tag:blogger.com,1999:blog-208550662024-03-05T09:35:40.699+00:00Scottish Law ReporterReporting on news & issues of Justice, Law & Politics, from Scotland.Unknownnoreply@blogger.comBlogger1318125tag:blogger.com,1999:blog-20855066.post-40581549469481879402017-12-20T17:00:00.000+00:002017-12-20T23:22:21.507+00:00TALK THE TALK: Lord Advocate hits out at staff survey revealing high workloads at Crown Office during ‘waffling’ budget evidence to Holyrood Justice Committee<p align="justify"><em><a title="Lord Advocate discusses Scotgov budget Holyrood Justice Committee 19 December 2017" href="https://www.youtube.com/watch?v=1g7Q2jkKB84"><img width="380" height="427" align="left" style="margin: 5px 10px 0px 0px; float: left; display: inline;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgW2IbBBSL3VvjFxkcFnFRXl92SBdx0ntOrwLV24cR3H18t8t1IBL8C2CptHJ-Su2E1iB22eKg3SPygoxfRkjCE5XBREzBjnMq9OHAY-GmR_6V2F_BBB7aZa_S4T6O6b0SJTfF-aQ/"></a>James Wolffe QC - Crown Office still hard up on £116m a year. </em><strong>SCOTLAND’S</strong> top prosecutor – Lord Advocate James Wolffe – praised prosecutors for their “professionalism” and referred to ‘press accounts’ of glowing Crown Office self praise, in testimony to Holyrood’s Justice Committee earlier this week.</p><p align="justify">However, it did not take long for MSPs to ask more searching questions of Scotland's top law man – who appeared disappointed after being asked questions of low staff morale and heavy workloads at the <a href="http://www.crownoffice.gov.uk"><strong><u>Crown Office & Procurator Fiscal Service</u></strong></a> (COPFS)</p><p align="justify">Despite the gloomy staff survey of an institution dubbed Scotland's most corrupt by a serving Scottish Minister – the Crown Office has been awarded a significant funding increase by First Minister Nicola Sturgeon’s Scottish Government to a staggering £116million in the 2018-2019 budget.</p><p align="justify">The one hour forty five minute hearing was marked by a series of speeches by James Wolffe & Crown Agent David Harvie praising prosecutors, dodging some of the more searching questions, and answering what some viewers to the hearing may pick up as scripted points.</p><p align="justify">Wolffe – who was initially praised for his shoe-in appointment to the office of Lord Advocate – after heading up the Faculty of Advocates as Dean for several years – has staged several turn arounds on key issues in the past few months – including discussing plans to bring back the removal of corroboration to the discussion table – in an effort to secure more prosecutions without the need to verify evidence.</p><p align="justify">The Lord Advocate also failed to mention a number of five year investigations floundering under incompetence and ineptitude at the Crown Office – on cases from murders to high profile financial probes including the Heather Capital case, now in it’s fifth year of investigation by prosecutors.</p><p align="justify">However, earlier this year it was revealed James Wolffe as Dean of Faculty of Advocates, did nothing when the Faculty was faced with evidence of QCs and Advocates demanding substantial cash bungs from clients – and in amounts to avoid money laundering probes.</p><p align="justify">The scandal also revealed Advocates acting in an ad-hoc Advocate Depute role as prosecutors were then taken on by Wolffe in his role as Lord Advocate – despite the fact they had benefited from secret cash payments contrary to faculty rules.</p><p align="justify">In another case it was revealed an ad-hoc Advocate Depute – Craig Murray – was responsible for two versions of one letter, one of which was used to exhonerate a top QC from demanding cash bungs from clients in emails which were later published.</p><p align="justify">A series of high profile scandals at the Crown Office, reported in the media were also glossed over by the Lord Advocate during his evidence to MSPs, which can be viewed below:<strong><br></strong></p><p align="center"><a title="Lord Advocate discusses Scotgov budget Holyrood Justice Committee 19 December 2017 ch?v=1g7Q2jkKB84" href="https://www.youtube.com/watch?v=1g7Q2jkKB84"><strong>Lord Advocate discusses Scotgov budget Holyrood Justice Committee 19 December 2017</strong></a><p align="center"><strong><iframe width="560" height="315" src="https://www.youtube.com/embed/1g7Q2jkKB84?rel=0" frameborder="0" allowfullscreen="" gesture="media" allow="encrypted-media"></iframe></strong></p><p align="justify"><strong>Justice Committee 19 December 2017 – Lord Advocate & Crown Agent give evidence on Scottish Government’s 2018-2019 budget</strong><p align="justify"><strong>The Convener (Margaret Mitchell):</strong> Agenda item 2 is an evidence session on the Scottish Government’s draft budget 2018-19. The focus of the committee’s scrutiny this year is on the budget for the Crown Office and Procurator Fiscal Service. I welcome the Rt Hon James Wolffe QC, the Lord Advocate, and David Harvie, the Crown Agent and the chief executive of the Crown Office and Procurator Fiscal Service.<p align="justify">I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper. Does the Lord Advocate wish to make a short opening statement?<p align="justify"><a name="Cont_2051508"></a><strong>The Lord Advocate (Rt Hon James Wolffe QC):</strong> If I may, convener. Thank you very much for inviting me to give evidence. I am very glad to assist the committee with its scrutiny of the budget. I will make a few observations simply to set the discussion in its context.<p align="justify">In the past year, the service has continued to prosecute crime effectively, fairly, independently and in the public interest. Day in and day out, throughout the past year, you will have read in the press accounts of cases that the service has brought successfully to a conclusion. However, the cases that are reported in the press are only a fraction of the service’s work. That is a tribute to the professionalism and commitment of the prosecutors who prosecute on my behalf across Scotland and all the staff who support them. I am glad once again to have the opportunity, publicly, to underline my confidence in them. They deserve great credit for the service that they provide in the public interest in the administration of justice in Scotland.<p align="justify">The real-terms increase in the service’s budget this year will allow the service, from April, to respond to the release of the cap on public sector pay and, at the same time, to choose to maintain its staff at or at about current levels. The committee will recognise that the budget allocation represents a significant departure from the previous planning assumptions, which were for flat cash and a reduction in staff levels, that the service had been working to.<p align="justify">Notwithstanding the stability that the budget allocation provides to the service, I certainly do not underestimate the challenges that it faces. For example, although there has been a decline in the number of cases reported to the Crown generally, we are witnessing a marked increase in the number of reports of serious sexual offences, which is up some 50 per cent compared with last year. It is clear that much remains to be done across the whole justice system to meet the expectations of the victims of crime.<p align="justify">The service is responding to the changing case load, and it is in discussion with the Scottish Courts and Tribunals Service about court programming. The expertise that now exists in the specialist High Court sexual offences units will enable the processes for those cases to be streamlined. I have tasked the Crown Agent with scoping out the implications of a strategic shift of further resources to deal with serious sexual cases and other complex cases with a view to that work informing future decision making.<p align="justify">In its financial planning, the service has prioritised non-staff savings. The Crown Agent has made good on his commitment to the committee to reduce markedly the number of staff on part-time contracts, and the budget settlement gives us stability in staff numbers. The service will continue to bear down on non-staff costs because it recognises, rightly, that its people are its greatest asset. That belief also underpins the fair futures project, which should start to take effect from April next year.<p align="justify">In conclusion, although this is a budget scrutiny session, none of us should lose sight of the fundamental purpose of the system of prosecuting crime, which is to underpin a just and secure society. I welcome the committee’s continuing interest in the work of the service, which is a reflection of the importance that it rightly attaches to it, and I look forward to the ensuing discussion.<p align="justify"><a name="Cont_2051509"></a><strong>The Convener:</strong> Thank you for that opening statement. You paid tribute to the professionalism and commitment of the Crown Office and Procurator Fiscal Service and alluded to the fact that its people are the service’s greatest asset. The committee concurs with that but remains very concerned about reports on workload and low morale.<p align="justify">Can you comment specifically on the staff survey results—which were included in your submission—that were published in November? They confirm that, on matters such as pay and benefits, resources, workload and leadership of change, the measure of positive outlook on the general and future direction of the organisation fell from 57 to 55 per cent.<p align="justify"><a name="Cont_2051510"></a><strong>The Lord Advocate:</strong> I do not deny that I was disappointed that, on a number of measures, the survey fell back this year from what was a very favourable—in historical terms—survey last year.<p align="justify">You mentioned workload figures and the like, and it is important to see those in context. In the survey, 57 per cent of staff report that they have an acceptable workload. That is up 1 per cent from last year—I do not make anything particular of that. However, that is up 16 per cent from the equivalent figure in the 2015 survey, up 11 per cent from the 2014 survey and up 13 per cent from the 2013 survey. Although the figure on acceptable workload has remained, to all intents and purposes, static compared with last year, that is a significant improvement compared with the figure of two years ago and previous figures.<p align="justify">In the survey, 64 per cent of staff report that they achieve a good work-life balance. That is down 3 per cent from last year but up 9 per cent from 2015, up 5 per cent from 2014 and up 8 per cent from 2013.<p align="justify">I do not for a moment seek to shy away from disappointment in the survey, but it is important to see it in a historical context, and we saw very significant improvement on the measures last year. We have fallen back a bit on the work-life balance figure, but it is still better than it has been in the past.<p align="justify">I do not for a moment shy away from the challenging nature of the work that is demanded of public prosecutors or from the committee’s evidence of individual experience. Nevertheless, it is important to see the data in context. The service is improving, not just in relation to those figures but in relation to the sickness rate, which is significantly down—it is 8.7 days per person, which is down from 10.1 days per person in October 2016.<p align="justify">The fair futures project is on-going and will start to take effect from April next year. The Crown Agent has made good on his commitment to reduce the number of staff on temporary contracts. The service—<p align="justify"><a name="Cont_2051511"></a><strong>The Convener:</strong> With respect, Lord Advocate, that has been covered in your opening statement.<p align="justify">Forty-three per cent of staff—that is almost half of the workforce—do not believe that they have an acceptable workload, while 36 per cent of staff say that they do not have a good work-life balance. From this evidence session, I hope to understand specifically why that is and what is being done to address those concerns. You also mentioned the increase in the number of sexual offence cases that are heard at the High Court. That issue has been covered. What specifically is being done to address those two really important issues, given what you have said about the workforce being all important to the efficient running of the Crown Office and Procurator Fiscal Service?<p align="justify"><a name="Cont_2051512"></a><strong>The Lord Advocate: </strong>I take your point, convener, but it is important to put the figures that you have highlighted in the context of the civil service norm. I would like the service to do as well as or significantly better than that norm, and, on the two measures in question, it is four percentage points below the norm, which means that it is below but not wildly out of step with it.<p align="justify">I would like the figures to be in a better place—<p align="justify"><a name="Cont_2051513"></a><strong>The Convener:</strong> Can you give us some specifics about what you are doing in that respect? We could quote figures at each other all morning, but it would be good to have some specifics.<p align="justify"><a name="Cont_2051514"></a><strong>The Lord Advocate: </strong>It might be worth asking the Crown Agent to remind the committee about the fair futures project, which he is leading on and which is specifically designed to address in a broad sense the wellbeing of staff.<p align="justify"><a name="Cont_2051515"></a><strong>David Harvie (Crown Office and Procurator Fiscal Service):</strong> I will start by highlighting the changing profile of the work, which might help to set a landscape for answering your question beyond simply talking about the fair futures work.<p align="justify">Over the past year, the number of outstanding trials in justice of the peace and sheriff courts has dropped dramatically. I think that the number of outstanding JP trials has fallen from 7,500 to 4,500, although there are exceptions and localities where that is not the case, which I will come on to. In general, preparation is easier if the court is smaller and there are fewer trials. Indeed, that only stands to reason. The fact that, in the past year, the number of outstanding trials, including in the sheriff court, has generally gone down is very welcome.<p align="justify">However, there are exceptions to that, which is perhaps part of what we have seen in the survey. There are locations where there are, without doubt, difficulties in the preparation of trials and with advance notice trials, which I am aware was mentioned specifically in the FDA submission. There are large parts of the country where those difficulties have not arisen, but that does not mean that there are no locations where they have arisen and that such matters do not need to be addressed.<p align="justify">That is reflected in the nuance of the staff survey. This year, in contrast to previous years, we have noticed quite significant differences between the responses from different localities, even within sheriffdoms. For example, certain survey results in one half of the Grampian, Highlands and Islands sheriffdom went up 7 per cent whereas, in the other half, they went down 7 per cent. That is to do with loadings, preparation times and so on. My point is that the picture is more complex than simply what the national picture suggests. I want to make that clear in giving a context for and in explaining some of the more targeted work that we will be doing.<p align="justify">With regard to our response to the staff survey, each of the sheriffdom procurators fiscal has not only their own results but an appreciation of the wider results and why they are in a different position, so that they can look for local solutions. As you will recall, a significant aspect of the evidence that was taken last year was the need for local responses to problems, and that approach is being encouraged this year. <p align="justify">That will prompt negotiations with local sheriffs principal on court loadings, over which we have no final say but which are dramatically different across the country—for example, they are significantly greater in Glasgow than in other parts of the country. As for the individual responses from individual members, I have no doubt that that is how those people feel, but I would caution you that each of them cannot be extrapolated from to give a national picture.<p align="justify">From my perspective, the most significant part of the fair futures work is appropriate support for staff welfare. You will have noticed that we are already doing significant work in relation to that and are making progress. You will recall that the sickness absence was, on average, 10.3 days, but it is on a significant downward trend and is now about 8.7 or 8.6 days. It is still above the average, but it continues to head in the right direction. That has been achieved in a relatively short period of time, over the past 18 months, as a result of changes in the occupational health support that is provided and other changes in the support for staff. That is significant, and we will continue to make progress on that issue.<p align="justify">Another issue that has impacted on the organisation, and which we are seeking to address, is the need for development across roles. As has been touched on in evidence, one of the tensions in specialisation is that with specialisation comes the perception of a lack of opportunity. Indeed, when we visited Hamilton recently, someone characterised it as “a sense of stuckness”. That phrase was used, and it is a wonderful characterisation of how some people feel in relation to opportunities. The fair futures project is, therefore, looking into the issue to ensure that staff development is far more coherent and structured than has been the case hitherto.<p align="justify">Similarly, we may touch on pay and grading. Since 1996, the service has had the opportunity—as have all departments—to structure its pay and grading in a delegated fashion. Aside from tinkering around the edges, in the 20 years since then, unlike in other departments, there has not really been any significant change. If someone from 1996 were to look at our pay and grading structure, they would recognise it. We are seeking to address that within the constraints of affordability and in consultation with our staff, and there is no defined outcome to that. What might work for the COPFS is very much an open question.<p align="justify">Forgive me for the length of my reply, but it is demonstrative of what we are trying to achieve across a broad range of issues.<p align="justify"><strong>The Convener: </strong>It is encouraging that you are looking at local issues and trying to come up with local responses.<p align="justify"><a name="Cont_2051517"></a><strong>John Finnie (Highlands and Islands) (Green):</strong> I concur with the Lord Advocate’s view of the good work that is going on.<p align="justify">I will pick up on the issue that Mr Harvie raised about the autonomy that the service has to configure its staff. Lord Advocate, you talked about maintaining the staff at or at about the current levels. You will be familiar with the submission from the Public and Commercial Services Union, paragraph 7 of which states:<p align="justify">“Like most Departments and Agencies COPFS has taken the approach of achieving savings by cutting staff ... When posts are vacant they are not always filled, or are filled with someone on a lower grade. Abolishing a post is making it redundant whether it is currently filled or not, and posts should not be regraded without proper consultation and Job evaluation exercises being carried out.”<p align="justify">A job evaluation exercise is a significant piece of work, and the submission alludes to issues around equal pay. Can you say what is being done and what level of engagement there is with the unions? That is clearly a factor.<p align="justify"><a name="Cont_2051518"></a><strong>The Lord Advocate:</strong> I can give a high-level response, Mr Finnie, and I will let the Crown Agent respond with the detail.<p align="justify">It is certainly not the case that the service is making savings by cutting staff as opposed to making non-staff savings. It has taken a deliberate decision to prioritise non-staff savings where it can, although it has seen a reduction in overall staff levels of about 20 over the past year. The current budget allocation will allow for stability in the year to come.