Thursday, November 10, 2016

Questions over stalled probe of Borders solicitor Andrew Penman accused of allegations of dishonesty, missing files & funds, investigation continues two years after suspension

Probe of Andrew Penman & ruined clients continues. QUESTIONS are being asked about why investigations into a well known Borders solicitor who was suspended over two years ago have not resulted in further action by the Law Society of Scotland and Scottish Legal Complaints Commission.

Andrew Paterson Penman -  a solicitor based at the now closed firm of Stormont Darling Solicitors in Kelso – remains suspended by the Law Society of Scotland in movember 2016, yet complaints in relation to his activities at the Kelso law firm are still being investigated over two years later.

Earlier reports by SLR revealed Andrew Penman was previously accused by Law Society investigators of faking up evidence in executry files, deceiving banks including the Royal Bank of Scotland and the Inland Revenue (now HMRC).

Penman’s suspension was published in the Gazette: Notice is hereby given that the practising certificate of ANDREW PATERSON PENMAN, solicitor, Stormonth Darling, Bank of Scotland Buildings, 8/9 The Square, Kelso, TD5 7HQ was suspended under Sections 39a and 40 of the Solicitors’ (Scotland) Act 1980 with effect from 2 October 2014.

The order publishing Penman’s suspension was signed by James Ness, Deputy Registrar.

Records also reveal Ness - a partner at Austins Solicitors, Dalbeattie, Dumfries & Galloway - represented Penman at secretive Law Society complaints hearings.

An investigation concluded Ness launched personal attacks on former clients to alter a decision already taken to prosecute Andrew Penman before the Scottish Solicitors Discipline Tribunal in the 1990s.

It was also reported last year Penman was ‘signed off sick’ to protect him from ongoing investigations and court litigation.

After a period of weeks leaving clients unable to contact Mr Penman or gain control of their legal affairs, the Law Society of Scotland closed down Stormonth Darling.

The law firm’s business was then taken over by another Kelso based law firm – Cullen Kilshaw.

It was then reported the Law Society of Scotland and the Scottish Legal Complaints Commission were investigating serious complaints made by clients against Mr Penman and his former law firm.

Legal insiders claimed there were allegations of significant amounts of money “gone missing”, allegations relating to fraud and the collection or payments of rents, and allegations relating to the misuse of trusts, wills and executries – with significant sums involved.

It has also been claimed the names of a number of other firms and businesses located in the Scottish Borders have cropped up during investigations into Penman’s conduct.

These include one firm of Borders accountants who appear to have been used to conceal client’s affairs, and two other law firms, one also based in Kelso – who both appear to have facilitated “transactions unauthorised by clients”.

Allegations have also emerged clients who complained about Penman’s conduct in the past experienced personal intimidation by parties - after they had lodged complaints about Penman with the Law Society of Scotland.

One former client of Stormonth Darling described how in a previous case, Mr Penman had falsified documents in a bid to thwart an earlier investigation into allegations of fraud and missing funds.

Of the current situation, the former branded the Law Society & SLCC as protective of solicitors, telling SLR: “The Police should be brought in to investigate Penman and his activities.”

Another former client told how the wording of wills had been suspiciously altered, and how property titles “had disappeared without trace”.

During 2014, Penman was linked to a case in the Court of Session - A398/14 Ladykirk Estates Ltd v Stormonth Darling WS :

Ladykirk Estates Limited, Academy House, Shedden Park Road, Kelso, (Ledingham Chalmers Llp) Roxburghshire AG V Stormonth Darling W.S. Solicitors, Drew Penman, Terry Mcnally and Craig Wood, Bank Of Scotland Buildings, The Square, Kelso, Roxburghshire

Court staff indicated the case was one of a significant financial claim against Penman and other solicitors based at Stormonth Darling in Kelso.

Andrew Paterson Penman was employed as a Director (SOLICITOR) at LADYKIRK ESTATES LIMITED from 01 June 2007 to 17 September 2012 , Company address: LADYKIRK ESTATES LIMITED ACADEMY HOUSE, SHEDDEN PARK ROAD, KELSO, ROXBURGHSHIRE, TD5 7AL

Andrew Paterson Penman was also employed as a Director (SOLICITOR) at S.P.C. BORDERS from 31 January 2006 to 30 November 2014 Company address: S.P.C. BORDERS 27 MARKET STREET, GALASHIELS, TD1 3AF

It has also been revealed Penman and his law firm are being investigated by the Scottish Legal Complaints Commission & Law Society of Scotland in connection with a number of complaints made by clients where substantial sums of money into hundreds of thousands of pounds along with queries regarding unpaid rent and disappeared funds are alleged.

Late last year, Solicitor Craig Wood - the only remaining solicitor at Stormonth Darling ‘took ill’ leading to the Law Society closing the firm down.

Wood – who was named in a writ against the law firm at the Court of Session - has since died from his illness.

It is not known whether Mr Wood gave any statements to clients or the Law Society regarding the problems at Stormonth Darling.

In an update to the report, as of 23 October 2015, SLR has been approached by several individuals from Kelso and around the Scottish Borders who have provided documentation on their dealings with Penman and Stormonth Darling.

In one case, a client alleges he received visits from officers from the former force of Lothian & Borders Police after he raised questions with the Law Society over significant sums of missing funds & assets under the control of Stormonth Darling.

Solicitors based at Stormonth Darling and an accountant caught up in accusations of hundreds of thousands of pounds gone missing from a will – appear to have used their influence with public services based in the rural Borders backwater to cause difficulties in the lives of clients whose funds and assets were being systematically stripped by the now defunct law firm.

The names of two former LibDem politicians, one from Holyrood, another from Westminster - have also been connected to the difficulties at Stormonth Darling.

In 2009, Scottish Law Reporter covered a story relating to Ladykirk Estates & Andrew ‘Drew’ Penman – after both lost a legal challenge in Scotland’s Land Court. LadyKirk Estates objected to the transfer of a farm tenancy from an elderly tenant to his younger nephew. Ladykirk had also claimed their ECHR rights had been in breach. Full report HERE

CHEQUERED HISTORY OF BORDERS LAWYER WHO RUINED CLIENTS:

Penman – Originally from Hawick then moved to Kelso to work at Stormonth Darling Solicitors, has been subject to numerous complaints from local clients in the Scottish Borders over the years, One investigation carried out by the Law Society of Scotland issued reports finding Penman had deliberately rearranged evidence before investigating officers took possession of the files in an attempt to prevent the Law Society’s own reporter from investigating the circumstances of the losses. The Law Society investigating reporter found “there was also evidence of what appeared to be a bungled and unsuccessful attempt to put the file into order”

The Law Society investigator recommended a prosecution of Andrew Penman, saying : “In respect of the extraordinary delays and the repeated failures to respond to correspondence and the apparent, deliberate attempt to mislead the Royal Bank the reporter was of the view that the professional misconduct was such that it would warrant prosecution before the Scottish Solicitors Discipline Tribunal The reporter was or the view that there had clearly been an inadequate professional service but in the, event of a referral to the Scottish Solicitors Discipline Tribunal this would be incorporated into the complaint.”

Neither the Law Society of Scotland or Scottish Legal Complaints Commission could not be reached for comment.

Thursday, October 20, 2016

Police raid on Edinburgh law firm halted by judge - Lord Brodie hits out at Crown search warrant tactics against Clyde & Co over historic sex crimes investigation

Lord Brodie – Prosecutors lied to obtain warrant. A SENIOR JUDGE has claimed the Edinburgh offices of a law firm employing members of the judiciary - were hit with “oppressive” conduct by the Crown Office & Procurator Fiscal Service during prosecutors attempts to secure documents in relation to historical sex crime allegations.

The ruling, by Lord Brodie – issued three months after the incident - comes after the Edinburgh offices of law firm Clyde & Co – formerly Simpson & Marwick - faced a day long stand off with Detectives from Police Scotland in July of this year when Police Officers attempted to serve search warrants in order to obtain communications between a client and the law firm.

