eroded, Scotland’s economic development will be hindered, and Scots law will atrophy as an independent legal system.”

This is the 30th of December, 2010 and sadly little has changed, making 2010 another year that access to justice for all Scots was again, denied. Personally, I wouldn’t recommend anyone expect too much in the way of speedy reforms, unless campaigning is stepped up, along with perhaps a few public petitions, court rulings & media attention in 2011 to prompt changes & reforms which should have been introduced in Scotland decades ago, since everyone else had those same ‘reforms’ decades ago …

Readers are as ever, encouraged to download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

• Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb)
  
• Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)
  
• Synopsis (215Kb)

My coverage of the Civil Courts Review from its publication to the present, and the pace of reforms to civil justice in Scotland can be found here : Civil Courts Review - The story so far.

Whatever 2011 will bring for access to justice in Scotland, I will continue to report …

Law Society & Scottish Government co-host European Civil Justice Day event while Scots civil justice reforms remain stuck in “Victorian” era

Law Society of Scotland & Scottish Government host latest talking shop on civil justice reforms. MONDAY of this week saw the Law Society of Scotland & Scottish Government co-host an event to mark European Civil Justice Day (25th October), an incredibly audacious feat on the Law Society/Scottish Government’s part, considering Scots still find themselves caught in the same “Victorian” civil justice system which came in for sharp criticism by the Lord Justice Clerk, Lord Gill in his Civil Courts Review, itself now more than a year on from publication.

McKenzie Friends reform only saw light of day because of Holyrood petition. However, one year on from the Civil Courts Review, only one significant civil justice reform has been implemented – that of McKenzie Friends (lay assistants), which was itself forced through the Parliament by an intense consumer backed campaign surrounding Petition 1247 (McKenzie Friends for Scotland), filed by Perth-based law reform campaigner Stewart MacKenzie, and a November 2009 court ruling by Lord Woolman allowing Scotland’s first civil law McKenzie Friend in the case of A1628/01 Wilson, Martin v North Lanarkshire Council. & C Simpson & Marwick.

My earlier report on the one year anniversary of the Civil Courts Review can be viewed here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests

Council of Europe. The EU’s own press release for this year’s European Civil Justice Day 2010 states : “The European Day for Civil Justice is celebrated around the 25 October 2010. It aims to bring justice closer to citizens, to inform them on their rights and to to promote the work of the European Commission and of the Council of Europe in the field of civil justice, through simulation of procedures and information sessions. This day is open to all European citizens, students and people who work in the field of justice.”

“The Council of Europe invites representatives from the European Commission for the Efficiency of Justice (CEPEJ) for information about their projects in their respective countries. The Secretariat of the CEPEJ and the Deputy Secretary General of the council of Europe will participate in the main event, organised by the Ministry of Justice of Slovenia in Ljubljana, on 25 October 2010. During this event, the Crystal Scales of Justice Prize will be awarded.”

While the Scottish Government chose not to issue a media release on the £35+ per person event, held on Monday 18 October at Victoria Quay, Edinburgh, (presumably because, according to one Justice Department insider, they didn’t want ordinary citizens attending the event) the Law Society of Scotland reported in their own press release (one could be forgiven for thinking looked like a Scottish Government release), and featured the comments of Communities Safety Minister Fergus Ewing, who again apparently stood in for the Justice Secretary Kenny MacAskill in terms of prepared comments.

Fergus Ewing, Minister for Community Safety delivered the opening address at the event at Victoria Quay, Edinburgh, giving legal practitioners up to date information about existing and proposed EU legislation and other initiatives relating to civil justice. Mr Ewing said : “Today is the first time that a purely Scottish event to mark the European Day of Civil Justice has been held. Cross-border co-operation in civil justice improves the lives of the citizens of Scotland, as it increases their confidence in the civil justice system and their belief that it is working in their interests. It also brings economic benefits, by helping to encourage people to come to Scotland to live and work and making it easier to do business across national boundaries. The Scottish Government is therefore very much committed to it.

Mr Ewing continued : “The Scottish Government’s aim is to ensure that existing EU instruments are implemented effectively in Scotland, and that any new initiatives take proper account of Scottish circumstances. Close co-operation with practitioners is an important part of that process.”

Julia Bateman, head of the UK Law Societies’ Brussels office said: “European Civil Justice Day was established in 2003 by the European Commission and the Council of Europe to take place in October each year to bring justice closer to citizens, to inform them on their rights and to promote the work of the European Commission and of the Council of Europe in the field of civil justice.”

She continued : "Civil law is part of daily life for people across Europe — at work, when they get married, have children or buy goods and services within the single market. The increased mobility of people and business across national boundaries means that it has an increasing cross-border dimension. This event is aimed at raising awareness among practitioners of the mechanisms that exist in the EU to help secure legal rights and obligations across national boundaries. It also presents an opportunity for those whose work is influenced by EU policy and legislation to share information and learn about forthcoming proposals.”

According to the Law Society’s own media release, the joint event with the Scottish Government was intended to alert those who offer advice on the variety of ways they can themselves keep up-to-date with EU legislative developments, including the various services offered by the Society’s Brussels Office and by the EU and International Law Team at the Scottish Government.

Speakers also discussed a range of topics including debt recovery and enforcement (throwing people out of their homes, repossession etc on behalf of loan sharks) ; succession law (making the most of defrauding deceased client’s wills & getting away with it) and family law (encouraging as many divorces & custody battles as possible). Tools designed to simplify the provision of cross-border legal advice such as the e-justice portal were also highlighted.

An attendee of the meeting said today : “It was just another talking shop with a ministerial appearance thrown in for the Law Society to show their members they still matter. Almost embarrassing to attend, considering here we are over a year on since Lord Gill’s civil justice review with nothing to show for it.”

An official with one of Scotland’s consumer organisations said this evening : “Civil law may well be part of daily life for people across Europe but the fact is here in Scotland if the legal profession decides consumers should not be represented on a particular issue or case, consumers are effectively being denied access to justice, something which appears to be happening with increasing frequency in the Scottish civil justice system.”

You can read my earlier coverage of the Civil Courts Review here : Civil Courts Review - The story so far and decide for yourselves just how fairly Scots are treated in terms of access to civil justice, or for that matter, access to any justice …