Thursday, October 20, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The full opinion of Lord Brodie:




Complainers:  Smith QC; Clyde & Co

Respondent:  No appearance

22 July 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, September 28, 2016

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

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

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

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

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

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

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

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

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

Towards a transparent Scotland:

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

Appeal statistics - by region and sector:

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

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

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

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

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

Tuesday, September 27, 2016

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court will now adjourn.

Thursday, September 22, 2016

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

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

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

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

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

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

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

The full report of the Independent Observer:

Appointment of Queen's Counsel in Scotland 2016

Report by Heather Baillie, Independent Observer


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: -

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: 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 - 3 March); Johnston Publishing Ltd (Scotland on Sunday - 6 March, The Scotsman - 4 and 11 March and Scotsman Recruitment - 4 March); Law Society of Scotland - 4 March;, 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



Solicitor - Advocates


































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.


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.


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

Friday, September 02, 2016

Court of Session rules Legal Complaints Commission’s consideration of “hybrid” service & conduct complaints against solicitors - is improper

Hybrid service & conduct complaints ruled “improper” – Lord Malcolm THE PRACTICE of treating certain complaints against legal practitioners as "hybrid" – capable of being treated as raising issues of both inadequate professional service and professional misconduct – has been ruled improper by the Inner House of the Court of Session.

The ruling, delivered by Lord Malcolm (Colin Campbell, 62) - in a case brought against the Scottish Legal Complaints Commission (SLCC) - is certain to have a significant impact on cases under investigation by the SLCC.

The long standing practice of treating complaints cases as both service and conduct – was previously and frequently in use by the Law Society of Scotland in numerous and sometimes high profile cases of complaints involving well known solicitors over a number of years.

Full Court of Session ruling:


Lord Justice Clerk, Lady Clark of Calton, Lord Malcolm


delivered by LORD MALCOLM

in appeal under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007




Act:  Dunlop QC; Anderson Strathern LLP

Alt:  Ross; Brodies LLP

Interested Party:  McConnell; Maclay Murray & Spens

31 August 2016

[1]        This appeal against decisions made by the Scottish Legal Complaints Commission (the Commission) raises an important issue as to how it should classify complaints.  In Bartos v Scottish Legal Complaints Commission 2015 SC 690, at its own instance the court raised a question as to the proper approach to certain provisions in the Legal Profession and Legal Aid (Scotland) Act 2007 (the Act).  The court made certain comments which were “provisional” in nature.  They had no bearing upon the outcome of that appeal.  The court stated that it considered it proper to raise the matter to allow reflection on the part of the Commission and the professional bodies.  The court continued “If appropriate, and if so advised, it can be raised as a live issue for determination in a future case.”  This appeal by Anderson Strathern LLP and the particular solicitor concerned against certain decisions of the Commission dated 30 January 2015 has now raised the same question as a live issue and the court therefore requires to reach a concluded view.  The point is a matter of general principle concerning the proper construction of the legislation.  It is convenient to discuss it with reference to the relatively short and straightforward circumstances in the case of Bartos.  The context of the present appeal will be mentioned in due course; however the correct outcome will be determined in large measure by our decision on the question of principle, which can be described as follows.

[2]        In Bartos, an advocate acted for a party whose Court of Session action was dismissed after a legal debate.  The detailed circumstances are set out in the court’s opinion.  For present purposes it is sufficient to note that subsequently the Commission received a complaint as follows:

“Mr Bartos falsely stated during the hearing on 7 October 2010 that it was my wish that the case be dismissed, despite having no instructions to do so.”

It is obvious that the complaint raised a conduct issue.  However, in a preliminary ruling the Commission held that it also raised a question of inadequate professional services and proceeded to classify it as a “hybrid complaint”.  The result of this classification, which is not an uncommon practice on the part of the Commission, was that both the professional body and the Commission independently investigated exactly the same allegation, one with a view to determining whether it constituted either professional misconduct or unsatisfactory professional conduct, and the other whether it amounted to inadequate professional services.

