FACULTY RESIGNATION: Gordon Jackson resigns as Dean of the Faculty of Advocates - after video footage reveals top QC named two of his client’s accusers in train while talking about Alex Salmond sexual assault trial

Gordon Jackson steps down as Dean of Faculty of Advocates. SCOTLAND’S most senior QC has stood down from his position as Dean of the Faculty of Advocates after video footage published by the Sunday Times revealed remarks he made about his client Alex Salmond - and his accusers.

Gordon Jackson QC said on Friday last week, he was standing down as Dean of the Faculty of Advocates - because he is now under investigation for professional misconduct after he ‘self-referred’ his actions to the Scottish Legal Complaints Commission (SLCC).

In a statement published by the Faculty of Advocates on their Twitter feed, Mr Jackson said: “I have intimated my decision to resign as dean of the Faculty of Advocates, with effect from 30 June, at the latest.”

“It would not, however, be appropriate for me to remain as Dean at a time when the Faculty was considering disciplinary proceedings regarding my conduct.”

“Accordingly, if, before that date, the Scottish Legal Complaints Commission remits the recent complaint for consideration by the Faculty’s Complaints Committee, I will stand down as Dean immediately. I do not intend to make any further comment.”

It is thought the Scottish Legal Complaints Commission will eventually send the complaint to the Faculty’s Complaints Committee for consideration - as has previously occurred in complaints made to the SLCC against advocates.

However - the SLCC’s complaints process are known to many as biased, toothless and tediously slow - and it is still possible Jackson may survive as Dean of the Faculty until the 30 June date offered in his resignation statement unless he steps down of his own accord as is reflected in his statement.

The position as head of the Faculty of Advocates is one of the most coveted and influential roles in Scotland’s legal system - bringing with it responsibility for discipline of all Advocates, influence over how legislation is framed by the Scottish Government and Scottish Parliament - and what many perceive as an ‘ownership’ of the selection process for Scotland’s top prosecutor – the Lord Advocate.

Gordon Jackson QC succeeded Scotland’s current top Law Officer Lord Advocate James Wolffe QC to the role of Dean of the Faculty of Advocates in 2016.

Gordon Jackson - once a Scottish Labour MSP, member of the Scottish Parliament’s Justice Committee, and who has represented among others, members of Scotland’s criminal underworld, and politicians - will continue working as a QC after stepping down as dean of the Faculty of Advocates.

In the video footage published by the Sunday Times - Alex Salmond, the former SNP leader and client of Gordon Jackson - was referred to as “a sex pest” and an “objectionable bully” - before being acquitted of all charges in his sex offences trial last week.

During the video footage, Gordon Jackson also names two of the women who alleged sexual assault by Salmond, despite strict rules that protect the anonymity of women in alleged sexual offence cases.

During the filmed conversation, Jackson mentioned his strategy for cross examination of one woman in the trial of Mr Salmond as being "All I need to do is put a smell on her."

On March 29, Rape Crisis Scotland issued a statement in connection with media reports of Mr Jackson’s comments:

A spokesperson said: “Protecting the anonymity of all people who report sexual crimes is of critical importance and is one of few reassurances that can be offered as part of an otherwise daunting and intimidating process. For this to be undermined by such a senior lawyer in a public place in such a high-profile trial is horrifying and completely unacceptable.

Jackson is Dean of the Faculty of Advocates and we cannot see how this behaviour – caught on film – is in keeping with the Faculty of Advocate’s own guidance on conduct. There should be an immediate investigation.

One of the most chilling aspects of this is Jackson’s statement about his strategy for the cross examination of one of the women in the trial: “All I need to do is put a smell on her.” This statement alone confirms the fears of many, many survivors who do not report for fear of what would be done to them in court. Trials should be based on evidence, not on smears and attacks on character. We need an urgent overhaul of how these cases are dealt with.”

TOP JUDGE - SCRAP JURIES: Scottish Government’s attempt to abolish jury trials during coronavirus outbreak put on hold after outcry from legal profession & politicians

Lord Carloway - scrap most juries during virus outbreak. AN ATTEMPT by Scotland’s top judge and the Scottish Government to ‘temporarily’ axe jury trials as part of emergency Coronavirus legislation – was withdrawn from legislation passing Holyrood today - after the legal profession & politicians criticised the move.