<p align="justify">The committee has received some evidence about the estates strategy, which is continuing. The savings resulting from the estates strategy are currently running at a little over £700,000 a year, and it is expected that, with further decisions to be made in the future, that amount can be enhanced. There are savings to be made in relation to pathology and mortuary costs as well as other costs.<p align="justify">The firm priority is to make savings in non-staff costs when the service can, and the service has been able to make choices with a view to preserving front-line staff. In the past 10 years, there have been only two years in which the figure for the number of legal staff has been higher than it is at present. The Crown Agent can perhaps give you some more detail on the points that you have raised.<p align="justify"><a name="Cont_2051519"></a><strong>David Harvie:</strong> I know that this has been mentioned previously, but I emphasise the level of commitment of the staff. It was a significant issue—and rightly so—during the inquiry on temporary employment and temporary promotion. Contracts have been offered to and accepted by 177 staff, and 115 staff members have been permanently promoted.<p align="justify">On the overall use of funds by the Crown Office and Procurator Fiscal Service, in 2010, 59 per cent of the budget was spent on staffing. It is projected that the figure will be 72 per cent next year and higher than that the year after. We are showing that we are prioritising savings in non-staffing areas over savings in staffing areas, and the proportion of the budget that we spend on staffing is ever increasing.<p align="justify">This year’s increase in the budget will enable us to meet the public sector pay policy and bring it forward to the beginning of April while maintaining staff numbers. We did not anticipate that we would be able to do that when we discussed the plans with the committee previously, when we anticipated that we would have to see a drop in numbers. However, the committee will recall that, when I gave evidence previously, I said that, in the light of the savings that we would have to make this year, notwithstanding the fact that we spend about two thirds of our budget on staffing, we would still need to save about half on non-staff costs, which is a disproportionate amount, so we would still need to make staff savings. That is why, as the Lord Advocate has indicated, we are smaller by about 20 staff this year, as I said we would be. Nevertheless, in the light of this settlement, I project that, next year, we will have stability, increased pay and increased permanence.<p align="justify"><a name="Cont_2051520"></a><strong>John Finnie:</strong> That is reassuring on one level. However, it does not address the issues of unfilled posts or posts being filled by people on a lower grade. Are there any plans to do some sort of workload analysis to look at the changing picture such as occurs in every workforce? I appreciate that all such exercises have their costs, but those issues are likely to be inextricably linked with the staff satisfaction issue.<p align="justify"><a name="Cont_2051521"></a><strong>David Harvie: </strong>On the point about downgrading, as you characterise it, it is fair to say that the one place where there has been a significant shift in the organisation, particularly since 2010, is in the senior civil service. There were 39 posts and we are now down to 21. So be it. Across the other grades, the numbers are proportionately approximately as they were.<p align="justify">I agree entirely with your specific point about the need for work to look at the changing profile and the response to that. It fits with the Lord Advocate’s opening statement about the need to recognise that we have experienced a significant change in our work profile. I do not know whether members will recall this, but, at the creation of Police Scotland, I gave evidence that there was a massive spike in the number of reports that were coming in. The figure went over 300,000 for the one and only time, which resulted in an increased number of cases, particularly in the summary courts. We are now seeing a change in profile whereby the number of cases that are being reported has dropped but the type of criminality that is being reported has changed and there is much more of a requirement for the service to provide support to vulnerable victims.<p align="justify">As a result of that, we need to realign our resource to meet a challenge that is different from that which we had to meet even in 2013-14. That is the commissioned work to which the Lord Advocate has referred and that we will be looking at next year.<p align="justify"><a name="Cont_2051522"></a><strong>John Finnie:</strong> Will the trade unions be fully involved in that exercise?<p align="justify"><a name="Cont_2051523"></a><strong>David Harvie:</strong> I personally meet both unions once a month, as a minimum, as do my deputy Crown Agents. I think that I am right in saying that, across all the sheriffdoms, there are meetings four times a year with representatives—<p align="justify"><a name="Cont_2051524"></a><strong>John Finnie:</strong> But will they be actively involved in the review, Mr Harvie?<p align="justify"><a name="Cont_2051525"></a><strong>David Harvie:</strong> Absolutely. They are also involved in the fair futures project and across the range of issues. I do not think that any of the issues that we are discussing will come as a surprise to them.<p align="justify"><a name="Cont_2051526"></a><strong>John Finnie: </strong>Thank you very much.<p align="justify"><a name="Cont_2051527"></a><strong>Mary Fee (West Scotland) (Lab):</strong> I, too, want to focus on staff issues. Your workforce planning strategy suggests a reduction of 200 full-time staff by 2022-23. Are you still content with that figure?<p align="justify"><a name="Cont_2051528"></a><strong>The Lord Advocate:</strong> That projection was, of course, predicated on a set of assumptions, including a flat cash settlement. This year’s budget allocation allows us to depart from those assumptions, so the future strategy will have to be revised to reflect the change in that allocation.<p align="justify">I do not know whether the Crown Agent wishes to add anything.<p align="justify"><a name="Cont_2051529"></a><strong>David Harvie:</strong> The simple answer to the question is yes. Members will recall that, as the Lord Advocate has said, the previous assumption was that there would be a flat cash settlement and that, as a result, we would expect to secure 50 per cent of savings from staffing. Because of the settlement, that assumption will not apply to the coming year, because we will have stability with regard to staff numbers, and we will be in a position to make choices about filling posts that might become vacant over the next year.<p align="justify"><a name="Cont_2051530"></a><strong>Mary Fee:</strong> In that case, is the Procurators Fiscal Society section of the FDA wrong to say: “the predicted job cuts will prove to be a conservative estimate”?<p align="justify"><a name="Cont_2051531"></a><strong>David Harvie:</strong> That submission was made in advance of the budget settlement. It is fair to say that the FDA was working based on the expectation that there would be, as per the plans, a flat cash position.<p align="justify">Moreover, you will recall that the financial sustainability plan that we have previously discussed contained assumptions. For example, we initially planned for 2.5 per cent inflation, whereas the figure is now 3 per cent, and for a 1 per cent increase in public sector pay, which has also changed. The FDA was looking at an increase in inflation and a change in public pay policy against a flat cash assumption, which would have increased pressure on our plans and might have led to “conservative” predictions about job losses. That position was perfectly logical and sensible in the absence of knowledge of the eventual settlement.<p align="justify"><a name="Cont_2051532"></a><strong>Mary Fee:</strong> On staff morale, I welcome the statement about the commitment of staff in the Lord Advocate’s opening remarks. Indeed, no one can doubt the commitment of staff in the COPFS. I know that the fair futures project is under way, but I have to say that when I read through the submissions for today’s meeting, I felt that there were two almost completely contrasting views. The Procurators Fiscal Society section of the FDA says:<p align="justify">“current resources are insufficient for the additional demands placed on and increased workload of the service. It is time either for the commitment to match the resources or for those difficult decisions to be made about what aspects of the service and work that we currently undertake will we stop doing.”<p align="justify">Moreover, one response to the survey noted that<p align="justify">“Adequate preparation time for trials is a rarity and so, taking papers home is essential”<p align="justify">and one manager reported feeling “stressed to death”. One respondent pointed out that<p align="justify">“Employees are being effectively forced to deal with workloads in which it is nearly impossible to deliver an effective service”,<p align="justify">and another said:<p align="justify">“We want to provide a world class service, but we simply have far too much work and not enough people. We have staff with no prep time for difficult and sensitive trials. We have staff in court day after day, working at home, coming in while on leave and constantly worrying about work.”<p align="justify">I accept that you are doing a number of things, but if someone was to read those submissions and nothing else, they would think that your workforce is completely demoralised and stressed and feels that there is no future or fairness. What are you doing to address that?<p align="justify"><a name="Cont_2051533"></a><strong>The Lord Advocate:</strong> The Crown Agent has already described a number of the specific actions that the service is taking to address issues. Morale is quite a difficult thing to get a handle on. Like the Crown Agent, I do not for a moment suggest that individuals are not accurately reporting their experiences and impressions. However, in the staff whom I meet I detect enormous pride in the work that they do, which is reflected in the commitment that they give to their work.<p align="justify">If one is looking, in so far as one can, for some sense of the broader picture, it is worth going back to those two figures in the staff survey. Of course I would like them to be higher, but they are so much better than they were two years ago. That is not for a moment to take away from what is reported in the FDA’s evidence. All staff should have a one-to-one meeting with their manager once a month to discuss workload and other issues. As the Crown Agent has observed, there are regular meetings with the unions to discuss issues that are of concern to them. There are mechanisms in place to address particular issues.<p align="justify">The Crown Agent made the point earlier that, when one does what we have discovered ought to be described as a deep dive into the staff survey figures, one finds real discrepancies between different parts of the organisation. The service is looking at that seriously to respond to particular issues that arise in particular parts of the organisation.<p align="justify"><a name="Cont_2051534"></a><strong>Mary Fee:</strong> Mr Harvie—do you have any comment to make?<p align="justify"><a name="Cont_2051535"></a><strong>David Harvie:</strong> Unless you have any further questions, I think that most of what I would say has been covered.<p align="justify"><a name="Cont_2051536"></a><strong>Mary Fee:</strong> If there are regular meetings and all that work is in place, why do staff still feel as they do? If you are regularly communicating with them, we would expect them to feel their morale rising and to feel better. Is there a gap in how what you are doing is communicated to staff? Are staff not aware of what is going on?<p align="justify"><a name="Cont_2051537"></a><strong>David Harvie:</strong> Generally, I find that communication could always be better. For example, on the fair futures programme that was referred to, we have 80 volunteers, who are members of staff from across the service. They are self-nominated and self-selecting and, to be frank, many of them have particular issues that they want resolved—precisely the kinds of issues that are reflected in the survey—so that opportunity has been created for them. I regard them as champions and evangelists for the work that we are doing.<p align="justify">As members will be all too aware, it is partly about communication from the centre or top—however you like to describe it—but, crucially, it is also about cross-communication, improvement activity and exchange of ideas. Those are being encouraged under the fair futures programme, so that people feel that they have a voice.<p align="justify">I mentioned that the board went to Hamilton recently. That sounds like a small innovation, but it has been significant. Traditionally, the executive board meetings were held in the Crown Office, but now every second one is at one of the offices around the country. At those offices, there is an open meeting with staff for as long as they need. The meeting in Hamilton ran on until half past 3, and discussed a number of issues, from strategic issues affecting the service to the fact that investment is required in printing and copying facilities. For some members of staff, that is the most significant and important inhibitor to their doing the job that they want to do.<p align="justify">Those individuals then contributed to the national call-off contract for new printers and copying facilities. When people are able to make that kind of contribution, it makes a difference—they feel that when they say something, they are listened to and have an opportunity to make an impact, as has happened in this case.<p align="justify">There is no single solution. We will always endeavour to improve communication about what we are doing. We want to generate a sense that there is a collective approach: there is no doubt that we are on journey in relation to that.<p align="justify">The Lord Advocate referred to the previous position, and that there was a 16 per cent rise from 2015 in the number of staff who feel that they have an acceptable workload, but compared with the 2016 survey, the figure has plateaued. On whether staff feel that they have a good work-life balance, we saw an increase, then the figure plateaued, which I was disappointed about. That was an incentive for me to kick off again in relation to ways of communicating with staff. I completely accept the point: we will continue to try to find other ways of ensuring that level of engagement.<p align="justify"><a name="Cont_2051538"></a><strong>Mary Fee:</strong> Thank you. You have already answered the next question that I was going to ask, about how effective you are at responding and feeding back if someone raises something.<p align="justify"><a name="Cont_2051539"></a><strong>David Harvie:</strong> We are trying to get better.<p align="justify"><a name="Cont_2051540"></a><strong>Liam Kerr (North East Scotland) (Con):</strong> I would like to follow up on that line of questioning—in particular, on the workforce planning strategy. I presume that it was argued at the time that 200 jobs could be shed without a significant increase in the workload or negative effect on the work-life balance of the remaining staff and that generally, that loss could be absorbed within the organisation.<p align="justify">Now, it looks as though there is some extra money and you are saying that there is not a need to shed 200 posts and you will look to retain those. However, does not that suggest that the posts are, in fact, very necessary and that their loss would have had an impact, so the premise of the workforce planning strategy was wrong?<p align="justify"><a name="Cont_2051541"></a><strong>David Harvie:</strong> The strategy was a projection of what we would have to do to live within our means, if that was to be where we ended up. I think that I have indicated previously that the situation would have become increasingly challenging and that the choices would have become increasingly difficult. We would have found ourselves in a situation in which I would have been presenting to the Lord Advocate options about what a service at those levels might look like.<p align="justify"><a name="Cont_2051542"></a><strong>Liam Kerr:</strong> Is that an acceptance that, if the 200 posts had had to go, there would have been a significant impact on the ability of the remaining staff to deliver the service, and on their work-life balance, for example?<p align="justify"><a name="Cont_2051543"></a><strong>The Lord Advocate:</strong> I think that what the Crown Agent is saying—of course, it would be subject to other changes, both in case load and in the system more broadly—is that in that scenario, one could have foreseen the need for him to come to me with options regarding various activities that the service undertakes.<p align="justify">We are not in that position, however, because this year the budget allocation has been increased in real terms. That is not to say that the situation does not contain challenges; it always contains challenges, not least because of how the workload shifts and the case load changes, to which the service needs to respond. The service has shown a remarkable ability to effect change—certainly over my professional lifetime—and I am sure that it will continue to do that.<p align="justify">The Crown Agent, in his evidence to the committee’s inquiry, has been very clear that the planning assumption that there would be a flat cash settlement would present an increasingly challenging position. I am pleased that that is not the position that we are in, because of the allocation that the service has been given this year.<p align="justify"><a name="Cont_2051544"></a><strong>Liam Kerr:</strong> You are quite clear and you are quite right to point out that that is the position this year, but that begs a question around the level of consultation that is going on. What consultation was undertaken, back when the original workforce planning strategy with the loss of 200 posts was happening, and what is going to happen now? People on the ground will be listening and saying, “Hang on—we don’t need to shed 200 posts”, but what will happen next year and the year after that? What engagement will there be?<p align="justify"><a name="Cont_2051545"></a><strong>David Harvie:</strong> You referred to 200 posts. The logic of the planning assumptions, if they were correct, was that, even saving 50 per cent on non-staff costs and 50 per cent on staffing costs, the outcome might be a net reduction of between 150 and 200 staff over a five-year period. I told the inquiry that that would be about 30 posts reduction a year, on average. We have had a year in which our staff numbers reduced. To that extent, therefore, the first year of the plan has proved the accuracy of the assumptions, as they applied at that stage.<p align="justify">However, in relation to this particular year, when we have a one-year outcome, that strategy does not apply. That enables us to do things, particularly in relation to non-staff savings. Those savings come on stream at different times. Some involve negotiations with third parties and others involve opportunities in relation to lease breaks and so on, so there is not an even distribution of opportunities for non-staff savings in each year. As it happens, for the year after next, for example, projected available non-staff savings could be double those that are expected next year. That gives us more flexibility in relation to potential staffing costs. It is difficult to look further beyond that.<p align="justify">As we have indicated already, the case load can change, as well. In 2013-14 we had about 300,000 cases: we now have a different number of cases with a different profile, so we have a different kind of case load. The increase in reporting of serious sexual offending is, to be frank, welcome, because sexual offending was always there. We need to respond to that. There is risk in looking at the workforce plan and the financial sustainability plan, because in each there are a number of variables, and not only in respect of opportunities that arise in relation to savings and budgetary changes. There are also changes in the landscape and the nature of “the ask”—for want of a better phrase—for the organisation, which depends on the nature of the criminality that is reported to us and how we must profile our response to it. It is dangerous to look too far ahead with certainty.