The stand off between Police Scotland and lawyers at Clyde & Co only ended when Lord Brodie suspended the search warrant.

Lord Brodie said fiscals had provided “inaccurate and misleading” information to obtain a court order to raid the Edinburgh offices of UK law firm Clyde & Co.

Prosecutors had sought the warrant as they supported police in carrying out the investigation into what are understood to be historic sex crime allegations

Police had wanted to see documents relating to the suspect, a client of Clyde & Co who had been defending a civil action in respect of the same allegations.

However, Lord Brodie said that they had failed to see the risks such actions could have on the rights of the suspect to private communications with his lawyer.

This week - three months after the aborted raid – the Scottish Courts & Tribunals Service finally made public Lord Brodie’s critical note about his decision.

The judge said that fiscals had simply accepted a police understanding of the case, which was that Clyde & Co was withholding evidence, in its petition for the warrant.

He ruled: "I consider that the actions of the [Crown] in applying for the search warrant on the basis of his petition to have been oppressive. The petition was misleading, if not simply inaccurate.

The judge added: "The very highest standards are always expected of the Crown. Here the requisite standards were not met. If it be the case that the [Crown] proceeded on a police report which simply reflected the detective constable’s understanding of the issues, that was not good enough.

"The [Crown] was aware that he was seeking to recover clients’ files held by solicitors and therefore was on notice that privilege as well as confidentiality was likely to be in issue."

Simpson & Marwick – now Clyde & Co are known to have acted as agents for the Law Society of Scotland’s Master Insurance Policy.

The firm has acted for insurers defending numerous claims against lawyers accused of ripping off their clients. Simpson & Marwick are also known to have represented numerous Scottish local authorities in expensive and long running litigation cases.

With connections between the judiciary and law firms now in the news and of a public interest nature, records also show Clyde & Co, who merged with Simpson & Marwick – has among it’s partners a serving judge – Sheriff Peter Anderson.

Sheriff Anderson’s biography on the Clyde & Co website states the following: Peter has over 40 years experience starting in general insurance work, specialising in complex and high value personal injury claims. He deals with all aspects of EL, PL and motor cases plus in depth experience for professional negligence claims and aviation disputes. Peter is a Solicitor Advocate.

As Sheriff he has presided over a range of civil cases preparing judgments and decisions in family law disputes; personal injuries litigation; land title disputes and commercial contracts as well as presiding over a large number of criminal trials.He was recently appointed Chair of the pro bono legal service organisers, LawWorks Scotland. 

The Clyde & Co website states their Edinburgh office has over 50 lawyers and fee earners across the core sectors of insurance, professional liability, healthcare, employment and property.

The law firm claims the heart of their practice is defending personal injury claims.

The full opinion of Lord Brodie:

HIGH COURT OF JUSTICIARY [2016] HCJAC 93 HCA/2016-24/XJ

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

against THE PROCURATOR FISCAL, EDINBURGH Respondent:

Complainers:  Smith QC; Clyde & Co

Respondent:  No appearance

22 July 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

As Mr Smith explained, these averments were inaccurate in certain respects or at least framed in terms that were likely to mislead the sheriff when considering the petition. The tenor of the averments is such as to suggest that what is sought to be recovered are the originals of the specified documents (ie the code of conduct etc) which have already been provided by S (albeit that the crave of the warrant is in much wider terms) and that was because the complainers were only prepared to provide copies. Moreover, while there is reference to “reasons of client confidentiality” (which makes no sense if it is the respondent’s position that the police already have copies of the documents) there is no reference to the separate assertion of legal privilege by S..

[8]        The assertion of legal privilege in the face of a search warrant has recently been considered by the court in its opinion, dated 5 February 2016, in the bill of suspension at the instance of parties whom I will refer to as H Complainers. This opinion has not been published because the proceedings to which it relates have not been concluded but will have been issued to parties, one of whom is the Lord Advocate. I had been unaware of this opinion until Mr Smith brought it to my attention and the sheriff who granted the search warrant is also unlikely to have been aware of it. On the other hand, I would expect the respondent, as a representative of the Crown, which in the person of the Lord Advocate was party to H Complainers, to have been aware of the decision and the terms of the opinion of the court and particularly those parts of that opinion which prescribe what ought to be done when the Crown applies for and then has executed a warrant for search and seizure of material in respect of which legal privilege may be asserted.

[9]        H Complainers does not innovate upon the existing law but clearly states it and highlights the consequences for practice. It is prescriptive as to what should be done by the Crown when seeking to recover clients’ files from solicitors. It is convenient to quote the following paragraphs from the opinion of the court, as delivered by the Lord Justice‑General:

“[26]    A police officer seeking a warrant from a sheriff must not provide information which he knows to be inaccurate or misleading.  He should provide all the relevant information.  The reference to “full disclosure” in McDonagh v Pattison 2008 JC 125 (at paras [11] and [12]) should be understood in that context.  The duty includes one to disclose the fact that the havers are a firm of solicitors who are maintaining a plea of legal privilege.  It was submitted that the information in the petition and given by the police officer on oath to the sheriff, in particular in relation to the likely application of legal privilege, had been inaccurate.  This contention was not contained in the original Bill, upon which alone the sheriff has reported.  It is a reasonable one, in so far as it is based upon the sheriff’s first report.  That report states that there was no suggestion that legal privilege should apply.  However, it appears to be contradicted by the second report.

[27]      The court will proceed on the basis that the sheriff was aware of the claim of legal privilege.  He certainly ought to have been so aware, given that the havers were a firm of solicitors. …

[28]      What is important to note is that the warrant was obtained for material over which there was an ongoing dispute about legal privilege.  That dispute was taking place between the Crown, notably the advocate depute, and a firm of … solicitors, namely the first complainers.  There is no suggestion that the first complainers were involved in any form of illegality.  There was no averment that, in the context of the ongoing dispute, the first complainers would be likely to destroy, or conceal, the relevant material.  Indeed the existence of this material had been flagged up in the two chronological bundles …  In these circumstances, an application to a sheriff for a warrant to search the first complainers’ premises to recover this material, without intimation, was oppressive.  If the course selected by the Crown were to have validity, it was incumbent upon them to have intimated the application for a warrant to the first (and/or second) complainers, so that they could make representations to the sheriff about legal privilege.  The sheriff could then have made such appropriate orders, as he deemed fit, to secure proper compliance with the law of privilege in respect of the recovery of the solicitors’ files.

[29]      The courts must be careful to protect the important right of legal privilege which generally attaches to communications between a client and his solicitor (Narden Services v Inverness Retail and Business Park 2008 SLT 621 at para [11]).  It is essential therefore that due caution is observed when a court is granting an order for the recovery of solicitors’ files.  The need for such caution is even greater when a warrant is being granted with a view to its endorsation for execution outwith Scotland.

[30]      There is no reason for a warrant to state expressly that materials, ostensibly covered by its terms, are excluded where legal privilege exists.  Such privilege may or may not be asserted.  If it is capable of being asserted, however, the seizure process must have within it clear, detailed rules on how that assertion can effectively be raised and determined.  That is a matter which was stressed in the mid-nineteenth century Scottish cases cited (Bell v Black (1865) 5 Irv 57, LJC (Inglis) at 64; Nelson v Black & Morrison (1866) 4 M 328, LP (McNeill) and Lord Deas at 331, Lord Ardmillan at 332; Lord Wood at 237).  It is now reflected in the European jurisprudence (Sallinen v Finland (2007) 44 EHRR 18 at paras 90 and 92; Niemietz v Germany (1992) 16 EHRR 97 at para 37).  In a case, such as this one, where it is clear that what is to be searched is a solicitors’ office and that legal privilege is being asserted, any warrant ought either to have provided for independent supervision of the police search by a Commissioner appointed by the court or to have contained a requirement that any material seized should be sealed unread and delivered to the court to enable the sheriff to adjudicate upon the issue (see Wieser v Austria (2008) 46 EHRR 54 at para 57).  The ability to raise a Bill in the High Court of Justiciary, designed to suspend the warrant itself, is a procedure for review by an appellate court which, whilst competent, is not straightforward.  It does not supply the necessary effective remedy at first instance.  If this necessitates a change of practice in connection with the recovery of solicitors’ files, such a change requires to take place.”

