Friday, June 19, 2015

Crown Office granted order for cockpit voice & flight data from 2013 North Sea Super Puma helicopter crash

Helicopter crash data to be handed over to Lord Advocate. DURING a hearing at the Court of Session today, Lord Jones granted an order to Scotland's Lord Advocate for access to the black box from a helicopter crash in the North Sea which claimed four lives.

Eighteen people were aboard the Super Puma chopper which crashed into the North Sea near Shetland in August 2013.

Lord Jones said in his opinion : Lord Advocate for an order in terms of The Civil Aviation Regulations 1996 he would make the helicopter's flight data available to the Crown Office & Procurator Fiscal Service (COPFS) and police with conditions attached.

Lord advocate Frank Mulholland had asked the courts to release the black box, in a move opposed by pilot union BALPA.

The judge said: "In my judgement, there is no doubt that the lord advocate's investigation into the circumstances of the death of each of those who perished in this case is both in the public interest and in the interests of justice.

“The data which the lord advocate seeks to recover will provide relevant, accurate and reliable evidence which will enable the Safety and Regulation Group (SARG) to provide an expert opinion of value to assist him in his investigation of the circumstances of the death of the four passengers whose lives were lost, and his decision whether and, if so, against whom to launch a prosecution”

Lord Jones said he accepted that SARG could not provide expert opinion to aid the police and Crown Office which was "of value" without carrying out a flight specialist analysis of the data from the Super Puma which crashed two years ago as it approached Sumburgh Airport in Shetland.

He added: "Accordingly, I hold that those data are strictly necessary for the purposes of the police investigation."

The judge said he was satisfied that disclosure in this case will have no adverse domestic or international impact on the current investigation or on any future safety investigation. He said that although he would order for the transport secretary to make the black box available, conditions would be attached.

They include that Police Scotland will take possession of the data and retain overall control and responsibility for it until it is returned to the Air Accident Investigation Branch (AAIB). He said the results of any analysis would to be treated as confidential and only disclosed to the Crown Office and police.

The helicopter, with two crew and 16 passengers on board, crashed on August 23, 2013, about two miles west of Sumburgh. Sarah Darnley, 45, Gary McCrossan, 59, Duncan Munro, 46, and George Allison, 57, all lost their lives.

The AAIB began an immediate investigation, which is still under way. Seventy-eight hours of flight data and two hours of audio recording were downloaded as part on the inquiry.

It includes communications between the commander and co-pilot, radio transmissions and passenger announcements.But the judge said such recordings also capture "ambient sounds" which may be important to an investigation, such as a change in engine note.

The AAIB has issued three reports over the accident, one of which reported that wreckage examination and recorded data analysis had not shown any evidence of a technical fault that could have caused the accident, although some work remained to be completed.

The lord advocate said that in the apparent absence of any technical fault the police had asked SARG to provide an expert opinion on the performance of the flight crew.A formal request was made to the AAIB to make the data available for the investigation, but it said a court order would be required.

Aidan O'Neill, for the pilots' union, told the court at an earlier hearing that "a culture of openness" was fostered so that when an incident happens complete information can be obtained.

He said there was a culture of sharing information without fear of reprisals.

Lord Jones said accident investigators cannot be required routinely to disclose cockpit voice recordings and such a move can only be ordered in a particular case if the tests laid down in regulations were met. The judge said his decision in the present case would not create a precedent.

Scottish Arbitration lags behind court, says survey from Heather Capital law firm Burness Paull, as hopes for cornering arbitration business fail to materialise

Law Society led arbitration choked up with property & construction disputes. A SURVEY of Scottish Arbitration reveals property and construction disputes continue to dominate the subject matter of arbitrations in Scotland.

The survey also claims initiatives have been taken in sectors usually dominated by smaller high street and rural law firms – such as agricultural and family matters.

Work on the survey was led by the University of Aberdeen and legal firm Burness Paull LLP –  who are currently being sued for millions of pounds over their role in the collapse of the £400 million Heather Capital hedge fund, run by Spanish based Gregory King, originally from Glasgow.

Heather Capital raised hundreds of millions in international finance to lend against Scottish property before going under in 2010. Most of its money has been ‘lost’' to investors, even though the Law Society of Scotland had been keeping an eye on client accounts of certain law firms which appear to have funnelled millions of pounds of money through their client accounts to Heather Capital related entities.

