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

Wednesday, July 13, 2016

Court Speeding: Court reforms hasten trial hearings - according to taxpayer funded report compiled by the Courts

Scotland’s courts are faster – claim the Courts. NOTORIOUSLY slow for the past 400 years - as any solicitor, crook, client & litigant can testify – delays in court – from the Court of Session to Sheriff courts and the broom cupboards of Justices of the Peace - are commonplace.

However, Scotland’s courts have now managed to reduce waiting time for criminal trials – so say the people who ‘run’ the courts.

The ‘proof’ - offered up in a report compiled by - the Scottish Courts and Tribunals Service (SCTS) - claims almost all trials in sheriff courts in 2016 began within 16 weeks, whereas two years earlier the ‘official’ figure was half.

The SCTS claim this was despite a significant increase in mostly criminal cases, particularly relating to domestic abuse and sexual violence.

However, the report – widely seen as more Public Relations than fact – fails to take account of rising numbers of cancelled or abandoned prosecutions of criminals and secretive plea deals by Crown Office prosecutors which have the effect of speeding up trials awaiting court time.

Compiled at taxpayers expense, the SCTS report goes on to claim the closure of 17 courts - 10 sheriff and seven Justice of the Peace courts - had been successfully implemented, with savings already realised of £2.1m and further annual savings expected of £1.3m.

SCTS said while concerns were expressed that court performance would suffer as a result of the transfer of business from smaller centres, there has been "strong and improved performance".

New Court Structure Allows Targeted Investment

Three years on from the report which described a future court structure for Scotland, an evaluation report confirms the vision set out in ‘Shaping Scotland’s Court Services’ is fully on track. To date:

The closure of 10 sheriff courts and 7 justice of the peace courts has been successfully implemented;

The business redistributed following those closures is handled within normal performance targets at the receiving courts;

The expected level of financial savings from the changes are being realised,

The SCTS has been able to target funding more productively on the maintenance and development of its retained estate; and

The longer term vision for an efficient court structure is largely in place and the remaining  elements continue to progress in parallel with the deployment of the new summary sheriff posts.

While there were concerns expressed that court performance would suffer, the evaluation data clearly demonstrates strong and improved performance.  In all courts, the 16 week waiting period between the first calling availability of a criminal trial is being achieved, indeed, in some courts we have re-adjusted the programme as the waiting period was becoming short, with the risk of not allowing sufficient time for crown and defence preparation. Similarly, all courts are meeting, and in most cases significantly below, the 12 week waiting period for civil proofs and hearings. 

This level of performance continues to be achieved against the background of a significant increase in case levels in both summary and solemn business, particularly in relation to domestic abuse and sexual offences, with a far greater proportion of these cases proceeding to evidence-led trials. 

In April 2014 the percentage of sheriff courts setting criminal trials at the optimum 16 weeks was 50%, at April 2016 this figure is 95%. 

Referring to the evaluation report, SCTS Chief Executive Eric McQueen said: “The SCTS Board’s ten year vision is to create a stronger court service which improves access to justice, reduces delay and costs, and maximises the use of digital technology to improve our services. We are now delivering on that, the evaluation report confirms that annual recurring savings of £1.3 million will be achieved, allowing us to target investment to create a modern court structure throughout Scotland, with digital innovation at its heart.

Last year we installed new ICT infrastructure that provides the speed and resilience we require for digital evidence presentation, video links, case management systems and Wi-Fi access across our courts.  This technology supports digital access, particularly for vulnerable witnesses and our prison to court facilities which reduces personal appearances by the accused. 

With the introduction of the new civil simple procedure later this year, we are planning to make online processing available for most payment actions up to £5000. This includes an online portal to enable the legal profession and the public to commence actions, submit case documents, pay fees and track progress online. We will extend this to all areas of simple procedure by mid-2017, allowing over 60% of all civil business in the sheriff courts to be processed online.

Our priority now is to develop the recommendations in our “Evidence and Procedure Review – Next Steps” report. For too long it has been easy to describe our criminal courts as products of the Victorian age. Our task now is to bring them right into the 21st Century, not by tinkering at the edges, but by radical digital reform to improve the quality of justice for all concerned.  Through technology we can allow children and vulnerable witnesses to give their evidence, and have it examined, outwith the trauma and pressures of the court environment and modernise the way we do business in summary criminal cases through a digital case management system.”