<p align="justify"><a name="Cont_2051546"></a><strong>The Lord Advocate:</strong> I will, if I may, just add one other point. The changing case load—it is significantly declining in numbers but changing in nature—is just one aspect of the environment within which the service has to operate and fulfil its essential public function. At the same time, there is a process of criminal justice reform, which presents a set of opportunities to do things more efficiently and in better ways. In the past year, we have implemented sheriff and jury reform. There are, in the correspondence that we sent in advance of the meeting, figures showing early indications that sheriff and jury reform is producing significant benefits in terms of cases more often settling or resolving earlier, and showing a very significant benefit to the public in terms of witnesses not being cited unnecessarily.<p align="justify">We are in a process of summary justice reform, which—as the committee will appreciate—is the volume part of the work of the service, as it were. Again, as we discussed during the inquiry, there are real opportunities for the summary justice part of the case load of the court and the work of the service to be done in a significantly more efficient and effective way. If we can secure real change in the summary justice system, it will have a significant impact on the pressures on the service. One of the challenges for future strategy is to anticipate when those opportunities and benefits will turn into real changes.<p align="justify">Another example of the kind of thing that can make a difference and reduce the workload is the proposition in relation to Road Traffic Offenders Act 1988 fixed-penalty offences, which is referred to in the Crown Agent’s correspondence to the committee. Currently, there are upwards of 15,000 such cases that we pursue in summary prosecutions; in England and Wales, enforcement would be dealt with in a different way that does not require prosecution. Whether it is appropriate to approach those cases differently in Scotland will be a matter for consultation, but if the consultation produces a positive answer to the question, that, too, will reduce the pressures on the service.<p align="justify">One of the challenges of future planning for the service is that the landscape changes. We can see real opportunities to do things more effectively, to do them more efficiently and to serve the public better, which is ultimately what we want to do. However, the timescale for changes is not always entirely predictable or in our hands.<p align="justify"><strong>Liam Kerr:</strong> You talk about the case load changing and how a differing profile might lead to a reduction in it. However, the staff involved in dealing with that change necessarily require to be retrained to understand the new case load that they are dealing with. That will come at a cost in financial terms and in staff time—their ability to deliver the service and be taken off to be retrained. What planning is going on around that?<p align="justify"><a name="Cont_2051548"></a><strong>David Harvie: </strong>You are absolutely right that staff need to be appropriately trained, particularly when it comes to dealing with serious sexual offence cases, which are on the increase. <p align="justify">In advance of that significant change in the trend, we considered ways in which could simplify our current processes. We had historically responded to the change in serious sexual offending by reference to specialist Crown counsel, who are appropriately trained. Over time, the teams who report those cases to Crown counsel have themselves become expert. That has been a real benefit. One of the helpful parts of the Inspectorate of Prosecution in Scotland’s report on those matters was to confirm that sense of expertise and the fact that there is no significant disagreement between Crown counsel and those who provide the recommendations to them. That level of upskilling is testament to the response over a period of time. There is an opportunity to say that those people now understand the situation and that, because we can rely on their choices and recommendations, we could have a different reporting structure on such cases.<p align="justify">Beyond that, there is undoubtedly a requirement to train up additional staff to be able to deal with that trend of increasing reporting. However, an important factor from the welfare point of view is that we should expect staff to be involved in such work only for certain periods of time subject to appropriate support. It is not just about training but about ensuring that there are opportunities for them to have other roles and then perhaps to come back to work on serious sexual offending and perhaps not to do so. Therefore, one thing that we need to do is to ensure not only that we have the capacity to deal with the casework but that we have the capacity to deal with staff response to it and ensure that their welfare is supported, because it can be challenging to deal with such casework. I reassure the committee that that is recognised and that it is one of the points that will be addressed.<p align="justify"><a name="Cont_2051549"></a><strong>The Convener:</strong> I will take a direct follow-up question from Ben Macpherson on the training aspect and then two supplementaries on staffing from Liam McArthur and Maurice Corry.<p align="justify"><a name="Cont_2051550"></a><strong>Ben Macpherson (Edinburgh Northern and Leith) (SNP):</strong> <p align="justify">As the convener has said, I want to pick up on the related issue of trainees, which came up in the committee’s inquiry and touches on people being the service’s greatest asset and on how we future proof the service, increase future capacity and adapt to the different demands on it. Can you update the committee on whether the number of available trainee places is still increasing and on the expected retention of trainees in the year ahead to continue that future proofing?<p align="justify"><a name="Cont_2051551"></a><strong>David Harvie:</strong> I want to make three very quick points. First, instead of bringing in all the trainees in August, we will, for the first time, bring in a small tranche in February and then increase that number over the next two years so that we have a February tranche and an August tranche, with numbers increasing slightly overall.<p align="justify">We are doing that because, as came out in the inquiry and as has been accepted for many years, it is an excellent way of recruiting future staff. As I think I have mentioned, all three deputy Crown Agents are former trainees, as were many of the previous Crown Agents, and they are very high-quality people. However, by bringing in people in August, we were finding ourselves waiting almost until then to have a board for new deputes, and classically that led to a dip in the number of deputes that we had over the summer. If we have two tranches of trainees, those who come off in February will be able to apply for any vacancies that we might advertise in the period up to August, which will provide more consistent availability of legal staff over the year. Historically, we have had a bit of wave pattern, with a dip in the summer. That has not been helpful; after all, it is, understandably, the time when people want to take their holidays, but we still have to man the courts. In short, then, we are splitting the tranches, and the numbers will increase slightly.<p align="justify">Secondly, for many years now, we have paid the Law Society recommended rate, but this year we have agreed a deal in which—at my behest, frankly—the rate is being increased. For the first time in many years, we will pay above that rate.<p align="justify">Thirdly, with the opportunity through the budget to have a stable workforce, we will also have the opportunity to fill any legal vacancies as and when they arise. I cannot say what the numbers will be, but the trainees will certainly be in a position to compete, which means that we will be able to address those vacancies.<p align="justify"><a name="Cont_2051552"></a><strong>Ben Macpherson:</strong> Much of that was reassuring, but I hope that you will be able to keep us up to date on trainee numbers and expected retention.<p align="justify"><a name="Cont_2051553"></a><strong>David Harvie:</strong> Of course. I will be very happy to.<p align="justify"><a name="Cont_2051554"></a><strong>Ben Macpherson:</strong> As I know, one of the strengths of a traineeship with the service is the high regard in which it is held throughout the profession. That is down to a number of factors, one of which is, I imagine, the adequacy of the mentoring that senior staff in the service provide to trainees and their passing on their knowledge, understanding and expertise to the next generation. Given the constraints and challenges that we have heard about with regard to work-life balance and other challenges with staffing in the service, are adequate systems in place—as I would hope they would be—to ensure that mentoring time is protected and that the traineeship in the service retains its current high reputation?<p align="justify"><a name="Cont_2051555"></a><strong>David Harvie:</strong> One of the advantages of the numbers is that the two-year training period contains significant commitments to spells out for specific training programmes that are provided in the organisation. It is not a case of their spending their two-year traineeship just working with others in an office-based situation; instead, they spend quite significant spells out of the office and get specific training during that period.<p align="justify">You are quite right about trainees having daily opportunities to receive mentoring and support from legal staff. Indeed, that might well be one of the benefits of having former trainees make up such a substantial number of our current legal staff; it has created a whole culture of people supporting each other. They will say, for example, that they were the intake of such and such a year rather than another year. We have that type of general investment in new trainees precisely because we have quite high retention of former trainees.<p align="justify"><a name="Cont_2051556"></a><strong>Ben Macpherson:</strong> Thank you.<p align="justify"><a name="Cont_2051557"></a><strong>Liam McArthur (Orkney Islands) (LD):</strong> I want to return to Liam Kerr’s earlier line of questioning. At the moment, we are in the fortunate position of looking at a budget settlement that is more advantageous than was anticipated. However, 12 months ago, on the back of a real-terms cut to the budget, there was a discussion over whether it was absolutely astonishing, as the FDA described it, or a “sound settlement”, as both the minister and the Lord Advocate agreed.<p align="justify">We are now in the happy circumstances of looking at pay increases, with no requirement to deliver the reductions in staffing that were being considered at that point. However, without demurring from the notion that it was entirely incumbent upon the Crown Office to be planning for different anticipated scenarios, I am concerned that we were being reassured that those staffing reductions could be accommodated without Mr Harvie having to go to the Lord Advocate with some fairly unpalatable suggestions about what they would mean in terms of service delivery. We do not want to invite witnesses who come before us to engage needlessly in scaremongering, but nor do we need them whistling to keep our spirits up. My concern is that the assurances that we were given 12 months ago do not seem to have been as well founded as they were portrayed to be at the time.<p align="justify"><a name="Cont_2051558"></a><strong>The Lord Advocate:</strong> Perhaps I can say something on that first. I was very clear last year that I could fulfil my public responsibilities with the budget settlement that we had then. I was also very clear—as I think that any leader of any public service in Scotland would be—that if I was asked whether I would like to have more funding, I would say, “Of course I would.” Asked whether I could provide the service that I am responsible for with the settlement that I had last year, I believed that I could, and we have done that over the past year—we have prosecuted crime effectively up and down Scotland.<p align="justify">Looking forward, the service was scenario planning on an assumption of flat cash, recognising that, with justice reform, there would be changes in the system and so on. The Crown Agent was very clear that the scope for choice would become increasingly challenging and that, were we unable to unlock some of the benefits of justice reform, no doubt he would be coming to me with difficult choices. Thankfully, we are not in that position.<p align="justify"><a name="Cont_2051559"></a><strong>Liam McArthur:</strong> Indeed, and I appreciate that. I think that we all accepted that the justice reform proposals were about improving the way in which the system works, as well as getting more for the resources that were put in.<p align="justify"><a name="Cont_2051560"></a><strong>The Lord Advocate:</strong> Absolutely.<p align="justify"><a name="Cont_2051561"></a><strong>Liam McArthur:</strong> What we were not told was that the staffing reductions that we were being presented with were likely to lead to scenarios in which services might need to be scaled back or removed entirely. The committee would have responded very differently if we had been told that not simply by the FDA and others but by the Crown Office itself, if it had said, “We do not entertain the more lurid examples of what this may mean, but be under no illusions: if, as we go through this process, we reach this level of staff reduction, we are going to have to look at some potentially uncomfortable reductions or scaling back in service.”<p align="justify"><a name="Cont_2051562"></a><strong>David Harvie:</strong> Forgive me—it was not my intention to suggest that, nor was that my intention in my answer to Mr Kerr.<p align="justify">I said that the position would be increasingly more challenging and that options would become more constrained. However, as the Lord Advocate said, we also talked about the potential for other changes in the landscape. You will recall mention of the fact that it is dangerous to compare one scenario with another. We talked about the change in casework between 2013-14 and now and about projected changes in casework, for example, if there were to be a change in legislation in relation to the number of road traffic cases that are reported. That is just one small example, which would potentially change the JP court programme and create flexibility—or perhaps the opportunity for the kind of alleviation of pressure that we have been talking about.<p align="justify">When I talked about options, I meant options at a macro level, in relation to system change. If the timings were not appropriate or legislative change or reform was not possible, it might well have been necessary to make other choices. There is a constantly moving picture; that is what I was trying to convey to Mr Kerr.<p align="justify"><a name="Cont_2051563"></a><strong>Maurice Corry (West Scotland) (Con):</strong> What proportion of management sick leave absences are classified as long term and due to stress, and what steps is the service taking to remedy the situation and reduce such absences? I am asking about senior management, in particular.<p align="justify"><a name="Cont_2051564"></a><strong>David Harvie:</strong> I do not have the figure for senior management to hand, particularly in relation to long-term absence; I undertake to provide it to the committee. The rate of sickness absence due to work-related stress is about 8 per cent, but that figure is across the board and is not specific to senior management.<p align="justify"><a name="Cont_2051565"></a><strong>Fulton MacGregor (Coatbridge and Chryston) (SNP):</strong> I was going to ask about the draft budget’s impact on savings, but the issue has been covered quite extensively.<p align="justify">During the committee’s inquiry, I asked about the use of diversion schemes. Given the savings that are required, has the service had any thoughts about how such schemes might be used more economically to free up some of the clutter—as someone referred to it—in the system?<p align="justify"><a name="Cont_2051566"></a><strong>The Lord Advocate:</strong> I value the option of diversion, where it is available. As I think that I said to the committee during the inquiry, prosecutors can decide to go for a diversion rather than take some other prosecutorial action only if an appropriate and good-quality diversion scheme is available, so the use by the service of diversion schemes depends on the availability of schemes across the country.<p align="justify">The introduction of Community Justice Scotland provides an opportunity to improve the availability of diversion schemes. I hope that it will also ensure that opportunities for diversion are available throughout the country, because one observes from a prosecutorial perspective that the availability of diversion varies in different parts of the country, which affects the decisions that prosecutors make in relation to reports of alleged crimes in different parts of the country. If we can improve the availability of diversion, prosecutors will use such schemes as appropriate.<p align="justify">There is perhaps a more general point to make about the range of options that are available to prosecutors. As the committee is aware, prosecutors have a number of options available to them by statute in addition to prosecution. I am thinking of fiscal fines, fiscal work orders and the like. Those are valuable options that prosecutors use—and should use—in appropriate cases to respond appropriately and proportionately to reports of offending behaviour.<p align="justify"><a name="Cont_2051567"></a><strong>David Harvie:</strong> I can give a bit more detail to reassure the committee. The numbers are still relatively small: in 2011-12, 0.5 per cent of cases went for diversion and that is now gradually creeping up—this year it looks as if it will be about 1.2 per cent. The proportion is still relatively small but, over a period of four or five years, it has doubled. However, as the Lord Advocate said, there is certainly the potential for more diversion, subject to availability.<p align="justify"><a name="Cont_2051568"></a><strong>Fulton MacGregor:</strong> I was going to ask what opportunities the changes to the justice system might present for more diversion schemes to be used. Are you able to expand on any thoughts that you have had about how those discussions might unfold?<p align="justify"><a name="Cont_2051569"></a><strong>The Lord Advocate:</strong> Prosecutors look at the range of options that are available. The greater the availability of diversion schemes, the more confidence we can have in the quality of those schemes and the more viable diversion will be as an option, in appropriate cases. As I said a moment ago, the establishment of Community Justice Scotland is an opportunity to enhance the availability of diversion schemes. We are not responsible for that, but we are part of the discussion—as you put it—with Community Justice Scotland about what is available.<p align="justify"><a name="Cont_2051570"></a><strong>David Harvie:</strong> It may assist members to know that we meet each of the partnerships regularly. We are particularly keen for them to explore consistently available measures in relation to people with mental health issues, and we will continue to push that.<p align="justify"><a name="Cont_2051571"></a><strong>The Lord Advocate:</strong> We are interested in the right decisions being made in individual cases and in having options that are appropriate. We will prosecute the case when it is appropriate to do so and, when a diversion is appropriate, we welcome that as an alternative.<p align="justify"><a name="Cont_2051572"></a><strong>Fulton MacGregor:</strong> There is no doubt that there is potential for diversion schemes to be more equalised over the country as a whole, as well as more consistent, and local authorities and other stakeholders have a big role to play in that. Today’s debate is about budget scrutiny and the financial situation, and I am asking how, if diversion schemes could be used more and were more available—I understand that their availability is not your issue—that might impact the financial situation that the service faces. I would hope that the impact would be positive.