[10]      As will be apparent, what was done by the respondent in the present case failed in a number of respects to comply with what the Lord Justice-General prescribed in H Complainers. The complainers do not aver bad faith or an attempt to mislead on the part of the police and I see no basis upon which that could be inferred. The averments in the respondent’s petition may reflect DC Gow’s understanding of matters but these are the respondent’s averments and by presenting them to the court in a petition signed by one of his deputes the respondent took responsibility for their accuracy insofar as the accuracy of averments can reasonably be ascertained. As I have indicated, the averments were not accurate. They were not comprehensive. They were misleading. There was no urgency in the matter, as the passage of time between 7 and 21 July 2016 demonstrates. There was no averment in the petition that the complainers would be likely to destroy or conceal the relevant material or that they were in any way involved in wrongdoing. The respondent chose not to contact the complainers to confirm the facts prior to preparing his petition, although, as the Lord Justice-General observes at para [27] of H Complainers in relation to the sheriff, the respondent ought to have been aware that issues of legal privilege would arise where he was seeking to seize documents generated in the course of solicitors acting for clients faced with the prospect of litigation.  There is nothing in the crave of the warrant to restrict its execution to circumstances where there is independent supervision of police officers or requiring any material in respect of which privilege is claimed to be sealed unread and delivered to the court. The respondent chose not to intimate the application for the search warrant to the complainers and so give the complainers the opportunity to make representations to the sheriff about legal privilege.

[11]      Having read and copied the search warrant Mr Watson requested the police officers who were seeking to execute it not to do so before he was able to consider further action. The police officers agreed to delay in executing the warrant. They remained in or about the complainers’ office during the course of the day and were only to leave it at about 1730 hours following communications between my clerk and representatives of the respondent, to which I will refer later in this note. Mr Watson consulted with Mr Smith who telephoned Crown Office with a view to discussing matters with an advocate depute. He spoke to an advocate depute who advised him that this was a matter under the direction of the National Sexual Crimes Unit and referred Mr Smith accordingly. At about 1347 hours Mr Smith had a telephone conversation with a named official of the Unit. He attempted to convey his concern that an application for the warrant had been made without intimating the intention to do so to the complainers and to contrast this with what had been said by the Lord Justice-General in H Complainers. The official was unsympathetic to Mr Smith’s representations and disinclined to enter into discussion. She indicated that she was aware of the decision in H Complainers but, although she had not read it, she considered it particular to its facts which included the involvement of English solicitors and English procedures. She stated “I have been doing it this way for 20 years”, from which Mr Smith understood that she did not propose to allow what was said in H Complainers to inform her established practice. Mr Watson also spoke with the official. She described the efforts on the part of the complainers to protect their clients’ legal privilege as a “serious matter of obstructing justice”. In the face of what Mr Smith characterised to me in submission as “this intransigence”, the bill of suspension was drafted and presented.

[12]      As I have already explained, Mr Smith and Mr Watson came before me in chambers, at little before 1700 hours on 22 July 2016. I was assisted by Mr MacPherson DCJ. Having regard to the criticisms levelled by Mr Smith against the respondent and those acting in his name I adjourned the hearing in order that Mr MacPherson might alert Crown Office of what was taking place and to invite representation of the respondent if so advised. Mr MacPherson was able to speak to a member of staff of the Crown Office and Procurator Fiscal Service who involved others including the official with whom Mr Smith had spoken. By this time it was after 1700 hours on what was a Friday evening. The offer to hear any representations through an advocate depute was not taken up but Mr MacPherson was led to understand that a “guarantee” had been given “to stand down the police”.

[13]      What Mr MacPherson had learned was reported to me in the presence of Mr Smith and Mr Watson and the hearing resumed. Mr Smith renewed his motion for interim suspension of the search warrant. While perhaps explicable by reason of the lateness of the hour, the shortness of notice and the absence of necessary personnel, the respondent had not availed himself of the opportunity to be represented, to make any explanation or to put forward any undertaking or other proposal in precise terms. While the “guarantee” reported by Mr MacPherson could be interpreted as an undertaking not to execute the search warrant that day it was unclear whether it went beyond that. It was also unclear who it was who was giving the undertaking. Mr Smith’s conversation with the named official, whom he understood to be responsible for this investigation, had not given him confidence that she understood the importance of legal privilege or what the Lord Justice-General had recently said about the need to put in place procedural mechanisms effectively to protect it.

[14]      I was not addressed (I had not asked to be addressed) on the competency of a single judge of the High Court of Justiciary suspending a warrant. I would suppose that it would not be competent for him to do so, suspension being a matter for a quorum of the Court: cf Stewart v Harvie 2016 SCCR 1 at para 3. However, I would see granting an application for interim suspension at the stage of first orders to be different. It is of the nature of remedies for preserving the status quo in the face of a threatened wrong that they be available quickly and on summary application. As here there will be circumstances where a complainer seeks suspension of a warrant before it is executed on the grounds that execution would be wrongful and damaging to the interests of the complainer. In practical terms, if interim suspension cannot be granted by a single judge then a remedy will not be available. Moreover, I observe that in Morton v Mcleod 1981 SCCR 159 Lord Cameron, sitting alone, entertained an application for interim suspension of sheriff court summary proceedings, albeit that he concluded that suspension was not competent before trial.

[15]      Of course, having a power and being justified in exercising it are very different things. Suspension of a warrant, even ad interim, is not something to be done lightly. What is being sought to be set aside is a decision of the sheriff who has primary jurisdiction and whose duty it is to grant a warrant only when he is satisfied that it is lawful to do so.

The importance of that duty and its conscientious performance was stressed by Lord Justice‑General Rodger in Birse v MacNeill 2000 JC 503 at 507A by quoting what had been said by Lord Justice-General Clyde in Hay v HMA 1968 JC 40 at 46:

“Although the accused is not present nor legally represented at the hearing where the magistrate grants the warrant to examine or to search, the interposition of an independent judicial officer affords the basis for a fair reconciliation of the interests of the public in the suppression of crime and of the individual, who is entitled not to have the liberty of his person or his premises unduly jeopardised. A warrant of this limited kind will, however, only be granted in special circumstances. The hearing before the magistrate is by no means a formality, and he must be satisfied that the circumstances justify the taking of this unusual course, and that the warrant asked for is not too wide or oppressive. For he is the safeguard against the grant of too general a warrant.”

However, in determining whether a warrant should be suspended this court is not only concerned with the decision-making of the sheriff or other magistrate; it is also concerned with the actions of the party (here the respondent) who has applied for the warrant. Where these actions are oppressive the warrant will be suspended.

[16]      I consider that the actions of the respondent in applying for the search warrant on the basis of his petition to have been oppressive. As I have attempted to explain, the petition was misleading, if not simply inaccurate. High standards of accuracy are always required of a party seeking a remedy ex parte. Separately from that, the very highest standards are always expected of the Crown. Were it otherwise our criminal practice would be different. Here the requisite standards were not met. If it be the case that the respondent proceeded on a police report which simply reflected the detective constable’s understanding of the issues, that was not good enough. The respondent was obliged to ensure the accuracy of his averments insofar as that was practical. There was no question of urgency. The respondent was aware that he was seeking to recover clients’ files held by solicitors and therefore was on notice that privilege as well as confidentiality was likely to be in issue. There was no reason to believe that the complainers would act improperly. An obvious and easy step would have been to contact them directly in order to discover what was in fact in issue. It is true that it might have been better had the complainers’ letter of 11 July 2016 been addressed to the respondent rather than to the Sheriff Clerk, but the onus was on the respondent who as a public authority was proposing to interfere with article 8 rights as well as rights which have been explicitly and repeatedly recognised in Scotland for more than two hundred years (Executors of Lady Bath v Johnston Fac Coll 12 November 1811, noted by Lord Wood in McCowan v Wright (1852) 15 D 229 at 237) to make sure of his facts.