However – the plan to axe juries in many trials – which Scotland’s Lord Justice General Lord Carloway attempted to justify as a method of ‘speeding up’ justice – has not been totally dropped by the Scottish Government.

Constitutional Relations Secretary Michael Russell told the Scottish Parliament that Ministers will revisit the issue of pushing through emergency reforms of the justice system at a later date.

Mr Russell  said further discussions would “allow an intensive and wide-ranging discussion by all interested parties, including victims, whose voice has not yet been fully heard, about the right way to ensure that justice continues to be done in Scotland”.

The emergency legislation being heard today (Wednesday) at Holyrood had proposed allowing judge-only trials for the most serious charges to “ensure that criminal justice systems can continue to operate during the coronavirus restrictions”.

Scotland’s top judge – Lord Carloway (real name Colin Sutherland) claimed axing juries would speed up justice and prevent a “monumental backlog”.

Lord Carloway said in a statement: “We will be facing a monumental backlog of solemn criminal trials once the current restrictions are lifted and trials can recommence. Unless action is taken to mitigate the impact of this, there will be substantial delays in bringing accused persons to trial. These are likely to stretch into years rather than months. The delays will be unprecedented in Scottish legal history. This will have many adverse impacts, including uncertainty for the accused, complainers and witnesses. Such delays will have a highly disruptive effect on their lives, and potentially on the wider system.”

However, the plan drew ire from many quarters, including even SNP politicians where Justice spokeswoman Joanna Cherry criticised the plan in a tweet – stating: "I don’t believe this is necessary. Trials being delayed is enough. This is the obvious compromise. The reality is that life is on hold for everyone."

Last night, John Mulholland, President of the Law Society of Scotland said: “We respect the fact that the public health threat posed by Covid-19 has presented government with an unprecedented challenge. However, it should not limit our responsibility for ensuring proper scrutiny of measures proposed and an understanding of the impact they may have.

“Juries have been an important principle of the Scottish Criminal Justice system for hundreds of years. To remove this provision for the most serious of crimes would be a significant step and have major implications. We fully appreciate the desire to avoid any backlog in cases which might interfere with the proper administration of justice. However, we have not reached that point and so there is not sufficient justification to warrant trials without jury for serious criminal offences. We believe the case for taking such an extraordinary measure has not been made.

“We have taken this view after consulting with many of the most experienced solicitors in criminal law and those with direct experience of serious criminal cases. There is deep concern, right across the legal profession, at the reform being proposed.

“We want to continue to work positively with the Scottish Government around the changes which are necessary to our justice system to deal with the spread of Covid-19. The past few weeks have proved that we need to be flexible and responsive to emerging situations and creative in our solutions. There are provisions within current legislation which allow flexibility and it is important that these are explored fully before additional measures are introduced.”

And in an updated statement today, the Law Society of Scotland President said: “I am reassured that the Scottish Government has listened to the concerns raised by the Law Society on behalf of our members about the possibility of allowing trials to take place without a jury in the most serious of cases. I would like to thank all our members who took the time to provide their views on this fundamental issue. We look forward to engaging positively with the Scottish Government and partners as they investigate practical ways to ensure that justice can continue to be carried out effectively during the outbreak."

responded to the withdrawal of the jury axe proposal, saying: “I am reassured that the Scottish Government has listened to the concerns raised by the Law Society on behalf of our members about the possibility of allowing trials to take place without a jury in the most serious of cases.”

The Scottish Government also took the opportunity to use the Coronavirus bill to extend deadlines for Freedom of Information responses – from 20 days to 60 days – however in another concession from the Scottish Government after criticism from the Libdems & Scottish Greens - Europe minister Jenny Gilruth announced amendments will be tabled to address concerns over the extension of the deadline for FOI requests.

The ‘temporary’ nature of the measures announced today can be legally enforced for the next 18 months, a term that would include the need for Parliament to agree to two separate six-month extensions.

Lord Carloway’s proposal to axe juries in most trials can be read in full, below: LJG response to Coronavirus Bill 

The Lord Justice General has made a statement in response to the Coronavirus (Scotland) Bill introduced in the Scottish Parliament today.

In his statement, the Lord Justice General said: "The Coronavirus (Scotland) Bill introduced in the Scottish Parliament today contains provisions relating to the justice system. Some of these measures impact on long-standing and well-established elements of the system designed, in normal times, to form part of a suite of protections and safeguards for all those participating in, or affected by, the administration of justice. They are not to be altered lightly.