Feeling any faster in court – tell us about it! – Ed

Friday, June 03, 2016

First Minister appoints James Wolffe as new Lord Advocate, Alison Di Rollo handed post of Solicitor General for Scotland

Faculty of Advocates boss Wolffe takes back post of Lord Advocate. FIRST Minister Nicola Sturgeon appointed James Wolffe QC and Alison Di Rollo as Scotland’s new law officers in charge of the Crown Office & Procurator Fiscal Service (COPFS).

James Wolffe QC, Dean of the Faculty of Advocates was appointed to the position of Lord Advocate, replacing Frank Mulholland QC who stepped down following the Scottish parliamentary election.

There is currently an on-going Crown Office “dirty money probe” into Mulholland’s brother - reported in the Sunday Mail newspaper.

Senior Advocate Depute Alison Di Rollo was appointed as Solicitor General, succeeding Lesley Thomson in a surprise move after legal insiders tipped Thomson to become Lord Advocate.

The Scottish Government’s Press Centre stated Ms Thomson, who was appointed to the post in 2011, “has informed the First Minister that she wishes to pursue new challenges” (lol – Ed).

The appointments were made by the Queen on the recommendation of the First Minister, with the agreement of the Scottish Parliament.

The appointments complete the First Minister’s newly-appointed ministerial team.

Speaking prior to Holyrood approval of the two new law officers, First Minister Sturgeon said: “I am extremely pleased to recommend the appointments of James Wolffe and Alison Di Rollo as Scotland’s senior law officers.

“James has an outstanding legal background and extensive experience at all levels, including the House of Lords, the Judicial Committee of the Privy Council, the Supreme Court of the United Kingdom, the European Court of Human Rights and the Court of Justice of the European Union.

“Alison led the work of the ground-breaking National Sexual Crimes Unit (NSCU) for three years, having previously held the role of deputy. Her outstanding leadership in this most sensitive of areas has inspired confidence in all connected to it.”

James Wolffe said: “I thank the First Minister for nominating me to the office of Lord Advocate. If I am appointed, it will be a great privilege to serve Scotland in that role.”

Alison Di Rollo said: “I am both delighted and honoured to be nominated for this role by the First Minister and I am looking forward to working with James in his new role.”

The First Minister thanked both Frank Mulholland QC and Lesley Thomson QC for their service in the roles.

She said: “In his time as Lord Advocate, Frank has made a substantial contribution to both the law and to Scottish society. The creation of the National Sexual Crimes Unit was just one example of the increased specialisation of the Crown Office that Frank Mulholland presided over. In her role as Solicitor General, Lesley’s work, particularly around domestic abuse, was pivotal in moving towards a system that instils confidence in victims of abuse and ensures that their abusers are held to account. I thank both Frank and Lesley for their dedicated service to the Government, to justice and to Scotland as a whole.”

Biographies

James Wolffe QC is a leading Senior Counsel. He became an advocate in 1992 and took silk in 2007. In 2014 he was elected Dean of the Faculty of Advocates. He was First Standing Junior Counsel to the Scottish Ministers from 2002 to 2007, and served as an Advocate Depute from 2007 to 2010. He has extensive experience of both commercial and public law. He is a member of the Faculty Dispute Resolution Service and was also called to the bar of England & Wales in 2013.

Alison Di Rollo is a Senior Advocate Depute. She joined the Crown Office and Procurator Fiscal Service in 1985 as a fiscal after a legal traineeship at now defunct Glasgow law firm McGrigor Donald .

Ms di Rollo then worked in the Policy Group at the Crown Office prior to being appointed Deputy Head of the High Court Unit and later Head of Operational Policy. In May 2008, Ms Di Rollo was seconded from COPFS to take up an appointment as a trial advocate depute. She was appointed as deputy head of the National Sexual Crimes Unit in 2011 and became head of the unit in January 2013.
Notes to editors

The Lord Advocate is a Minister of the Scottish Government and acts as principal legal adviser, but decisions by him about criminal prosecutions and the investigation of deaths are taken independently of any other person. In that way, he is not subject to the ordinary rules about collective ministerial decisions.

The Solicitor General is the Lord Advocate’s number two. She assists the Lord Advocate to carry out his functions. She is also a Minister of the Scottish Government.