[17]      Not only is what is averred in the respondent’s petition inaccurate, it does not support the very wide terms of the crave for a warrant which extend, without any limitation of time whatsoever, to “any other evidence which may be material to the investigation into the alleged abuse at [L] held by said Clyde & Co, whether in a computer system or otherwise”. It will be recollected that the averments relate only to supposed originals (presumably in paper) of documents already provided as copies. Moreover, in disobedience to what is prescribed by the Lord Justice-General at paragraph [30] in H Complainers, no provision is made in the petition for either independent supervision of the police search by a commissioner appointed by the court or the inclusion of a requirement that any material seized should be sealed unread and delivered to the court to enable the sheriff to adjudicate upon the issue.

[18]      The oppressive conduct of the respondent was not limited to the presentation of an inaccurate and misleading petition, the averments in which bore little or no relationship to the crave and which omitted provision for the independent supervision of any police search. He failed to give intimation of his intention to apply for the search warrant. Again that is in direct disobedience to what the Lord Justice-General prescribed at paragraph [28] of H Complainers. On the basis of this failure alone I consider that it was oppressive to apply for the search warrant, but the various culpable deficiencies in the petition put the matter beyond doubt. I have accordingly been satisfied that the complainers have put forward a sufficient basis for suspension ad interim, subject only to consideration of what is to be made of the “guarantee” given to Mr MacPherson.

[19]      Before turning to the “guarantee”, I should indicate that had it been necessary to do so I would have held that sufficient had been put before me to suggest that the sheriff had erred in granting the warrant in the terms he did to such an extent as to render the warrant unlawful. It is true that the petition did not provide the sheriff with the assistance that he was entitled to expect from the respondent, but there was enough that should have been regarded as anomalous in this application to have put the sheriff on notice that further inquiry was required before granting the warrant. I have already mentioned these points when considering the respondent’s actions but in summary they are as follows: (1) the averment of refusal to release documents on reasons of client confidentiality when copies of the documents have already been provided to the police is so illogical as to require explanation; (2) the width of the crave which is not supported by averments and therefore had no basis upon which it could properly be granted; (3) the mere fact that the havers of the documents were solicitors should have been enough to make a sheriff aware that legal privilege was a likely issue (H Complainers at para 27) and required to be protected; and (4) the failure to intimate the application to the complainers and the giving to them of an opportunity to be heard in the absence of averments of (i) urgency, (ii) risk of destruction or concealment or (iii) any wrongful or improper behaviour whatsoever on the part of the complainers. In my opinion by granting the search warrant in the terms that he did it can only be inferred that the sheriff, for whatever reason, failed to give the petition the degree of scrutiny required of an application for search and seizure, as explained in Hay v HMA.

[20]      I return to the question of the “guarantee”. Suspension is a discretionary remedy and in deciding whether to suspend ad interim regard is to be had to the interests of justice and with them the practicalities of the matter. The question of necessity comes into that. It might be said that there is no need to suspend a warrant if it is not intended to enforce it. The “guarantee” reported by Mr MacPherson suggested that there was no current intention on the part of the respondent or those acting in his name to enforce the search warrant. However, in the absence of any representative of the respondent before me with the authority to give a precise undertaking I was left in doubt as to precisely what was being “guaranteed” and who, and with what authority, was giving the guarantee. The history of the matter, at least as presented ex parte, did not suggest that the respondent had a very secure understanding of his obligation to give accurate and complete information to the court, to follow the guidance provided by H Complainers or otherwise to protect individual rights. An expression of willingness to negotiate on the part of the official from the Sexual Crime Unit earlier in the afternoon might have put a different complexion on matters. There was something unsatisfactory in the apparent immediate collapse of the position taken on behalf of the respondent when an opportunity was given to defend the warrant, albeit that the lateness of the hour may have contributed to that. Then there is the question of accountability. I heard what I consider to be quite serious criticisms of representatives of the Crown but I did not hear from the respondent in reply. It is appropriate that the respondent is given the opportunity, which a further hearing would afford, to explain, provide any other relevant information and to correct any misapprehensions or errors in fact or law on my part. I accordingly decided to suspend the search warrant ad interim, to grant warrant for service and to continue matters to a hearing to be fixed. A copy of this note will be provided to the respondent as well as to the complainers.

[21]      By way of post script I would add that subsequent to the issue to parties of a Note in terms of the previous 20 paragraphs, I have had the opportunity of considering a report prepared by the sheriff who granted the warrant.  The sheriff prepared that report in light of what is averred in the Bill of Suspension.  The sheriff’s report is dated 1 August 2016.  It gives no indication that the sheriff has had sight of my Note as issued to parties.

[22]      The sheriff reports that the warrant was granted by him on 21 July 2016 on what was a second application, the Crown having originally sought a warrant in wider terms which the sheriff had not been prepared to grant.  The sheriff further reports that he was informed by the respondent’s depute that the complainers had refused to release documents, other than originals of the documents already seen by the police.  I would observe that while this may be what the respondent meant by the averment: “The solicitor has indicated that they will provide the originals of the documents already provided in copy format only”, that would appear to be contradicted by the immediately preceding averment: “[S] have indicated that the originals of [previously provided documents] are held by their legal representatives, Clyde & Co …the solicitor has refused to release these documents, citing reasons of client confidentiality.”  The sheriff goes on to report that he was not informed that the complainers had made any offer to cooperate, or that they had written to the court to request such notification.  The sheriff explains that had he known of any willingness to release selected new material, he would have continued the application pending voluntary production by the complainer, to ascertain whether production could take place without the need for a warrant.  Had he known of any written request such as that which the complainers had directed to the Sheriff Clerk, the sheriff explains that he would have continued the application for a hearing at which the complainers could be represented.

Wednesday, September 28, 2016

Appeals to Scottish Information Commissioner up 14% as concerns remain over Scots public bodies handling of Freedom of Information requests

Report – improvements in Transparency not universal. A REPORT on how Scottish public bodies handle Freedom of Information requests has found while most appear to be improving at dealing with FOI, improvements are not universal and there remain significant concerns.

The Annual Report 2015/16 published by the Scottish Information Commissioner - reveals that 540 appeals were made to the Commissioner in 2015/16 - a 14% increase on last year. The report also discloses there were 68,000 FOI requests made in Scotland in the last year.

The Freedom of Information Act (Scotland) 2002 has now been in force since 2005 – yet significant gaps in transparency remain and increasingly complex & creative ways in which public bodies dodge Freedom of Information requests – have risen.

Speaking at the launch of her 2015/16 Annual Report, Scottish Information Commissioner Rosemary Agnew said: "These signs of improvement in FOI performance are welcome. As my report demonstrates, the majority of information requests result in some or all of the information being disclosed. It is encouraging that only a very small proportion of requests are appealed. I'm also pleased that the number of appeals made about a failure to respond has fallen significantly following our work to tackle this issue.

"Unfortunately, our experience is that these improvements are not universal. There is still a clear gap between the best performing authorities and those who lag behind. As you will see from my report, my focus still lies in promoting good practice and intervening when I find poor practice."