Burness Paull - one of the two biggest law firms in Scotland - is understood to have acted for at least one of the businesses in Mr King's network of companies. King is one of four people currently under investigation by Police Scotland and the Crown Office.

The Law Society of Scotland also gave support to the project without declaring it has a vested business interest in the project and is one of the main sponsors of the Scottish Arbitration Centre – backed by the Scottish Government, the Chartered Institute of Arbitrators, the Faculty of Advocates, the Law Society of Scotland and the Royal Institute of Chartered Surveyors, partially funded by public money.

The survey concludes use of arbitration is in line with expectations following the Arbitration (Scotland) Act 2010, however cases returning to the court rolls appear to indicate Scottish arbitration is failing the grade, and giving false hope to litigants who may secure more advantageous hearings & settlements in the courts.

These are among the findings of the first report of the Scottish Arbitration Survey, covering the period from 1 July 2013 to 30 June 2014. The report provides statistics on arbitrations in Scotland during that period, along with procedural trends and attitudes. It also contains a commentary on the evolution of arbitration since the Arbitration (Scotland) Act 2010, including the role of the courts and the developing scope for the use of arbitration in Scotland.

The research found that around 22 arbitrations with a Scottish seat occurred during the period covered, across a wide range of dispute value. Most employed single arbitrators rather than tribunals; they generally followed the unamended Scottish Arbitration Rules, though there was use of bespoke rules; they adopted various forms of procedure; and they generally reached an award in less than 12 months.

The survey, written by parties with a business interest in expanding the poorly regulated Scottish arbitration business, claim speed, confidentiality, procedural flexibility and technical specialism were seen as potential advantages in using arbitration.

It is intended to follow up the report with further surveys, to provide statistical information on trends over time. The next survey will be undertaken in early 2016 to cover the calendar year 2015.

The organisers said they hoped the survey would provide a valuable resource to arbitrators and practitioners, and to those who promote arbitration. "As well as providing a measure on the number of arbitrations occurring, it provides an insight into attitudes to dispute resolution and to the practice of arbitration that will be helpful to those who practise as decision makers and representatives in the resolution of disputes", they commented. "It will also provide guidance to those who do not participate directly in dispute resolution, but who advise clients on alternative dispute resolution mechanisms, weighing up the important factors in adopting an effective and commercially pragmatic approach.

"Once interested parties have had an opportunity to read the Report over the summer period, we will arrange presentations and discussions on the lessons that might be drawn from the information and statistics collected. Amongst those will be a seminar in November in the Chartered Institute of Arbitrators (Scottish Branch) seminar series.

"We will look at ways to optimise the survey over time, and would welcome any feedback. We are grateful to all those who participated in the survey and hope that you will continue to support future surveys, so that Scotland can benefit from sound statistical data."

Legal insiders continue to maintain litigants can secure more fairer and permanent outcomes using the more accountable courts system instead of relying on closed door negotiations which are often fraught with difficulties and failures of arbiters to declare vested interests in cases before them.

Questionable  arbitration hearings the survey did not cover include instances where -

* an arbitration specialist involved in a case relating to a dispute with a multi national energy company took a payment from the energy company before both sides concluded an agreement. The agreement has now ended up subject to legal action;

* a case of an arbitration specialist failing to reveal her husband was a board member of a company involved in an arbitration she was currently engaged in;

* a recent case where an arbitration expert failed to reveal he was employed by one of the parties involved in an arbitration relating to a multi million pound property dispute.

Thursday, June 18, 2015

Pay now or comply later: Solicitors reminded over deadline to pay up historical client balances or firms may face action from Law Society of Scotland

Solicitors reminded to pay up on squirreled away client funds. THE Law Society of Scotland has issued a warning to law firms that action could be taken against them if they fail to pay out any historic balances of client funds held within the next few months.

Law Society of Scotland practice rules which came into force on 1 November 2011 allowed two years for the clearing down of historical balances, up to 31 October 2013, but the Society's Financial Compliance team, which inspects solicitors' books for compliance with the accounts rules, has come across many firms which still hold historical client balances.

The Society believes that firms have had ample time to comply with the rules and has now contacted all firms to set a deadline of 31 October 2015 for completing the work required to disburse all client balances held following the conclusion of transactions. From that date, any ongoing rule breaches relating to these balances will be reported to the Guarantee Fund Subcommittee.