Wednesday, November 11, 2015

Tenant farmers face few rights after 2012 Landowners Human Rights ruling by Lord Gill & Court of Session - which resulted in suicide of farmer Andrew Riddell

Farmer shot himself in 2012 after Lord Gill ruled landowners Human Rights breached. TENANT farmers continue to fight eviction from their farms after Lord Brian Gill ruled in 2012 that landowners human rights were breached by legislation aimed at protecting tenant farmers passed by the Scottish Parliament.

This week, another eviction of a tenant farmer has been reported where a petition attracted over 19,000 signatures backing Andrew Stoddart, of Colstoun Mains Farm, Haddington, who is fighting eviction by his landlord -  the Colstoun Trust

Mr Stoddart and his young family have been told they have to leave by November 28, with the trust claiming it wants to have “greater involvement in the running of the farm”.

The Stoddarts, along with the two workers they employ on the 900-acre arable and sheep farm, will have to leave their homes and livelihoods behind. This would also be without compensation for the investment they have made.

The eviction follows a 
ten-year dispute over a rent review requested by Mr Stoddart.

It is worth remembering how these evictions have come about.

The quest by Landowners to eject tenants from land was made all the more easy by Scotland’s own landed gentry at the Court of Session after another ten year legal battle - which saw Lord Brian Gill rule in favour of landowners ‘Human Rights’ in 2012.

In the upheld appeal, senior judge Lord Gill ruled that measures put in place to protect tenants in such areas were not compatible with the European Convention on Human Rights.

Lord Gill’s ruling in Salvesen v Riddell [2012] CSIH 26, 2012 SLT 633 allowed billionaire landlord Alistair Salvesen to evict tenant farmer Andrew Riddell (52) from land his family had farmed for 100 years.

After the ruling from the Court of Session, it was widely reported in the media Mr Riddell committed suicide. He was found dead after he had harvested his final crop.

The father of four killed himself just weeks before he was due to leave Peaston Farm, near Ormiston, East Lothian.

Andrew had been involved in a 10-year court battle with his landlord, Scotland’s third richest man Alastair Salvesen.

Mr Riddell's battle began in 2003 when he was given notice to quit by landowner Alastair Salvesen, who bought the farm in 1998.

The problem stemmed from an outdated law that left the family few rights despite being on the land since 1902.

Salvesen served notice to the farmer after a ruling from Lord Gill and the judiciary enforced a notice for the farmer to quit.

The ruling overturned Mr Riddell’s previous security of tenure award in 2010 that meant he could stay living on the land.

Speaking in 2012 after the suicide of Mr Riddell, his neighbour and close friend George Mudie, 60, said: “The farm was Andrew’s life. He was affected very badly by the court’s decision.”

Lord Gill: The Landowner

Records now show at the time of Lord Justice Clerk Lord Gill’s ruling against tenant farmer Andrew Riddell, Lord Gill owned or had an interest in several properties, among them - a large Victorian mansion in one of the richest parts of Edinburgh.

The mansion – owned by the top judge was put on the market last year for £1.7m just before the independence referendum in 2014.

Gill also declared in his now publicly available register of Scottish Court Service Board interests he owns or holds property interests in London identified by an entry in the SCS Board register as “Vestry Court Ltd” –which leads to a multi million pound property listing in London.

Documents at Companies house list Lord Gill and his wife as holding interests in “Vestry Court Ltd” dating back to the mid 1990’s.

Friday, November 06, 2015

CLUB TIE JUDGES: Diversity in judiciary proposals dubbed ‘window dressing’ as Law Society recommend back to school approach for angry old white male club tie judiciary

Scotland’s judiciary - elderly, white, rich and male. CALLS to promote diversity within Scotland’s predominantly elderly, white, wealthy judiciary will not be significantly advanced by today’s publication of recommendations by the Law Society of Scotland to widen the club class ranks of Senators of the Court of Session, Sheriffs & even the occasional JP.

Scotland’s judiciary - many of whom share the same private school backgrounds and jealously guard their secretive earnings & business interests need fear not for any impending change to their club class ranks and tap on the shoulder techniques for recruitment.

The latest instalment on judicial diversity, in which the Law Society promotes outreach work in schools, mentoring and reviewing the current skill set for sheriffs and judges as a method of creating a more diverse judiciary means current ways will be preserved for a few pounds years more – much to the relief of the many ermine clad ranks of Scotland’s current judicial fraternity.

