Wednesday, May 13, 2015

Scots Crown Office prosecution of journalist Andy Coulson moved for third time, four week trial expected to cost more than £2m over perjury allegations in Sheridan case

Coulson trial date moved for third time. THE TRIAL of Andy Coulson, the former editor of the News of the World, for alleged perjury is due to start this Friday 15 May 2015 after being moved several times.

The trial - HMA v Andrew Coulson – is the only case resulting from a multi million pound Scottish Police operation condemned “Operation Rubicon” .

The trial is expected to last up to four weeks and cost taxpayers more than two million pounds.

Coulson, who went on to become David Cameron’s director of communications after leaving the News of the World, is accused of lying on oath during the trial of Solidarity party leader and former MSP, Tommy Sheridan, for perjury in Glasgow in December 2010. Sheridan was later convicted of perjury and sentenced to three years in prison.

Mr Coulson denies all of the charges against him

Scotland's Judicial Office initially said: "The trial diet in the case of HM Advocate v Andrew Coulson, previously set for Monday 11 May 2015, has been adjourned. The case will now call at 10am on Tuesday 12 May at the High Court in Edinburgh (Lawnmarket Court 3), to deal with any outstanding procedural matters and to fix another date for the trial to proceed."

The Judicial Office then updated their statement with another change of date: "A new trial diet in the case of HM Advocate v Andrew Coulson has been fixed following a hearing at the High Court in Edinburgh. The case will call at 10am on Friday 15 May 2015 at Edinburgh High Court (Lawnmarket Court 3).”

Coulson, the former editor of the News of the World who became Downing Street director of communications after Cameron came to power in 2010, was due to face a jury during the last weeks of this year's general election campaign, however legal argument led to the case being postponed until this week, removing a potential political embarrassment for the prime minister before the polls closed.

Coulson is charged with three counts of perjury relating to testimony he gave in the 2010 trial of Scottish politician Tommy Sheridan. The former News International journalist, who was working for Downing Street at the time, was called by the defence to answer questions about his role at the now defunct News of the World and his knowledge of the illegal interception of voicemails carried out by the newspaper's staff while he was editor. Sheridan was later convicted of perjury and sentenced to three years in prison and Coulson resigned from the government a month later.

In the wake of the 2011 phone-hacking scandal, Strathclyde Police launched "Operation Rubicon" to investigate allegations of misconduct at Sheridan's trial. As a result, in 2012 seven Scottish police officers detained the former editor at his home in Dulwich, South London at 6.30am and drove him to Glasgow. Shortly afterwards he was arrested and charged.

Also facing legal action are the paper's former Scottish editor Bob Bird and  senior reporter Douglas Wight. However Lord Advocate Frank Mulholland of the Crown Office & Procurator Fiscal Service (COPFS) has not announced any decision on whether prosecutors will proceed in the remaining two cases.

A similar operation run in England & Wales by the Crown Prosecution Service called "Operation Elveden", costing the public over £20 million has all but collapsed.

Nine out of the remaining twelve prosecutions against journalists – which included Andy Coulson - have been dropped by the Director of Public Prosecutions, and the entire operation branded an expensive taxpayer funded political witch hunt against the media.

Four more reporters were cleared at the Old Bailey of bribing public officials, taking the total number found not guilty by a jury to 14

An urgent review of the £20 million investigation was ordered last month, after the Court of Appeal quashed the conviction of former News of the World reporter Lucy Panton, who was the first reporter to be found guilty.

Friday, March 13, 2015

Digitally recorded statements could lead to miscarriage of justice as Evidence and Procedure Review calls for recordings of witness testimony to be admitted as evidence at trials

Courts proposal on taped witness statements could skew justice A REPORT published today by the Scottish Court Service claims digital technology should be used to “transform our criminal justice system” and ‘capture’ evidence from witnesses in advance of a criminal trial.

The review, chaired by a senior judge concludes witness accounts recorded at or soon after the scene of a crime should be admissible at trial, and criminal trial procedure should be re-thought to permit such developments.

In response, solicitors say the latest round of politically rooted meddling in the justice system contains little in the way of safeguards for accused and protections for the right to a fair trial.

The Evidence and Procedure Review  – chaired by Lord Carloway - calls for Scotland to harness the opportunities that new technologies bring to improve the quality and accessibility of justice – by recording statements from witnesses in advance of criminal proceedings. The Evidence and Procedure Review was an internal Scottish Court Service research project led by the Lord Justice Clerk, Lord Carloway, supported by a small reference group and a full-time Project Director.

However, legal insiders say the proposals are of serious concern to how the justice system deals with witnesses and the rights of all accused persons – who have the right to test evidence put forward by the prosecution in court.

The move – which some see as a plan to substitute dodgy witnesses for a video recording - may also increase a growing trend in criminal trials where it has become obvious witnesses have been ‘coached’ by prosecutors in their delivery of evidence while under oath.

The growing trend of dodgy evidence presented in court by the crown - an issue familiar to many experienced criminal defence solicitors and counsel -  has now reached a point in Scotland where trials attract regular criticism from the bench of crown agents conduct and the incredulity of witness testimony – among them – statements given by serving Police Officers.

Published here: the Evidence and Procedure Review consists of five Chapters:

Chapter 1 introduces the Review, its remit and details the considerations that led to the Review taking place.