The practice rules require every practice unit to disburse client credit balances promptly following conclusion of transactions, and to remedy any breach of this rule promptly on discovery. The cashroom manager is responsible for securing compliance with these obligations, but it is possible that other solicitors in the practice could be deemed to have caused or knowingly permitted the practice unit not to comply with the rule, which would also permit action to be taken against them.

A release from the Law Society of Scotland said: We are now urging all firms to fully complete the work required to disburse all client balances held following conclusion of transactions by 31 October 2015.

From that date, any ongoing rule breaches relating to these balances will be reported to the Guarantee Fund Sub-Committee

The Law Society’s Financial Compliance inspection team have been working with many firms and monitoring progress being made with the required work. They have determined that an additional two years from the date of the rule requirement is ample time for this to be completed.

Law Society of Scotland practice rules

B6.11 Failure to disburse client credit balances following conclusion of transactions

Under the terms of the Law Society Practice Rules 2011, Rule B6.11 requires every practice unit to disburse client credit balances promptly following conclusion of transactions.

In addition:

* Rule B6.4 requires a practice unit to remedy any breach of rule 6 promptly upon discovery.
* Rule B6.13 states that the cashroom manager is responsible for securing compliance by the practice unit with the obligations of rule 6.
* Rule B6.2.3(b) states that no regulated persons (solicitors) within the practice unit shall cause or knowingly permit the practice unit not to comply with any provision of rule 6, therefore it is possible that the Guarantee Fund Sub Committee will take the view that other solicitors within the practice unit are responsible, and action may also be taken against them.

If you have any questions, please do not hesitate to contact the Society's financial compliance team.

Tuesday, June 09, 2015

Police Chief & Sheriff clash over ‘cover up culture’ within Police Scotland as top cop slapped down by judge over attempt to interfere with judiciary

Top cop slapped down for interfering with sheriff. CHIEF CONSTABLE Sir Stephen House – in charge of Scotland’s single Police service Police Scotland  has been ‘slapped down’ by a senior judicial figure amid allegations he attempted to interfere with the role of Scottish Sheriffs.

Chief Constable House demanded a meeting with Scotland’s Sheriff Principal Brian Lockhart to voice his anger at comments made by Sheriff Robert H Dickson - who suggested a cover-up culture may exist within Scotland’s single Police Force.

However, after an angry exchange of letters between the two, Sheriff Principal Lockhart refused to meet with the top cop – and then went on to accuse Chief Constable House of failing to “recognise the role of the judiciary”.

The spat between Scotland’s most senior Police Officer and a senior judge was reported by 'The National' newspaper earlier today.

The row erupted after a case at in December at Airdrie Sheriff Court, which prompted Sheriff Robert H Dickson to jail PC David Carmichael for seven months after he was convicted of lying to protect a colleague who was drunk driving.

The row between Scotland’s top cop and members of the judiciary erupted after a case at in December at Airdrie Sheriff Court - which prompted Sheriff Robert H Dickson to jail PC David Carmichael for seven months after he was convicted of lying to protect a colleague who was drunk driving.

In his sentencing, Sheriff Dickson said the evidence “suggests that there may be a perceived culture that police officers are willing to prevent the arrest and prosecution of a colleague”.

He added: “If that culture exists, then every superior officer and anybody involved in the training of the police must ensure that it is stamped out forthwith.”

Chief Constable Sir House – angered at the comments of the sheriff -  demanded a meeting to discuss the case with Sheriff Dickson’s boss – Sheriff Principal Brian Lockhart, but was rebuffed.

In letters, House criticises Dickson for raising concerns about Police Scotland’s integrity in public and says he should have raised them directly with the police or through the Sheriff Principal.

But Sheriff Principal Lockhart wrote back to say: “Sheriff Dickson was entitled to draw from the facts before him that this cover-up may not have been a one-off incident”.

Sheriff Principal Lockhart added there is “ample evidence” to support Sheriff Dickson’s claims: “These were carefully phrased expressions of concern, justified by the evidence in the case before him.”

The sheriff said Dickson had every right to make the remarks, in order that “public confidence in the judicial system is not further damaged. To suggest otherwise fails to recognise the role of the judiciary”

He continues: “The integrity of the police force is not merely a matter of concern to senior police officers but to us all.”