The Commissioner's 2015/16 Annual Report reveals that:

  • 540 appeals were made to the Commissioner in 2015/16. This is a 14% increase on last year, but is down from 578 appeals two years ago.
  • The number of "failure to respond" appeals fell significantly in 2015/16. The Commissioner accepted 61 "failure to respond" cases for investigation. This was 16% of her investigation caseload - a significant reduction on the 25% three years ago.
  • Appeals volumes fell for some sectors. Most notably for the Scottish Government and its agencies, where appeals fell from 23% of the Commissioner's caseload in 2014/15 to 15% this year (from 111 appeals to 84).
  • Appeal volumes increased for others. Appeals in relation to non-departmental public bodies increased, from 6% of the Commissioner's caseload in 2014/15 to 10% this year. This was largely due to an increase in Scottish Fire and Rescue Service appeals, from 1 in 2014/15 to 12 this year.
    There was also a significant increase in appeals about requests made to Police Scotland. They rose from 9% of appeals last year to 15% in 2015/16 (from 45 to 81 appeals). 3% of Police Scotland's information requests resulted in an appeal, compared to a national average of 0.8%.
  • 61% of appeals came from members of the public. The media accounted for 20% of appeals, and prisoners 7%.
  • 60% of the Commissioner's decisions found wholly or partially in the requester's favour. If an authority has incorrectly withheld information, the Commissioner's decision will require it to be released.
  • 73% of cases were resolved by the Commissioner within 4 months.
  • Public authorities reported receiving 68,156 information requests in 2015/16. This is a 2% increase on 2014/15. Figures are reported in a publicly-available database set up by the Commissioner. The portal data also shows that 75% of requests resulted in some or all of the requested information being provided, and that public authorities themselves are reporting 35% fewer 'failures to respond' to information requests since 2014/15.
  • Public awareness of FOI is at its highest ever level, at 85%. This is up from 84% last year, and 78% in September 2013.
  • FOI awareness is lower amongst 16-24 year olds. Ipsos MORI polling also revealed lower awareness amongst young people. The Commissioner is working in partnership with Young Scot to address this lower awareness.

Rosemary Agnew added: "We are also conscious of how important it is we perform well. We appreciate that it is frustrating for requesters, who have already had to wait for several months, if our investigations are unnecessarily protracted. It can also be stressful for authorities who have to wait for the outcome of our investigations. When someone has to appeal, we work hard to resolve the issue quickly, with 73% of our cases taking no more than four months, and 60% of our decisions finding wholly or partly in the requester's favour. The focus now must be on making it work even better at every stage."

Towards a transparent Scotland:

  • Public awareness of FOI reached its highest ever level, at 85%
  • We reduced "failure to respond" appeals by 24% (and by 35% from 2013/14)
  • We issued our highest ever number of EIR decisions, at 61
  • 540 appeals were made to the Commissioner - a 14% increase on last year
  • We resolved 20% of our cases without the need for a decision
  • We met or exceeded almost all of our investigation performance targets
  • We answered 100% of our own FOI requests within 20 working days
  • We delivered 3 regional roadshows, with 97% of participants rating them as "good" or "excellent".

Appeal statistics - by region and sector:

The Commissioner's 2015/16 Annual Report and Accounts (above) has details of the appeals received by the Commissioner over the year.  The spreadsheets below have more information on all of the appeals received by the Commissioner since 2005, when FOI law came into effect in Scotland. 

You can view this information by either geographic region, or by public authority sector (central government, local government, health, etc).

 Public authority tables by Region 2005 - 2016 (Excel - 1.98MB)

Public authority tables by Sector 2005 - 2016 (Excel - 1.94MB)

Got a story to share on your experiences with Freedom of Information and public bodies, or contact with the Scottish Information Commissioner? Tell us at scottishlawreporter@gmail.com

Tuesday, September 27, 2016

Lord Carloway opens new Legal Year 2016-2017– review, reforms, & modernisation - reality clogged courts with huge public price tag, erosion of rights & shiny new QCs

Lord Carloway opens the 2016-17 legal year. SCOTLAND’S top judge – the Lord Justice General & Lord President – Lord Carloway (Colin Sutherland) has opened the new legal year with traditional speech, full of traditional fare.

OPENING OF THE LEGAL YEAR 2016-2017

The opening of each legal year marks a new chapter in the history of our justice system, our court service, and in our professional lives. It is in the nature of things that some chapters - some years - will be particularly significant and momentous, and will live long in our collective memory. The implementation of the structural provisions of the Courts Reform (Scotland) Act 2014 over the last year may well be considered by many to be of great significance. In the same way, chapters which appear to pass uneventfully may take on a new significance with the passage of time. Sometimes changes which are continuous or gradual are the ones which are truly transformative. The full picture cannot be seen by focusing only on one or two discrete chapters in isolation.

In February 2017, a decade will have passed since Lord Gill was tasked with carrying out a review of the civil justice system. Over that period, all of our professional lives - as judges, advocates, solicitors, and court staff - have become steeped in the process and language of change. The purpose and principles of the reforms - to make the justice system work efficiently and, in particular, to promote just decisions which are delivered in proportionate time and at proportionate cost - are well known. We must not lose sight of that goal. The purpose of procedural reform is ultimately as a means to an end. It is to secure substantive rights by ensuring that the public have access to the courts, unhindered by undue delay or expense.

In the past year, the headline recommendations of the reforms - the creation of the Sheriff Appeal Court; the increase in the privative jurisdiction of the Court to £100,000, and the introduction of the All Scotland Personal Injury Sheriff Court at Edinburgh Sheriff Court - have begun to bed in. A significant proportion of appellate and first instance business will be taken out of our Supreme Courts. Although that effect has certainly been felt administratively, the impact on court time - on the number of sitting days - will probably not become apparent for another few years. Teething problems are to be expected in any change of this magnitude.

The focus must now shift from structure to function. The success of the reforms, and of the new courts, will depend not only on the structure which is now in place, but on the continued commitment of the judiciary, court staff, and the profession to make sure that the goal of the reforms is met.

Progress towards a modern justice system continues on a number of other fronts in both the civil and criminal spheres. Digital innovation is crucial to ensuring that the service which the courts provide is in line with public expectation in the modern era. The digital process is coming, and coming soon, with the Integrated Case Management System (ICMS) undergoing live testing in Sheriff Courts across Scotland. The online portal will launch in November at the same time as the new Simple Procedure Rules come into force. It should allow all Simple Procedure cases to be submitted (and managed) electronically. In time, it will be rolled out to other forms of Sheriff Court business and hopefully to the Court of Session in the coming year.

Changes to the way in which civil business in the Court of Session is programmed are also about to be implemented. At first instance, two Outer House judges will sit throughout the term to hear ordinary civil business. The aim of this measure is to reduce the prospect of losing proof and judicial review diets. Programming of cases continues to be a major challenge, given the level, and more significant, the timing of settlements. However, with two permanent Lords Ordinary in the Outer House, augmented by 2 more at any given time, to deal with Ordinary and Family causes, the Cinderella reputation of the non-commercial Outer House ought to be successfully addressed. In January, there will again be four full time commercial judges, returning the court to its complement before the untimely death of Lord Jones.

The increased efficiency of the Criminal Appeal Court and the diversion of summary business from that court ought to mean that there will be two civil Divisions sitting in appellate business throughout the year along with one criminal Division, reversing the situation five years or so ago.

The programming of civil business throughout the legal year is also about tobe altered. There will be no significant summer recess at the end of the legal year 2017-2018. The beginning of the winter term will start a few days after the end of the summer term. Whilst it is to be anticipated that the courts will not run at full power over the summer months of 'vacation', as it is still commonly called, since the judges too need a holiday, the sitting days of the civil courts, both first instance and at appellate level, will be evenly spread over the whole legal year.

Put another way,business will be programmed on the basis that the civil courts will sit throughout the year other than for periods of two weeks at both Easter and New Year. Practitioners will take their vacations according to their own business calendars rather than having to follow that of the court. This is perhaps less of a culture shock than it first appears. Many of our civil courts now sit in procedural matters and urgent disposals in the summer months. The e-motion system sees many matters, which might previously have been held over, dealt with routinely. Judicial Reviews have a timetable which must be adhered to. The commercial courts have been used to fixing substantive diets during recess periods.