[3]        While it was clear that the complaint raised a conduct issue, in a general sense one can also understand that if an advocate invites a court to dismiss an action raised by the party instructing him on the basis of purported instructions which do not exist, then the individual concerned receives an inadequate professional service.  The same could be said of many, though not all, instances of alleged professional misconduct or unsatisfactory professional conduct.  The question is whether, in terms of the relevant legislation, the Commission can classify a single issue complaint of the kind made in Bartos as “hybrid”, in the sense of amounting to both a conduct complaint and a services complaint;  or whether the Commission, after appropriate consultation with the relevant professional body, must reach a decision to categorise it as one or the other, but not both.

[4]        The full circumstances of the lengthy history of what happened in respect of the complaint against Mr Bartos are fully described in the report of the court’s decision in that case.  They provide a good example of what can happen when a single issue complaint is treated as hybrid and separately sent to both the professional body and to the Commission for discrete determinations.  However, whether this course is open to the Commission is not a matter to be determined primarily by the consequences, but by a proper construction of the relevant statutory provisions in the Act.  It is therefore necessary to consider those provisions in some detail.  Recently, for wholly different reasons, some of the provisions were revised and rearranged, but at present the key question will be discussed under reference to the legislation as originally enacted.  It was not suggested that the recent alterations provide any indication of an alteration in parliamentary intention regarding the classification of complaints.

The relevant statutory provisions
[5]        By way of a brief preamble, the Act established a new body, independent of the professional organisations, and containing significant lay involvement, to handle complaints of inadequate professional services and oversee the investigation of conduct complaints by the profession.  That body, the Commission, would be a single gateway for all unresolved complaints against legal practitioners. The office of Scottish Legal Services Ombudsman was abolished.  The professional bodies retained jurisdiction in respect of conduct issues and expulsion from the profession.

[6]        As seen in section 2 of the Act, a distinction is drawn between two types of complaint.  The first is one suggesting professional misconduct or unsatisfactory professional conduct, which is described as a “conduct complaint”;  the second is a complaint which suggests that a client received inadequate professional services, described as a “services complaint”.  In terms of section 2(2), only a limited class of persons can bring a services complaint, whereas any person can raise a conduct complaint.  Still in terms of section 2, subject to any provision in rules made under section 32 of the Act as to eligibility for making complaints, for example regarding time bar, the Commission requires to address whether a complaint is “frivolous, vexatious or totally without merit”.  A positive finding would result in rejection of the complaint.

[7]        The Scottish Government’s explanatory notes to the bill for the Act stated in paragraph 6:

“Section 2 sets out the preliminary steps which the Commission must take on receipt of a complaint.  The Commission may receive complaints about either the conduct of a legal practitioner which may involve either professional misconduct or the new concept of unsatisfactory professional conduct on the one hand or the adequacy of the professional services provided by a legal practitioner on the other (referred to, respectively, as ‘conduct complaints’ or ‘service complaints’).  On receipt of the complaints, the Commission’s initial function is (a) to determine whether or not they are eligible and (b) to reject those which it determines to be frivolous, vexatious, totally without merit or otherwise ineligible in terms of the Commission’s rules.”

Paragraph 8 explained that complaints of inadequate professional services would only be accepted from those directly affected by the services which were the subject of the complaint, other than the limited class of persons outlined in section 2(2), which include the Lord Advocate, any judge and a relevant professional organisation.  Before leaving section 2, it can be noted that conduct complaints have to  relate to individual practitioners, whereas services complaints can be raised against, amongst others, a firm of solicitors.

[8]        The annotator to the Act in Current Law Statutes was Michael Clancy, the then Director of Law Reform at the Law Society of Scotland.  He was closely involved in the various discussions and procedures in the lead up to and the development of the legislation.  He notes that the intention was to ensure that the jurisdictions of the Commission and the professional bodies were kept distinct.  This had been the subject of a “great deal of debate” but the executive was “steadfast” in its adherence to the proposals in the consultation paper that the new body should deal only with service matters, and that conduct issues should be referred to the professional organisations, albeit under the scrutiny of the Commission.

[9]        Section 3 of the Act introduces the notion that a complaint may consist of a number of “elements”, one or more of which may be outside the jurisdiction of the Commission.  However, for present purposes section 5 of the Act as originally enacted (now section 2) is the key provision.  It is headed “Determining nature of complaint”.  Section 5(1) states:

“Where the Commission proceeds to determine under section 2(4) whether a complaint is frivolous, vexatious or totally without merit and determines that it is none of these things, it must determine whether the complaint constitutes –

(a)        a conduct complaint;

(b)        a services complaint;

including whether (and if so to what extent) the complaint constitutes separate complaints falling within more than one of these categories and if so which of the categories.”