The case related to in incident in 2010, when PC David Carmichael and fellow officer, probationer PC Justyna Niedzwiecka responded to a call about a drunk driver in Coatbridge, who turned out to be PC Daryl McKillion.

Instead of breathalysing the drunk policeman, Carmichael radioed in to control to say that nobody had answered the door.

Niedzwiecka reported the matter to a senior officer.

The call about McKillion had come from an off-duty detective who had seen the PC buy a bottle of whisky and get into a car.

McKillion, who was suffering from severe depression, took his life three weeks later.

Professor James Chalmers, Regius Professor of Law at the University of Glasgow, said House was attacking the messenger.

Chalmers said: “It may only be a problem of perception, but that’s still a real problem which he has a responsibility to do something about. The problem seems to be one of perception within the force rather than more generally, so there’s no room for the argument that the sheriff was making the problem worse by speaking out publicly.

“On the plus side, it’s good to see the independence of the judiciary defended so robustly, which is particularly important now that we have a single police force”.

Former policeman and Scottish Parliament Justice committee member John Finnie MSP defended Sir Stephen: “It is important there is a frank exchange of views. The independence of the judiciary must be guarded in any liberal democracy. I well understand the chief constable’s spirited defence, because the overwhelming majority of police officers act with integrity.

“In this case the standards were dropped and I don’t think the chief’s comments were at all unreasonable.”

A spokesperson for Police Scotland said: “The correspondence clearly sets out the chief constable’s rejection of the claim that such practice may have been widespread and his personal condemnation of any officer who wilfully neglects their duty and that all members of Police Scotland are expected to maintain the organisation’s highest professional standards.

“It also clearly sets out the respect for the independent role of the judiciary but does express concern that the original comments by Sheriff Dickson could have been misconstrued”.

Amid calls for a statement on the matter from Lord Justice Clerk Lord Carloway – who is currently acting Lord President – the Judicial Office refused to give any further comment.

Police Scotland was created by the Scottish Government in early 2013 after local policing across Scotland was scrapped in favour of a more easily ‘controlled’ and now highly politicised policing service steered by PR driven headlines to assist Scottish Ministers increasingly dodgy claims regarding crime statistics.

The current make up of the force – which has been subject to budget cuts, loss of key staff & has rumblings of low morale among  officers - has recently hit the headlines over alleged bullying within it’s ranks, the dodgy crime statistics, alleged targets for certain types of crimes, and support for questionable changes in the law backed by headline grabbing politicians and dodgy Crown Office prosecutors out to fiddle their own conviction rates.

Wednesday, June 03, 2015

Crown Case KO’d in Coulson Trial: Collapse of multi million pound perjury trial of Andy Coulson raises questions for Lord Advocate & calls to reform ‘institutionally corrupt’ Crown Office

Andy Coulson exits court after trial collapse. THE perjury trial of former News of the World Editor & No 10 adviser Andrew Coulson sensationally collapsed today after trial judge Lord Burns ruled there was no case to answer.

Now, Frank Mulholland - Scotland’s Lord Advocate in charge of the Crown Office & Procurator Fiscal Service (COPFS) - faces questions over the millions of pounds of taxpayers money spent investigating & prosecution the perjury case – which – according to the ruling handed down by the judge - should not have ended up in court.

The Crown alleged that Mr Coulson, 47, lied about his knowledge of phone hacking at the now-defunct tabloid.

However, the case against him collapsed after his defence team successfully argued there was no case to answer.

Judge Lord Burns ruled the Crown had not shown Mr Coulson's evidence was relevant in the Sheridan trial.

Speaking outside the High Court in Edinburgh after his acquittal, Mr Coulson said: "I am obviously delighted by the judge's decision today. It was the right decision.

"This prosecution was always wrong. I didn't lie and the prosecution, in my view, was a gross waste of public money.

"I am just delighted that after four pretty testing years that my family and myself have finally had a good day."

Explaining his ruling, Lord Burns told the jury that perjury was the giving of false evidence under oath which is relevant to the issues in that trial.

He said the Crown needed to prove that Mr Coulson's allegedly false evidence in the 2010 Sheridan case was relevant to the issues in that trial, and that was for him as a judge to decide rather than the jury.