<p align="justify"><a name="Cont_2051573"></a><strong>David Harvie:</strong> There is always a risk of transferring the burden. In the context of the overall budget, we need to understand that diversion brought an overall efficiency to the system. We are looking at it through a budgetary lens, but—I will be candid—if it is the right thing to do, we should find a way to do it.<p align="justify"><a name="Cont_2051574"></a><strong>Fulton MacGregor:</strong> Thank you for that. I have a quick supplementary question regarding the office in Airdrie. I am the member for Coatbridge and Chryston, which is very near to Airdrie and will be impacted by how busy that particular office is. I have read the submission and want to confirm that the plan is for a change to the size of the unit as opposed to a staff reduction on the site.<p align="justify"><a name="Cont_2051575"></a><strong>David Harvie:</strong> We entered into negotiations with the landlord and secured a deal that resulted in savings in non-staff costs, which meant that we were able to maintain the same presence in the Airdrie area. One part of it is to do with the activity of a particular team. A very small number of people—it might even be just three or four staff—may be better placed in Hamilton, but that is not a result of the change in footprint; it is more to do with where it is best to have that team co-located.<p align="justify"><a name="Cont_2051576"></a><strong>Rona Mackay (Strathkelvin and Bearsden) (SNP):</strong> My questions on financial strategy have largely been answered, so I will take you down a different road—victim information and advice. In its submission, Victim Support Scotland states that<p align="justify">“the impact on victims ... could be better prioritised”<p align="justify">and argues for a single point of contact for victims. That point was echoed a lot in evidence during our inquiry. Victim Support Scotland also suggests that it may be able to do more to assist in conjunction with your own victim information and advice service. Have you had any discussions with Victim Support Scotland about that? Would you favour a single point of contact?<p align="justify"><a name="Cont_2051577"></a><strong>The Lord Advocate:</strong> We support the direction of travel that is indicated in Lesley Thomson’s review, which is towards a single point of contact.<p align="justify">We recognise that the service has an important role to play in supporting—specifically in the context of the criminal justice process—and providing information to victims, but there is a real limit to what it is either appropriate or possible for prosecutors to do, and the needs of victims go well beyond what we can provide.<p align="justify">It is fair to say that, as prosecutors, we also recognise the value to victims of having a support worker or an advocacy worker who is there to support them through the process. We see the value that victims obtain from that kind of support when it is available, and that is reflected in the inspectorate’s report. There is some information in our submission about the work that the Scottish Government is doing to take forward the recommendations of the Thomson review, and the service is closely involved with that work.<p align="justify"><a name="Cont_2051578"></a><strong>David Harvie:</strong> The phrase that is used is the “one front door” model. We must acknowledge that a number of very valuable services are available across the country to support individuals who have particular needs, and the role of those services needs to be recognised. That was reflected in the discussion that the Scottish Government chaired in September. As the Lord Advocate has said, we support the proposition in the Thomson review that we should have one front door for victims and witnesses, who are then guided through the support that is available instead of the services necessarily being provided by one provider.<p align="justify"><a name="Cont_2051579"></a><strong>Rona Mackay:</strong> That is encouraging. In our inquiry report, we highlighted the fact that victims often feel confused and unsure of which way to go because there seem to be different pathways. If that “one front door” model were to be adopted, that would be very welcome.<p align="justify"><a name="Cont_2051580"></a><strong>Mairi Gougeon (Angus North and Mearns) (SNP):</strong> I have some questions about information technology and the use of IT. In the digital strategy, you say that improvements in the use of IT<p align="justify">“must optimise resources and deliver efficiency”.<p align="justify">Are you able to tell us the main areas in which those efficiency savings will be made, what the level of the savings will be and when you anticipate those savings being made?<p align="justify"><a name="Cont_2051581"></a><strong>David Harvie:</strong> There are a variety of different digital developments. In our submission, I refer to the case management in court project, whereby we tested the use of tablets in court. We intend to roll that project out during the next calendar year, and the savings will be quite straightforward and fundamental. We anticipate that there will be savings in relation to paper costs, storage costs and time, all of which will add up.<p align="justify">For example, the expectation in relation to the case management in court project is that, by a couple of years after launch, it will by itself have achieved about £800,000 of savings of that ilk, simply as a result of that introduction. Overall, given the number of different reforms that we have, a lot of which are underwritten by digital reform, we anticipate that about £1.5 million of the savings over the next period will be as a result of digital reform. However, there will be things such as stationery, paper and storage, and storage costs are significant. <p align="justify"><a name="Cont_2051582"></a><strong>Mairi Gougeon:</strong> That is helpful. The committee recently had an interesting meeting with our corresponding committee in Westminster. We also had the opportunity to meet Her Majesty’s Crown Prosecution Service Inspectorate down there, and it was interesting to hear about some of the things that are being done there in terms of the use of IT. I do not know whether some of what the CPS is doing now is what you are looking to implement in the future, but do you look at examples of things that are in operation elsewhere to see whether they could be implemented here?<p align="justify"><a name="Cont_2051583"></a><strong>David Harvie:</strong> I meet the directors of public prosecutions of England, Wales, Northern Ireland and the Republic of Ireland twice a year. We discuss and are aware of developments and we exchange proposals and ideas at those meetings. Beyond that, technical experts go to visit, understand and share. People from the CPS have come up to look at our disclosure website. Conversely, we have had people going down and looking at the facilities that the CPS has available in the courts. I assure the committee that there is that mutual exchange and learning.<p align="justify"><a name="Cont_2051584"></a><strong>Mairi Gougeon:</strong> My final question is about the evidence that we received from PCS, which had some concerns. It said that<p align="justify">“there seems to be very little ‘transfer of knowledge’ from contractors to our IT staff when carrying out major work. This means that we are constantly paying a high level of expenditure for contractors at a premium rate. We would have hoped that COPFS would have arranged more skills/knowledge transfer in an area where expense can be considerable.”<p align="justify">Is that actively being looked at? How do you respond to the concerns that PCS has expressed?<p align="justify"><a name="Cont_2051585"></a><strong>David Harvie:</strong> It is actively being looked at, and I am not sure that that is an accurate reflection of what the contractors are expected to do or are doing. There is knowledge transfer; it is part of what is written into the contracts, so not only do they explain what they are doing but, in some instances, they take seminars. As part of the strategy going forward, in relation to the particular types of IT improvements that we will need to make over the coming period, we will increase our own IT resource, and part of that will involve a reduced reliance on contractors. However, we will always have a requirement for contractors with particular specialist skills.<p align="justify"><a name="Cont_2051586"></a><strong>The Convener:</strong> What assessment has been done of the impact of the Criminal Justice (Scotland) Act 2016? The FDA has said that it<p align="justify">“introduces a broad range of changes to policing which will directly impact on the work of COPFS”. <p align="justify"><a name="Cont_2051587"></a><strong>The Lord Advocate:</strong> As you observe, under the 2016 act there will be changed processes for detention and liberation and new procedures for the court. The answer is that some work has been done. I will let the Crown Agent explain the detail. Inevitably, there is uncertainty in predicting just how those procedures will be used and the extent to which there will be savings from other aspects of the act. <p align="justify"><a name="Cont_2051588"></a><strong>David Harvie:</strong> Members will recall that the 2016 act was considered by Parliament some time ago, and there was a financial memorandum associated with that bill—as there always is—that addressed the anticipated or projected costs for the COPFS as a result of the procedures that the FDA is talking about. As the Lord Advocate has said, it is a best guess. It is an informed guess, but it is a best guess. In relation to the potential impact, nothing has changed since that financial memorandum. I do not have it in front of me, but my recollection is that it estimated there would be between £200,000 and £300,000-worth of what it described as opportunity costs as a result of the changes that the FDA alludes to; however, those were not the only changes.<p align="justify">One thing that I think will assist not only the COPFS but the justice system more generally over time is that, as a result of the change in legislation—the use of investigative liberation and, in particular, the very explicit reference in the act to a presumption in favour of liberty—fewer people will be reported from custody and more will be under investigative liberation, and therefore the quality of the reports will likely improve, which will in turn improve decision making. As we explored in the inquiry, one remarkable thing about the system is the way in which, on any night, the police are able to deal with an individual on the street, bring them to the cells and thereafter do the paperwork so that it is ready for the Crown to consider in the morning as a custody case. My expectation is that, over a period of time, there will be a system-level change in the number of cases that are reported from custody and that will have its own benefits.<p align="justify"><a name="Cont_2051589"></a><strong>The Convener:</strong> To get back to my original question, has any assessment been done of this change other than looking at the financial memorandum?<p align="justify"><a name="Cont_2051590"></a><strong>David Harvie:</strong> The financial memorandum remains the position, and the projections are that there will be a significant drop in the custody—<p align="justify"><a name="Cont_2051591"></a><strong>The Convener:</strong> For the avoidance of doubt, no assessment has been done of the impact of this new legislation which, according to the FDA, will mean additional work for prosecutors and processes. It says:<p align="justify">“One big change, the impact of which has not yet been assessed, is the introduction of police investigative liberation which has a right of review. Such reviews must be dealt with by a prosecutor.”<p align="justify"><a name="Cont_2051592"></a><strong>David Harvie:</strong> No, what I said was that the financial memorandum analysis stands and has not changed, because we have no better information than when it was done.<p align="justify"><a name="Cont_2051593"></a><strong>The Convener:</strong> But you have done no assessment to see how those changes will affect workload. My problem is that both the Lord Advocate and the Crown Agent have come here and said, “We value our staff. We realise that working with our staff and keeping them in the loop is essential for the smooth running of our service,” yet here is a huge piece of legislation that will impact significantly on their workload, and—if I am hearing you properly—there has been no direct assessment of how it will impact on what is already an overburdening workload in the Crown Office and Procurator Fiscal Service.<p align="justify"><a name="Cont_2051594"></a><strong>David Harvie:</strong> We are here to talk about budgets; I answered from a budgetary perspective. A significant training exercise has been conducted and there is on-going provision of guidance in relation to the legislation. People will be well prepared for it—that has been accommodated as part of the launch, which is being led up to internally with a series of communications and training events over a period of time. Forgive me for answering your question in budgetary terms. There has certainly been a significant piece of work, led via our policy group, in anticipation of the introduction of the legislation.<p align="justify"><a name="Cont_2051595"></a><strong>The Convener:</strong> So the impact that it will have on staff workload has been assessed.<p align="justify"><a name="Cont_2051596"></a><strong>David Harvie:</strong> The assessment of the impact is that the number of cases that we anticipate getting remains the same. <p align="justify"><a name="Cont_2051597"></a><strong>The Convener:</strong> I remain less than convinced. John Finnie has a supplementary, and then the Lord Advocate can add something if he wants to.<p align="justify"><a name="Cont_2051598"></a><strong>John Finnie: </strong>As a layperson, my reading is that, if fewer people are appearing from custody, there will be less commotion in the morning to get custodies dealt with, so there will be less pressure on staff rather than more as a result of investigate liberation.<p align="justify"><a name="Cont_2051599"></a><strong>David Harvie:</strong> Precisely.<p align="justify"><a name="Cont_2051600"></a><strong>The Lord Advocate:</strong> That is really the point that the Crown Agent was seeking to make. Perhaps it is important to separate out two different questions. The first question is whether the service has carried out an assessment of the impact of the particular procedures that we are discussing. An assessment was carried out in order to inform the financial memorandum and that remains the assessment—as the Crown Agent has made clear, there is no update for the committee on that. The second, separate question is about the preparation for the introduction of the new procedures. As with any significant change in procedure, the Crown puts preparation in place in the form of staff training and so on, as the Crown Agent mentioned.<p align="justify">At this stage, precisely how the balance will work out between the benefits of having fewer people coming from custody against the introduction of the new procedures is difficult to predict. Those working in the system will be able to anticipate the benefit of having fewer people coming from custody, but we will have to see how it all unfolds.<p align="justify"><a name="Cont_2051601"></a><strong>David Harvie:</strong> It might also benefit the individuals involved because the officers will have had more time to prepare the report and prosecutors will have had more time to consider the case. During the committee inquiry, we spoke about the fact that, currently, the most pressurised time is on receipt of custodies, typically on a Monday morning or after a holiday weekend, when the numbers are particularly significant. The new procedures should help to address that over time.<p align="justify"><a name="Cont_2051602"></a><strong>Liam McArthur:</strong> I want to go back to the question that Fulton MacGregor asked about what is happening in Airdrie. A large part of the cost reduction that we were discussing is in non-staff costs and, in large part, arises through the estates strategy. In that regard, you have stated: <p align="justify">“there is significant scope to reduce our expenditure ... We have set a very ambitious target” .<p align="justify">In those circumstances, what weighting is given to local access to justice? Playing the numbers game, I think that it is easy to see where cost reduction might be achieved, but I would hope that a significant weighting is given to retaining local access for justice.<p align="justify"><a name="Cont_2051603"></a><strong>The Lord Advocate:</strong> It is important that I deal with that at the outset, but I will let the Crown Agent speak to the specifics. I want to make it clear that we are looking at the office accommodation arrangements for Crown Office staff. The estates strategy is set firmly in the context of a commitment to serving local courts and prosecuting local cases in local courts across Scotland. Changes in the office accommodation must necessarily include careful assessment to ensure that we can maintain our commitment to serving local courts across Scotland.<p align="justify">In the decisions that have been made this year, other than at one location, we have seen a shrinkage in the footprint of office accommodation or the move to a different location in order to release savings. As the committee has heard, those decisions are made against the background of the service having an overall footprint of office space that is significantly greater than it needs for the number of its staff. <p align="justify">It is important not to read an estates strategy approach to reducing the office footprint as being any loss of commitment to delivering local justice in local courts. Sometimes it may result in staff relocations, but the ability to serve the local court will remain an important part of the thinking.<p align="justify"><a name="Cont_2051604"></a><strong>David Harvie:</strong> I do not have anything in particular to add to that. The decisions that have already been made in relation to the offices listed, projecting ahead to the financial year after next, will already realise £720,000-worth of savings in non-staff costs. I say that to indicate that there has been a level of progress on those savings. However, the considerations that the Lord Advocate has mentioned are absolutely front and centre.<p align="justify">I hope that the committee will take reassurance from the fact that, although there was a list of offices and locations that were up for consideration, the decision was taken to remain in the majority of those locations. That led to negotiations that resulted in more beneficial rates for the public sector. That will continue to be our approach to such matters. Local justice and local courts remain our priority.<p align="justify"><strong>The Lord Advocate:</strong> It follows from that that, where the service closes an office in a location, analysis will have been undertaken. For example, in Stirling, the office, which is at the edge of town and not in the centre, is closing and staff are being relocated. The question of staff travel to serve a local court and the arrangements for that are very much part of the analysis before any such decision is taken. Engagement with the staff who are involved has also been an important part of what the service has done in relation to the decisions that have been made this year.<p align="justify"><a name="Cont_2051606"></a><strong>David Harvie:</strong> There is one further matter that I would like to highlight. Oban is a good example of this, but there are many others in the pipeline. As we have made plans, the Scottish Courts and Tribunals Service has been heavily involved and has been very helpful and co-operative in assisting us in maintaining a local presence where possible. For example, it will look at its own accommodation to see whether it has capacity in certain locations that may be of use in the future.<p align="justify"><a name="Cont_2051607"></a><strong>The Convener:</strong> I have a final point. In the course of the committee’s inquiry, there was a feeling that perhaps the composition of the service was a little top heavy with senior prosecutors. Could you clarify where the 20 job losses this year have come from?