Thus if a complaint constitutes “separate complaints”, some of which fall into the category of conduct complaint and some into the category of services complaint, the Commission must specify into which category the separate complaints fall.  This suggests that a separate complaint cannot fall into both categories.

Section 5(2) provides:

“Where it appears to the Commission that the complaint may constitute both –

(a)        a conduct complaint; and

(b)        a separate services complaint,

it must consult, co-operate and liaise with the relevant professional organisation and have regard to any views expressed by the organisation on the matter before making a determination under subsection (1) as respects the complaint.”

This subsection addresses the proper procedure when, on the face of it, a complaint may contain a conduct complaint and a separate services complaint.  For present purposes it is of note that the subsection envisages a services complaint which is “separate” from the conduct complaint.

[10]      The Current Law annotations to the section are in the following terms:

“This section relates to one of the thorny issues raised by the decision to reject the existing model of complaint handling, and that proposed by the Justice One Committee, (whereby conduct and service complaints which arise from the same behaviour of a lawyer are dealt with by the same body and procedure) in favour of dividing service and conduct complaints between an independent Commission and the professional bodies.  The issue is how to deal with the significant group of conduct cases which also contain service elements.  The section provides that the decision as to whether the complaint is a service one, a conduct one or a hybrid of service and conduct parts, is for the Commission.  However, if the Commission considers that a complaint is a hybrid one, this section requires the Commission to consult, co-operate and liaise with the professional body and have regard to their views before determining if the complaint is a service, conduct or hybrid complaint.”

It can be noted that the annotator uses the term “hybrid complaint”, and though the matter is not addressed directly, in the context it is reasonable to assume that this refers to a complaint adjudged to raise separate elements falling into more than one category of complaint.  It is clear that a matter categorised as a conduct complaint should be referred to the relevant professional body, and that the Commission has no jurisdiction to resolve a conduct complaint.  In these circumstances one can understand sections 5(1) and (2) as allowing a complaint to be sent down the two different tracks, one conduct and one services, if and when it can be subdivided into separate complaints or, to use the section 3 phraseology, separate elements, some of which relate to conduct, and some to services.  In that event, the professional body is required to resolve the issues categorised by the Commission as conduct complaints, and only the remainder fall within the jurisdiction of the Commission.

[11]      Pausing here, it is useful to remember the terms of the complaint in Bartos, which was treated by the Commission as a hybrid complaint.  It consisted of one sentence: “Mr Bartos falsely stated during the hearing on 7 October 2010 that it was my wish that the case be dismissed, despite having no instructions to do so.”  That complaint cannot be analysed as having separate elements, or containing discrete complaints.  The Commission explained that it was remitted to both the Faculty of Advocates and to itself for determination on the basis that it could be categorised as both a conduct and a services complaint:  the former because it was a complaint of an advocate deliberately misleading the court, the latter because if an advocate is providing services of the quality expected of a competent advocate, he would not tell a judge that the party he acted for wanted his case dismissed, unless he knew that to be the case.  The result was that both bodies investigated whether counsel had falsely stated to the court that the pursuer wished the case to be dismissed.  In the event the Faculty rejected the complaint, while the Commission upheld it.  So the outcome was that the Faculty held that counsel had not committed an act of misconduct, while, albeit in the context of a complaint categorised as a services complaint, the Commission found that Mr Bartos had misled the court in the manner alleged, which is clearly a matter of conduct, something which Parliament intended to be within the sole jurisdiction of the professional body.

[12]      All of this highlights the issue of statutory construction now raised for determination.  Is it enough for “hybridity” if a single complaint can be seen as a conduct complaint, and can also be treated as a services complaint?  The contrary argument is that, unless one can identify separate strands or elements within the complaint, a decision must be made as to whether to classify it as a conduct or a services matter;  and that decision must respect the prohibition on the Commission dealing with complaints as to professional misconduct or unsatisfactory professional conduct.  On that approach, for a single issue complaint, such as that lodged against Mr Bartos, after due consultation the Commission must decide whether the complaint is to be treated as one of conduct or services.