Lord Burns said that after two days of legal submissions the Crown had not satisfied him that Mr Coulson's evidence had been relevant.

The judge formally acquitted Mr Coulson on Monday, but the acquittal was suspended and could not be reported until Wednesday morning while the Crown decided whether it would appeal.

Clive Goodman and James Weatherup gave evidence at the trial

No appeal was made, and Mr Coulson was cleared more than three years after he was first charged.

The explanation to the jury given by Lord Burns:


I have acquitted the accused of the charge of perjury which he faced and that means that you will not have to return a verdict on the charge in the indictment.

You heard 5 days of oral evidence in the crown case. You have attended and then been sent away repeatedly since the end of the crown case last week and, during that time, what has been happening in this court has, quite deliberately, been kept from you, although you, as jurors, are the most important people in this room. You deserve an explanation of what has been going on. That involves going into some of the issues I have been discussing with Counsel in your absence.

As jurors you were responsible for the facts, I for the law. You were to decide whether the crown could prove that the accused committed perjury during Mr Sheridan's trial in 2010. I was to tell you about the law of perjury. I need to do so now, albeit briefly, to explain to you what has happened.

Perjury is the wilful giving of false evidence under oath or affirmation in judicial proceedings. An oath or affirmation binds the witness to tell the truth. If he gives evidence in a criminal trial or in civil proceedings which he knows to be false and which was relevant to the issues in that trial or civil proceedings, he is guilty of perjury.

Relevant means relevant either in proof of the charge against the accused in that trial or in relation to the credibility of the witness. Unlike the falsity of the evidence, the question of its relevance is a matter of law and therefore for the judge to decide on that matter and not the jury.

To prove the charge against Mr Coulson, the crown needed to prove that:

1 the accused gave evidence in court on oath at Mr Sheridan's trial. There was no dispute about that.

2. that he gave evidence that he knew to be false: that was to be for you to decide. A jury question

3. finally that the allegedly false evidence given by Mr Coulson was relevant to the issues which arose in Mr Sheridan's trial for perjury or Mr Coulson's credibility in the important evidence he gave at that trial. That was the matter of law for me. A judge's question. Relevancy is always a judge's question. Because it was a matter for the judge in the Sheridan trial, now that trial is over but is the subject of this trial, the relevancy of questions and answers in the Sheridan trial was a matter for me in this trial.

In 2010, Mr Sheridan had been on trial for perjuring himself when he gave evidence in the civil proceedings in his action for defamation against the News of the World. So the question of relevancy for me was whether the alleged false evidence given by Mr Coulson in that trial was relevant to the proof of Mr Sheridan's perjury or relevant to Mr Coulson's credibility as a witness in the perjury trial of Mr Sheridan. You will recall that Mr Coulson said in Mr Sheridan's perjury trial that the person speaking on a video tape was Mr Sheridan.

After two days of legal submissions last week and having considered the matter, I decided that the crown had not led sufficient evidence to satisfy me that the allegedly false evidence was relevant to proof of the charge in Mr Sheridan's trial or to Mr Coulson's credibility at that trial. 

There are various reasons given for that in my opinion which I don't need to go into now. But, if you want to read it, you will be able to access it on the Scottish Courts website shortly. Once discharged as jurors, you are allowed to do this sort of research.

So, after the crown case had finished last Tuesday, Mr MacLeod argued that the evidence set out in the charge page 1 of the indictment, even assuming it was false, was not relevant in the way that I have explained and so the accused could not be guilty of perjury. Not every lie amounts to perjury.

I was invited to acquit the accused on the basis that there was no case to answer. The Advocate Depute made submissions in support of the contrary position.

That debate took place on Wednesday and Thursday of last week. On Friday I asked you to come back on Monday since I needed some time to consider and decide the matter. On Monday, before you came into court, I issued my decision which was that the allegedly false evidence was not relevant in the trial of Mr Sheridan and that therefore the accused should be acquitted. So even if you answered your question by saying yes he lied, I would have had to answer my question: No. the lies were not relevant and do not amount to perjury. I therefore acquitted him on Monday.

When a judge does that, the Advocate Depute the right to ask for 2 days to consider whether to take an appeal against the decision to the appeal court. He made that request and I was required to suspend the acquittal in case the crown did appeal. Any successful appeal would have required you to resume your duties and to hear any defence evidence, speeches and my directions before considering your verdict.
The Advocate Depute was entitled to ask for that time I granted it. It meant that I had to ask you to return today.