<p align="justify"><a name="Cont_2051608"></a><strong>David Harvie:</strong> From recollection, there were 534 prosecutors, and 528 is the current number. My recollection is that—as of today, and bearing in mind that it fluctuates—the procurator fiscal depute and senior procurator fiscal depute grades are five or six down on the point at which we gave written evidence to the committee. I cannot recall what the exact number was; it was 300 and something.<p align="justify"><a name="Cont_2051609"></a><strong>The Convener:</strong> Perhaps you could provide further evidence on that.<p align="justify"><a name="Cont_2051610"></a><strong>David Harvie:</strong> Yes, I will. From recollection, it is five or six down, but the picture fluctuates. The number has been higher since then and, as of today, I think that it is six lower, but the numbers are broadly the same as they were.<p align="justify"><a name="Cont_2051611"></a><strong>The Convener:</strong> Given that the pressure is at the coalface—we are not in any doubt about that—will you comment on the FDA’s statement that<p align="justify">“There was a strength of feeling that our members are bearing workloads which are such that they are increasingly unable to deliver an effective service and fearful of mistakes being made”?<p align="justify"><a name="Cont_2051612"></a><strong>The Lord Advocate:</strong> I have pointed to the data on the response in the staff survey on workload and work-life balance. As the Crown Agent has observed, what we might call the deep dive into that survey suggests that there are differences across the service, which the senior management of the service are actively concerned to explore and seek to address.<p align="justify"><a name="Cont_2051613"></a><strong>The Convener:</strong> We are probably covering older ground. I just want your reaction to the FDA’s submission. Does that not worry you in the slightest? Are you quite satisfied that that would not be the case, or is there a genuine concern that it should be looked at and acted on?<p align="justify"><a name="Cont_2051614"></a><strong>The Lord Advocate:</strong> The right response is to do precisely what the service is doing, which is to analyse and identify where the specific problems are and to take active steps to address them. To come back to my starting point, we are under no doubt of the importance of an effective and fair prosecution service; that is what the service is there to provide. The service will continue to provide that in the year ahead and is taking action to address local challenges where they arise.<p align="justify"><a name="Cont_2051615"></a><strong>David Harvie:</strong> Forgive me but, since I last addressed the issue, I have found the relevant figure. Previously I think that I said that the figure relating to procurator fiscal deputes and senior procurator fiscal deputes was 354. That number is currently 349, so I was right; that is about five down.<p align="justify">We are trying to address the issues of permanence, stability and the vastly increasing proportion of the budget that we spend on staffing. Over the past 10 or 11 years, the statistics show that we have had more than the current number of lawyers for two of those years. As recently as July 2015, we had fewer than 500 lawyers. Since July 2015—so over a relatively short period of time—we have managed to increase the legal numbers, notwithstanding all of the constraints and the choices that we have had to make in relation to non-staffing savings and so on. That is an indication of the intent and of the effort that is being made. However, we fully appreciate, as per the evidence—I do not quibble with any of the individual responses—that there is more work to be done.<p align="justify"><a name="Cont_2051616"></a><strong>The Convener:</strong> That concludes our questioning. I thank you both for a very worthwhile evidence session.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-86758174541413688672017-10-27T16:00:00.000+01:002017-10-27T23:58:48.542+01:00DODGE AUDIT: Calls for Audit Scotland to be hauled before MSPs as Report on £2.4million cash loss at Scottish Borders Council reveals disgraceful scale of mismanagement by local authority in £80m waste project collapse<p align="justify"><em><a title="Report on £2.4m cash loss from £80m Scottish Borders Council Project" href="https://drive.google.com/file/d/0B1nFZkYr7uS2VWJ1ZDN6MmFackk/"><img width="380" height="537" align="left" style="margin: 5px 10px 0px 0px; float: left; display: inline;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh0sBFqUU24E7UmZZxBZwLFF7YAOxwvdEm8f4dgzEQLdqKbRxqkjcvEE8rogidFt8SP3a-mcq7JiIk0a15f5Ru4nIXkcinkQy2uV6SFd7QigcDQnc8nZBXI6kywmdYEhVl2uqlg5g/"></a>Report recommends probe of £2.4m loss at Scottish Borders Council</em> <strong>A BOMBSHELL</strong> <a title="Report by William Chisholm on £2.4m cash loss - Scottish Borders Council" href="https://drive.google.com/file/d/0B1nFZkYr7uS2VWJ1ZDN6MmFackk/"><strong><u>report about the loss of more than £2.4 million of public money by Scottish Borders Council</u></strong></a> casts significant doubt on the official investigation into the loss and the local authority’s management of a now collapsed £80m waste project.</p><p align="justify">Distinguished journalist Bill Chisholm, who was awarded an MBE for services to journalism when he retired some years ago, spent 30 months investigating the scandal. </p><p align="justify">The Easter Langlee waste transfer system - located not far from the new Borders railway at Tweedbank - was never built but still cost the public purse more than £2.4m.</p><p align="justify">In February 2015 <a title="Scottish Borders Council" href="https://www.scotborders.gov.uk/"><strong><u>Scottish Borders Council</u></strong></a> (SBC) announced without warning that it was abandoning a £80 million, 24-year contract with waste management firm New Earth Solutions Group [NESG] including a planned £23 million treatment facility at Easter Langlee, Galashiels only four years into the deal.<p align="justify">The treatment plant was regarded as vital if the Borders was to fulfil its responsibilities in diverting waste from landfill under strict Scottish Government policies.<p align="justify">Apart from a brief statement citing “technological and financial issues” the council has offered its council taxpayers no explanation for the collapse of the contract despite the loss of many millions of pounds of public and private money. Now we face the prospect of 40,000 tonnes of Borders rubbish having to be transported out of the region by road for treatment elsewhere. Not a particularly environmentally friendly strategy.<p align="justify">The full report into the fiasco compiled by investigative journalist William Chisholm MBE, followed more than two years of investigative work which was blocked at almost every turn by SBC on grounds of “commercial confidentiality”.<p align="justify">Speaking to SLR, Bill Chisholm said <strong>“In my view the report clearly shows the council mishandled the contract on many fronts as I have tried to set out in the attachment, but no-one has been held to account. It also explains why it has taken so long to assemble a reasonably clear picture of why the deal went so badly wrong.”</strong><p align="justify"><strong>“I am asking MSPs to raise the issue in Parliament and to press for full disclosure of information which has not been released by SBC.”</strong><p align="justify">It can also be revealed the company at the heart of the £80m waste project was managed by a former director of a £400m collapsed hedge fund – Heather Capital.<p align="justify">John C Bourbon, a boss of Premier Group (Isle of Man) Ltd, (now in liquidation) which managed and promoted the New Earth Recycling & Renewables (NERR) fund (also bust) recently scored a spectacular success in the Manx High Court. <p align="justify">Bourbon is a former head of the financial regulatory authority on the island who later joined Premier and created funds like NERR (the one SBC planned to use to build Easter Langlee) and Eco Resources Fund (ERF) – also bankrupt - which persuaded investors to invest in bamboo plantations in Nicaragua and South Africa. According to accounts and documents, Bourbon and fellow directors have paid themselves millions in management fees.<p align="justify">A provisional liquidator appointed by the Manx Financial Services Authority wanted to wind up ERF as soon as possibly (£12,000 of assets but £2.7 million unpaid debts) and warned a proposed re-financing scheme was a non-starter. <p align="justify">However, Bourbon persuaded a High Court judge to remove the provisional liquidator from office and replace him with an insolvency practitioner nominated by Bourbon himself. <p align="justify">Questions are now being asked why SBC claim ignorance of any of the events surrounding NERR which also controlled New Earth Solutions Group.<p align="justify">The full Isle of Man court judgement is here: <a title="IOM FSA v THE ECO RESOURCES FUND / 14 July 2017 / CIVIL - CHANCERY PROCEDURE" href="https://www.judgments.im/content/J1920.htm"><strong>IOM FSA v THE ECO RESOURCES FUND / 14 July 2017 / CIVIL - CHANCERY PROCEDURE</strong></a><p align="justify">A feature on the report is available here; <a title="Fresh calls for "waste fiasco" inquiry" href="http://notjustsheepandrugby.blogspot.com/2017/09/fresh-calls-for-waste-fiasco-inquiry.html"><strong>Fresh calls for "waste fiasco" inquiry</strong></a><p align="justify">Full updates on the Scottish Borders Council fiasco and other news from the Scottish Borders can be found <a title="http://notjustsheepandrugby.blogspot.com/" href="http://notjustsheepandrugby.blogspot.com/"><strong><u>http://notjustsheepandrugby.blogspot.com/</u></strong></a><p align="justify"><b>The full report on the £80m waste project collapse and £2.4m losses – by journalist William Chisholm MBE:</b><p align="justify"><a title="A Disturbing Story of Cover-Up and Incompetence at Scottish Borders Council" href="https://drive.google.com/file/d/0B1nFZkYr7uS2VWJ1ZDN6MmFackk/"><strong>A Disturbing Story of Cover-Up and Incompetence at Scottish Borders Council</strong></a><p align="justify"><b>Researched and written by Bill Chisholm, Jedburgh. </b><p align="justify">How Scottish Borders Council (SBC) gambled with at least £2.4 million of taxpayers’ money, lost it, wrote it off, then mounted a concerted campaign to conceal hundreds of documents, emails and letters linked to the financially disastrous episode from public scrutiny.<p align="justify"><b>EXECUTIVE SUMMARY</b><p align="justify"><b>NOTE: The vast majority of this information has been assembled in the course of a two and a half year investigation which SBC has consistently tried to frustrate and hamper.</b><p align="justify">From 2008 onwards Scottish Borders Council was faced with an urgent environmental/financial issue. Time was beginning to run out on their practice of land-filling the vast majority of some 40,000 tonnes of waste per annum generated by households across the local authority’s territory.<p align="justify">Previous attempts (well documented) to devise a credible waste management strategy for the Scottish Borders had failed, and in 2008/9 elected members of SBC were being told by senior officers that to ‘do nothing’ and continue to landfill rubbish at the Easter Langlee disposal site on the outskirts of Galashiels was no longer an option: rapid, and potentially expensive action was required.<p align="justify">It was decided to award a 24-year waste management contract, valued at between £65 million and £80 million to a firm of specialists which would include the development and construction of a “cutting edge” treatment facility at Easter Langlee at an estimated cost of up to £23 million, depending on the specifications.<p align="justify">The plant was to be built in two stages over seven years. A conventional Mechanical Biological Treatment [MBT] centre would divert up to 80% of Borders rubbish from landfill. Then, at a later date once technological processes had proven themselves to be commercially viable an Advanced Thermal Treatment [ATT] facility would be added. This would have the capability of converting waste into energy to power local homes, factories and public buildings with surplus electricity being sold off to the National Grid. SBC would receive some of the profits.<p align="justify">A team of environmental, financial and legal consultants was assembled to advise SBC. Following a lengthy procurement process it was announced in March/April 2011 that the contract had been awarded to Dorset-based New Earth Solutions Group (NESG), a company which had never worked on a project in Scotland before. The losing competitor was Shanks, a business with vast experience in the field of waste management throughout the UK.<p align="justify">But the release of highly confidential documents during the course of 2016/17 following <b>SEVEN </b>separate applications to the Scottish Information Commissioner to overturn refused Freedom of Information requests, shows the project had hit funding and technological problems by January 2012, only nine months after the contract was handed to NESG. These issues proved insurmountable, but the council granted NESG generous contract moratoriums which allowed the undeliverable project to squander hundreds of thousands of pounds of public money until it had to be abandoned in February 2015.<p align="justify"><b>PAGE TWO</b> -Letters from NESG to SBC in January 2012 claimed the stand alone MBT could no longer attract bank funding. Money for the Easter Langlee scheme was supposed to come from either the Co-op Bank or from NESG’s partner, the Isle of Man-based New Earth Recycling & Renewables [Infrastructure] Fund [NERR].<p align="justify">But changes in the Scottish Government’s waste disposal policies were allegedly proving tricky and unattractive to financiers, according to NESG, and an alternative way of delivering the Borders project would have to be identified.<p align="justify">Following months of unsuccessful negotiations between NESG and the council’s Project Team it was finally decided to recommend a very major alteration to the contract to combine the MBT and ATT in a single phase development.<p align="justify">This has to be viewed as an extremely high risk strategy for one simple reason. NESG’s brand of ATT – named NEAT Technology – was completely untried and untested in 2012. For the record it remains problematical and unproven in 2017. And the release of sensitive documents dating from 2012 shows the NEAT system had not even completed its journey through research & development testing in October 2012 when members of SBC sanctioned the so called Deed of Variation [DoV] at a private meeting even though this could have been construed as commercially unfair to rival bidders Shanks.<p align="justify">The DoV was to make little difference. NESG was heavily in debt to banks and to NERR whose directors had a major stake in NESG and were basically keeping New Earth Solutions afloat by providing a total of £39 million to that company. This arrangement/mortgage was concluded in September 2011, and the paperwork is available for public scrutiny at Companies House.<p align="justify">At the same time NERR’s parent company Premier Group (Isle of Man) Ltd [PGIOM] was picking up millions of pounds each year in fees for managing and promoting NERR to 3,500 unwitting investors and shareholders. The managing shareholders of Premier Group were entities based in the offshore tax haven of British Virgin Islands.<p align="justify">SBC appears to have been completely unaware of the complex financial arrangements involving NESG, NERR and PGIOM. The council has also confirmed it was unaware of many alleged complaints made about the conduct of Premier’s array of investment funds, including NERR, to the Manx regulatory authorities, and to the UK Financial Services Ombudsman from 2004 onwards.<p align="justify">The problems and apparently insurmountable technological and financial issues facing NESG and SBC dragged on through 2013 and 2014 without a brick being laid at Easter Langlee. A selection of documents, many of them heavily censored by SBC before release, give a patchy view of what was happening on a month to month basis as the project staggered on.<p align="justify"><b>PAGE THREE</b> - Details of a high powered visit by a large delegation of Borders councillors and officers to NESG headquarters in Avonmouth, near Bristol in October 2014 are extremely sketchy as SBC claimed when asked for reports on the trip that nothing had been written down. But representatives of the Borders press were given the impression the visit had been extremely worthwhile from a “due diligence” point of view, and the elected members had been impressed by what they had been shown. SBC firmly believed it was on the right track to become Scotland’s leading waste management authority.<p align="justify">Unfortunately there was a different behind-the-scenes scenario which suggests Borders councillors were completely deluded. By now NESG was virtually insolvent; the NEAT technology continued to misfire, NERR had still not come up with the £23 million needed to build the Borders project, and Scotland’s environmental watchdog SEPA (Scottish Environment Protection Agency) was still refusing to sanction an operating permit for the combined MBT and ATT because of unresolved issues. <p align="justify">Four months after the expensive trip to south-west England a press release issued by SBC in February 2015 contained the shattering news of the contract’s complete collapse. <p align="justify">The statement declared: “Since the contract was signed in April 2011 there have been significant changes with regard to Scottish waste policy and regulation, and project-specific issues in terms of technology and funding.”<p align="justify">No further details were given despite the complete failure to deliver a crucial facility, and the squandering of millions of pounds of public and private money over four years. On top of that SBC’s waste management strategy was in tatters yet again with landfill deadline day looming.<p align="justify">From the publication of the press release on February 19<sup>th</sup> 2015 SBC was determined to pull down the shutters on Project Easter Langlee to cover their own backs and to prevent anyone from exposing their sheer incompetence and risky decision making. The Borders public deserved better.<p align="justify"><b>FIGHTING THE COVER-UP</b><p align="justify">I was personally annoyed and dissatisfied that my local authority could treat its citizens in such a cavalier manner, and I was determined to investigate this disastrous chapter in the annals of Borders local government after being told SBC had decided to simply write off their losses and move on.<p align="justify">The only way to get at the facts would be via Freedom of Information (FOI) requests although I realised this avenue was bound to be littered with pitfalls and obstacles. Requests would have to be carefully worded to guarantee some chance of a worthwhile return. And questions to the council would have to be divided up into numerous sections to avoid refusal by breaching the £600 cost ceiling allowed for each request.<p align="justify">The first FOI was aimed at discovering the true scale of the financial loss to taxpayers as even this basic information remained a closely guarded secret. Surely details of what had been spent on the aborted contract should have been published as a matter of routine. Not in the secretive world of local government.<p align="justify"><b>PAGE FOUR</b> - My FOI 7651 received a response in April 2015. It claimed the costs involved during the lifetime of the contract totalled £1.968 million (exclusive of 20% VAT), most of the money having gone to highly paid consultants, most notably Edinburgh law firm Brodies who received £679,000 for specialist legal advice even though the project was a complete failure. In-house staffing costs were given as £356,400. There was to be additional costs associated with post-contract expenditure.<p align="justify">My own feeling is that the true losses linked to the NESG debacle were considerably higher than this but unfortunately I have to accept what SBC has told me.<p align="justify">The response from SBC contained the following sentences which indicated how they would resist further requests for information: <b>“You suggest that ‘now that the contract and the project have been abandoned the issue of commercial confidentiality no longer applies.’ This is factually incorrect. The confidentiality clauses pertaining to the contract remain in place for six years after termination of the contract.”</b> So I’d have to wait until 2021 for full disclosure. <p align="justify">However, the loss of a substantial sum approaching £2.5 million surely warranted further investigation. I half expected an announcement from Audit Scotland, the nation’s public spending watchdog, that it would be launching an enquiry into the affair. But announcement came there none, and my own repeated requests for their intervention have all been rebuffed.<p align="justify">I have copied Audit Scotland into correspondence throughout the investigation. Unfortunately their email to me dated May 26<sup>th</sup> 2017 illustrates their attitude towards SBC’s multi-million pound loss of public funds:<p align="justify"><i>“Thank you for forwarding the decision by the Scottish Information Commissioner, regarding Scottish Borders Council and its waste management contract. </i><p align="justify"><i>“This information has been shared with the external auditor of the council. After full consideration of the content of the decision, they are content that the audit work previously completed by the external auditor of the council showed that the council followed a reasonable process in the procurement of the waste management contract. </i><p align="justify"><i>“We believe the key judgement for the council was whether continuing with the contract would have seen even more public money lost. It is our opinion that the council came to a reasonable judgement in terminating the contract when it did. </i><p align="justify"><i>“We do not deny that a loss of £2.4m is a poor outcome for the council. Therefore as part on the 2016/17 annual audit of Scottish Borders Council we will be reviewing whether the council have identified any ‘lessons learned’ through their review of how the waste management contract was managed. Any significant findings will be reported to the council in our Annual Audit Report. This will be available on the Audit Scotland website by October 2017. </i><p align="justify"><b><i>PAGE FIVE</i></b><i> - “In your correspondence you state your view that the commissioner’s findings represents clear evidence of a deliberate cover up. Although we do not agree with this view, we continue to encourage councils to be as open and transparent as possible with the information they hold.“</i><p align="justify">During the early stages of my own investigation I also attempted to enlist interest from Scottish politicians and from Scottish parliamentary committees. No luck there either. A £2.4 million gamble with public money did not merit anyone’s attention. Shining a spotlight on bungling councillors of virtually every political hue and holding the incompetents to account might be disadvantageous for all of the parties involved, so avoid such scrutiny like the plague appeared to be the stance taken.<p align="justify">It seemed all that was left would be a one-man campaign to uncover as much information as possible and have it published in a bid to at least embarrass those responsible for the losses. That’s pretty much how it has panned out. <p align="justify">The council started to reject my FOI requests in late 2015. In each of seven successive cases information was withheld on “commercially confidential” grounds and after subsequent requests for reviews of decisions I had to take each case individually to the Scottish Information Commissioner.<p align="justify">In the majority of applications for decisions the SIC found in my favour, and in at least a couple of the Commissioner’s reports the SBC arguments in favour of either keeping documents secret or redacting those they offered to release were demolished and heavily criticised.<p align="justify">It is worth reproducing just some of the findings outlined by Acting Scottish Information Commissioner Margaret Keyse in Decision Notice 100/2017 issued in June 2017 as they demonstrate how flimsy the council’s arguments in favour of secrecy really were.<p align="justify"><i>The Commissioner's conclusions</i><p align="justify"><i>“The Commissioner recognises that the Council made a significant investment in the integrated waste management project in the belief that it would resolve some of the waste disposal issues in the Scottish Borders Council area. The Council and NESG expended considerable effort, time and money to ensure the project was a success. If the project had completed successfully, it would have increased the Council's household recycling performance by an estimated 2.6%[15]. However, the contract was terminated on 19 February 2015, leading to the Council having to write off at least £2.4 million.</i><p align="justify"><i>“The Commissioner accepts that there is significant public interest in understanding what steps the Council had taken to ensure that the project was robust. There is a strong public interest in understanding the measures that the Council had taken in order to limit its financial exposure in a project which had been on-going for four years and had involved substantial sums of public money.</i><p align="justify"><i>“In the Commissioner's view, disclosure of the withheld information would serve the public interest in informing the public about the actions and decisions taken by the Council, the basis for those actions and decisions, and the reasons why the project failed. As noted above, the project had involved many years of work, and substantial sums of public money. The integrated waste management project would have had a direct effect on the residents in the Council area.</i><p align="justify"><b>PAGE SIX</b> - <i>“The Commissioner has given weight to the particular circumstances of this case, which incurred the Council investing substantial time, money and resources, in a project that ultimately did not come to fruition. In these circumstances, the Commissioner finds it is legitimate for the public to seek to understand what happened, and in the public interest for this understanding to be as complete as possible.</i><p align="justify"><i>“The Commissioner accepts that there will be cases in which it is in the public interest for post-contract discussions and project discussions to be kept confidential. However, in the circumstances of this case, the Commissioner considers that the public interest in understanding the Council's role in the project is stronger, for the reasons outlined above.</i><p align="justify"><i>“Having considered all of the representations made by Mr Chisholm and the Council, the Commissioner has concluded that, even if she had found that disclosure of the information would, or would be likely to, prejudice substantially the confidentiality of commercial or industrial information in line with the exception in regulation 10(5)(e) of the EIRs, she would have found, in all the circumstances, that the public interest in making the information available outweighed that in maintaining the exception.”</i><p align="justify">All seven decision notices can be found on the Scottish Information Commissioner’s website, reference numbers as follows: 185/2015; 069/2016; 078/2016; 097/2016; 220/2016; 061/2017 and finally 100/2017.<p align="justify">So the process of forcing SBC to release documentation has taken well over two years because of the need to divide up requests which are all linked to the same subject but would not pass the FOI test on cost grounds. This has involved many hours of additional work preparing applications for the Commissioner and dealing with necessary requests from SIC for more evidence or clarification.<p align="justify">Meanwhile SBC staff and their legal experts must have devoted countless hours in dealing with seven separate SIC investigations as they sought to defend their corner and keep those sensitive reports out of sight. Perhaps a FOI request asking for details of costs incurred by SBC over the course of the seven cases might be justified!<p align="justify">At the end of the day with NESG bankrupt, NERR in liquidation and PGIOM in the process of being dissolved there can be no commercial confidentiality argument for a continuing cover-up of this tawdry affair. Every document on the SBC Waste Management Project file must be published.<p align="justify">However, that is clearly not how SBC sees it. The last of my successful applications to the SIC was concluded on June 28<sup>th</sup> 2017 when Ms Keyse issued her decision completely in my favour. The council was given until August 14<sup>th</sup> 2017 to comply – some six weeks. But they delayed releasing the documents they had withheld until August 11<sup>th</sup>, waiting until virtually the last day allowed before obeying the orders of the Commissioner.<p align="justify">An earlier release of the information would not have proved difficult. I originally requested the material in early 2016, and following their refusal to make copies available on two separate occasions my SIC application was lodged on August 5<sup>th</sup> 2016.<p align="justify"><b>PAGE SEVEN</b> - During that same month SBC was asked to send the SIC the withheld information – 86 documents among 200 relating to the case. So it is clear the council had sorted through and assembled the requested reports at least a year before they complied with Decision 100/2017. They could have been sent to me within days of the June 28<sup>th</sup> decision, but SBC – as they did on previous occasions – decided I could wait for the maximum period allowed under SIC rules. Little respect there for Freedom of Information.<p align="justify"><b>REVELATIONS AND ISSUES THROWN UP BY THE INVESTIGATION</b><p align="justify">SBC undoubtedly wished to draw a line in the sand under the New Earth affair as soon as the highly embarrassing decision to terminate the useless contract was taken in February 2015. Their attitude towards my series of FOI requests proves that beyond any reasonable doubt.<p align="justify">But information they have been forced to give me on the instructions of the SIC has penetrated the wall of silence and has shed some light on many worrying aspects of the council’s dealings with a group of financially unstable companies and funds. However, it is impossible to complete the picture without full disclosure. Here are some of the points requiring full investigation:<p align="justify"><b>1. NESG TRACK RECORD AND CONDUCT</b> - NESG was a relatively inexperienced player in the waste management industry, and had little if any knowledge of environmental rules and regulations governing waste disposal in Scotland, including SEPA’s rigorous process before issuing operating certificates.<p align="justify">Information I obtained showed how NESG became so frustrated over delays in the sanctioning of a permit for the ATT aspect of the Easter Langlee project that they suggested SBC and others should put pressure on the independent environmental watchdog to achieve the desired result. This surely amounted to totally unacceptable and unprofessional conduct.<p align="justify"><b>2. SURETY FOR SEPA</b> - In the very early stages of the contract SBC had to provide financial security in the sum of £315,000 to SEPA on behalf of New Earth Solutions (Scottish Borders) Ltd., the ‘ special vehicle’ set up to deliver the Borders project. The council refused to tell me why this was necessary on grounds of “commercial interests”.<p align="justify">The SIC disagreed and told SBC to give me the information I had asked for. It transpired that NES could not acquire £315,000 of insurance without incurring costs which would have had to be passed back to the council “<b>nor can they afford to hold the capital aside to cover this requirement</b>”. So a contractor involved in a multi-million pound scheme didn’t have £315,000 to spare. Surely alarm bells should have been ringing at SBC. Did anyone ask questions about such a worrying issue?<p align="justify"><b>3. THE STATUS OF NERR & PGIOM</b> - Information obtained during the course of my inquiries has confirmed that SBC were completely unaware of many complaints lodged by investors and shareholders in the NERR fund and against its parent company PGIOM. These businesses were crucial to the successful delivery of Easter Langlee, and SBC was told £6 million per month was pouring into NERR from eager ‘green’ investors.<p align="justify"><b>PAGE EIGHT</b> - The truth was that any money reaching NERR’s coffers was either being used to prop up NESG (£39 million in total) or being siphoned off by PGIOM managers and controllers in fees (£12.027 million in 2014 and £10.748 million in 2013 while the Borders contract was ‘live’). The impression is given that SBC accepted at face value what NESG and NERR were telling them. Even in the early years of the contract (2011) NESG was recording sizeable financial losses.<p align="justify">Liquidators Deloitte appointed to investigate NERR by the Isle of Man Financial Services Authority soon discovered almost 3,500 investors and shareholders in the fund would get none of their money back. Deloitte is currently considering the possibility of pursuing third parties in a bid to recoup cash and NERR has insufficient resources to even pay for its own liquidation. PGIOM is also in the process of being dissolved. How did SBC become involved with such unstable offshore entities?<p align="justify"><b>4. DEED OF VARIATION</b> – Perhaps the most important reason for the collapse of the project, and the most puzzling issue to emerge from SBC’s web of secrecy. Within a matter of months of the original contract being signed NESG was telling SBC the MBT plant was undeliverable because it could not attract bank funding as a stand-alone project. How much had changed in such a short period of time? Why were MBT facilities being developed elsewhere in the UK? Did anyone at SBC ask?<p align="justify">In October 2012 members of SBC decided (in private, naturally) to radically change the terms of their contract with NESG to include ATT using so-called NEAT Technology, NESG’s very own brand of gasification and pyrolysis to convert rubbish into electricity.<p align="justify">The councillors must have realised they were taking a huge gamble. Apparently they were labouring under the impression NEAT could install them as champions of the Scottish waste disposal league table. But in fact the technology had not even started its arduous journey through development trials at NESG’s R&D centre in Canford, Kent.<p align="justify">How was any financial institution likely to put up £23 million under those circumstances? What persuaded SBC’s elected members to sanction NEAT when the technology was not commercially proven and funding was not guaranteed? Each member who voted in favour of the DoV must be asked to explain their reasoning, and officers and members of the Project Team who recommended this risky course of action also need to provide a detailed public explanation.<p align="justify">In an interview published in the Journal of the Chartered Institute of Waste Management in October 2015 - <b>AFTER</b> the SBC/NESG contract was shredded, and <b>THREE YEARS AFTER</b> the DoV was rubber-stamped - Richard Brooke, the commercial director of NES, confirmed that the form of technology which had been planned for Easter Langlee was not commercially ready in late 2014. So why did SBC sign up for it in October 2012? Brooke’s reference to the Borders project reads as follows:<p align="justify">“The development in Scotland that would have been New Earth’s sixth facility did not come to fruition for a variety of reasons, most notably the drop-off in the quantity of residual waste requiring treatment; <b>and the specific energy technology to be built and operated was not ready to bring on-line on a commercial scale.”</b><p align="justify">This amounts to a damning indictment of SBC’s decision making. In actual fact this form of ATT technology remains unproven in 2017 while a similar system installed at another NESG facility in Avonmouth, Bristol has proved so troublesome the entire plant has had to be closed down to allow radical remedial work to be undertaken. It is hoped to reopen the ATT there in 2018.<p align="justify"><b>PAGE NINE - 5. MONITORING OF PROJECT BY ELECTED MEMBERS </b>– There is virtually no mention of councillor involvement in the Easter Langlee project in any of the documents SBC has volunteered to give me or in the many more released on the orders of the Scottish Information Commissioner.<p align="justify">Minutes of meetings should provide a full picture of the role played by our elected members, but incredibly, during my inquiries I have been told on more than one occasion that events were not formally recorded. Therefore written documents containing information about the ill-fated scheme do not, in many cases, exist on the council’s ‘New Earth Solutions’ file. I would submit that such an admission of sloppy record keeping should be worthy of investigation on its own.<p align="justify">A classic example of this cavalier approach towards the (non) minuting of meetings came to light after I submitted a FOI request seeking information about the council’s large delegation of elected members and officers who made a “fact-finding” trip to NESG headquarters at Avonmouth in October 2014, just four months before the Easter Langlee shipwreck had to be abandoned.<p align="justify">No fewer than 18 of the most powerful members and officials of SBC made the trip (including an overnight stay) at a total cost to taxpayers of £3,939.35. In public statements following their return to the Borders they made it clear they were pleased with what they had seen and were convinced SBC was “on the right track”. <p align="justify">When I requested a list of the questions asked and answers given at a briefing session this is what I was told<b>: “There was then a question and answer session with NES so that Councillors could get a detailed understanding of the delivery strategy, technology development, permit and funding. No information is held on record in respect of the questions or answers provided. Only the presentations are held – which are commercially confidential, a redacted copy is attached.”</b><p align="justify">I went on to ask for copies of reports generated before and after the visit. Here’s the reply from SBC: <b>“Subsequent project reports, minutes and emails make reference to the visit but were not generated specifically as a consequence of the visit. Again the content of these documents contains commercially confidential information and cannot be released.”</b><p align="justify">This repeated failure to maintain written records which appears to have permeated much of the four-year liaison between SBC and NESG may be a convenient way of avoiding public scrutiny. But it also runs totally counter to the local authority’s own Information Governance Policy.<p align="justify">That document states unequivocally<b>: “Scottish Borders Council is committed to creating, managing and keeping records that document its principal activities. Information must be processed and protected diligently, lawfully and ethically through good data security, accurate information and informed openness.”</b><p align="justify">One can only assume those high-minded principles ‘went out of the window’ in the case of the Easter Langlee shambles. Or perhaps the failed Easter Langlee project is not regarded as one of SBC’s “principal activities”.<p align="justify">In fact the visit to the Avonmouth facility may well have been a complete waste of time and money. The misfiring steam technology there was different from the system which was to have been deployed in Galashiels. The 18-strong team carrying out ‘due diligence’ should, according to some experts, have been 67 miles from Avonmouth - in Canford - where NEAT was on trial.<p align="justify"><b>PAGE TEN</b> - Councillor David Parker, the local authority’s leader, told the Border Telegraph in <b>October 2014</b> (following the visit) the Avonmouth trip had been “valuable and illuminating”. <p align="justify">“The integrated WTF is a really big deal for our council as it will transform the way we deal with our waste and help us comply with our zero waste obligations,” he told the newspaper. <p align="justify">“It also involves a major investment, in partnership with NES, which requires councillors to carry out due diligence and, in that respect, the trip was necessary. I am satisfied after our visit that we are on the right track and confident that the WTF will be up and running before the 2019 contract deadline, hopefully by mid-2017.”