"These are not normal times. My overriding concern is to ensure that, in these extreme circumstances, we can continue to preserve the fair, effective, and efficient administration of justice, in the hope that we can facilitate the return to normal operations as early as is possible.

"The most noteworthy proposal in the Bill is that which would allow for solemn trials to be heard without a jury; with the verdict determined instead by a judge or sheriff. This would represent a significant, if temporary, change to the way the courts conduct business.

"I would like to set out the rationale for this, from the perspective of the judiciary and courts. We will be facing a monumental backlog of solemn criminal trials once the current restrictions are lifted and trials can recommence. Unless action is taken to mitigate the impact of this, there will be substantial delays in bringing accused persons to trial. These are likely to stretch into years rather than months. The delays will be unprecedented in Scottish legal history. This will have many adverse impacts, including uncertainty for the accused, complainers and witnesses. Such delays will have a highly disruptive effect on their lives, and potentially on the wider system.

"The scale of the potential backlog is very daunting. At a conservative estimate, the backlog will be over 1000 trials, on the optimistic assumption that the restrictions are lifted by the start of the summer. Before the current crisis began, measures were already being put in place to help the High Court process an unprecedented number of new indictments each year. The increasing levels of prosecution would have stretched the Court’s capacity to its limits. This new challenge threatens to overwhelm the system. Jury citation will prove difficult and take longer, in a country recovering from high sickness rates, schools and public services re-commencing, business recovering after lengthy staff absences and people taking missed holidays after lengthy restrictions.

"Anything that can be done, therefore, to address the forthcoming backlog will help avert a critical logjam in the system in the period of recovery once restrictions are lifted. Of course some form of time limitation on this measure is required, although it would be needed for all of the period during which the country recovers from the full effects of the current suspension of trial business in the courts. 

"Ultimately, Parliament must decide how it wishes to maintain public confidence in our justice system and allows the courts to continue to administer justice effectively. This means balancing the legitimate concerns about removing juries for a time-limited period against the potential for excessive delay and disruption of the system that the backlog will cause. My concern is that the potential delay and disruption, if mitigatory measures are not taken, may be so severe that it will compromise the effective administration of justice for some years to come."

Media Notes:

This is a Parliamentary Bill introduced by the Scottish Ministers and it will be for them to draft any regulations further to the Bill’s passage, including when and how the measure discussed in the statement might be used.

The Lord Justice General has explained that “ultimately Parliament must decide how it wishes to maintain public confidence in our justice system and allows the courts to continue to administer justice effectively”.

JUDICIAL REGISTER: Holyrood Justice Committee to continue work on register of judges’ interests – MSPs to seek evidence from constitutional experts & report on conflicts of interest of key stakeholders in the justice system

MSPs to continue work on judicial register. THE Scottish Parliament’s Justice Committee will continue work on a cross-party backed petition calling for the creation of a register of interests for all Scottish judges: Petition PE1458: Register of Interests for members of Scotland's judiciary.

On Tuesday, members of the Justice Committee voiced their support for the plan to create a judges’ register of interests – despite intense opposition from Scotland’s top judge Lord Carloway – who refused to face questions from MSPs on judges’ interests .

Justice Committee members also decided to seek evidence from constitutional and academic witnesses – and briefings on the extent of conflicts of interest relating to key stakeholders in the Scottish justice system.

During the hearing, John Finnie MSP said: “The debate seems to be polarised. The petition has been open for a considerable number of years, and an issue remains. The public would expect some measure of accountability.”

“I note the comments about intrusion into the independence of the judiciary, and I wonder if there is any opportunity to investigate that further as a way forward. I am conscious that the petition has been around for a long time.”

James Kelly MSP said: “Over the period for which the committee has been examining the issue, I have become convinced by the case for a register of interests for the judiciary.”

“I note the responses from the cabinet secretary and Lord Carloway; there is clearly a bit of a stand-off here. Members’ suggestions of taking additional evidence to take the issue forward are sensible. We should not park the issue; it is important and we should continue to press it.”

Rona Mackay MSP said: “It is a very important issue, and it will not just disappear. As a committee, we should investigate it further and take some wider evidence to inform our views. I would be in favour of doing that at this stage. Albeit that we have—as John Finnie says—reached an impasse, it is incumbent on us to take a wider look.”