Chapter 2 considers how children and vulnerable witnesses are treated in Scotland, Australia, England and Wales and Norway, and concludes that Scotland there is more that we could to improve the way in which such witnesses are required to give evidence. 

Chapter 3 looks at the legal issues raised if witness statements recorded prior to trial are to be generally admissible.   It reviews the law on hearsay, under which such statements are currently generally excluded, and considers the implications of a rule that would provide for their general admissibility. 

Chapter 4 considers how criminal procedures would have to change to accommodate and take full advantage of the availability of such evidence; it also covers how the infrastructure of the justice system, both in terms of the technology available and the nature of facilities in the courts, police offices and elsewhere will have to be rendered fit to undertake the tasks of recording, editing, storing and presentation of such testimony.

Chapter 5 provides some concluding remarks.

A statement released by the Scottish Court Service said: “We need to rethink what constitutes the best evidence at trial – and this may mean a transformation in the way the evidence of witnesses in general is captured and presented.  It is highly likely that a witness account taken at the scene of a crime or shortly after will be more reliable, full and accurate than their attempt to recall what happened many months later in court. The Report explores what legal and other changes need to be made to allow pre-recorded witness statements to be admitted as direct evidence, and what safeguards need to be in place. There are, potentially, great benefits – these include greater accuracy and reliability of the evidence; the ability to manage cases more effectively; and less reliance on witnesses turning up at court on the trial day.

Scotland needs to move to the forefront of law and practice in relation to children and vulnerable witnesses.There’s extensive evidence that giving testimony at court is especially distressing and potentially damaging for young and vulnerable witnesses; and it is a poor way to get good evidence from them. Although Scotland does have a range of protections available, experience elsewhere, such as in England and Wales, Australia and Norway, suggests we can go further to protect such witnesses and ensure their evidence is taken in the most appropriate way in advance of the trial.

The Report is a starting point for developing ideas and proposals – it aims to be a catalyst for developing reforms that will bring a better experience for those called to give evidence in criminal proceedings, a system of justice that deals with cases speedily, effectively and fairly, and one which remains relevant, trusted and respected by the Scottish people.  The Scottish Court Service will now work with the Scottish Government, other justice agencies, the legal professions and victims groups to explore the implications of the report’s propositions and develop proposals for change.”

Chief Executive of the Scottish Courts Service - Eric McQueen said: “This Report aims to stimulate discussion about the very nature of criminal trials - how do we ensure the testimony of witnesses is as reliable, accurate and complete as it could be; how do we eliminate unnecessary delays and preserve a fair, transparent and just system; how do we make sure that  young and vulnerable witnesses  are safeguarded against further trauma?

"The propositions in this Report could transform our criminal justice system.  We now need work through their implications with everyone with an interest, so that the proposals that emerge are ambitious, workable and will help create a modern, fair and efficient criminal justice system for the digital age.”

Speaking to Scottish Law Reporter earlier today, a criminal defence solicitor said “The proposals presented by the SCS are just another politically motivated ‘think-of-the-PR project’ with little real regard for the interests of justice or the right to a fair hearing”.

James Wolffe QC, Dean of the Faculty of Advocates, promised to consider the report's conclusions in detail but in an initial response said: "It is fundamental to the rule of law that an accused person should be able to challenge and test the evidence led by the prosecution. That is the mechanism by which we, in Scotland, seek to ensure that only the guilty are convicted. All of us have an interest in securing the sound administration of justice in Scotland – and, used appropriately, technology may provide opportunities for improving that system."

Lord Carloway – who chaired the report – previously called for the removal of CORROBORATION – a long held safeguard against miscarriage of justice in Scots law where evidence in a criminal trial is required from two separate sources for a conviction.

The plot to remove corroboration was instituted by the now sacked Justice Secretary Kenny MacAskill. The bitter debate on removal of corroboration reached a point where Crown Office insiders – angry over adverse media coverage – lashed out at members of the judiciary after a number of High Court judges signed a petition against the planned removal of corroboration.

Prosecutors at Scotland’s Crown Office & Procurator Fiscal Service (COPFS) appeared before MSPs at the Scottish Parliament to back the removal of corroboration in an effort to assist the Crown Office in obtaining higher rates of convictions.

The proposal to remove the right of corroboration was effectively shelved after Scotland’s top judge warned the Scottish Parliament’s Justice Committee against meddling with legal safeguards which cut across almost any criminal offence in law – ensuring the right to a fair trial.

Wednesday, March 11, 2015

LAW CHIEF’S SON IN VIOLENCE RAP: Scotland’s Solicitor General’s son is convicted of domestic violence attack on female partner

Top prosecutor’s son convicted of domestic violence. THE SON of Scotland’s Solicitor General has been convicted of attacking his girlfriend, while his mother is supposed to be in charge of efforts to tackle domestic abuse.

Andrew Thomson (27) who was previously convicted of drink driving and banned from driving for 18 months – admitted assaulting his partner at a property in Glasgow in January.