Law Society publishes recommendations to improve diversity in Scotland’s judiciary

The Law Society of Scotland has published a series of recommendations in a paper responding to a judicial appointments diversity steering group (DSG) report on its conference ‘Merit and diversity – Compatible aspirations in judicial appointments?’.

The Law Society, a member of the DSG, believes that while good progress has been made in increasing diversity within the judiciary, more can be done to bring about further improvement.

Rob Marrs, head of education at the Law Society, said: “There have been great strides made since the inception of the Judicial Appointments Board for Scotland in improving transparency in the appointments process and other more recent changes resulting from the conference held last year on merit and diversity within the judiciary, including a review of its application process to make it more accessible and increased engagement and outreach work with interested parties.

“However it’s undeniable that there is currently a lack of diversity in our judiciary and, with men making up more than 70% of judicial posts, it is not representative of the legal profession or of the population at large.

“Our key recommendations include reviewing the existing criteria for judicial appointments and examining if there are unnecessary barriers which prevent potential candidates from applying. It’s important that as well as considering those recommended for appointment, we look at what can be done to broaden the pool of potential candidates.

“We also think there should be more consideration given to career development and ensuring that judicial appointment is an attractive option for a range of would-be candidates. This could include developing a distinct judicial career path– a model adopted in several European jurisdictions – with specific training for advocates and solicitors who are interested in a career on the bench.

“Informing and engaging groups who may be interested in becoming a sheriff or a judge should start at the earliest opportunity and there could be outreach work done in schools, during university and at the early stages of people’s legal careers. Providing shadowing and mentoring opportunities for less well represented groups has also worked well in England and Wales, where there has been a lot of work done on this, and could easily be adopted here to encourage those who may not previously have considered applying for judicial appointment.”

The Law Society has also recommended a review of the current criteria and eligibility for those who can apply for a judicial appointment.

Marrs said: “It’s important that we consider the attributes needed by those on the bench. For example, at the moment a key part of the criteria to become a sheriff is experience in court work and case presentation skills. This means that more court practitioners will apply as they can more easily provide evidence to meet the required competencies for the role. However, while this type of experience may be highly desirable, it is important to consider the full range of skills required to prevent any artificial barrier to potential appointment.

“In our view the relevant competencies for a judicial appointment are the ability to make good reasoned decisions within a reasonable time frame, knowledge of the law, knowledge of the rule of law and court procedure. These sit alongside the ability to deal with and understand those appearing before them and to be able to communicate complicated concepts in straightforward language – something which could become increasingly important if more people choose to represent themselves in court if they are unable to access legal aid.”

The Law Society has also recommended having specialist judges who have an in depth knowledge of certain areas of law and a review of the current barriers in place which prevent tribunal judges, who are experienced in dealing with highly complex cases, from moving to judicial posts in Scotland’s courts.

“Our paper sets out several areas where we think there are opportunities to improve diversity within our judiciary. Instigating change will take a coordinated approach from all the organisations which are involved or have an interest in judicial appointments and I look forward to discussing our ideas in more detail with them.”

The Judicial Appointments Diversity Steering Group (DSG) is a collaborative group of organisations with an interest in diversity in the judiciary. Its diversity conference report is available to read on the Judicial Appointments Board website: Judicial Appointments Diversity Steering Group report.

Monday, October 26, 2015

Revealed: The ex Lord Advocate appointed to review deaths in Police custody, and the £56K public cash link to the suspended Sheriff advising cops involved in Sheku Bayoh custody death

Custody deaths review role for ex Lord Advocate linked to lawyer advising Police in Sheku Bayoh custody death. A FORMER Lord Advocate with links to a suspended judge who is now representing Scottish Police Officers in a controversial custody death case - has been appointed by the Home Secretary to chair a UK wide review into deaths & accidents in Police custody.

Last week, Home Secretary Theresa May announced Dame Elish Angiolini DBE QC will chair the independent review into deaths and serious incidents in police custody.

However, it can be revealed Dame Elish Angiolini DBE QC (55) (nee McPhilomy) used the services of the very same suspended Sheriff - Peter Watson - who is now representing and advising  Police Officers involved in the death in Police custidy of Sheku Bayoh.