The move by the Justice Committee comes amid strong and continued opposition to the judicial transparency proposal from Scotland’s top judge – Lord Carloway, and Justice Secretary Humza Yousaf who both oppose any moves to require judges to disclose their interests in the same way others in branches of government, boards and all 129 MSPs disclose and register their interests.

Earlier this week, MSPs were provided with evidence from a senior Justice of the Peace that the official Register of Judicial Recusals – created by former Lord President Lord Brian Gill – was an incomplete record of conflicts of interest in Scotland’s courts.

Writing in a letter to the Justice Committee Convener, Justice of the Peace Dennis Barr said: “We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.”

The startling admission from Mr Barr - that judges were told by Scottish Courts and Tribunals Service (SCTS) staff - that any cases where Justices of the Peace stood down from a court case due to conflict of interest - would NOT be recorded - completely undermines assurances to MSPs from retired top judge Brian Gill, and current Lord President Lord Carloway – that the recusals register was an accurate register of Scottish judges standing aside from cases due to conflicts of interest.

Mr Barr’s evidence to the Justice Committee was reported in further detail here: INJUSTICE OF THE PEACE: Judge admits Scottish Courts concealed conflict of interest recusals - Justices of the Peace were told by Court staff any cases where JP judges decided to step down from court hearings - would NOT be recorded in official register of judicial recusals

Continued opposition from the Scottish Government to the judicial transparency proposal – in the form of a letter from Justice Secretary Humza Yousaf to the Justice Committee, is reported in further detail here: NO, MINISTER: Justice Secretary claims Holyrood transparency legislation for register of judges’ interests - would undermine top judge who refused to meet Justice Committee on EIGHT YEAR judicial register petition

The Justice Secretary claimed that adding the requirement of judges to declare their interests could undermine Scotland’s top judge and intrude on the judiciary’s independence – similar arguments which have been constantly put forward by the Scottish Government & judiciary to the Public Petitions Committee – who investigated the petition for over six years and backed the plan to create the judicial register.

Further reporting on the register of judges’ interests petition and conflicts of interest of Scottish judges can be found on STV News here: Judging for ourselves if conflict of interest in courts and here: Scots judges facing pressure to declare their interests

The cross party backed judicial register petition filed 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.

Minutes of the meeting of Tuesday’s Justice Committee reveal the following decision:

Public petition PE1458: The Committee considered various pieces of correspondence received in relation to its ongoing consideration of the petition. The Committee agreed to keep the petition open and to seek further oral evidence in due course, in round-table formal, from constitutional and academic witnesses.

The Committee also agreed to seek further written briefings from the Scottish Parliament Information Centre (SPICe) in relation to other potential conflicts of interests relating to key stakeholders in the Scottish judicial system. The Committee will consider the scheduling of this work as part of its work programming up to spring 2021.

Video footage of Tuesday’s hearing can be viewed here:

Register of Judges Interests Petition PE1458 Justice Committee 10 March 2020

Judiciary (Register of Interests) (PE1458)

Margaret Mitchell (Central Scotland) (Conservative) Convener:  Agenda item 7 is consideration of petition PE1458, which is a proposal to establish a register of judicial interests. I refer members to paper 4, which is a note by the clerk. Do members have any questions or comments?

John Finnie (Highlands and Islands) (Green): We have had some very interesting contributions from the Cabinet Secretary for Justice and from various representatives of the judiciary, as well as comments on each of those from the petitioner.

The debate seems to be polarised. The petition has been open for a considerable number of years, and an issue remains. The public would expect some measure of accountability. I note the comments about intrusion into the independence of the judiciary, and I wonder if there is any opportunity to investigate that further as a way forward. I am conscious that the petition has been around for a long time.

I am supportive of the principle, and I note everything that has been said. However, we seem to have hit an impasse. I am keen to hear the views of different people—constitutional lawyers, for example.

Liam McArthur (Orkney Islands) (LD): I agree with John Finnie. Intuitively, I am supportive of the idea of a register. However, I do not underestimate some of the concerns that have been raised by the cabinet secretary and representatives of the judiciary—particularly on the independence of the judiciary.

The debate is rather polarised, and it is difficult to see where compromise might be possible. However, I wonder whether we might proactively elicit views from academics in the area, with a view to testing some of the arguments that they made to us in their helpful evidence.