His mother –  Lesley Thomson QC - once thought to be in the running to replace Frank Mulholland as Lord Advocate – backed the now failed MacAskill proposal to abolish CORROBORATION – a long held safeguard against miscarriage of justice in Scots law where evidence in a criminal trial is required from two separate sources for a conviction

Thomson and others including the Lord Advocate Frank Mulholland, Police Scotland and interest parties campaigned vigorously for the removal of corroboration.

Speaking at a Crown Office and Procurator Fiscal Services annual Sexual Offences Conference at Hampden in Glasgow Thomson said: "Many of those opposed to the abolition of the requirement of corroboration advance arguments that it will lead to a greater risk of and greater numbers of miscarriages of justice. However, it is clear that it is the present system which creates many victims of miscarriages of justice."

However it came to be known the Crown Office were enthusiastic about the removal of the right from law – because it interfered with dodgy evidence presented by prosecutors in court which did not stand up to scrutiny or cross examination. Prosecutors effectively promoted the removal of corroboration in an effort to assist the Crown Office in obtaining higher rates of convictions.

The proposal to remove the right of corroboration was effectively shelved after Scotland’s top judge warned the Scottish Parliament’s Justice Committee against meddling with legal safeguards which cut across almost any criminal offence in law – ensuring the right to a fair trial.

Report from Scottish Mail on Sunday:


By Fiona McWhirter Mail on Sunday 8 March 2015

THE son of Scotland's Solicitor General has been convicted of attacking his girlfriend - as his mother leads nationwide efforts to tackle domestic abuse.

Andrew Thomson, 27, admitted assaulting his partner at a property in Glasgow in January.

His mother, Lesley Thomson, QC, has attracted widespread acclaim for her efforts to toughen up the law concerning assaults in the home.

As the nation's second most senior prosecutor, she has been pushing for a criminal offence to combat domestic violence against women, calling on Scotland to develop a 'modern approach' to deal with the 'emotional damage caused, as well as the physical harm' to victims.

Her move has received support from First Minister Nicola Sturgeon, police, prosecutors and politicians across the board.

Ms Thomson's son, whose address was given in court papers as being in the West End of Glasgow, had been due to be sentenced at the city's sheriff court on February 27, after admitting pushing his partner and causing her to fall over a table.

Sentence was deferred until August for good behaviour and the sheriff called for a supplementary social work report.

Domestic abuse is at present dealt with through a range of criminal offences, including assault, breach of the peace and crimes against property. But following Ms Thomson's efforts to force it onto the political agenda, greater priority is now given by Police Scotland to domestic abuse.

Domestic abuse and rape task forces operate throughout Scotland. In 2013-14, police referred 36,552 domestic assaults to the Crown Office andProcurator Fiscal Service (COPFS), a significant rise on the number of cases - around 27,000 - recorded in each of the two previous years.

In 2013, COPFS - which defines domestic abuse as 'any form of physical, sexual or mental and emotional abuse which might amount to criminal conductand which takes place within the context of a relationship' - boosted its efforts to tackle the issue with the introduction of a specialist national procurator fiscal for domestic abuse, Anne Marie Hicks.

Ms Thomson revealed she had asked the fiscal to review all areas of COPFS work and training in relation to the issue and stressed: "Cases involvingdomestic abuse are often among the most challenging faced by prosecutors, but that does not deter us from putting the interests of the victims in such cases at the heart of our prosecution policy."

She also raised the prospect of a specific offence when she spoke at a COPFS conference focusing on the subject.

Referring to separate stalking laws passed in 2010, the Solicitor General told delegates last year: "Domestic abuse is, in my view, another area in which specialist legislation has a role to play.

"It has the potential to effect further change in societal attitudes, to instill confidence in victims and, of course, to ensure their abusers are held to account."

She added: "Creating a specific offence of domestic abuse is one way in which we could ensure that our criminal law is, and remains, fit for purpose."

"It would help victims by acknowledging the true impact and consequences of all types of abusive behaviours, including non-violent tactics of control andabuse, and would solidify Scotland's position as a leader in the field of tackling violence against women."

In November, when Miss Sturgeon became First Minister, she unveiled 12 Bills as part of her debut legislative programme, including ramping up action against domestic abuse.

She said the Scottish Government would consult on the introduction of a specific criminal offence to combat the problem.

Last night, a Crown Office spokesman said: "The Solicitor General's position on domestic abuse is well known and has been widely welcomed."

"She is a leading advocate of measures to deal with domestic violence more effectively."

"She has led the approach within Scotland's prosecution service, working closely with the police and those who support victims of domestic abuse to strengthen prosecution in this area."

In 2013, Andrew Thomson was banned from driving for 18 months and fined £1,100 after he drove into a marquee while more than twice the drink-driving limit.

At Oban Sheriff Court, he admitted driving dangerously, without insurance and mounting a grass verge and going into the side of a marquee near Port Ellen on the island of Islay.

'Ensure abusers are held to account''Such cases are often the most challenging'

Thursday, February 26, 2015

HEDGE FUND JUDGE SUSPENDED: Sheriff Peter Watson removed from bench by Lord Justice General over multi million pound summons linked to £400m Heather Capital fraud probe

Sheriff Peter Watson kicked off bench. A SHERIFF linked to the collapsed £400m Heather Capital hedge fund probe and multi million pound claims against Scots law firms has been suspended by Scotland’s top judge Lord Brian Gill – in order to maintain public confidence in the judiciary.

