Sunday, July 15, 2007

Lockerbie Appeal brings focus on Scottish Law injustice

More From A Diary of Injustice in Scotland

Scottish law back in the dock as Lockerbie appeal ruling expected and inquiry to follow

Scarcely a day goes by now it seems, where there isn't a scandal of some description involving the Scottish legal system .. could it be that someone is trying to tell us something those of us not in the legal profession or judiciary actually know ? that Justice in Scotland is only for a select few, and Injustice, rather than Justice, is the order of the day for many.

Indeed, it seems the Scottish Justice system has been fashioned into some contemptible weapon of unimaginable proportions, to be used by those who serve its ends or use it as a business model for profit against the fee paying client and Scottish public.

There are however, cases of injustice now returning to haunt Scots Law .. and one of those of course is the infamous Trial of the Pan Am Flight 103 bombing over Lockerbie in Scotland, which to many, including myself, seems to have been a political fit up to blame one nation for another's involvement in that despicable terrorist crime which occurred over South Scotland in 1987 seeing the loss of 270 innocent lives.

The SCCRC, the Scottish Criminal Complaints Review Commission, tasked with reviewing cases of injustice in Criminal law, has completed it's report on the trial of Abdel Basset Ali al-Megrahi, which took place at Camp Zeist in the Netherlands, under a cloak of Scots Law touted as being transparent & accountable at the time .. seemingly anything but as many have now come to realise though through the staggering levels of unresolved cases of injustice now plaguing the Scottish legal system - and awaiting concrete & effective action by our shiny new SNP led Scottish Executive which some expect to deliver, while others expect to fall on their own sword .. time will only tell on that one, and actions speak louder than words in most cases, as we all know ...

Next week, the SCCRC report will be published, and many expect the content of this report - which may well have had a few adjustments made to it, due to the recent change of leadership at the Scottish Executive, will show injustice in the trial & conviction of the Lockerbie bomber.

If this is the case, it may well assist the calls for a general inquiry with wide ranging remit into injustice in the Scottish legal system, given the actual trial at Camp Zeist had been hailed as one of the premier events of Scottish Law for many years .. something which may now turn out to be a big fraud, meddled in by political interests from more than one country to the point that justice itself was twisted beyond recognition in what has become something many of those who take issue with Scots Law and it's practices have become used to.

On the subject of those who serve the law & use it as a business model for profit, a few stories have surfaced in the media this week showing yet again how glorious our legal profession really is ... in one instance, Lord Osborne, a High Court judge decided to have a go at solicitor Spencer Kennedy of Balfour and Manson, one of Edinburgh's best-known law firms for wasting court time where, quoting the Herald newspaper, the solicitor, Mr Kennedy canceled a three-day hearing before a panel of three judges just two days before they were due to sit, leaving Lord Osborne, who was to chair the panel,with an empty courtroom and two judges with nothing to do.

Great work on the part of Mr Kennedy then .. although hasn't this sort of thing happened before, dare I say .. regularly ? .. but usually the client gets billed for it too ...

Referring to the Herald newspaper article once more, Lord Osborne was brave enough to critisise the legal profession in these actions, in a formally published opinion, said:

"We feel compelled to express our dismay at the waste of scarce public resources which has occurred in this case.

"In our view, those who are professionally involved in litigation in this court have an indisputable obligation to take reasonable care to avoid situations where court time will be wasted.

"Only by acceptance of the obligation to keep the Keeper of Rolls informed of relevant developments can the system of early disposal be operated effectively, without waste and in a way that is fair to litigants in general."

It's a pity some members of the judiciary wouldn't come out and tackle the way the Law Society has sunk the legal profession into the depths of public contempt for the decades it has caused injustice upon injustice towards clients who have dared complain against the poor, or even crooked services of many a crooked lawyer .. such comment & criticism from the bench would be most welcome, rather than a few open letters from the judiciary's ex members taking aim at our Parliament & Government over the prospect of any reform to centuries old practices which seem to have ... culminated in a sea of injustice and cases such as the Lockerbie trial, the McKie fingerprint scandal .. and indeed all our cases of injustice left to fester at the very feet of madam justice herself.

Going back to complaints against lawyers, as a deep rooted issue of injustice in Scotland, the cause of much suffering which the legal profession simply refuses to recognise or deal with, I see that lawyers still put forward such arguments as "the vast majority of complaints stem from fees, which the clients are made well aware of, and the outcome of cases"

An entirely false argument of course - Complaints are generally across a wide spectrum of services provided by the legal profession, as both lawyers & clients alike know full well - wills & probate, mis sold mortgages, investment work, case preparation & handling, you name it, there is a complaint to match it - Could anyone call 5000 complaints a year for over 10 years against less than 10,000 lawyers a positive reflection on the Scottish legal profession ?