Vacation has been a feature of history in the criminal courts for many years. In the criminal sphere, there are important changes to make; notably in the way in which we take evidence from children, and vulnerable witnesses, are progressing, under the auspices of the Evidence and Procedure Review. The central objective is to take children out of the court environment. The response from the legal profession has been very positive. The intention is that in the future the necessary culture shift will result in a more consistent use of special measures, and in particular evidence on commission, in so far as permitted under current legislation. Thereafter, questions of how best to capture the evidence of all witnesses will be considered. The answers may ultimately lead to more radical change, perhaps initially at summary level. The new methodology may impact on the way in which evidence is presented in the civil sphere where the eviscerated spectre of hearsay has long since departed.

Modernisation of the court estate and court service itself also continues. The proposal to have a new Justice Centre in Inverness, incorporating facilities for the criminal and civil courts, tribunals and the children's hearings, have recently been announced. Plans are now being developed. Because of the substantial recent increase in the number of criminal trials, although not indictments, in the High Court, a new West court in the Saltmarket in Glasgow has been opened. Work is well underway on the East Court there too.

The past legal year has been particularly significant for the judiciary. Lady Dorrian on her appointment as Lord Justice Clerk has become the most senior female judicial office holder in Scottish legal history, a significant milestone in the history of the courts. Lord Glennie has been appointed to the First Division, and Lord Turnbull to the Second Division. This will maintain a sufficient complement in the temporary absence of Lady Smith on important inquiry duties.

The courts are now largely operating with a full complement of judges following the appointments of Lords Ericht and Clark, Lady Carmichael, Lord Becket, and shortly Frank Mulholland QC. This, along with some continued use of experienced sheriffs and a few retired judges, sheriffs and sheriffs principal, acting up as judges in the High Court and occasionally the Outer House, ought to produce the requisite degree of efficiency.

However, there is continuing concern about the time which Outer House Opinions are taking to be issued following avizandum. Further steps are being explored in this jurisdiction, as they are in others, to ascertain the nature and cause of this common phenomenon, in an effort to solve what is recognised as a serious and ongoing problem. The time which it is taking to fix hearings in long proofs also remains a subject of worry. This is, however, recognised and hopefully the changes to the Outer House and the court terms will go some way to bring down the relative waiting periods.

I am pleased to take this opportunity to thank all of my judicial colleagues, not least of course the Lord Justice Clerk, but also Lords Bracadale, Menzies, Boyd and Turnbull for their work as the administrative judges, and the Principal Clerk, and all of the court staff, whose commitment and hard work are important driving forces in the continued progress of our justice system. I wish to thank too the legal profession and all the clerks and support staff who have engaged with the spirit and letter of the reforms which have been implemented in the last year. Their support, and occasional patience, is much appreciated.

It is now my pleasure to introduce those who have gained the rank and dignity of Her Majesty's Counsel.

Ms Edwards, as Assistant Principal Crown Counsel you bring a wealth of experience from your work in the High Court of Justiciary at both first instance and appellate levels, particularly in the important area of taking evidence from child and vulnerable witnesses.

Ms Henderson, as a leading specialist in clinical negligence claims, you have contributed much to the development of the law in this area, particularly in complex cases involving catastrophic injuries.

Mr Love, you bring vast experience in the field of personal injury litigation and regulatory matters, from a career as both a well-established solicitor and advocate.

Mr Macfarlane, your wealth of experience in family law, and in particular child law, and as an accredited mediator, has contributed much to the development of the law in recent years. To this you have added the string of Advocate Depute.

Mr Mackenzie, with your broad civil practice, including as Standing Junior Counsel to the Scottish Government for the past decade, you bring a wealth of experience to the senior bar in public law, planning and environmental law.

Mr McKay, you are a leading expert in the field of planning and environmental law, with a distinguished practice in planning appeals, as well as public inquiry and project consent advisory work.

Mr Ross, with your academic background and in your role as First Standing Junior Counsel to the Scottish Government, you bring much experience particularly in the area of administrative law, judicial review and human rights.

Ms Ross, you have a distinguished practice in EU law, public and administrative law, as well as in commercial matters. You have contributed much to the work of the Commercial Court. You skills as a civil advocate are well recognised, even when attacking the reasoning of the Divisions.

Ms Springham, you bring your skills and experience from a broad civil practice, particularly in reparation and public law, as well as in your work for the Equality and Human Rights Commission.

Ms Sutherland, through your work as both a solicitor and an advocate, you have contributed significantly to the development of the law on clinical negligence, as well as your important work as Junior Counsel to in the Vale of Leven Hospital Inquiry.

Ms Tanner, you have a distinguished civil practice, as well as public service as an Advocate Depute. Your work in the criminal courts particularly at first instance has been a major feature of your career.

Mr Walker, you are a leading expert in international commercial law, with particular specialism in international arbitration and energy disputes. Your international experience gives you invaluable insight into our system.

Mr McSporran, you are one of only a handful of practitioners to distinguish themselves as both prosecutor and defence solicitor. As a Solicitor Advocate, you have continued your public service as a Senior Advocate Depute, bringing the benefit of your work, notably in the Criminal Appeal Court, to the senior bar.

The rank and dignity of Queen's Counsel is hard earned and well-deserved for each of you. I offer you all my sincere congratulations and best wishes for this next chapter in your legal career. I should say that, for my own part, which is not inconsiderable, I will attach particular importance to service as an Advocate Depute when determining suitability in the future.

The court will now adjourn.

Thursday, September 22, 2016

Independent Observer concludes Queen’s Counsel appointments for 2016 based on merit, no evidence of discrimination or bias

QC appointments ‘fair’ – ‘Independent’ Observer. THE Independent Observer of the appointment of Queen’s Counsel in Scotland has concluded the latest round of Queen’s Counsel appointments – made by current Lord Justice General & Lord President Lord Carloway - are in line with expectations of a robust and consistent process.

The report, authored by Heather Baillie -  discloses 23 advocates and eight solicitor advocates applied to become Queen's Counsel. The number of advocates was in line with recent years, but more solicitor advocates applied, though only one was appointed.

Ms Baillie records that after discussing the applications and recommendations with the Lord Justice General and Lord Justice Clerk, she was "satisfied that the reasoning and decision making in relation to all candidates was robust and consistent with the guidance and criteria for recommendation".

Since publication of the report, an announcement has been published of thirteen new Queen’s Counsel appointed by the Queen on the recommendation of the First Minister.

Twelve advocates have been awarded the status: Ashley Edwards, Lisa Henderson, Steven Love, Ross Macfarlane, Euan MacKenzie, Marcus McKay, Douglas Ross, Morag Ross, Kay Springham, Lauren Sutherland, Susanne Tanner and Steven Walker, along with Iain McSporran, solicitor advocate.

Nominations to the First Minister were made by the Lord Justice General, Lord Carloway, after consulting other judges, the Lord Advocate, the Dean of the Faculty of Advocates and the President of the Law Society of Scotland.

The full report of the Independent Observer:

Appointment of Queen's Counsel in Scotland 2016

Report by Heather Baillie, Independent Observer

Introduction

This is my second report to the First Minister for Scotland as Independent Observer of the appointment of Queen's Counsel in Scotland. I was appointed in February 2016. I was asked to review the process of appointment and to provide a report of my findings and any recommendations to the First Minister at the end of the appointment round.

The 2016 round of appointments began in February 2016 after the Lord President and Lord Justice General, the Rt. Hon. Lord Carloway gave notice to the First Minister that he intended to invite applications for appointment. This is the first round of appointments since Lord Carloway was appointed Lord President.

Advertisements were placed in a range of media in March 2016. I was provided with all relevant paperwork. I was assisted by the Lord Justice General's Private Secretary with any further information I requested. I met with the Lord Justice General in June 2016 to discuss the current appointments round.

Independent observers have been appointed for each round of appointment of Queen's Counsel in Scotland since 2004. A summary of the appointments procedure was provided by the last independent observer in her report in 2012 and can be found at: - http://www.scotland.gov.uk/resource/0040/00401924.pdf

I was not advised of any substantive changes to the appointments procedure in the last year.

Review of the process of recommendation for appointment

I was provided with the following documents:

• All application forms

• Equality Act 2000 monitoring forms

• References

• Self- Assessments by applicants

• Criteria for assessment by Senators

• Assessments by Senators,

• Copy advertisement, and

• Copies of the newspapers, journals and websites where the advertisement was placed.