PETER BLACK WATSON (61) - known formerly as a ‘top’ media lawyer with close links to political figures such as Alex Salmond, Police, and even prosecutors - has been kicked off the judicial bench by the Lord Justice General Lord Gill – after the judge concluded Watson’s offer to step aside was “not appropriate”.

BUT it can now be revealed – action by Gill (73) only came about after the Judicial Office was asked by the media to comment on allegations against the sheriff contained in a multi million pound claim lodged against Watson’s former law firm – Glasgow based Levy & Mcrae.

Watson, the go-to-lawyer for those who sought to quell media interest in their activities – was based at Levy & Mcrae until last year. He inexplicably departed after a long career at the firm, and started PBWLaw. Watson, a regular to the Cayman Islands tax haven – according to media editorials - claims he wants to make it the "Harley Street of legal advice".

Concerns over his position as a  member of the judiciary arose due to the fact Watson was a director of Mathon Ltd – a key part of the Heather Capital empire run by Gregory King – who is one of four men now the subject of reports by Police Scotland to the Crown Office.

Scotland’s Lord Advocate is currently considering possible criminal charges in connection with the hedge fund probe, but at this time, Watson has not been named by the Crown Office as someone under investigation.

However, the Crown Office may face a conflict of interest dilemma as Watson- known to many ‘independent Crown Counsel’ - has personal links to former Crown Office boss - Lord Advocate Dame Elish Angiolini DBE QC (nee McPhilomy) – who used Watson’s legal services – paid for by the Crown Office & Scottish Ministers - to pursue anti-abuse campaigner Robert Green who called for an inquiry into allegations of mishandled cases relating to historical abuse claims.

The Judicial Office issued the following statement:

Statement from the Judicial Office for Scotland on the suspension of part-time sheriff Peter Watson

Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

Tuesday, February 10, 2015

Law Scandal hits Borders law firm: Lawyer Andrew Penman suspended, Stormonth Darling Solicitors taken over by Law Society in scandal linked to client complaints & Court of Session case

Andrew Penman – suspended by Law Society. A SOLICITOR from the Scottish Borders who was once accused by Law Society investigators of faking up evidence in files and deliberately deceiving banks and the Inland Revenue has been suspended by the Law Society of Scotland after a string of scandals relating to his clients legal affairs and dodgy legal practices.

ANDREW PATERSON PENMAN, solicitor with the Kelso law firm of Stormonth Darling Solicitors was suspended late last year by the Law Society of Scotland, who quietly announced Penman’s suspension 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 announcing Penman's suspension was ironically signed by James Ness, Deputy Registrar – the same solicitor who once defended Penman during a Complaints Committee hearing. Ness - a partner at Austins Solicitors, Dalbeattie, Dumfries & Galloway - represented Penman at Law Society complaints hearings. Ness gave a submission at the time demanding the Complaints Committee change its decision from one of prosecuting Penman before the Scottish Solicitors Disciplinary Tribunal – to a slap on the wrist. The move was controversial and heavily reported in the national and local press at the time.

Penman has now been linked to a case in the Court of Session - Ladykirk Estates Limited, Academy House, Shedden Park Road, Kelso, (Ledingham Chalmers Llp) V 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 have indicated the case is 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.

Solicitor Craig Wood - the only remaining solicitor at Stormonth Darling ‘took ill’ leading to the Law Society closing the firm down. It has since been announced another local law firm, Cullen Kilshaw, has agreed to take on some of the business of 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


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

Law Society of Scotland investigation into crooked lawyer Andrew Penman of Stornomth Darling Solciitors Kelso 2Law Society found Andrew Penman deliberately mislead Royal Bank of Scotland, amounting to professional misconduct. Page two of the Law Society report said : “The reporter noted there was a complete failure on the part of Messrs. P. & J. Stormonth-Darling to deal with this matter. They completely failed to acknowledge the instructions they had received from the Royal Bank in this connection and failed to take any steps to deal with the matter. The reporter was of the view that the substantial and unnecessary delays which had taken place in the executry might amount not only to an inadequate professional service on the part of Messrs. P.& J. Stormonth Darling but professional misconduct on the part of Mr Penman the solicitor dealing with the matter up until the time the complaint was lodged with the Law Society on 17th October 1994. Further the reporter was of the view that the apparent deliberate attempt to mislead the Royal Bank in regard to the Banco di Roma account may amount to professional misconduct.”

The Law Society investigating lawyer went onto demand 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.”

In several damning verdicts, the Law Society’s investigating officer found that Penman had DELIBERATELY MISLED the Royal Bank of Scotland, while documents involving correspondence from the then INLAND REVENUE now Her Majesty’s Revenue & Custons (HMRC) showed Penman had also deliberately misled tax inspectors after vast sums of money disappeared from the deceased’s estate in an organised attempt by the Executor, a Borders Accountant identified as Norman Howitt to pay the monies over to the deceased’s wife and then into a SECRET TRUST FUND controlled by Howitt himself and revealed in an article on Scottish Law Reporter in 2007, HERE where evidence revealed Howitt had INCREDIBLY even taken possession of the deceased’s widow’s pension book.