Rona Mackay (Strathkelvin and Bearsden) (SNP): It is a very important issue, and it will not just disappear. As a committee, we should investigate it further and take some wider evidence to inform our views. I would be in favour of doing that at this stage. Albeit that we have—as John Finnie says—reached an impasse, it is incumbent on us to take a wider look.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP): It is clearly an important issue, which merits our having a conversation or a discussion about it in the committee.

On principle, as the petition has been in the system for eight years, we should take evidence with a view to bringing the matter to a conclusion. It is not fair to have petitions in the system for that length of time without bringing them to some kind of conclusion. However, I would be happy to hear evidence on it.

James Kelly (Glasgow) (Lab): Over the period for which the committee has been examining the issue, I have become convinced by the case for a register of interests for the judiciary. I note the responses from the cabinet secretary and Lord Carloway; there is clearly a bit of a stand-off here. Members’ suggestions of taking additional evidence to take the issue forward are sensible. We should not park the issue; it is important and we should continue to press it.

The Convener: I should note that there is a petition that we have been dealing with for in excess of eight years—the Megrahi case petition. However, as members have said, it is not an ideal situation. Given the impasse and the diametrically opposed views, does the committee wish to seek further information on the record in a formal meeting with constitutional lawyers and others, in an effort to move forward and with a view to looking at the pros and cons of the petition? We could then take a formal decision on it. We could also ask the Scottish Parliament information centre and the clerks for a note on the wider issues, perhaps even taking into account any conflict-of-interest issues that might have a bearing on how court decisions are taken.

Liam McArthur: I agree with that. Such an evidence session might be better using a round-table format, rather than having a more traditional evidence session. Due to the fact that the cabinet secretary and, previously, the petitioner referred to the situation in New Zealand, which has now taken a different course, it would certainly be useful in the information that is to be provided by SPICe to have an understanding of the thought process that the New Zealand Parliament went through to arrive at the decision that it reached in relation to the same issue.

The Convener: Are we all agreed that that is the way forward?

Members indicated agreement.

The National reported on developments at the Justice Committee here:

 Scottish judges and government on collision course over interests register

By Martin Hannan The National 11 March 2020

THE Justice Committee of the Scottish Parliament is on a collision course with the Scottish Government and leading Scottish judges after the Committee voted to continue its inquiries into the possibility of legislation to set up a register of the financial and other interests of judges.

Lord Carloway, Scotland’s senior judge, and justice secretary Humza Yousaf both told the committee by letter yesterday that they were opposed to such a register, indicating that the petition for such a register raised in 2012 by journalist and law blogger Peter Cherbi should now be dropped.

The Committee decided otherwise, however, and agreed to keep the petition open and to “seek further oral evidence in due course, in round-table formal, from constitutional and academic witnesses”.

The Committee also agreed to seek further written briefings from the Scottish Parliament Information Centre (Spice) in relation to “other potential conflicts of interests relating to key stakeholders in the Scottish judicial system”.

In a surprise move directly against the wishes of Yousaf and Carloway, the Committee agreed to consider the scheduling of this work as part of its work programming up to spring 2021.

Yousaf had told the Committee: “I would caution however that if such a register were to be established by way of legislation, rather than through the powers of the Lord President, this may be perceived as undermining the principle of judicial independence and the separation of powers between the judiciary and other branches of government.”

Yet Carloway, the Lord President and Lord Justice General, has long made known his opposition to such a register, and he told the Committee in his letter that he would not be attending to give his views.

Speaking at yesterday’s meeting, John Finnie MSP said the debate on the issue had become “polarised”.

He said: “There is an issue here that remains to be dealt with and I think the public would anticipate that there is some measure of accountability.”

Peter Cherbi told The National: “Noting the Justice Committee meeting today I am grateful to those MSPs who declared their support for the register of judicial interests – and all the MSPs who have previously worked on this petition to support it and advance the issue of judicial transparency

“Clearly the debate has become very polarised as John Finnie said during the hearing. This polarisation has come about because the judiciary are entrenched in their opposition to the same level of transparency which applies to all other branches of the executive.

“It is no accident this petition has lasted eight long years, where at every turn the judiciary have sought to undermine the petition at every hearing, invoke anyone, from government ministers to vested legal interests in an effort to shut down the petition and any debate on judicial transparency.

Sadly, the effort expended by judges against this petition, is an indication judges have something to hide and fear disclosure.”