<p align="justify">Contrast that upbeat declaration with DUFF & PHELPS ADMINISTRATORS’ REPORT on New Earth Solutions Group July 2016:<p align="justify">Paragraph 2.8 – <b>“In October 2014 (</b>the same month in which the Borders delegation was briefed by NESG)<b> the Group carried approximately £159 million of debt, with £37 million due to the Banking Group (Co-op) and £102 million to New Earth Recycling & Renewables [Infrastructure] PLC (NERR) which was subordinated to the Banking Group’s debt. A further £20 million was also owed to Macquarie Bank with a request for further funding. Funding from NERR was suspended in 2014 and Co-op was requested to step in to provide financing.”</b><p align="justify">In other words the due diligence carried out by Councillor Parker and his colleagues managed to miss the fact that NESG was completely insolvent long before the contract was terminated. The cash-strapped company was, to all intents and purposes, incapable of delivering the Easter Langlee project a year if not more prior to February 2015. Did anyone examine the company’s books? What information were the expensive financial consultants [hired at a cost of £146,000] giving SBC about their contractor’s economic well-being (or lack of it)?<p align="justify"><b>2013’s NOTIFICATION OF A TWO-YEAR DELAY</b><p align="justify">The project had been beset by problems and issues from the very outset thanks to a combination of undeveloped technology and the absence of the £23 million to pay for it.<p align="justify">Among a collection of 80 reports, emails and other correspondence which SBC released in August 2017 on the SIC’s orders were details of yet another delay of two years of which notice was given by NES in late 2013. The NEAT trials in Canford were going extremely badly, and after a catalogue of excuses the contractors finally admitted there was no prospect of commissioning the Borders plant until July 2017 although even that date could prove to be ‘ambitious’.<p align="justify">Here’s how the council’s own consultants reacted to the news – although the council seemed content to allow matters to drift on.<p align="justify">SLR Consulting (technical experts) wrote: “<b>In summary it is difficult for SLR to understand whether there is a reticence to try to develop because; data attained does not show the process favourably; if operational issues at Avonmouth are taking priority or are showing some fundamental issues with the technology; if the technical team are capable of addressing and managing the problems to an expedient solution.”</b><p align="justify"><b></b><p align="justify"><b>PAGE ELEVEN</b> - And financial advisers Nevin Associates were more forthright in their correspondence with SBC following the latest test failure at Canford: <b>“This may have been the final incident that convinced NES to come clean and admit that there was no chance of implementing NEAT on a commercial scale in 2014.</b><p align="justify"><b>“This could leave us hanging on the outcome of the Canford trials, over which we have no control, and if those were to fail or (more likely) take longer than anticipated to succeed, then we would still potentially be exposed to the risk of having no treatment solution in place for the Council’s residual waste.</b><p align="justify"><b>“It is imperative that momentum is not lost and that NES show evidence of continued commitment to the project, otherwise we may have little option but to pursue a Plan B to avoid the risk that the Council fails to achieve ZWP regulatory requirements.”</b><p align="justify">NES had already been granted a so-called ‘contract moratorium’ giving them extra time to solve the various problems dogging Project Easter Langlee.<p align="justify">Surely council members should have stepped in and ordered an end to the fiasco in December 2013. That would have avoided a 15 month period up to February 2015 when tens if not hundreds of thousands of pounds of public money continued to be squandered without any progress being made. But yet again councillors appear to have been conspicuous by their absence.<p align="justify"><b>CONCLUSION – </b>Those who take the trouble to read this report are free to draw their own conclusions.<p align="justify">In my opinion Scottish Borders Council - at the very least - was grossly incompetent in its stewardship of substantial sums of public money. SBC was equally inept in the management and administration of a £23 million building contract, work on which had not even started after almost four years of dithering and interminable delays caused by a model of technology which had never been commercially proven, and by an inability to secure funding for construction. <p align="justify">The fact that no-one will be held to account for the entire debacle is regrettable and disgraceful.<p align="justify"><b>FOOTNOTE:</b><p align="justify"><i>The following pages forming an appendix to this report are items of correspondence included in a large collection of reports, emails and letters all of which Scottish Borders Council classed as “highly sensitive” or “commercially confidential”. </i><p align="justify"><i>The four examples selected date from 2013 and 2014, and there are many more in similar vein. They illustrate some of the technological difficulties which hampered and delayed the failed project throughout its four-year lifetime. There is also the occasional update on funding options, none of which ever came to fruition.</i><p align="justify"> <a title="Bombshell report reveals fresh concerns over aborted waste project that cost council taxpayers £2.4m" href="http://www.thenational.scot/news/15614673.Bombshell_report_reveals_fresh_concerns_over_aborted_waste_project_that_cost_council_taxpayers___2_4m/"><img align="left" style="margin: 5px 10px 0px 0px; float: left; display: inline;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiK9Yv7-oNh14Lci8xrcsFyNnozn9Q7SB1tpQXANNUQy-P0lrvVurMI2sBrgSX5vRNP_VkdWU73CFsDT2DdWHrKl79WQZ2qUr0gToeQg59N_jwdTHb7hBcgTt2W-CDCi0z8o9ocFg/"></a><a title="Bombshell report reveals fresh concerns over aborted waste project that cost council taxpayers £2.4m" href="http://www.thenational.scot/news/15614673.Bombshell_report_reveals_fresh_concerns_over_aborted_waste_project_that_cost_council_taxpayers___2_4m/"><strong><u>Bombshell report reveals fresh concerns over aborted waste project that cost council taxpayers £2.4m</u></strong></a></p><p align="justify">Martin Hannan Journalist The National 24 October 2017</p><p align="justify"><em>
Scottish Borders Council refused to answer questions from retired journalist Bill Chisholm, but was rebuked by the Information Commissioner</em></p><p align="justify"><strong>A BOMBSHELL report about the loss of more than £2.4 million of public money by Scottish Borders Council casts doubt on the official investigation into that loss.</strong></p><p align="justify"><strong>Distinguished journalist Bill Chisholm, who was awarded the OBE for services to journalism when he retired some years ago, spent 30 months investigating the scandal. The Easter Langlee waste transfer system was never built but still cost the public purse more than £2.4m.</strong></p><p align="justify"><strong>Despite Scottish Borders Council (SBC) constantly refusing to answer his questions, Chisholm – now 72 and describing himself as a concerned council tax payer – persevered and the Scottish Information Commissioner ruled in his favour seven times so that he was able to access the information, which he claims shows mismanagement and a misuse of public funds.</strong></p><p align="justify"><strong>But Audit Scotland’s investigation has cleared the council and it says its file on the matter is now closed.</strong></p><p align="justify"><strong>The saga began in 2011 when the council awarded a 24-year waste management contract, valued at between £65m and £80m, to an English firm, New Earth Solutions Group (NESG), which would include the development and construction of a “cutting-edge” waste treatment facility at Easter Langlee near Galashiels at an estimated cost of up to £23m.</strong></p><p align="justify"><strong>Chisholm’s 43-page report alleges the technology to be used at Easter Langlee by Dorset-based NESG, backed by Isle of Man-based New Earth Recycling & Renewables [Infrastructure] PLC (NERR), was not fully tried and tested.</strong></p><p align="justify"><strong>He reports: “In an interview published in the Journal of the Chartered Institute of Waste Management in October 2015 … Richard Brooke, the commercial director of NESG, said ‘The development in Scotland that would have been New Earth’s sixth facility did not come to fruition for a variety of reasons … the specific energy technology to be built and operated was not ready to bring on-line on a commercial scale.’”</strong></p><p align="justify"><strong>The contractors were given more time and 18 SBC councillors and officers visited NESG’s premises in October 2014 – a trip that cost council taxpayers almost £4,000.</strong></p><p align="justify"><strong>NESG then failed to deliver on Easter Langlee. Less than four months later on 19 February, 2015, the contract was terminated.</strong></p><p align="justify"><strong>Both NESG and NERR went bust and SBC had to write off more than £2.4m. The council has since tried to establish its own new £4.8m waste transfer system at Easter Langlee, but after planning problems work has still not begun and the council continues to face penalties for its failure to treat its waste.</strong></p><p align="justify"><strong>Chisholm asked a series of questions about the technology and funding but received insufficient answers.</strong></p><p align="justify"><strong>The Information Commissioner then overruled SBC in very strong terms, saying: “In the Commissioner’s view, disclosure of the withheld information would serve the public interest in informing the public about the actions and decisions taken by the council, the basis for those actions and decisions, and the reasons why the project failed. The project had involved many years of work, and substantial sums of public money.”</strong></p><p align="justify"><strong>Chisholm was finally told by SBC that the costs involved during the lifetime of the contract totalled £1.968 million – excluding 20 per cent VAT – with much of the money having gone to highly paid consultants.</strong></p><p align="justify"><strong>After external auditors KPMG passed the council’s accounts, public spending watchdog Audit Scotland took over as auditors and concluded the council acted correctly. Both SBC and Audit Scotland have refused to re-open any inquiry into the failed project.</strong></p><p align="justify"><strong>Chisholm told The National: “I would suggest Audit Scotland has made a misjudgment [in connection] with the Borders’ £65m waste management contract</strong></p><p align="justify"><strong>“A significant number of people who have read the report, including an eminent procurement expert, have expressed the view that there are many issues I have uncovered which would justify an investigation.</strong></p><p align="justify"><strong>“Examples include the question of whether the council might have breached EU procurement rules, not to mention the complete loss of at least £2.4m of taxpayers’ money.”</strong></p><p align="justify"><strong>Chisholm added: “Audit Scotland may have closed the file on Project Easter Langlee: I have not.”</strong></p><p align="justify"><strong>A Scottish Borders Council spokesperson said yesterday: “Mr Chisholm has not yet presented Scottish Borders Council formally with a copy of his report, however it is worth noting that both KPMG and Audit Scotland have examined the matter and are both satisfied with the steps taken by the council in relation to the contract with New Earth Solutions.”</strong></p><p align="justify"><strong>An Audit Scotland spokesman said: “In our response to Mr Chisholm we explained that our opinion is that the council came to a reasonable judgment in terminating the contract when it did. We are also satisfied that audit work previously completed by the external auditor showed that the council followed a reasonable process in the procurement of the waste management contract.”</strong><br></p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-48439400133783168392017-03-01T17:30:00.000+00:002017-03-01T22:54:22.137+00:00Court of Session allows proof against Levy & Mcrae and Burness Paull LLP in Heather Capital case as liquidators attempt to recover cash from collapsed £280m hedge fund<p align="justify"><a title="Heather Capital" href="http://scottishlaw.blogspot.com/search/label/Heather%20Capital"><img style="margin: 5px 10px 0px 0px" src="https://lh3.googleusercontent.com/-5LIXShaMUHc/Vi0KevPvWLI/AAAAAAAABG4/dGga-rwDj8A/s400-Ic42/Money%252520in%252520Money%252520out.jpg" width="509" align="left" height="336"></a><em>Proof allowed in Heather Capital case.</em> <strong>A RULING</strong> in the latest hearing of the Heather Capital case by three judges at the Court of Session has granted proof hearings against law firms <a title="Levy & Mcrae" href="http://www.lemac.co.uk"><strong>Levy & Mcrae</strong></a> and<strong> </strong><a title="Burness Paul LLP" href="http://www.burnesspaull.com"><strong>Burness Paul LLP</strong></a>.</p>
<p align="justify">The decision is bound to be an uncomfortable one for Scotland’s senior judges as the case has direct links back to the judiciary itself, revealed when <a title="HEDGE FUND JUDGE SUSPENDED: Sheriff Peter Watson removed from bench by Lord Justice General over multi million pound summons linked to £400m Heather Capital fraud probe" href="https://scottishlaw.blogspot.com/2015/02/hedge-fund-judge-suspended-sheriff.html"><strong>Lord President Lord Brian Gill was forced to suspend Sheriff Peter Black Watson after Watson was named in a writ launched by Heather Capital’s liquidator in early 2015</strong></a>.</p>
<p align="justify">Heather Capital, run by Glasgow -born financier Greg King, raised £280million from investors but the fund collapsed in 2010.</p>
<p align="justify">Current and ex Levy & McRae partners including suspended sheriff Peter Watson now face a claim of up to £28million from Heather’s liquidator Paul Duffy.</p>
<p align="justify">Lord Doherty earlier ruled evidence should be heard to decide the case but Levy & Mcrae launched an appeal, which has now failed.</p>
<p align="justify">Watson was listed in court papers as the “eighth defender”.</p>
<p align="justify">In his ruling on July 22, Lord Doherty stated the allegations related to claims of “links between the eighth defender and companies controlled by Mr King”.</p>
<p align="justify">It said the allegations were “that in December 2008 an unexplained payment of £200,000 was made to the eighth defender from the same client account into which £9.412million had been paid by” the Levy & McRae partners.</p>
<p align="justify">Greg King, 48, is one of four men charged by police after the demise of Heather Capital’s lending arm Mathon Finance.</p>
<p align="justify">It’s alleged £90million was stolen when Heather went bust.</p>
<p align="justify">King, Andrew Sobolewski, 57, of Bridge of Weir, Renfrewshire, Andrew Millar, 63, of ­Cambuslang, near Glasgow, and Scott ­ Carmichael, 44, of Thorntonhall, near Glasgow, were named in the report on Mathon sent to the Crown Office. </p>
<p align="justify">The Crown Office said the report is still “under consideration” nearly four years on from when Police Scotland first referring the case to the Lord Advocate.</p>
<p align="justify"><strong>JUDGE, SUSPENDED:</strong></p>
<p align="justify"><a href="http://www.scotland-judiciary.org.uk/25/1390/Statement-from-the-Judicial-Office-for-Scotland-on-the-suspension-of-part-time-sheriff-Peter-Watson"><strong>Statement from the Judicial Office for Scotland on the suspension of part-time sheriff Peter Watson</strong></a>
<p align="justify"><strong>Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.</strong>
<p align="justify"><strong>“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.</strong>
<p align="justify"><strong>The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.</strong>
<p align="justify"><strong>Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.</strong>
<p align="justify"><strong>On Monday 16 February the Lord President considered the matter.</strong>
<p align="justify"><strong>Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.</strong>
<p align="justify"><strong>Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”</strong>
<p align="justify"><a title="Latest Court of Session opinion on Heather Capital, published 28 February 2017:" href="http://www.scotcourts.gov.uk/search-judgments/judgment?id=6ad42ba7-8980-69d2-b500-ff0000d74aa7"><strong>Latest Court of Session opinion on Heather Capital, published 28 February 2017:</strong></a> </p>
<p align="justify"><b>EXTRA DIVISION, INNER HOUSE, COURT OF SESSION</b></p>
<p><b>[2017] CSIH 19</b>
<p>CA207/14 and CA208/14
<p>Lady Paton Lady Clark of Calton Lord Glennie
<p>OPINION OF LADY PATON
<p>in the cause
<p>HEATHER CAPITAL LIMITED (in liquidation) and PAUL DUFFY (as liquidator) <u>Pursuer and Reclaimer </u>
<p>against
<p>LEVY & McRAE and others <u>Defenders and Respondents</u>
<p>and
<p>HEATHER CAPITAL LIMITED (in liquidation) and PAUL DUFFY (as liquidator) <u>Pursuer and Reclaimer</u>
<p>against
<p>BURNESS PAULL LLP <u>Defender and respondent</u>
<p><b></b>
<p><b></b>
<p><b>Pursuer and reclaimer: Lord Davidson of Glen Clova QC, Tariq; </b>
<p><b>Shepherd & Wedderburn LLP</b>
<p><b>Defenders and respondents (Levy & McRae): Duncan QC, Brown; </b>
<p><b>Clyde & Co (Scotland) LLP</b>
<p><b>Defender and respondent (Burness Paull LLP): Dunlop QC, C Paterson; </b>
<p><b>Messrs CMS Cameron McKenna LLP</b>
<p><u>28 February 2017</u>
<p><b>Prescription and the extinction of obligations <br></b>[1] In these two actions raised in 2014, the liquidator of Heather Capital Limited (HC) sues two firms of solicitors, Levy & McRae (LM) and Burness Paull (BP). The grounds of action include implement of trust obligations, and damages for alleged breach of contract, negligence, breach of fiduciary duty and dishonest assistance. <p>[2] The solicitors contend that, on a proper construction of the liquidator’s own pleadings and without the need for evidence, it can be seen that certain obligations have been extinguished by the passage of time in terms of the Prescription and Limitation (Scotland) Act 1973. Those submissions were successful in the BP action (a debate before Lord Tyre), and partially successful in the LM action (a debate before Lord Doherty). <p>[3] The liquidator reclaimed. LM and BP cross‑appealed. The cases came before the Inner House on 15 and 16 November 2016.
<p>[4] This opinion focuses upon obligations which are subject to the 5‑year prescriptive period and the effect on the running of that period of sections 11(3) and 6(4) of the 1973 Act. In a separate opinion (with which I agree) Lady Clark rejects an argument that there are insufficient relevant averments of any loss suffered by the pursuer (HC).
<p><b></b>
<p><b>Summary of conclusions reached <br></b><i>5‑year prescription: awareness of loss, sections 11(3) and 6(4)</i>
<p>[5] While it is possible that losses which were easily identifiable by HC may have occurred in 2007, leading to the triggering of the 5‑year prescription in 2007 (i.e. more than five years before the actions were raised in 2014: see paragraphs [58] to [61] below), this is a matter of dispute which cannot be resolved on the pleadings alone. In any event, HC’s averments of reasonable diligence (ie section 11(3) of the 1973 Act) and of error induced by the solicitors (ie section 6(4), with the proviso of “reasonable diligence”) are, in my opinion, sufficient to entitle HC to a proof before answer in each case, all pleas standing: see paragraph [62] <i>et seq </i>below.
<p><i>20‑year long negative prescription: section 7 <br></i>[6] As I have reached the view in each case that there should be a proof before answer at large, all pleas standing, I consider it unnecessary and premature for this court to give an opinion relating to the 20‑year prescription: see paragraph [80] below. <p><i></i>
<p><i>Ultimate decision</i><br>[7] As set out in the final paragraphs of this opinion, I propose that the court should recall the interlocutor of Lord Tyre dated 6 November 2015 and the interlocutor of Lord Doherty dated 31 August 2016; in each case allow a proof before answer at large, all pleas standing; remit to the Outer House to proceed as accords; and continue meantime the question of the expenses of the reclaiming motions.