Law Society of Scotland investigation into crooked lawyer Andrew Penman of Stornomth Darling Solciitors Kelso 3Law Society Complaints Committee said Andrew Penman mislead the Royal Bank, was a failure at handling an executry. The Committee’s consideration of the investigating lawyer’s findings revealed : “The Committee expressed grave concern at the way that this executry had been handled by Mr. Penman and the extraordinary delays and the complete failure to deal with correspondence in an adequate manner, The Committee were of the: view that there: had been very poor attention paid to the administration of this estate and that whilst the complainer's uncertainty in certain matters might have caused some confusion there was a general lack of effort on the part of the solicitors to deal with matters in a reasonable manner.. It was noted in connection with the proposed loan by the Royal Bank. to the complainer there was a complete and utter failure to deal with the matter in any way or even to acknowledge the instructions. In connection with the Banco di Roma account the Committee noted the failure on the part of Mr. Penman to deal with matters in a reasonable way. They were particularly concerned at the terms of the letter written by Mr. Penman to the Royal Bank on 29th September 1992 which appeared to be an attempt to mislead the Royal Bank into believing that matters were being actively dealt with when they were not.”

“The Committee concurred with the views of the reporter in this matter indicating that the apparent attempt to mislead the Royal Bank persuaded them that Mr Penman's acting in the matter were so serious and reprehensible as to amount to professional misconduct. The Committee thereafter considered whether the professional misconduct was such that it would warrant referral to the Scottish Solicitors Discipline Tribunal. The Committee were of the view that the administration of the executry had been so appallingly badly done as to take the issue out of service into that of conduct and coupled with the apparent attempt to mislead the Royal Bank the conduct was such that it would warrant prosecution before the Scottish Solicitors Discipline Tribunal. The Committee were of the view that Mr, Penman's acting in respect of the extra-ordinary delays and failure to progress the administration of the executry and in apparently misleading the Royal Bank of Scotland were so serious and reprehensible as to amount to professional misconduct. The Committee determined to recommend to Council that Mr. Penman be prosecuted before the Scottish Solicitors Discipline Tribunal in relation to the professional misconduct and the service provided and any other matter which the Fiscal feels appropriate.”

The actions of Penman were so severe the Law Society’s reporter demanded Penman be prosecuted before the SCOTTISH SOLICITORS DISCIPLINE TRIBUNAL and struck off due to the seriousness of his actions, however a secret deal was brokered between a key Law Society official, James Ness and the then Complaints Committee to commute Penman’s punishment and reverse the prosecution, thought to be the first & only case of its kind ever happening at the Law Society. The deal to reverse the prosecution was branded “corrupt” by many legal insiders and the wider media.

Saturday, January 31, 2015

Matthew Vickers heads to Ombudsman Services as Scottish Legal Complaints Commission lose another Chief Executive

Matthew Vickers, SLCC CEO resigns for mediation role. THE Scottish Legal Complaints Commission (SLCC) – the ever popular sinkhole of the £320 a year complaints levy - has announced the resignation of it’s current Chief Executive - Matthew Vickers - who steps down in March 2015 for a post in the world of big business mediation.

Mr Vickers took on the CEO role at the SLCC during summer of 2012 making him the third ‘appointed’ Chief Executive not counting two civil servants who filled the post before the SLCC became operational in 2008. Vickers is leaving to take up the role of Deputy Chief Ombudsman at Ombudsman Services - a not-for-profit organisation which provides independent dispute resolution for the communication, energy and property sectors.

Commenting on the resignation SLCC chair, Bill Brackenridge said: “We are grateful to Matt for his leadership and contribution since he joined the SLCC as CEO in June 2012. He and the management and staff have worked hard to make the SLCC a more efficient, effective and influential organisation. We are now well established as an independent and impartial body. Of course, we recognise that there is a great deal of work to be done and we have started our search to find a CEO who will help us to tackle it."

Friday, January 30, 2015

FRACKS AWAY: Scottish Government fracking ban hits problem as top judge promotes shale gas retrieval, says “resources should be served by the court system”

Slant drilling coming to a house near you – courtesy of courts. SCOTLAND’S top judge Lord Brian Gill has given his own view of fracking for shale gas on the same day the Scottish Government announced a moratorium on new fracking licenses. In what many view as an opposite opinion to the ban on fracking in Scotland, Lord Gill gave an optimistic appraisal of the retrieval of shale gas in his words, saying “if that should  be allowed” on the same day Energy Minister Fergus Ewing sought to quell protests by announcing a temporary ban on fracking – with the promise of a ‘public consultation’.

Ominously, Gill also indicated the courts should be there to serve opportunities presented by natural resources, and went on to chide the legal profession for not taking enough notice of the North Sea oil boom.

Speaking on the issue of fracking, Gill said: “Our resources of energy may be increased by the retrieval of shale gas, if that should be allowed. It seems to me therefore that the opportunity that our natural resources present should be served by the court system.”

However, Gill’s own views on the nation’s energy policy and how the legal sector should exploit it for their own ends was delivered the very same day the Scottish Government grudgingly announced a ban on new shale gas fracking schemes.