[13]      Section 6 is headed “Complaint determined to be conduct complaint”.  It provides as follows:

“Where, or to the extent that, the Commission determines under section 5(1) that a complaint is a conduct complaint, it must –

(a)        remit the complaint to the relevant professional organisation to deal with (and give to the organisation any material which accompanies the conduct complaint); …”

The section also provides for written notice to the complainer and the practitioner of, amongst other things, the reasons for the determination.  The annotator to Current Law Statutes states:

“This section sets out the duties which the Commission must fulfil when it determines that the complaint is wholly or in part a conduct complaint” (emphasis added).

So the Commission can refer part of a complaint to a professional body, and the rest to itself.  But can it refer a part of the complaint to both?  In the case of a single issue complaint, such as in Bartos, can it refer all of the complaint to the professional body and also to itself?

[14]      Section 7 is an equivalent provision to section 6 covering the situation where, or to the extent that, the Commission determines that a complaint is a services complaint.  Section 10(4) provides that if and when the Commission is upholding a services complaint, it can take into account, amongst other things, other compensation ordered (whether by determination, direction or otherwise) by a tribunal or other professional body to be paid to the complainer in relation to the subject matter of the complaint.

[15]      Section 15(1) allows a professional body to remit a complaint back to the Commission if it considers it reasonably likely that the complaint, “or any element of it,” constitutes a services complaint.  Section 15(2) sets out an equivalent provision for the Commission if it considers it reasonably likely that a complaint before it, or any element of it, may instead constitute a conduct complaint.  In such circumstances, after liaison with the professional body, the Commission can confirm the original decision, or change it.  Where it decides that a complaint, or any element of it, which was originally classified as a services complaint, constitutes instead a conduct complaint, it must remit it to the relevant professional body.  In the event of the opposite occurring, namely a conduct issue being reclassified as a services matter, the Commission then proceeds to determine the complaint in accordance with sections 8-12 of the Act.

[16]      Section 38 makes provision for “efficient and effective working” of the procedures under the Act.  For example, in relation to any investigation or report undertaken by the Commission, it must liaise with the relevant professional organisation with a view to minimising any unnecessary duplication in relation to any investigation or report undertaken by the relevant professional organisation, and equivalent provisions apply for the reverse situation.  The annotator stated as follows:

“The objective of this provision is to minimise any unnecessary duplication in relation to any investigation or report.  However, this provision has to be read in conjunction with the overall thrust of the Act which is to encourage the swift resolution of service disputes.  Accordingly, the Clementi Review argued strongly that the overlap between service and conduct complaints should not lead to the service elements of complaints being left in limbo for months on end while conduct elements are dealt with by the professional bodies.  It follows that parallel investigation of service and conduct complaints is not ruled out by section 38”.

[17]      Section 46 contains the interpretation provisions for part 1 of the Act.  “Unsatisfactory professional conduct” means, for example in respect of a solicitor,

“professional conduct which is not of the standard which could reasonably be expected of a competent and reputable solicitor, but which does not amount to professional misconduct and which does not comprise merely inadequate professional services…”.

“Inadequate professional services” means, as respects a practitioner who is, for example, a solicitor, “professional services which are in any respect not of the quality which could reasonably be expected of a competent solicitor”, and includes any element of negligence in respect of or in connection with the services.  Professional misconduct is not the subject of a statutory definition, however reference is often made to Sharp v Council of the Law Society of Scotland 1984 SC 129, and in particular to the remarks of Lord President Emslie that

“there are certain standards of conduct to be expected of competent and reputable solicitors.  A departure from these standards which would be regarded by competent and reputable solicitors as serious and reprehensible may properly be categorised as professional misconduct”.

The submissions of parties on the question of hybrid complaints

The appellants

[18]      The appellants adopted the concerns of the court as expressed in Bartos.  In particular, the statutory regime did not contemplate “double jeopardy” in the sense of a practitioner having to defend both a services complaint and a conduct complaint on the same factual narrative.  The relevant statutory provisions envisage that, whilst a complaint can constitute a conduct complaint and a services complaint, this can only occur if the services complaint is separate from the conduct complaint.  Where precisely the same issue is involved, the Commission must categorise it either as a conduct complaint or as a services complaint, otherwise the professional complained of is subject to two separate investigations by two separate bodies with the possibility of two separate decisions, sanctions and appeal procedures.  It was submitted that the hybrid categorisation of complaints 2, 3 and 5 (being a reference to three of the complaints made in the present case, to be discussed in more detail below) is erroneous in law and should be quashed.