I was provided with a note of the conversations which took place between the Lord Justice General and the Dean of the Faculty of Advocates, the President of the Law Society and the Lord Advocate.

The Lord Justice General also provided me with a note of his preliminary thoughts on simplification of the process of judges commenting on applicants for silk for future appointment rounds.

I considered the Guidance provided for Applicants and the application forms.

I considered the process of consultation with the Dean of Faculty, President of the Law Society and the Lord Advocate to confirm that none of the proposed recommendations would be inappropriate.

Analysis of information considered

Guide for applicants.

The Guide was updated in March 2016 and can be found at the Judiciary of Scotland website: http://www.scotland-judiciary.org.uk This provides a link to the application forms for both Advocates and Solicitor Advocates and an explanation of the application procedure. Contact details for the Lord Justice General's private secretary are provided for enquiries and general feedback on unsuccessful applications. The criteria required for recommendation for appointment as Queen's Counsel in Scotland are set out and an explanation of the process is provided.

Timetable and advertisements.

Advertisements were published in March 2016. The closing date for applications was 1 April 2016. Applications were submitted to the Lord Justice General's office, and the advertisement provided the name and contact details of his Private Secretary for any enquiries in relation to the appointment round.

Advertisements were placed with: Thomson Reuters; Herald Times Group (S1 jobs - 4 March, Sunday Herald - 6 March, The Herald - 4 and 11 March, and www.heraldscotland.com - 3 March); Johnston Publishing Ltd (Scotland on Sunday - 6 March, The Scotsman - 4 and 11 March and Scotsman Recruitment www.scotsman.com - 4 March); Law Society of Scotland - 4 March; www.lawscotjobs.co.uk, Law Society Journal, Judicial website and the Scots Law Times.

Number of applications received from Advocates and Solicitor Advocates in 2016 and since 2004/5

Year

Advocates

Solicitor - Advocates

2016

23

8

2015

20

5

2014

20

2

2013

26

5

2012

26

4

2011

26

4

2010

23

3

2009

25

1

2008

32

5

2006/7

38

6

2004/5

36

11

Recommendations by the Lord Justice General to the First Minister for Scotland.

Thirteen applicants have been recommended by the Lord Justice General to the First Minister. Twelve advocates (6 female and 6 male) and one solicitor advocate (male).

Equality Act 2000 monitoring.

All applicants completed the Equalities monitoring form.

Gender of applicants.

23 Advocates (9 female and 14 male)

8 Solicitor Advocates (one female and 7 male)

Black or ethnic group other than white/Scottish or white/British - none

Disability Applicants who declared a disability - one.

Age and year of calling/qualification

Applicants declared years of birth ranging from 1937 to 1975.

Advocates called to the Bar since 2000 - 7; prior to 2000 - 16

Solicitor Advocates qualified since 2000 - 5; prior to 2000 - 3.

The equalities monitoring form did not gather information relating to other Protected Characteristics as defined by section 4 of the Equalities Act 2010.

Senators' Assessments.

The Lord Justice General provided an opportunity for 28 Senators of the College of Justice to comment on the applicants in confidence. The Senators were provided with copies of the applicants' self-assessments, the Guide for applicants including the criteria for recommendation and an assessment form for each applicant.

The assessment form allowed Senators to grade each applicant.

The first section of the assessment form provides an opportunity for each Senator to comment on his/her knowledge of the applicant and how recent that knowledge is.

The second section invites comment on the criteria for recommendation identified in the Guide - Advocacy Skills, Legal Ability and Practice and Professional Qualities.

The third section allows the Senator to grade the application as follows:

A Well fitted for Silk now and sufficiently outstanding to merit appointment this year.

B Possibly ready for Silk now but not in the front rank of applicants for appointment this year.

C Not obviously fitted for Silk at present.

D Not fitted for Silk.

P This application is premature.

N Insufficient knowledge of the applicant to express a view.

Discussion with the Lord Justice General.

I met Lord Carloway on 6 June, and with Lord Carloway and Lady Dorrian, Lord Justice Clerk on 14 June 2016 to discuss the appointment process, the applications and his recommendations. The Lord Justice General provided his reasoning in relation to all the applicants, having carefully analysed the applications, references and the comments made by senators. He had discussed his recommendations with the Lord Justice Clerk. He provided me with an explanation for each recommendation. His recommendations reflected his desire to ensure that there is a suitable range of expertise available for instruction in the upper courts in Scotland. After these discussions, I was satisfied that the reasoning and decision making in relation to all candidates was robust and consistent with the guidance and criteria for recommendation.

Independent Observer's Comments

Recommendation for appointment of silks to the First Minister is a matter for the Lord Justice General alone, having considered all the information provided by applicants, responses from Senators and others consulted and his own knowledge of the applicants. There is no fixed quota of Queen's Counsel to be appointed in any year.

The Lord Justice General endeavours to ensure that there is an adequate supply of Queen's Counsel providing extensive experience of appellate advocacy in the Scottish courts. He has a responsibility in relation to the efficient business of the courts to ensure a suitable range of expertise at the Senior Bar to promote public confidence. The Lord Justice General consulted with the Dean of Faculty and the President of the Law Society of Scotland to identify the extent of any perceived need to increase the number of Queen's Counsel in particular areas of legal practice.

The advertising arrangements were similar to last year and appeared fit for purpose. The time table for response was slightly shorter than last year however it gave candidates adequate notice to submit their applications. A wide range of media was used and it was appropriate for the category of appointment.

The Lord Justice General wished to complete the appointment process in time for newly appointed Silks to be introduced at the beginning of the new term in September 2016.

The Guide for applicants provides clear, concise information and an explanation of the procedure to be followed. A link is provided to the application form. The Lord Justice General's private secretary is available to provide further clarification and feedback.

As I reported last year, there was a wide variation of information provided by applicants in the self-assessment part of the application. Most continue to provide information in a paper apart and the number of pages apart ranged from one page to 26 pages, the majority of applicants (27) provided between one and 10 pages. A minority of applicants made specific reference to the Criteria for Recommendation set out in the Guide for Applicants.

Solicitor Advocates have the opportunity to provide additional information in the application form itself under the heading 'Work as a Solicitor Advocate'. All Solicitor Advocate applicants used the opportunity to provide between one and 19 pages of additional information. Few of the Advocate applicants used the section in the Application Form headed 'General' to provide additional information.

Most applicants, when asked to provide detail of experience before the courts including lists of cases, adhered to the requirement that the information related to the last 5 years. Some applicants provided explanation in relation to the cases listed. Applicants provided considerable detail of their experience and competence and all provided 2 references as required by the Guide.

All 28 Senators completed the assessment forms. All gave their assessments based on the application and self-assessment and the criteria for recommendation outlined in the Guide for Applicants. The assessments varied in the amount of detail provided to support the grade chosen. Recommendations appeared to be objective, consistent and based on knowledge of the applicant, however as in previous years the percentage of senators indicating that they had insufficient knowledge of the applicant to comment remained high.

Although the assessment form does not have a tick box for Senators to indicate if they acted as a referee for an applicant, all Senators, who provided a reference indicated that they had done so. Senators indicated in 18 applications that they had provided references for the applicant. In 16 of the 31 applications, 20 or more

senators indicated "insufficient knowledge of the applicant" to comment. This amounted to 68.5%.

The Lord Justice General is minded to appoint a panel of senior senators to provide comment on future applications in light of this. Consideration is also being given to charging an application fee and to a biennial appointment round.

It was clear from discussion and scrutiny of the papers, that the Lord Justice General had taken account of all the comments made by senators, applied his own knowledge of candidates and had given careful consideration to every application.

The Lord Justice General wrote to the Dean of the Faculty of Advocate, the President of the Law Society and the Lord Advocate to seek confirmation that nothing in the conduct or circumstances of the applicants to be recommended to the First Minister would make recommendation inappropriate. On receipt of the necessary confirmation, the Lord Justice General made the recommendations referred to above to the First Minister for Scotland.