Making a statement announcing the ban on fracking for shale gas after it emerged Energy Minister Fergus Ewing had criticised MSP Joan McAlpine for assisting constituents against plans by the Duke of Buccleuch to mine coalbed methane at Canonbie in Dumfries and Galloway, Mr Ewing told the Parliament: "I want to ensure that the voices of the communities likely to be most affected are heard, and are heard in a more formal and structured way.I am therefore announcing today that in addition to the technical work I've referred to on planning, environmental regulation and upon assessing the impact on public health, Scottish ministers will also launch a full public consultation on unconventional oil and gas extraction."

Speech by Lord Gill on Digital Justice, Fracking & Big Oil. During the speech, Lord Gill also chastised his own judicial colleagues & lawyers for missing out on exploitation of Scotland’s oil boom.

Lord Gill said: “In the 1960s and 1970s the economy of Scotland was transformed by the discovery of North Sea oil. The judges and lawyers of that time were not alert to the opportunity that Scotland could be an international forum for resolving disputes in the oil and gas industry. We paid a price for our complacency when the international oil and gas industry passed us by.”

Gill continued: “Half a century on we should look at Scotland's economic opportunities and see how the courts can best serve them. In recent years a commitment to renewable energy has brought wind power to the fore as an energy source. Other forms of renewable energy may follow.”

The full text of Lord Gill’s speech follows: The focus of today's discussion will be the use of digital innovation and technology in the administration of justice. Until recently, a discussion of that subject would have been futile. There would have been no point in superimposing new technology on a justice system that was in failure. Things are different now.

The background to my speech today is the Courts Reform (Scotland) act 2014 which came into law on 10 November last. It is the single most important piece of legislation in the field of civil justice for over a century. The purposes of the Act are best understood in the context of the Scottish Government's Making Justice Work programme. This programme has made it possible for reform in the entire justice system to be implemented according to a systematic, integrated plan. It is an outstanding example of public administration in Scotland.

It has been a privilege for me to lead the Scottish Civil Courts Review and to see its key principles transformed into law.

On the whole, the public, the politicians, the litigants' interest groups, the commercial sector, and above all, those who work in the system and know it from the inside, were enthusiastic in their reaction to the recommendations of

the Review and to the Courts Reform Bill through which the prospect of a modern civil justice system became a reality.

Future generations will be surprised to learn that in the early years of the 21st century there were sections of the legal profession who thought it right to conduct civil litigations of a value of £5000 in the highest civil court in the land; or that we tolerated a system in which the legal costs of the first day of an action could exceed the value of the claim.

It is my impression that those lawyers who opposed change assumed that the profession was living in a static legal world. Events have disproved that assumption. In the Scottish legal world change is all around. Solicitor firms of high repute have gone to the wall. Famous legal names have disappeared as a result of the entry of international law firms into Scotland.

Even without the civil justice reforms the profession would have faced the prospect of radical change. Consider the changes that have occurred in the profession since we reported in 2009. Would anyone now contend that, for example, the structure of the solicitor profession or the system of legal aid will be the same in ten years' time as it is now?

All of the controversy over civil justice reform must now be put behind us. The Scottish Parliament has passed the Act. What was the subject of debate is now the law of the land.

So, now that the tumult and the shouting has died, as Kipling put it, it is time to look ahead in a positive way. I am pleased to announce that the timetable for commencement of the provisions of the Act has now been finalised.

By July next the lengthy process of appointment of the first summary sheriffs will be put in hand. In time, those summary sheriffs will deal with the new simple procedure, which will come into force in the Spring of 2016.

In September, at the start of the new legal year, a number of the key reforms will take effect, namely:

• the establishment in Edinburgh of a sheriff court with a Scotland-wide jurisdiction for personal injury cases;

• the extension of the exclusive jurisdiction of the sheriff court to actions with a value of up to £100,000;

• the establishment of the Sheriff Appeal Court, at first with jurisdiction for criminal cases and after January 2016 with jurisdiction also in civil cases;

• and finally, the introduction of the permission stage to judicial review proceedings.

The reforms present opportunities to litigants, to the profession and to judicial office holders at every level. In the Court of Session our administration will no longer bear the burden of low-value litigations.

At sheriff court level solicitors will have the opportunity to deal with claims of significant value and to exercise skilled advocacy in cases that in former days would have been litigated in the higher courts. But litigants should have a choice of representation; and therefore should have also access to the services of the Bar. There will be many important and complex sheriff court litigations where the services of counsel should be available to either side. Whether at first instance or in the Sheriff Appeal Court, section 108 of the 2014 Act imposes a positive duty on the court to sanction the employment of counsel if it considers that in all the circumstances it is reasonable to do so. In making that judgment the court must have particular regard to the difficulty or complexity, or the likely difficulty or complexity, of the proceedings; the importance or value of any claim in the proceedings; and the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel. The court may also have regard to such other matters as it considers appropriate. This provision reflects the expectation underlying the Report of the Civil Courts Review that counsel would have a real and meaningful role in the work of the sheriff court in its expanded jurisdiction.

In consequence of the reforms, the shrieval bench will be relieved of the burden of minor criminal work. The sheriffs will have the opportunity to pursue specialisms in the field of civil law, such as family law and commercial law, and to specialise in the criminal field in cases of serious crime under solemn procedure. This will present the sheriffs with the demanding task of improving their judicial skills and in accepting a high degree of responsibility; but that is a challenge that any sheriff should be glad to accept.