The Commission

[19]      For the Commission it was submitted that there are circumstances in which it may be appropriate to classify the same factual issue as being potentially both a conduct matter and a services matter.  Such dual categorisations are not unknown, for example, a teacher who assaults a pupil may be guilty of a criminal offence, liable to dismissal, and also likely to face disciplinary proceedings before the General Teaching Council.  A driver in a fatal road traffic accident may be prosecuted, or may be questioned at a Fatal Accident Inquiry, and in either case may be the subject of a damages claim.  All of these may involve different court processes and different standards of proof.  It was submitted that the Act provides for a complaint being classified as both a services and a conduct complaint.  This hybrid classification was previously used by the Law Society of Scotland.  In Bartos the court recognised that “many conduct complaints could be viewed as raising inadequate professional services issues”, and mentioned the example of an advocate acting when under a conflict of interest.  The court also observed that

“a complaint could be seen as having at least two separate strands or elements, which fell into two different camps.  An example might be that of a solicitor who falsely represented that he was a specialist in a certain area (a conduct matter) and be criticised for the quality of his work (a services issue)”.

It was suggested that such examples undermine the contention that it is not possible for a single act or omission to amount to both a services and a conduct offence.

[20]      Counsel explained that, by a hybrid complaint, what is meant is that the complaint is both a conduct matter and a services matter.  The submission was that section 5 allowed a complaint to be categorised as both.  The Commission required to have regard to the interests of the consumer, not least given the much larger amount of compensation (£20,000 as opposed to £5,000) which could be ordered by the Commission.  From the consumer’s perspective, a services complaint offers greater relief and in that sense “is more important for the consumer”.  Thus it was all the more important to maintain the possibility of categorisation of a complaint as hybrid.  Otherwise the consumer, who may feel “railroaded”, is deprived of the opportunity to have the services aspect investigated.  Counsel explained that there are complaints which raise only conduct matters;  complaints which raise only services issues;  and complaints which raise both.  Emphasis was placed on the use of the term “merely” in the definition of unsatisfactory professional conduct in section 46.  That, it was said, indicated a “not only but also” approach.   

[21]      The word “hybrid” may be somewhat inelegant but it provides a functional description of a legitimate process which has operated through liaison with the relevant professional organisations who have indicated no difficulty with the process.  It is efficient, logical and avoids duplication of effort.  One complaint might raise several issues, some of which are conduct related and some of which are services related.  This is anticipated in section 5(2) of the Act.  No question of double jeopardy arises.  That rule guards against a second prosecution for the same offence.  The relevant professional organisations and the Commission have separate responsibilities and separate investigative functions.  Different standards and tests are applied, with different standards of proof.  Hybrid complaints are investigated in sequence not in parallel, the respective order being addressed at the liaison stage.

The interested party

[22]      On the hybrid question, the interested party, namely the complainer, adopted a neutral stance.

Discussion and decision on the hybrid issue
[23]      At the outset it may be helpful to reflect on some of the background to part 1 of the Act.  For various reasons it was decided that the professional bodies should no longer have sole control over the resolution of complaints against practitioners.  The Commission was set up as an independent body with significant lay involvement to act as a single gateway for all unresolved complaints.  The concept of inadequate professional services was introduced, at least in part, because of a concern that the professional bodies were too ready to reject complaints as matters concerning negligence, not misconduct, and so requiring to be determined through court proceedings.  This, it was thought, deterred the pursuit and determination of such complaints.  The Commission was given jurisdiction to adjudicate upon all complaints of inadequate professional services (which could include issues of negligence) and also limited powers to order compensation and other relief.  There was a view, held strongly by some, that the Commission should be given responsibility for the handling and determination of all complaints, including those suggesting professional misconduct.  However, the government of the day adhered to the approach ultimately set out in the Act, namely that complaints suggesting misconduct should remain within the sole jurisdiction of the professional bodies, subject to the procedural oversight of the Commission.