The 2 day period has now elapsed. The crown do not propose to exercise their right of appeal. That means the accused is entitled to be acquitted.

During all this time it was essential that you, who might yet be required to consider and return a verdict on the charge, were not aware of any of this procedure or what was being said, in case it might influence you in any way, if the trial proceeded. So the press and all branches of the media were prohibited from publishing and reporting on the debate and the result. As is to be expected from responsible media organisations, no such information has been published or broadcast.

All this means that the trial is now over and you will not need to reach a verdict on the charge. I can discharge you.

But before I do so, I would like to thank you for the time you have devoted to the case and the attention you have paid to it. It is appreciated that jury service, even in a normal case, is a disruptive and a difficult task. This particular case has certainly been disruptive for you. But jury service is one of the most important public duties any citizen can perform. I am now able to discharge you and you go with the thanks of the court.

In the wake of the collapse of the Coulson trial, the Crown Office also announced it was dropping charges against the News of the World’s former Scottish editor Bob Bird and  senior reporter Douglas Wight.

The Crown Office said on Tuesday that, after "an extremely thorough investigation of these allegations", no criminal proceedings would be taken against either Mr Bird or Mr Wight.

This marks the end of charges brought as a result of the multi million pound Operation Rubicon, launched by Strathclyde Police in 2011 to investigate allegations of misconduct at Sheridan's trial. As a result, in 2012 seven Scottish police officers detained the former editor at his home in Dulwich, South London at 6.30am and drove him to Glasgow. Shortly afterwards he was arrested and charged.

Operation Rubicon’s English equivalent -  "Operation Elveden" run by the Crown Prosecution Service similarly collapsed. , costing the public over £20 million.

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

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

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


The timeline of the latest case against Mr Coulson can be traced back to 2006 when Mr Sheridan won a defamation case against the News of the World.

The politician was awarded £200,000 in damages over a series of articles in the newspaper that claimed he was an adulterer and had visited a swingers club.

In 2010, Mr Sheridan stood trial, accused of perjury in the 2006 case. He was subsequently convicted and jailed for three years.

While conducting his own defence during the trial, Mr Sheridan called Mr Coulson as a witness.

The evidence the journalist gave at the High Court in Glasgow on 9 and 10 December 2010 later prompted the Crown to accuse him of perjury.

The charge against Mr Coulson alleged that he committed perjury when he told Mr Sheridan's trial that he had not known about phone hacking at the News of the World until the arrest of the now-defunct tabloid's royal editor Clive Goodman in 2006.

During Mr Coulson's perjury trial, the Crown led evidence from Mr Goodman and fellow former News of the World journalists Neville Thurlbeck and James Weatherup, who are all convicted phone hackers.

After hearing the prosecution evidence, the jury of nine men and six women was sent from the court last week as defence advocate Murdo MacLeod QC outlined an argument that there was no case to answer.

Mr MacLeod noted that both Mr Sheridan and the Advocate Depute both said in their closing statements at the 2010 trial that the phone hacking testimony had little relevance to Mr Sheridan's defence.
'A shambles'

Responding to the acquittal, a Crown Office spokesman said: "Andrew Coulson was a defence witness at the trial of Tommy Sheridan. He gave his evidence without objection as to relevancy.

"The Crown indicted Coulson on the basis that he lied during parts of his evidence, in particular that he had no knowledge of phone hacking.

"The trial judge in the Coulson trial, at the conclusion of the prosecution evidence, ruled that this evidence was irrelevant and therefore could not found the basis for a prosecution for perjury. This brings proceedings to an end."

Reacting to Mr Coulson's acquittal, Mr Sheridan accused the Crown Office of "corruption" , presiding over "a shambles" and called for someone's "head to roll".

Wednesday, May 13, 2015

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

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

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

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

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

Mr Coulson denies all of the charges against him

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

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

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

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

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

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

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

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

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

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

Friday, March 13, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter 5 provides some concluding remarks.

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

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

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

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

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

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

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

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

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

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

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

Wednesday, March 11, 2015

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

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

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

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

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

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

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

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

Report from Scottish Mail on Sunday:


By Fiona McWhirter Mail on Sunday 8 March 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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