At the third tier level the new office of summary sheriff will lead to the recruitment of a group of sheriffs, who will be specialists in their own way, dealing with lower value cases that presently occupy much of a sheriff's time - small claims, small debts, housing repossessions, family disputes, child- related matters, children's hearing referrals and the bulk of summary prosecutions throughout Scotland.

Finally, the sheriff appeal court will achieve efficiencies at the appellate level by removing business from the Inner House and the Appeal Court respectively; by expediting cases through the first tier of the appeal process and by preventing unmeritorious claims from being pursued in the higher courts.

When the relevant provision comes into force, I intend to appoint Sheriff Principal Mhairi Stephen QC to be President of the Sheriff Appeal Court. She will be the first woman to be appointed as president of an appellate court in Scotland. I am confident of the court's success under her expert leadership.

The reforms seek to remedy one of the besetting problems in our courts in modern times - that of maximising the productive use of available court time. The three keys to the successful implementation of the reforms will be judicial specialisation; judicial case management and flexibility of shrieval deployment.

Under the new system sheriffs will be expected to be flexible in response to the needs of the courts. Efficiency will no longer be impeded by the traditional boundaries between sheriffdoms or by rigid procedural rules whose justification has long been forgotten.

The summary sheriffs will be expected to sit in different courts and in different sheriffdoms - on the same day, if need be.

The whole purpose of these reforms is to maximise the efficiency and the output of the courts. We can no longer allow the progress of an action to be dictated by the convenience of the parties or their lawyers. The court has interests and responsibilities of its own.

The new regime is logical and rational. It is long overdue. I am confident that the legal profession will adapt to it and contribute to its success.

Today's theme is how we bring the court system into the modern world and, perhaps more importantly, how we bring the modern world into the court system. It was recognised in the Scottish Civil Courts Review that improvements in information and communication technology were fundamental to the success of the court reforms. My prediction is that we will move quickly towards the paperless court, towards the filing of writs from the lawyer's desk; towards the virtual court with remote access by judges, lawyers, clerks and witnesses and towards hearings that are no longer based on oral evidence.

In July last year, I had the pleasure of opening the new Civil Justice Centre and Commercial Court in Aberdeen. It is an example of the installation of new technology in a new justice centre. It has been using much of the technology that is being introduced throughout the Scottish court system, including improved video link technology. With it, we are edging nearer to the prospect of a 'virtual court'. Eric McQueen will explain the technology in more detail.

These processes may seem to be innovative and state-of-the-art, but the individuals and businesses who deal with our court system are already well

practised in utilising such technology. Digital innovation is essential if we are to improve access to justice, reduce time and expense for the litigant and ease the administrative burden on our court staff.

But access to justice should not operate solely in favour of those already using the system. Access to justice encompasses a broader aim - to open our courts to public scrutiny and to public understanding and, in that way, to de-mystify our law and its procedures.

In recent years there has been considerable pressure from the media for the televising of proceedings in the courts. On one or two occasions my predecessors have allowed there to be cameras in court.

When I became Lord President it was clear to me that there was no overall policy in the matter. We simply could not go on making ad hoc decisions on individual applications to film or to televise. I therefore appointed a committee under the leadership of my colleague Lady Dorrian to consider the matter in depth, to carry out a public consultation and to report to me with findings and proposals.

I have now received the report of Lady Dorrian's committee. I thank her for having conducted this study so skilfully and thoroughly and I thank her Committee for their good judgment and their openness to change. This morning, Lady Dorrian's Report has been made public. The conclusions of

her Committee represent the consensus view of my colleagues in the Court of Session. They are as follows:

- Filming of civil and criminal appeals and legal debates in civil first instance proceedings, such as judicial review or hearings on the Procedure Roll should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines.

- In certain circumstances and subject to certain safeguards, criminal trials may be filmed for documentary purposes, but not in cases involving children, sexual offences and vulnerable witnesses.

However, no live transmission should be allowed for any criminal first instance business, or for first instance civil proceedings involving witnesses.

- For subsequent news broadcasts, the delivery of the sentencing remarks of the judge should be permissible, with filming focused only on the judge.

- Similarly, in first instance civil business filming for documentary purposes may be allowed, but should exclude certain cases such as those involving family and immigration matters.

- Filming should be subject to robust, clear and comprehensive guidelines.

- Journalists who register with the Scottish Court Service to gain access to the electronic portal-based system, should also be required to undertake compliance with the Contempt of Court Act. Journalists so registered should be permitted to use live text-based communication. Any person who is not on the register should require the permission of the presiding judge.

I am happy to announce that I accept all of Lady Dorrian's recommendations.

Lady Dorrian's recommendations deal with matters of principle. Our task now will be to translate these principles into practice. I therefore intend to issue guidance to the media to indicate the approach that will be taken in relation to the televising of court proceedings. This may involve further consultation with the media on practical points.

Scotland prides itself on the independence of its legal system. That independence is worth defending. We have a system to be proud of. But we are inevitably subject to the influences of a much larger legal system that is our neighbour. Much of our statutory law nowadays is common throughout the United Kingdom.

If the continued independence of the Scottish legal system is a cause worth fighting for, our courts must meet the needs of the litigant. Unless the courts can provide a justice system that is expeditious, economical and excellent, Scots law faces atrophy and our independent legal profession faces an uncertain future.