[24]      It was recognised that this would create demarcation issues.  For example, there could be complaints which lay within a borderline or grey area, particularly given the relatively open-ended definitions of the two types of complaint.  The Commission was given the responsibility, after consultation with the professional bodies, to decide as to how a complaint was to be classified and therefore which body should address it.  For this purpose the Act expressly requires the focus to be on what it is that is suggested by the complaint.  Does it suggest professional misconduct or unsatisfactory professional misconduct, or the lesser (hence the term “merely”) concern of inadequate professional services?  It was predicted that the decision to reject the notion of a single decision-making body addressing all complaints would create uncertainties.  Nonetheless, it was decided that conduct matters should remain in the hands of the profession, something which was seen as being in the public interest – though many disagreed.  Section 15 of the Act recognises that once a classification decision has been made, it might come to be regarded as erroneous, and hence a procedure is laid down for, in an appropriate case, setting the complaint on the appropriate track.

[25]      At the heart of the issue raised by the Bartos case, and now by this appeal, is whether the legislation allows the Commission to investigate and determine an issue which it has categorised as a matter of professional conduct, and this on the basis that it would not have occurred had a proper service been provided.  This is on the thinking that a competent practitioner will not be guilty of misconduct.  The principled argument against the proposition is that it contradicts the legislative intention to leave the investigation and determination of conduct issues within the sole jurisdiction of the professional bodies.  Once the Commission decides that a complaint suggests that the practitioner was guilty of either professional misconduct or unsatisfactory professional conduct, the expectation was that it would remit the complaint to the professional body and content itself with its supervisory role.  However, in Bartos, the result was that the Faculty, after investigation, held that counsel did not mislead the court, while the Commission, after a separate investigation, reached the view that he had.  The Commission’s decision was described as a finding of inadequate professional services, but clearly it was also a finding of at least unsatisfactory professional conduct.  It could not reasonably be seen as anything else, the Commission having already sent the allegation to the Faculty on the basis that it raised a matter concerning conduct.  This exemplifies the problematic consequences when a complaint which raises one sharp issue of alleged fact is sent down both the conduct and services tracks.

[26]      Turning to the terms of the Act, there is no mention of a “hybrid” complaint.  There is, for understandable reasons, recognition that a complainer might lodge a complaint which consists of separate parts or elements, one or more of which raises conduct issues, and one or more of which raises services concerns.  It is envisaged that such a complaint could be subdivided and dealt with according to the proper classification of its constituent parts.  No doubt such a complaint might be called a hybrid complaint – but it differs materially from the complaint so categorised in Bartos.  That complaint did not have separate elements, therefore it could only be categorised as hybrid on the basis that a suggestion of professional misconduct could also be seen as a suggestion that an inadequate professional service had been provided, in that if a service is adequate, the client’s interests will not be damaged in the way alleged by the complainer.

[27]      We have come to the view that the Act does not give the Commission power to proceed in this manner.  To a large extent we have explained our thinking on this when commenting on the detailed statutory provisions.  We would adopt the concerns expressed at paragraphs 2-8 of the decision in Bartos.  Reference was made there to a hypothesised complaint of an advocate allegedly acting when under a conflict of interest.  Such a complaint might be viewed as raising both conduct and services issues, but this does not allow the Commission to adjudicate on whether the advocate did or did not act under such a conflict;  and though perhaps, depending on the specific terms of the complaint, theoretically possible, it would seem undesirable to have separate inquiries by different bodies into (a) whether there was a conflict of interest, and (b) the impact it had on the quality of the service provided, especially since the latter could be relevant to the proper sanction for any finding of misconduct.  In short we are of the opinion that if a complaint, or a part of a complaint, suggests a failure in proper professional conduct, a view taken by the Commission that it could also be seen as raising a services issue does not justify the course taken in Bartos.  Instead the Commission must decide whether to classify it as a conduct or a services complaint.  The real mischief, which may need addressing, is the disparity between the compensation powers available to, on the one hand the professional organisations, and, on the other hand, to the Commission.

[28]      While the matter has been resolved primarily by reference to the specific terms of the relevant statutory provisions, this outcome is consistent with the parliamentary intention to limit the Commission’s decision-making jurisdiction to services complaints.  It is also in line with rules made under part 1 of the Act, which again make no mention of hybrid complaints, and have different time bar tests for the two types of complaint.  The rules appear to contemplate a single issue complaint being on a single track.