UNCONVINCING TOP  SCOTS JUDGES WHO REFUSED TO BE TRANSPARENT:

Scotland’s 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”.

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

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

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.

INJUSTICE OF THE PEACE: Judge admits Scottish Courts concealed conflict of interest recusals - Justices of the Peace were told by Court staff any cases where JP judges decided to step down from court hearings - would NOT be recorded in official register of judicial recusals

Court staff concealed judges’ recusals from register. AN ENTIRE TIER of Scotland’s judiciary were told by Scottish Courts and Tribunals Service (SCTS) staff that any cases where Justices of the Peace stood down from a court case due to conflict of interest - would NOT be recorded in an official Register of Judicial Recusals – according to papers released by Holyrood’s Justice Committee in relation to Petition PE1458: Register of Interests for members of Scotland's judiciary.

The recusals register - set up by a former top judge to record conflicts of interest leading to judges standing aside in court hearings - has until this year failed to publish recusals by Justices of the Peace – according to an admission by the Secretary of the the Scottish Justices Association (SJA) to Holyrood’s Justice Committee.

Writing in a letter to the Justice Committee Convener, Mr Barr – who is also a Justice of the Peace - admitted to unrecorded instances where he personally has stood aside in court cases – said “We have established that recusals by JPs do happen occasionally, but to date all such instances have been initiated by the JP themselves.”

Mr Barr also claimed in his letter Court staff had informed the Scottish Justices Association that any recusals by Justices of the Peace in cases of conflicts of interest - would not be recorded.

Mr Barr said: “If I may use myself as an example, I have recused myself on three separate occasions, sitting in the JP Courts in Glasgow over the past ten years, as I have personally known the accused. We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.”

The admission from the Scottish Justices Association comes amid an EIGHT YEAR probe by the Scottish Parliament in moves to create a register of judges’ interests.

The cross party backed judicial register petition filed 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.

The Register of Judicial Recusals was created in April 2014 by the then Lord President – Brian Gill – in an attempt to persuade to drop their investigation of a proposal to create a fully published register of judges interests.

However, Lord Gill deliberately excluded all Justices of the Peace (numbering around 300 judges) from the recusals register in 2014.

To this day, no convincing explanation has been offered as to why a significant number of members of Scotland’s judiciary were allowed to keep all their conflicts of interest secret from the public during court hearings.

And - only one recusal by a Justice of the Peace has since been recorded – coincidentally, just after the date of the Scottish Justices Association letter to Holyrood’s Justice Committee.

The recusal is listed as occurring on 04 February 2020 at Dumfries JP Court as "Of member's own accord - accused's family are known to the Justice"

The Scottish Parliament’s Justice Committee will hear Petition PE 1458 on Tuesday 10 March 2020, and will consider evidence submitted from the Scottish Justices Association.

Letter from the Scottish Justices Association to Margaret Mitchell MSP, Convener, Scottish Parliament Justice Committee

Dear Ms Mitchell,

Petition 1458 - Proposal to establish a register of judicial interests

With reference to both your letter to Mr Gordon Hunter, the Chair of the Scottish Justices Association, on 22nd November 2019, and his reply dated 24th November 2019 on the matter of Justice of the Peace (JP) recusals, I can now advise that we have investigated this matter further.

We have established that recusals by JPs do happen occasionally, but to date all such instances have been initiated by the JP themselves. If I may use myself as an example, I have recused myself on three separate occasions, sitting in the JP Courts in Glasgow over the past ten years, as I have personally known the accused. We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.

If, however, the court receives a formal motion from either the Procurator-fiscal or the defence agent then it must be recorded by the Clerk of the Court and details must be sent to the Judicial Office, where the information is collated on behalf of the Lord President. This formal notification is recorded irrespective of whether the motion for the recusal was granted or refused. This arrangement has been in place in the JP Courts since 2018.

It is evident from the pro-forma used by SCTS staff acting as Clerk of the Court, for recording such motions, that use of the pro-forma applies to all levels of the Judiciary in Scotland, including JPs. In discussions with SCTS in each of the six Sheriffdoms it became clear that nobody could recall the use of the pro-forma in any Scottish JP Court over the past two years.