According to documents in the possession of Audit Scotland – who are investigating claims about public cash spent by the Crown Office – Elish Angiolini billed taxpayers for upwards of £56,000 for personal legal services provided by Peter Watson and his former law firm – Glasgow based Levy & McRae.

The final amount of public cash paid to Watson & Levy & McRae for their services to Angiolini may be higher - as the Crown Office are resisting calls to disclose documents and final figures.

Levy & McRae – where Watson was based until late last year - are also known to have represented Police Officers who were charged and prosecuted for a number of serious criminal offences including rape, assault & fraud.

Watson (61) served as a Sheriff until he was suspended earlier this year by Scotland’s top judge, Lord Brian Gill.

The suspension came after Sheriff Watson was named in a multi million pound writ seeking £90m in damages for the collapse of hedge fund Heather Capital.

Levy & McRae are also named in the writ, which alleges the firm was involved in multiple fraudulent cash transfers to offshore jurisdictions.

In August of this year, the Court of Session heard how Watson received a £200K payment from an Gibraltar based law firm – Hassans.

Suspended from his judicial duties, Watson is now giving legal advice to and issuing media comment on behalf of Police Officers involved in the controversial death in custody of Sheku Bayoh.

Last week, a Press Release was issued by Media House International on behalf of suspended Sheriff Peter Watson -  in his role of representing Police Officers involved in the Sheku Bayoh case.

Watson, along with former Justice Secretary Kenny MacAskill – attacked public interest media coverage of the death of Sheku Bayoh while in Police custody.

The 31-year-old trainee gas engineer, who left Africa and settled in Kirkcaldy, died in May of suspected asphyxia while in police custody after he was restrained by up to nine officers .

A post-mortem examination revealed he had cuts and bruises all over his body, including more than 20 facial injuries and tiny blood spots in his eyes.

Sheku’s death is being investigated by PIRC - Scotland's Police Investigations and Review Commissioner - but former justice secretary Kenny MacAskill appeared to prejudice the investigation in comments he made last week. MacAskill said he did not expect police officers to face charges .

And, right after MacAskill made his remarks - as if following a script - current Lord Advocate Frank Mulholland intervened, appealing for calm following a row between Kenny MacAskill and Aamer Anwar, the lawyer representing Mr Bayoh's family.

Yesterday, Justice Secretary Michael Matheson said on BBC Politics Scotland it is not helpful if people give a "running commentary" on the death in police custody of Sheku Bayoh.

It has since emerged Police Scotland tried to have the body of Sheku Bayoh returned to his country of birth - Sierra Leone - two days after Mr Bayoh died in Police custody.

Police Officers in Scotland contacted the High Commission (Embassy)of Sierra Leone to discuss repatriating his body but officials at in London were alarmed and contacted the father-of-two’s family – who were unaware of Police Scotland’s attempt to remove the body from the UK.

Press Release from suspended sheriff Peter Watson claimed “open season of hunting Police Scotland”:

Last week, a Press Release was issued by Media House International on behalf of suspended Sheriff Peter Watson -  in his role of representing Police Officers involved in the Sheku Bayoh case.

Watson, along with former Justice Secretary Kenny MacAskill – attacked public interest media coverage of the death of Sheku Bayoh while in Police custody.

The Press Release, featured in some Scottish newspapers earlier this week read: SHEKU BAYOH – THE 10 VITAL QUESTIONS (Issued on behalf of Prof. Peter Watson BA LLB SSC of PBW Law)

Glasgow, October 19, 2015: Kenny MacAskill, the former Justice Secretary, has made a timely and important intervention in openly criticising the media campaign waged against Police Scotland, the PIRC and the officers involved in the Sheku Bayoh case.

He points to an “open season of hunting Police Scotland” rather than allowing due process to follow and for the investigation to be completed. He highlights the importance of protecting the integrity of whatever judicial process will follow, most likely a Fatal Accident Inquiry. He also points to a litany of assumptions of racism and homicide, and the misrepresentation of statistics of deaths in custody in England.  The statistics surrounding deaths in custody in England have little to do with what happens in Scotland, where most deaths in custody relate to drink or drugs.

Mr MacAskill rightly points to the poisonous atmosphere which has been created and  recognises that those who are the subjects of these wild accusations and criticisms cannot comment as they are involved in this process, and can do no more than co-operate in that process.