How about another old chestnut - the one about "Everyone can make mistakes, not just lawyers - there are a lot of other crooked professionals out there too, including accountants, plumbers ..etc ..."

Yes, very true, there are most certainly a lot of other crooked professionals out there, and accountants are next on the list or equal to lawyers in their corrupt practices of self regulation .. but what separates the honest from the corrupt is who admits to making their mistakes and who has the decency to put them right. The legal profession, and most others, particularly those professions who enjoy the corrupt luxury of self regulation, are not putting their mistakes right in any way shape or form - particularly as far as lawyers go, that is simply against the policy of the nearly 17 year old regime of the Client Relations Office & leadership of the Law Society of Scotland which prefers client confrontation at all costs and any expense in preference to dealing properly with complaints.

Rather than bemoan & belittle the fee paying clients, or target & vilify those who take issue with the well known less-than-honest practices of the Law Society of Scotland which seems to have a vow to keep the very worst of the legal profession in practicing certificates, solicitors could vote themselves a new leadership of the profession & a new client friendly policy which would deal swiftly effectively, economically compassionately, and above all, honestly, with client complaints, perhaps reducing those thousands of hours of extra, unnecessary work - which are really down to the profession's policy of confrontation with clients rather than effective complaints resolution, or is it that lawyers prefer it that way ? confrontation at all costs ? Solicitors are certainly paying for that policy in subscriptions to the Law Society and the Master Insurance Policy...

Does the legal profession's view of complaining clients not look something more like : client given poor service or ruined, client complains, client gets nowhere, clients & their families should be targeted, victimised & hounded for the rest of their lives because they took issue with the almightily legal profession ? - this sadly is more the reality than what the legal profession would have us believe and that is why this injustice in Scotland, along with all the other injustice, must end.

Over to you Mr MacAskill and Mr Salmond at the Scottish Executive ... it's within your power to end injustice - use the power and serve the country, not those who have thrived & profited on injustice & corruption against the Scottish public for so long.

A selection of articles from the Herald & Scotsman newspapers follow :

Watchdog to rule on Lockerbie bomber conviction
DOUGLAS FRASER, Scottish Political Editor June 22 2007

The conviction of the Lockerbie bomber reaches a crunch point next week when a detailed review of the evidence is published that could force a second appeal or even a retrial.

The Scottish Criminal Cases Review Commission (SCCRC) is to announce on Thursday whether it believes the conviction was unsafe or whether a miscarriage of justice took place, following speculation that it has serious concerns about the use of evidence.

The case could put immense pressure on the Scottish justice system, for which the conviction of Abdelbaset Ali Mohmed al Megrahi was a massive test of global interest. It was tried in a special court without a jury at Camp Zeist in the Netherlands, which was designated Scottish territory for the purpose.

The Libyan intelligence officer was convicted in 2001 of the murder of 270 people after the bombing of PanAm flight 103 over Lockerbie on December 21, 1988. Eleven people were killed on the ground by falling wreckage and all 259 passengers and crew in the Boeing 747 died.

The SCCRC has the option either to refuse Megrahi's application or to refer it to the Court of Appeal in Edinburgh, where his conviction will be looked at again.

That would be the second appeal, after senior High Court judges dismissed a previous one in 2002 on a technical legal point. The report runs to 800 pages and will not be made public. A summary will, however, be published.

It was reported last Sunday that Megrahi's conviction will be declared unsafe and there will be a recommendation for the Appeal Court to reconsider the case.

Campaigners on Lockerbie have long had doubts about the case against Megrahi. Others have pointed the finger of blame instead at a Palestinian group backed by Iran.

The case of Megrahi, 55, sparked a political storm earlier this month between Tony Blair and Scotland's First Minister, Alex Salmond. Even before the SCCRC finding, Mr Salmond accused the Prime Minister of striking a deal with Libya that could see Megrahi transferred to a Libyan jail.

Tripoli's main motivation for the talks, it has been claimed, was to agree an exchange of specific prisoners: if Megrahi was allowed to serve the remainder of his life sentence in Libya then it would free five Bulgarian nurses and a Palestinian doctor sentenced to death for deliberately infecting children with HIV at Benghazi Hospital.

If Megrahi is cleared, the Libyans may claim back US$2.7bn (£1.4bn) in compensation paid to families of the Lockerbie victims - a bill that could fall to the Scottish Executive as being responsible for the justice system.

Dr Jim Swire, whose daughter Flora was killed in the bombing, said at the weekend: "I entered the court at Zeist at the beginning of the trial believing that this guy was responsible for killing my daughter. Having listened to the evidence, I came away convinced that Megrahi was a scapegoat and should never have been convicted."

Judge attacks solicitor for waste of time
DAVID LEASK June 22 2007

A High Court judge yesterday made a rare and blistering attack on a top solicitor for wasting court time.

Lord Osborne effectively "named and shamed" Spencer Kennedy of Balfour and Manson, one of Edinburgh's best-known law firms.