I do think it important to stress that in principle JPs do consider themselves to be fully integrated members of the Scottish Judiciary and would seek to be subject to the same processes and procedures as other members. The lack of formal motions for the recusal of JPs is, we believe, more reflective of the fact that JPs are representative members of the community they live within and serve; and clearly wish to demonstrate their impartiality in the cases that come before them. The relative minor nature of the criminal cases heard by JPs may also be a factor, notwithstanding the fact that some cases may have a relatively high public profile.

I can assure you that all of the Sheriffdom Legal Advisors (SLAs), who sit alongside JPs in court, are aware of the requirement to use the standard pro-forma when a formal motion for a recusal is made. I am not aware of any formal recording of instances where a JP has recused themselves from a case, and thereby it would not be possible to provide the public with such details.

As far as the S JA believe, this policy of regarding self-recusals as informal administrative decisions, and thus not recorded, applies to all levels of the Judiciary in Scotland. To this extent we understand that we are treated in the same manner as Sheriffs, and indeed Senators, and it is an approach that we would vigorously support.

I hope that this clarifies the position, but if you do require any further information then I and all other members of the SJA Executive Committee would be very happy to assist.

Yours sincerely Dennis W Barr

Responding to Mr Barr’s letter to the Justice Committee, the petitioner provided further information to MSPs of the variance in how recusals of Justices of the Peace have not been recorded – and evidence where senior figures at the Judicial Office had misled enquiries on the issue of Justice of the Peace recusals.

Response to letter from Scottish Justices Association 27 January 2020

The Scottish Justice Association's view of how Justices of the Peace recuse themselves and how recusals are recorded, appears to contradict information previously provided on recusals by Justices of the Peace - by the Head of Strategy and Governance for the Judicial Office in material which I have previously provided to the Public Petitions Committee, and which has also been reported in the media.

In a query to the Judicial Office, I was informed on 21/12/2017:

"The JP courts will start reporting any recusals to us (Judicial Office) come January.  When we may see the first we don’t know until we get one of course.  But January we have asked them to start sending us any notes of recusals and that will be reported on our website.

I am in touch with the tribunal presidents but don’t yet know when we will be able to start reporting in this area.  I’ll hopefully have an update for you re timescales come mid-January on tribunals"

There are admissions in the SJA response of Justices of the Peace, including the author of the letter Mr Dennis Barr - recusing themselves from cases.

In the case of Mr Barr - he states "If I may use myself as an example, I have recused myself on three separate occasions, sitting in the JP Courts in Glasgow over the past ten years, as I have personally known the accused"

Mr Barr goes on to state: "We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded."

I draw members attention to my submission of 29 November 2017 - PE1458/JJJ to the Public Petitions Committee on the issue of Justice of the Peace which refer to communications between myself and the Judicial Office on JPs recusals. The Justice of the Peace issue was also reported in the media: Campaigner calls on Scotland's top judge to extend register of recusals

Justices of the Peace were excluded from the creation of the Register of Recusals in 2014 - despite making up the largest membership of Scotland's judiciary. No reason has been given for their exclusion.

Successive hearings by the Public Petitions Committee and requests for my response to Committee hearings, improved the coverage and content of the Register of Recusals over the course of this petition, however, not until 2018 and after communications with the Judicial Office were Justices of the Peace included in the recusals register,

There is only one single published recusal of a Justice of the Peace - coincidentally - which was published in the recusals register at Judicial-Recusals - Judiciary of Scotland after the SJA's letter to the Justice Committee of 27 January.

The recusal is listed as occurring on 04 February 2020 at Dumfries JP Court as "Of member's own accord - accused's family are known to the Justice"

Mr Barr states in his response to the Justice Committee: "I do think it important to stress that in principle JPs do consider themselves to be fully integrated members of the Scottish Judiciary and would seek to be subject to the same processes and procedures as other members."

I feel the time has come to ensure JPs recusals are formalised and properly published in the same way as recusals of other members of the judiciary which have been published since April 2014..

Justices of the Peace - who comprise a significant number in the total membership of Scotland's judiciary, should be included in a publicly available register of judicial interests.

In January 2019, DOJ reported on the lack of any published recusals involving Justices of the Peace in Scotland, the article can be found here: THE UNRECUSED: Mystery as 450 Justices of the Peace fail to register one single recusal in a full year after conflict of interest rules change for Scotland’s secretive army of lay magistrates

In response to media enquiries last year - the Judicial Office claimed it had not been informed of any recusal motion by any of Scotland’s Justices of the Peace.