Prof. Peter Watson said: “As the lawyer representing the Police Officers involved, I welcome these comments from the former Justice Secretary and I agree the sooner we get to whatever Judicial Proceedings are to follow the better. This will most likely be a Fatal Accident Inquiry. This will establish the facts and do so on evidence tested in Court. In broad terms, the Inquiry will set out to explain what happened on  May 3 which led to Sheku Bayoh, known locally as Chris and by some as “socks”  to be on the streets of Kirkcaldy in the early morning, being confronted by the Police and sadly dying.

“I will not engage in speculation as to the outcome nor make wild allegations. The information which has come into the public domain suggests there was a fight in a house, and that Sheku Bayoh had taken drugs.  This information will shape some of the questions which must be answered. The family say there is no justice without truth. There are, I suggest, ten questions that will lead us to the truth:

Along with 10 questions, alleging a number of ‘what ifs’, Prof. Watson added: “These questions will be asked. Answers to these questions will help get to the truth, as will the post mortem and toxicology reports.  The family have their own reports. Although information has been drip fed to the media with details of bodily injury, the family have so far refused to release their reports, whilst at the same time demanding that the PIRC or the Crown release evidence, which as the investigating agencies, they clearly cannot do. There is no reason why the family cannot release the reports they hold if they want the public to have a full and balanced understanding of their position.

“I doubt whether these questions will be answered until evidence is given in Court by all those involved but my hope is that until then, the PIRC and the Crown are allowed to complete their investigation in an atmosphere free of orchestrated media events and unsubstantiated allegations.”

The press release issued on behalf of Peter Watson came after a number of media reports revealed a number of allegations including racism & violence against Police Officers involved in the Bayoh case.

Concerns have also been expressed by many including the family of Mr Bayoh on the progress of an ‘independent’ investigation by PIRC - Scotland's Police Investigations and Review Commissioner into the circumstances surrounding the death of Mr Bayoh while he was in Police custody.

Ex Lord Advocate linked to lawyer defending custody death cops - to chair deaths in Police custody inquiry:

The Home Office website reveals the terms of reference for the Home Office inquiry chaired by Elish Angiolini on deaths in Police custody:

  • to examine the procedures and processes surrounding deaths and serious incidents in police custody, including the lead up to such incidents, the immediate aftermath, through to the conclusion of official investigations. It should consider the extent to which ethnicity is a factor in such incidents. The review should include a particular focus on family involvement and their support experience at all stages.

  • to examine and identify the reasons and obstacles as to why the current investigation system has fallen short of many families’ needs and expectations, with particular reference to the importance of accountability of those involved and sustained learning following such incidents.

  • to identify areas for improvement and develop recommendations seeking to ensure appropriate, humane institutional treatment when such incidents, particularly deaths in or following detention in police custody, occur. Recommendations should consider the safety and welfare of all those in the police custody environment, including detainees and police officers and staff. The aim should be to enhance the safety of the police custody setting for all.

It has also been confirmed that there will be a formal role for INQUEST, a charity that offers advice to families bereaved by death in police custody. Deborah Coles, Director at INQUEST, has been appointed as a special adviser to the chair and the charity will:

  • facilitate family listening days so that the Chair can hear evidence first-hand from those who have lost loved ones in police custody to ensure their views are taken into account.

  • play a leading role on an advisory board which will offer expert advice to the Chair during the course of the review.

Home Secretary Theresa May said: I am pleased that Dame Elish Angiolini has agreed to chair the independent review into deaths and serious incidents in police custody. When I announced this review, I said that the Chairman would be someone with the ability to work closely with victims, families and the police alike, and with a proven track record of being willing to ask difficult questions. Dame Elish has all of these qualities.

Thankfully, deaths and serious incidents in custody are rare. And no one – least of all police officers – wants such incidents to happen, and I know everyone involved takes steps to avoid them. But when such incidents do occur, they are a tragedy that has the potential to undermine the relationship between the public and the police. As Home Secretary, I have been struck by the pain and suffering of families still looking for answers.That is why I set up this independent review and I’m grateful to Dame Elish and Deborah Coles, as special advisor to the chair, for agreeing to take on this important work.

Failing to mention any previous link to suspended Sheriff Watson, Dame Elish Angiolini DBE QC said: “This is a matter of critical importance to many families and I hope that this review can identify pragmatic and effective responses to this longstanding issue.”

The Home Office has not commented on the links between Angiolini & the suspended Sheriff Peter Watson.