[29]      As mentioned earlier, the statutory provisions have been modified, namely by the Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations SSI 2014/232, but not in any respect which trenches upon the considerations mentioned above (though the key section changes from section 5 to the new section 2).  The critical wording remains, namely that a complaint can be sent down more than one route only when it can be treated as constituting both a conduct complaint (or complaints) and a separate services complaint (or complaints) – see the new subsections  2(2A) and (2B) (emphasis added).

The circumstances of the present appeal
[30]      So far nothing has been said as to the circumstances which have given rise to the present appeal.  Various complaints (8 in total) were made by Glencairn Whisky Company Limited (Glencairn), former clients of Anderson Strathern LLP (the appellants).  The solicitors acted for Glencairn in proceedings raised on their behalf in the Court of Session.  Following an initial eligibility assessment the Commission determined that issues 1, 2, 3, 5, 6 and 7 were totally without merit in terms of section 2 of the Act.  (Issues 4 and 8 were remitted for investigation as services complaints.)  The eligibility decision was appealed by Glencairn, and by interlocutor of the Inner House dated 4 March 2014 the complaint was remitted back to the Commission.  The interlocutor did not interfere with the Commission’s decision on issue 7, but made findings that issues 1, 2, 3, 5 and 6 were not totally without merit, frivolous or vexatious.  In due course the Commission categorised them as services complaints.  Once again Glencairn appealed, and by interlocutor of 25 September 2014, the Commission was again required to reconsider the classification of issues 1, 2, 3, 5 and 6.  This was against the background that the Commission accepted the contention that it had not provided adequate reasons for its decisions.  The court was not making a finding that the services categorisation was wrong.

[31]      By letter dated 30 January 2015 (which is the decision now the subject of appeal) the Commission intimated that it had decided that issues 2, 3 and 5 would be accepted as hybrid complaints:  that is to say, complaints that may be viewed as either services or conduct complaints, though later information from the Commission indicated that the decision was that they may be viewed as either services “and/or” conduct complaints.  Issues 1, 4, 6 and 8 were deemed to be services complaints.

[32]      The present appeal relates only to issues 2, 3 and 5, namely those determined to be hybrid complaints.  Issue 2 was a complaint that the solicitor concerned

“failed and/or delayed to procure a note from counsel in relation to the prospects for success in the actions despite such a note having been suggested by counsel and despite having been instructed to obtain such a note in December 2011 and again in January 2012.”

Issue 3 was a complaint that the solicitor

“failed and/or delayed in providing a copy of senior counsel’s opinion dated 2 January 2012 (or otherwise effectively communicating the terms of the same).”

Issue 5 was a complaint that the solicitor

“failed to implement her client’s specific instructions relative to the erroneously uplifted funds of around £108,000 (which were consigned to the court as security for the expenses of Chivas Brothers Limited (the party on the other side of the litigation)) following settlement of the actions, namely to pay said sums to her clients and, instead, moved the court to order payment of said funds to be paid into the account of Anderson Strathern LLP, whilst erroneously representing to the court that said motion was made on behalf of, and with the instructions of, her clients.”

[33]      The submission on behalf of the appellants was that each issue raised a discrete point and thus the concerns expressed by the court in Bartos were equally applicable.  Each complaint contained a single allegation.  It was implicitly recognised by Mr Dunlop QC that one consequence of hybridity would be that a single allegation could be sent to the professional body for, in an extreme case, the expulsion of the practitioner from the professional body, and also sent to the Commission, so that the Commission could exercise its power to award greater compensation than that currently available to the professional body.  However the submission was that this course of action is not competent.  It was noted that,  though a complaint may be treated as a conduct matter, the complainer retained the right to seek damages in court proceedings.

[34]      Counsel recognised that if the court upheld his submission that a hybrid categorisation was unavailable to the Commission, the question would then arise as to the proper order for the court to make.  In the particular circumstances, it was only the finding of hybridity which allowed the Commission to determine that issues 2 and 3 were not time-barred in respect of conduct issues, since it was accepted that, having regard to the relevant rules, if viewed solely as conduct matters, the complaints contained in issues 2 and 3 had been raised too late.  The same submission could not be made in respect of issue 5;  however counsel submitted that, on any reasonable view, none of the three complaints could be viewed as raising matters of professional misconduct or unsatisfactory professional conduct.   