Conclusion

I can confirm based on my observations and discussions that the process was conducted following an established procedure, careful scrutiny of all applications and that the criteria for recommendation were applied consistently. Applicants had sufficient notice and guidance to allow them to present the information they wished to be considered by the Lord Justice General.

The assessment process was conducted in a fair and objective manner. I was provided with all the information I required and I had the opportunity to meet the Lord Justice General and the Lord Justice Clerk to discuss matters relating to his recommendations. I was given co-operation and support by the Lord Justice General's private secretary throughout the review.

I am satisfied on the basis of my observations and my discussions with the Lord Justice General that the recommendations made to the First Minister were based on merit taking account of the applicants' experience and established appellate advocacy skills. There was no evidence of discrimination or bias. Consideration was given throughout the process of the need to maintain the availability of experienced representation of the highest standard at the Senior Bar in Scotland.

Recommendations

1. In my last report , I recommended, given the wide variation in the amount of information provided by applicants in the self-assessment part of the application form (one to 26 pages), that consideration is given to the introduction of a word limit. Applicants should also be encouraged to focus on the Criteria for Recommendation set out in Guide for Applicants. I also recommended that if applicants provide a list of cases they wish to rely on, they should provide a brief explanation of the significance of each case and the reason for referring to it. Consideration should be given to the need for additional information provided by Solicitor Advocates in the 'Work as a Solicitor Advocate' part of the application form as the same opportunity to provide a curriculum vitae is not afforded to Advocate applicants.

I understand that the Lord Justice General intends to give consideration to these recommendations as part of a review of the application form and the Guide for Applicants.

2. I noted in my last report that where a Senator is providing a reference for an applicant, it is not clear whether further comment and scoring is required. I recommended that clarification is provided in order to ensure a consistent approach, whether additional comment and scoring is required as part of the assessment. This suggestion could form part of the discussion regarding simplification of the process for recommendation proposed by the Lord Justice General. I understand that this would involve a small number of senators being appointed to consult and comment on applications. This would address the high percentage of judges who have insufficient knowledge to comment on applications.

3. Finally, I understand that the number of applicants seeking feedback on their applications has been disappointing. There are a number of repeat applications by unsuccessful candidates in previous years. Feedback would provide applicants with useful information regarding their application and the opportunity to address any perceived deficiencies. I recommend that as part of the review of the Guide for Applicants, consideration is given to developing the process for feedback to encourage applicants to seek comment on unsuccessful applications.

Heather Baillie 19 July 2016

Friday, September 16, 2016

Alison Di Rollo appointed Queen’s Counsel, three months after appointment as Solicitor General for Scotland

Solicitor General made a QC. THE new Solicitor General for Scotland – Alison Di Rollo has been appointed as Queen’s Counsel, fast tracked into a QC position three months after her appointment by First Minister Nicola Sturgeon to the number two legal post of Solicitor General at the Crown Office & Procurator Fiscal Service (COPFS).

Di Rollo fills the empty shoes of former Solicitor General Lesley Thomson - who was widely tipped to become Lord Advocate after the resignation of Frank Mulholland in May.

Thomson subsequently resigned her post, while Mulholland was moved up a peg by Lord Justice General Lord Carloway to the judicial bench – despite an on-going Crown Office “dirty money probe” into Mulholland’s brother - reported in the Sunday Mail newspaper.

The Scottish Government press centre states Alison Di Rollo was nominated by James Wolffe QC, the new Lord Advocate and former Dean of the Faculty of Advocates.

Alison Di Rollo was appointed Solicitor General for Scotland on 2 June 2016.

She joined COPFS in 1985, following a legal traineeship with the now defunct law firm of McGrigor Donald based in Glasgow.

Di Rollo worked in various PF Offices and Crown Office, before being appointed Deputy Head of the High Court Unit in Crown Office, and later Head of Operational Policy.

In May 2008 Alison was seconded from COPFS to take up an appointment as a Trial Advocate Depute and in February 2010 joined the COPFS National Sexual Crimes Unit.

Between January 2013 and January 2015 she was the Head of the National Sexual Crimes Unit and from January 2015 until taking appointment as Solicitor General Alison was a Senior Advocate Depute.

Tuesday, September 13, 2016

Crown Office compromised by crime victims rights gone too far - Dean of Faculty Jackson QC offers suggestions to new Lord Advocate Wolffe QC

Suggestions on law, from Gordon Jackson QC. AN OPEN letter to the new Lord Advocate James Wolffe QC - from Gordon Jackson QC - puts forward a “few suggestions from the other side of the fence”.

The letter, written by Jackson - who represents among others, Frankie ‘Donuts’ Donaldson - suggests the impact of victims of crime has now gone too far in court.

Gordon Jackson QC succeeded James Wolfe to the role of Dean of the Faculty of Advocates upon Wolffe’s appointment to the job of Lord Advocate.

Dear James,

Congratulations on your appointment, which has been universally welcomed. Now that you’ve had time to settle, let me make two suggestions from the other side of the fence.

Please allow others to make decisions. There is a perception that prosecutors, from Advocate Depute to junior fiscals, are very reluctant to make any decision. In a case of my own, an experienced fiscal refused to drop a case she knew to be hopeless because she can’t face her decision being queried and perhaps criticised by others who know very little about the case.

So, too, a very senior fiscal can’t make a simple decision in a high-profile case without checking “upstairs”. Or a long-serving Advocate Depute tells me that she was a good decision-maker but has got so used to not making difficult decisions that she now finds it hard to do. Eventually it becomes the norm not to make decisions but leave that to others, be it judge or jury, but that may not be in the interests of justice.

The jury may well acquit but it is itself unjust if people sit in the dock when they shouldn’t be there just because no one will make the correct decision.

Of course, prosecutors work at different levels. A junior fiscal can’t decide on a murder charge but everyone should be encouraged to make responsible decisions at their own level. Mistakes will be made. That is inevitable, but prosecutors need to know they will be supported when that happens. This will all need a culture change but without that the whole system is suffering.

A judge recently told me he had always been against judges having the power to dismiss cases where a conviction would be “unsafe” because prosecutors could be relied on to deal appropriately with such cases. That, he said, regrettably no longer seems to be the case. That needs to change. Please, too, maintain a very robust independence.

An independent prosecutor has always been at the heart of our system and that principle is enshrined in the Scotland Act itself. I’m worried, however, that this admirable principle is being eroded in practice.

Of course, in the real world, any Lord Advocate will be aware of others, press and politicians, looking over his shoulder. To ignore that would be naive.

The problem is striking the balance and when, as I believe has happened, correct decisions are not made because of how that might play out in the popular press, then the balance is wrong. Knowing you as well as I do. I have no doubt you will get this right. Perhaps more difficult, and more controversial, is the role of victims of crime and their relatives.

Again it is about balance. For too long those most affected were largely ignored, given little or no information. That has changed and rightly so. Now, there are proper support system and channels of information. Judges are given victim impact statements. But yet again, I think the balance has gone wrong.

Victims and their relatives now seem to feel that the prosecutor is their lawyer acting for them. They expect that their wishes will not only be heard, but acted on. Hardly surprising when in the High Court prosecutors are instructed to regularly meet victims and their families.

You will be told that none of this over-influences decisions. I don’t believe it.

You cannot meet the family of a deceased victim every day and not be influenced by that when it comes to accepting a reduced plea.

Not surprising, therefore, that senior prosecutors tell me they agree with my analysis but can’t act on it because of the family’s position. That is wrong. It needs to be stressed that that the prosecutor is NOT the victim’s lawyer but an independent prosecutor in the public interest.

I know everyone pays lip service to this principle but I also believe it, too, is being eroded in practice. Both of these things are about the importance of the independent prosecutor making decisions without fear or favour.

If you ensure that happens, your time as Lord Advocate will be of great value.

With best wishes Gordon