The Judicial Office said: “We have received no notification of a JP recusing themselves from a case since the guidance came into force, which was in January 2018”

In response to further enquiries for information relating to any refusals of Justices of the Peace to recuse, the Judicial Office stated: “We are to be informed if a formal motion for recusal is granted or refused, or if the Judicial Office holder decides at their own accord to recuse.  Nothing has yet been reported to us.”

However – the admission in the letter from the Scottish Justices Association to the Justice Committee throw previous claims of not being informed of judicial recusals into doubt.

Guidance requiring Justices of the Peace to declare conflicts of interest and recuse themselves from court hearings came into force in 2018 after calls for JPs to be brought into line with rules of recusals which apply to the remainder of Scotland’s judiciary.

This guidance was created after a report on DOJ here: DECLARE YOUR JUSTICE: Judicial Office consults with Lord Carloway on including Justices of the Peace in Register of Judicial Recusals - as questions surface over Lord Gill’s omission of 500 JPs from judicial transparency probe.

In an UPDATE to this article, the National featured a report on evidence submitted to the Scottish Parliament’s Justice Committee ahead of the hearing on Tuesday 10 March.

Battle for Scottish judges to register interests in court cases

By Martin Hannan The National 10 March 2020

ALMOST eight years since it was registered, a public petition to the Scottish Parliament calling for a system in which judges must register their financial and other interests reaches a crunch point today.

Journalist and law blogger Peter Cherbi first registered his petition in 2012 and it has been supported by both the Petitions and Justice Committees at Holyrood.

It is the latter committee which will meet today to discuss comprehensive refusals to start such a register made by both Justice Secretary Humza Yousaf and Scotland’s most senior judge and head of the judiciary, Lord Carloway, the Lord President of the Court of Session and Lord Justice General.

The latter’s predecessor, Lord Gill, agreed in 2014 that a register of judges’ recusals – when a judge stands aside because of a perceived or actual conflict of interest – would be kept.

The National can reveal, however, that this register has NOT been kept for Scotland’s 250-plus Justices of the Peace (JPs) despite assurance by the Judiciary Office that it would be. According to a leading JP, that’s because they don’t have to.

In a letter to the Justice Committee, Dennis Barr, secretary of the Scottish Justices Association states: “If I may use myself as an example, I have recused myself on three separate occasions sitting in the JP courts in Glasgow over the past ten years, as I have personally known the accused.”

Barr goes on: “We have been advised by Scottish Courts and Tribunals Service (SCTS) staff, that in instances where the JP has initiated the recusal themselves, it is treated as an informal administrative decision not to sit in a particular case, and as such is not recorded.”

Peter Cherbi commented: “I was assured in 2017 that such a register would be kept. The register of recusals was created in April 2015 by the then Lord President – Brian Gill – in an attempt to persuade MSPs to drop their investigation of a proposal to create a fully published register of judges interests. However, Lord Gill deliberately excluded all Justices of the Peace.

“To this day, no convincing explanation has been offered as to why a significant number of members of Scotland’s judiciary were allowed to keep all their conflicts of interest secret from the public during court hearings.”

Cherbi is adamant that a register of interests is necessary and is hopeful the committee will carry on with it despite Humza Yousaf ‘s opposition. Yousaf says that it is “not necessary”, while Lord Carloway stated: “I remain of the view that, from the constitutional perspective, the extent of any monitoring of judicial conduct, including judges’ interests relative to the performance of their duties, should remain a matter for the Judiciary and not for Government or Parliament.”

Cherbi told the Committee in a letter: “While noting the Lord President’s repeat of his earlier comments in relation to issues involving the Council of Europe, and the Judicial Council in Scotland, Lord Carloway has not provided any convincing argument against creating a register of judicial interests. It is also very clear from Lord Carloway’s letter, the judiciary continue to maintain resistance to the very notion of a register of judicial interests, and will not create one on their own.

“I urge members to take the petition forward and advance PE1458 to primary legislation, to ensure all members of Scotland’s judiciary declare and register their interests in the same way as all others in public life, including all 129 MSPs of the Scottish Parliament.”

A report in the Scottish National newspaper in 2017 also featured the calls for JPs to register recusals, which can be viewed here:

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

Exclusive by Martin Hannan Journalist The National 3rd October 2017

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

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

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

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

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

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

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

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

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

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

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland's Judiciary.