A legal system develops through its case law. If Scots law is to be a vigorous system it has to provide a forum that attracts important litigations on important points of law.

But in addition to serving the litigant, the legal system should serve the wider community and its needs.

Our legal system should be a driver for economic progress in Scotland. Our courts and our judges can and should contribute to the prosperity of our country. We can do that if, by the excellence of our judges, and our legal profession and the efficiency of our courts, we make Scotland a forum of litigation that not only retains litigations that at present go elsewhere but also becomes a forum of choice for litigations from abroad.

In the 1960s and 1970s the economy of Scotland was transformed by the discovery of North Sea oil. The judges and lawyers of that time were not alert to the opportunity that Scotland could be an international forum for resolving
disputes in the oil and gas industry. We paid a price for our complacency when the international oil and gas industry passed us by.

Half a century on we should look at Scotland's economic opportunities and see how the courts can best serve them. In recent years a commitment to renewable energy has brought wind power to the fore as an energy source. Other forms of renewable energy may follow. Our resources of energy may be increased by the retrieval of shale gas, if that should be allowed. It seems to me therefore that the opportunity that our natural resources present should be served by the court system.

Twenty years ago my distinguished colleague Lord Penrose single-handedly created within the Court of Session a specialist commercial court. Today it is a prestigious and efficient court that enjoys the confidence of the profession and of the commercial world. I wish to build on that.

It is therefore my intention to launch a feasibility study into the creation of an Energy and Natural Resources Court in the Court of Session to provide a specialist forum for litigations in these fields. I shall look to the advice and assistance of the Scottish Civil Justice Council in that study. In keeping with my view that the courts must serve the litigant, I propose that if such a court should be established, it should sit in other centres, Glasgow or Aberdeen for example, if the need should arise.

We have the courts. We have the manpower. We have the skills of our judges and of our lawyers. My ambition is that we should create a court of international renown that will make its own contribution to Scotland's prosperity.

For the last 40 years, to my own knowledge, the Court of Session and the Appeal Court have suffered from the chronic problem of backlogs and lengthy waiting times for diets. Part of the problem was that the court did not actively manage cases or curtail the length of oral advocacy. The theory was that the judges knew nothing about the case until counsel read the pleadings and other documents and explained what the issues were. There followed a detailed reading of the statutory materials and the case law. Only then did counsel make their submissions.

In less than a year and a half we solved the backlog problem. That has been achieved through careful judicial case management, judicial preparation in advance of the hearing and by the requirement of written submissions: - in short, by judicial efficiency. I am grateful to my judicial and administrative colleagues for what has been achieved.

We have an opportunity now to improve upon these efficiencies and to avoid a relapse into the bad old ways. More importantly, we have a responsibility to litigants, to the public, and to the profession to ensure that our judiciary

has control of the business of our courts. That responsibility is great. It will be achieved only through a concerted effort by all judicial office holders. In the public's eyes, we are one, whether we are summary sheriffs, sheriffs or senators of the College of Justice. We take the same oath. We serve the same society. And we, like the lawyers and the public, are now on the road to the new digital world. It is the pathway to a modern justice system of which we can be proud.

Tuesday, December 16, 2014

Latest annual report of Scottish Legal Complaints Commission shows rise in compensation awards, mediation between clients & solicitors

THE latest annual report of the Scottish Legal Complaints Commission (SLCC) shows a rise in compensation & fee reductions awarded to clients in the year 2013-2014. Figures of £365,000 announced by the SLCC’s Chief Executive – Matthew Vickers, reveals complaints are costing the legal profession around £1000 a day.

SLCC 2014 Annual Report

The Scottish Legal Complaints Commission laid its Annual Report and Annual Accounts before the Scottish Parliament on 15 December 2014.

Over £1000 a day was agreed or awarded to complainers dissatisfied with the service provided by the legal profession in Scotland last year. The Scottish Legal Complaints Commission (SLCC), agreed or awarded more than £365,000 in compensation or fee reductions in its 2013/14 operating year.

Launching the Annual Report, the SLCC’s CEO, Matthew Vickers, commented “The vast majority of the legal profession in Scotland provide great service to the public, but where things do go wrong the SLCC takes firm and decisive action to put things right.” Conveyancing, family law and executries, wills and trusts are the three biggest areas of complaint. Vickers points out that cases touching on home and family life can have a huge impact on people’s lives (yes yes, where there’s a will there’s a crook – Ed)

“We’re ready to use the full extent of our powers to enforce our decisions and make sure awards are paid out where they are due. 65% of the complaints about service which we accept are resolved or upheld” says Vickers. But the Annual Report also highlights the growing importance of informal techniques such as the SLCC’s free and confidential mediation service in finding solutions to complaints. Consequently, the SLCC’s process has become quicker and more efficient and complaint handling times have halved since 2012."

"The legal services sector is worth over £1 billion to the Scottish economy and the report notes recent research which indicates that law firms can increase their profitability by around 3% through better complaint handling. The report also sets out the work of the SLCC on training and guidance for the profession. Vickers added “we’ve published guidance for the public on using legal services and on conveyancing in particular as part of our efforts to prevent complaints from happening in the first place.”