[35]      The background to all of this is that the relevant time-bar rule made under section 4 of the Act distinguishes between conduct issues and services issues to the general effect that a conduct complaint must be raised within one year of the conduct complained of, whereas a services complaint must be lodged within one year of the date when the practitioner stopped providing services to the complainer.  If viewed solely as a conduct matter, both issues 2 and 3 were raised after the expiry of the one year limit, but timeously if viewed as services complaints.  Having categorised them as hybrid complaints, the Commission felt able to treat the complaints as timeous in respect of both conduct and services.  It was one of counsel’s submissions that, in effect, the hybrid categorisation allowed the Commission to purport to waive the rules in relation to the timeous lodging of conduct complaints.  Whatever else, given the rules on time-bar, and notwithstanding the hybrid categorisation, issues 2 and 3 should only proceed as services complaints.  No time-bar issue arose in relation to complaint 5, but for the appellants it was submitted that, since the course adopted by the solicitor had been approved in advance by an official of the Law Society of Scotland, no conduct issue could properly arise.  As to issues 2 and 3 it was submitted that they are classic services issues.

[36]      In summarising his submissions Mr Dunlop QC stated (1) there is no such thing as a hybrid complaint;  (2) issues 2 and 3 are time-barred regarding any conduct element;  and (3) no conduct element can be attributed to issue 5.

[37]      In her submissions on behalf of the Commission Ms Ross began with an observation that, given the long history of the case and the number of times it had been remitted for reconsideration, there might not be enough personnel in the Commission to allow the matter to be reviewed by a new panel.  The court was urged to exercise its powers under sections 21 and 22 of the Act and resolve the classification of issues 2, 3 and 5.  In so far as it might be thought that this interfered with the interlocutor of September 2014, it was explained that it proceeded on the basis of a joint minute of parties in the context of an appeal based upon a failure of the Commission to provide adequate reasons for its decisions; the proper classification of the complaints was not the key issue.  Counsel accepted that if the Commission was in error on the question of hybridity, then it was also wrong in relation to time-bar so far as issues 2 and 3 are concerned.

[38]      As to characterisation of the complaints raised in issues 2, 3 and 5, issues 2 and 3 were seen as potential breaches of both conduct and service standards.  On the question of advice from the Law Society in respect of issue 5, the Commission could not be certain that the information before it was true and accurate.  The Commission also had representations from the complainer.  The court was urged to cut the Gordian knot and determine the proper classification of these complaints.

[39]      Glencairn, as an interested party, was represented.  Counsel explained that he had nothing to say on issues 2 and 3.  Issue 5 plainly raised a matter of conduct.  Hence the solicitor consulted the conduct department of the Law Society.  In any event, nothing said by the Law Society sanctioned the alleged misleading of the court.  Counsel expanded upon the interested party’s concerns raised in issue 5, however it is neither necessary nor appropriate to dwell upon them.  It was suggested that the Law Society may not have been given full and proper information.

Decision on the appeal

[40]      The categorisation of issues 2, 3 and 5 as hybrid complaints will be quashed.  The court accepts the invitation to make an appropriate classification order at its own hand.  There are compelling reasons to avoid a further remit to the Commission, especially when the court is well placed to determine the matter.  The time-bar concerns do not apply to issue 5.  It raises what, on any view, is a conduct matter.  The Commission seems to have been tempted into a degree of deliberation upon the merits of the complaint.  That will be a matter for the professional body.  Issues 2 and 3 suggest no more than concerns as to the level of service provided to Glencairn.  On that basis, no time-bar issues arise.

[41]      The court will pronounce an order to the effect that issues 2 and 3 are services complaints, and that issue 5 is a conduct complaint.  We do not consider that this conflicts with either of the earlier interlocutors of the court.  Neither of them arose from contested proceedings, and neither involved a decision by the court on the proper classification of the complaints.  In any event section 22 of the Act gives the court power to “make such order as it thinks fit”, and this must be determined on the basis of the particular circumstances at the time when the order is being made.