The solicitor cancelled a three-day hearing before a panel of three judges just two days before they were due to sit.

Lord Osborne, who was to chair the panel, was left with an empty courtroom and two judges with nothing to do because two days is far too short notice to arrange a different hearing.

Lord Osborne, in a formally published opinion, said: "We feel compelled to express our dismay at the waste of scarce public resources which has occurred in this case.

"In our view, those who are professionally involved in litigation in this court have an indisputable obligation to take reasonable care to avoid situations where court time will be wasted.

"Only by acceptance of the obligation to keep the Keeper of Rolls informed of relevant developments can the system of early disposal be operated effectively, without waste and in a way that is fair to litigants in general."

‘We feel compelled to express our dismay at the waste of resources’

It can take months or even years to get a case through the Court of Session, where the case, an appeal, was due to be heard.

Litigants often complain of expensive delays, and the Scottish Courts Service is desperate to reduce wasted time.

A day in court can cost thousands of pounds. Judges alone are understood to earn around £170,000 a year and are in high demand.

It is extremely unusual for them to make public their displeasure with solicitors. Lord Osborne, who is one of the country's most distinguished judges, sat on the Lockerbie appeal panel.

He said he had been prompted to make public his view by the waste of "scarce resources".

Mr Kennedy is representing a dissolved firm of solicitors, Sutherland and Company, which is being sued by a client for negligence.

The action had been allowed to go ahead back in June 2005 by another High Court judge, Lord Dawson, who has since died.

Mr Kennedy sought to appeal Lord Dawson's decision and had initially asked for a single day of court time to do so.

That was granted for March 22 of this year but Mr Kennedy then asked for a three-day hearing, which was set for May 30.

It was that appeal hearing that Mr Kennedy pulled out of two days before it was due to be called.

Now the case, brought by client Marylin McDonald-Grant, will go to a full eight-day proof before the Court of Session.

Lord Dawson, a former solicitor-general, was no stranger to controversy. Several of his decisions as a judge were later overturned before he died this year after years of poor health.

Mr Kennedy, a solicitor advocate, was on holiday yesterday and unavailable for comment. His company, Balfour and Manson, would not comment either.

However, Mr Kennedy told the court that the waste of its time was "regretted".

Developer wins £400,000 from law firm over property offer

A SCOTTISH law firm was yesterday ordered to pay more than £400,000 in compensation after it sent a client's offer for a property to the wrong fax number.

Alex Watts, 33, missed out on a substantial Georgian property in Edinburgh's New Town because his lawyers faxed his offer to the wrong place. His had been the highest bid by some distance, and would have been accepted.

A judge heard that the mistake by Bell & Scott WS had been "black-and-white negligence", and he ruled that Mr Watts - a property developer - was entitled to the profit he would have made by converting the building, the former Caledonian Club in Abercromby Place, into flats.

The Court of Session was told that Mr Watts ran a property development company concentrating on the New Town. He had undertaken projects in Nelson Street, Heriot Row and Abercromby Place. In mid-2002, his attention turned to the Caledonian Club.

The judge, Colin MacAulay, QC, said: "It was clear to me that he had had a successful track record in the property development business. He was plainly someone who possessed business acumen. He was in the process of moving up the scale of values for development."

Mr Watts put in a written offer, through Bell & Scott, of £1.05 million for the club. The selling agents, DM Hall, fixed a closing date of noon, 21 June. That morning, Mr Watts instructed the offer to be increased to £1.1 million. The selling agents agreed to accept a faxed offer if it was followed by a "proper" offer.

The court heard that, by mistake, the fax was sent to Mr Watts's fax number and not to that of DM Hall.

"At that time, Mr Watts was on holiday and unaware of the error. The faxed offer was therefore not received by DM Hall prior to the stipulated closing time," said the judge.

"Although seven other offers for the premises were received, Mr Watts's offer of £1.1 million would have been the highest offer by about £43,000. The premises were sold to Plum Developments, the highest bidder who had made a timeous offer. As a matter of principle, the club refused to consider Mr Watts's late offer."

The court heard that Caroline Docherty, a partner in Bell & Scott, was Mr Watts's solicitor at the time, and she bore direct responsibility for the error.

Mr Watts had planned to convert the building into flats, aiming at the upper end of the property market. He had expected the project to raise £2.37 million, and his lawyers claimed that his profit would have been £614,066..

Mr MacAulay said the mistake had been described by Mr Watts's QC as "black-and-white negligence."

Mr MacAulay considered that the method used by Mr Watts to calculate the lost profit was "too speculative." His timetable was likely to have been delayed and other factors, such as going over budget and sales prices being lower than anticipated, could also have impacted on the figure.

He preferred the approach urged by Bell & Scott, of looking at the profitability of previous developments by Mr Watts. That gave a figure of £412,380, which he awarded to Mr Watts.

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