<p><b></b>
<p><b>Background: investment company affected by fraud <br></b>[8] HC is an investment company incorporated in the Isle of Man in 2005. On 7 July 2010, as a result of difficult economic conditions and cash flow problems, a liquidator was appointed. In February 2011, the liquidator received electronic documentation, and began a detailed review of the company’s affairs. At a later stage, he was assisted by staff from the Fraud Investigations and Dispute Service in Ernst & Young LLP. In 2012, the liquidator and his team were able to confirm that millions of HC’s funds were missing in circumstances suggestive of a deliberate fraud perpetrated by HC’s two executive directors, Mr King and Mr Volpe. Details of the mechanism of the alleged fraud can be found in the Opinions of Lord Tyre, [2015] CSOH 150, and Lord Doherty, [2016] CSOH 107. As summarised in an Isle of Man judgment, the scheme resembled a “Ponzi” scheme in that apparent repayments to HC were in fact funded in a circular way by HC itself: see paragraph 30 of the judgment of His Honour Deemster Corlett, <i>Heather Capital Limited </i>v<i> KPMG Audit LLC, </i>17 November 2015.<i> </i>
<p>[9] A third party, Nicholas Levene, was a participant in the scheme. He is currently serving a 13‑year sentence for fraud, false accounting, and obtaining money by deception. To date, no proceedings have been taken against Mr King or Mr Volpe. Both actions are at the stage of debate. No evidence has been led. Accordingly allegations against particular individuals (for example, Mr King and Mr Volpe) have not been established. <p><b>The court actions<br></b>[10] The liquidator seeks to recover and ingather funds. He has raised various court actions. The present actions in the Court of Session were raised on 23 October 2014 (with amendments to the instance in March/April 2015).
<p>[11] The action against BP (“the BP case”) contains the following conclusions, read short:
<ol>
<li>Count and reckoning of BP’s intromissions from 1 March 2006 to 31 July 2006 with HC’s funds received into its client account, and payment of any balance due.
<li>Failing count and reckoning, for payment of £7.3 million.
<li>Alternatively for payment of £7.3 million.
<li>Alternatively for declarator that BP, through Mr Scott Wilson (then a partner), dishonestly assisted Mr King in committing breach of his fiduciary duties owed to HC and in diverting from HC £7.3 million.
<li></li></ol>
<p>[12] The action against LM (“the LM case”) contains the following conclusions, read short:
<ol>
<li>Count and reckoning of LM’s intromissions from 1 January 2007 to 30 June 2007 with HC’s funds received into their client account, and payment of any balance due.
<li>Failing count and reckoning, for payment of £28.412 million.
<li>Alternatively for payment by way of recompense of £28.412 million.
<li>Alternatively for payment by way of reparation of £28.412 million.
<li>Alternatively for declarator that LM dishonestly assisted Mr King in committing breach of his fiduciary duties owed to HC and in diverting from HC £28.412 million.
<li></li></ol>
<p>[13] The summons in each case was served on the defenders on 23 October 2014. Each summons was subsequently amended (in LM’s action on 27 March 2015, in BP’s action on 28 April 2015) such that the instance reads “HC and Paul Duffy” (rather than “Paul Duffy as liquidator of HC”). <p>[14] The averments in Condescendence 5 in each action refer to the date of “actual knowledge of loss” as follows: <ol>
<li>The BP case:17 April 2012, when the true destination of funds was confirmed by an e-mail from Scott Wilson, then a partner of BP.
<li>The LM case: 31 August 2012, when the true destination of funds was confirmed by the production of the client ledger under an order in terms of section 236 of the Insolvency Act 1986 (although senior counsel for HC also accepted that the earliest possible starting point for the five-year prescription was arguably February 2011, when the liquidator received the electronic documentation:see too Condescendence 39; and (paragraph [19] of Lord Doherty’s Opinion).</li></ol>
<p>[15] Each summons was met with <i>inter alia </i>a plea of prescription. <p>[16] In the BP case, the defender’s third plea is as follows:
<p>“3. Any obligation incumbent upon the defender to make payment having prescribed in terms of section 6 of the Prescription and Limitation (Scotland) Act 1973, the defender should be assoilzied from the second to fourth conclusions of the summons.”
<p>HC’s response is a plea as follows:
<p>“3. The pursuer’s claim not having prescribed, decree should be granted as concluded for.”
<p>[17] In the LM case, the defenders’ sixth plea is as follows:
<p>“6. Any obligation on the part of the defenders to make reparation to the pursuer for breach of contract, fault or negligence or assistance or fraud having been extinguished by the short negative prescription, the defenders should be assoilzied.”
<p>HC’s response is a plea as follows:
<p>“3. The defenders’ averments being unfounded in fact, or alternatively sections 6(4), 7 or 11(3) of the Prescription and Limitation (Scotland) Act 1973 being engaged, their plea of prescription should be repelled.”
<p>[18] Debates took place: first, a debate before Lord Tyre in the BP case; and secondly, a debate before Lord Doherty in the LM case. By interlocutor dated 6 November 2015, Lord Tyre sustained BP’s third plea and assoilzied BP from the second to fourth conclusions of the summons (leaving the first and fifth conclusions extant, with no further orders to date). In the LM case, Lord Doherty pronounced an interlocutor dated 31 August 2016 in the following terms:
<p>“ … sustains the defenders 1<sup>st</sup> plea in law to relevancy to the extent of refusing to admit to probation the pursuer’s averment in article 39 of condescendence ‘Reference is made to section 11(3) of the Prescription and Limitation (Scotland) Act 1973’ together with the corresponding words and figures ‘or 11(3)’ in the pursuer’s 3<sup>rd</sup> plea-in-law; <i>quoad ultra </i>leaves all pleas standing and allows to parties a preliminary proof before answer on prescription…”
<p>Lord Doherty granted leave to reclaim.
<p><b>Timeline<br></b>[19] The following abbreviated timeline is taken from HC’s averments, productions, and some undisputed parts of the Opinions of the Lords Ordinary. There were no joint minutes agreeing productions: counsel referred to and relied upon some productions without objection, and the court was invited to do likewise. Counsel chose to present the LM case before the BP case. However as the events concerning LM occurred after the events concerning BP, that chronological order is reflected in the timeline below. <p>[20] In the BP case:
<ul>
<li>On 21 April 2006, HC transferred funds to its client account with BP.Loans to four first level SPVs, namely Bayhill, Brookhill, Hampsey and Bellwood, were anticipated and were recorded in HC’s books (Lord Tyre paragraphs [3], [4] and [7];Condescendence 5).
<li>On 24 April 2006, after an email bearing to be from Mr King but forwarded to Mr Scott Wilson of BP by John Caulfield, Mr Wilson transferred £3.3 million from the client account directly into Mr Levene’s personal account, not to any first level SPV (Condescendence 16-17; Lord Tyre paragraph [6]).In the email chain, Mr Levene indicated that he would use the funds for “our IPOs”.
<li>On 3 May 2006, Mr Wilson sent documentation for Bayhill, Brookhill and Hampsey to Mr Ashworth, managing director of Abacus (HC’s management and administrative services).Mr Wilson did not mention payment of the funds into Mr Levene’s personal bank account.Abacus recorded the loans in HC’s books of account as having been made to Bayhill, Brookhill, and Hampsey (Lord Tyre paragraph [7] and [17]).
<li>On 12 July 2006, Mr Wilson of BP transferred £4 million from the client account to a company Mathon plc.The Bellwood documentation was sent to Abacus.Mr Wilson did not mention payment of the funds into Mathon’s account.Abacus recorded the loan in HC’s books of account as made to Bellwood (Lord Tyre paragraphs [8], [9] and [17];Condescendence 24 <i>et seq</i>).
<li>In early 2007, HC’s auditors KPMG raised questions about what appeared in HC’s books of account as loans to first level SPVs (Bayhill, Brookhill, Hampsey, and Bellwood).KPMG identified concerns including (i) inability to reconcile second level SPVs’ heritable securities with the Land Registry;(ii) missing documentation;and (iii) concerns about the enforceability of securities given by second level SPVs (Lord Tyre, paragraph [10]).
<li>By a memorandum dated 17 March 2007, KPMG recorded these concerns and indicated that further work and information was required (Condescendence 5, page 8 of BP reclaiming print).
<li>In May and June 2007, amounts equivalent to loans thought to have been made to the four SPVs were apparently “repaid” to HC via Cannons, solicitors, Glasgow (Lord Tyre paragraph [10] <i>et seq</i>;Condescendence 27A and 27B)<i>.</i>
<li>KPMG carried out additional work, including a “full scope audit to 30 September 2007 to gain greater assurance over receipt of monies in relation to the SPV loans and their subsequent reinvestment” and “an audit of the nine month figures to 30 September 2007” (Lord Tyre paragraph [14]).
<li>By letter dated 26 November 2007, Mr King advised the board of HC that “some sort of fraud had been deliberately introduced with invalid land registry details on a number of the loans”.He stated that he had applied pressure to Mr Volpe and Mr Cannon, whereupon there had been “full repayment of the loans with relevant interest” which meant that “investors were secure” (Lord Tyre paragraph [12]).
<li>On 4 December 2007, HC obtained legal advice from Bird Semple regarding the apparent repayment of the SPV loans (Condescendence 5, page 9 of BP reclaiming print).
<li>By email dated 12 December 2007, Mr King supplied apparently fabricated correspondence supporting his account of the repayment of the first level SPV loans to HC (Condescendence 5, page 9 of BP reclaiming print).
<li>In December 2007, having examined HC’s books, the auditors KPMG expressed concerns, using language such as “the risk of fraud increased to high”, “some form of fraud appeared to have been attempted”, “increase[ed] audit procedures” and a statement that “We have been unable to verify where funds advanced to the SPVs were invested.In addition, we were supplied with false documentation in relation to the SPVs, which appears to have been a deliberate attempt to mislead us” (Condescendence 5, pages 9-11 of BP reclaiming print;Lord Tyre paragraph [13]).
<li>On 6 June 2008, KPMG signed their audit report with qualifications concerning the SPV loans (Condescendence 5, page 12 of BP reclaiming print).
<li>On 5 September 2008 and 12 May 2009, KPMG signed the accounts reports without audit qualifications (Condescendence 5, page 12 of BP reclaiming print).
<li>On 7 July 2010, the liquidator was appointed to HC (Condescendence 1).</li></ul>
<p>[21] In the LM case:
<ul>
<li>On 4 January 2007, HC transferred £19 million to its client account with LM (Lord Doherty paragraph [5]).
<li>On 24 January 2007, HC transferred £9.412 million to its client account with LM (Lord Doherty paragraph [5]).
<li>The money was intended to be loaned to a first level SPV Westernbrook Properties Ltd (WBP) for onward lending to second level SPVs (Lord Doherty paragraph [5]).
<li>On 9 January 2007, LM transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).
<li>By a memorandum dated 17 March 2007, HC’s auditors KPMG “identified a number of concerns relating to the documentation provided in respect of these loans”.Further work and information was required (Condescendence 5, page 13 of LM reclaiming print).
<li>On 29 March 2007, LM transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).
<li>In April to June 2007, amounts equivalent to the loans thought to have been made to WBP (including accrued interest) were “repaid” to HC via Cannons, solicitors, Glasgow.The directors were unable to ascertain the source of these repayments (Lord Doherty paragraph [7]).
<li>Approaches made by HC to Mr Volpe and Triay & Triay, a firm of solicitors in Gibraltar, were met with a total lack of co-operation (Lord Doherty paragraph [8]).
<li>At a board meeting on 6 September 2007, “KPMG could not approve HC’s accounts … Santo Volpe had executed certain loans to SPV companies where non‑standard procedures had been followed which meant that inadequate security had been given for some loans … Gregory King stated that the loans to the SPVs had been repaid in full in May 2007” (Condescendence 5, page 13 of LM reclaiming print).
<li>By email to a non‑executive director of HC (Mr Bourbon) dated 7 September 2007, Mr McGarry of KPMG referred to the previous day’s board meeting, and expressed concerns about the situation.He asked for further information, namely “all possible evidence regarding the movement of monies out of Heather Capital into these SPVs and onwards to whatever purpose the funds were applied – ie, sight of bank statements, payment/remittance instructions, certified extracts from solicitors clients’ money accounts etc”.(It should be noted that, contrary to HC’s averment in Condescendence 5 at page 13C‑D of LM reclaiming print, the email did not restrict the inquiries requested to “explaining what information was required <i>from Santo Volpe</i>”:the request was much broader.)
<li>In October 2007 the non‑executive directors of HC met with the Isle of Man Financial Services Commission (FSC) to discuss “the issues” (Lord Doherty paragraph [8]).A director also disclosed the suspicious activity and Mr Volpe’s obstruction to the Isle of Man Financial Crime Unit (FCU), who said they would investigate (Condescendence 5 page 14 of LM reclaiming print).The auditors KPMG carried out an additional full scope audit.
<li>By letter dated 18 October 2007, FSC wrote to the directors of HC setting out further information which they required.</li></ul>
<ul>
<li>By letter dated 26 November 2007 Mr King advised the HC board that “some sort of fraud had been deliberately introduced with invalid land registry details on a number of the loans”.He stated that he had applied pressure to Mr Volpe and Mr Cannon, whereupon there had been “full repayment of the loans with relevant interest” which meant that “investors were secure”.
<li>On 17 December 2007, KPMG signed the accounts and added a completion note using language such as “The risk of fraud increased to high as a result of the documentation issues surrounding the SPVs, where some form of fraud appeared to have been attempted”.In their audit report opinion, they stated “We have been unable to verify where funds advanced to the SPVs were invested.In addition, we were supplied with false documentation in relation to the SPVs which appears to have been a deliberate attempt to mislead us.Given these loans were repaid in the period, we consider that the effect of this is not so material and pervasive that we are unable to form an opinion on the financial statements [opting instead for express qualifications that loan and security documentation could not be validated] … There is uncertainty as to where the monies lent to the [SPVs] were then subsequently invested … Investigations continue to determine what party (or parties) were involved in and were accountable for these events, and whether any action should be taken against them …” (Lord Doherty paragraph [9]).
<li>By letter to HC dated 4 January 2008, KPMG gave serious warnings about their inability to validate loan and security documentation, and lack of evidence as to the purpose for which the money advanced to SPVs was applied.In their words:</li></ul>
<p>“ … Our report is designed to … avoid weaknesses that <i>could lead to material loss or misstatement. </i>However, it is your obligation to take the actions needed to remedy those weaknesses and should you fail to do so we shall not be held responsible <i>if loss or misstatement occurs as a result … </i>[Having explained the disappearance of the funds and the apparent repayments, on which legal advice had been received, KPMG warned] … these matters are extremely serious … an attempted fraud appears to have been perpetrated … We would recommend that the Board continue their investigation into this matter and formally document their decision as to whether or not to inform the criminal justice authorities …”
<ul>
<li>By email dated 28 March 2008 Mr Bourbon, a non‑executive director, weighed up the pros and cons of proceeding with further investigations as follows:</li></ul>
<p>“In my opinion there would be a significant cost racked up by David McGarry (sorry David McG please do not take this the wrong way) in reopening certain files and every likelihood that given the nature of their own risk committee that even more detailed work would follow which would ultimately present the same dead end that both David McGarry and the non executive directors have already discovered. David was the one who personally visited Glasgow and interviewed Frank Cannon for I believe 90 minutes …
<p>More importantly I think that neither the Board nor the Administrator would be able to find a good justification for incurring further costs when we already know that KPMG have accepted the situation and are continuing to act as auditor, you have a copy of the Bird Semple opinion, that the FSC’s in both IOM [Isle of Man] and Gibraltar are satisfied with the position, that as all loan notes were fully redeemed with interest no other Proper Authority has any appetite to conduct an investigation and finally every investor has received a full explanation and set of accounts and thus had the opportunity to vote with their feet! In actual fact we have if anything a waiting list of potential investors who wish to join …” <ul>
<li>On 6 June 2008, KPMG signed their audit report with qualifications concerning the SPV loans (Lord Doherty paragraph [9]).
<li>On 5 September 2008 and 12 May 2009, KPMG signed the accounts reports without audit qualifications (Lord Doherty paragraph [9]).
<li>In 2009, the Serious Fraud Office in England and Wales opened an inquiry into Mr Levene’s business affairs.He was subsequently charged with fraud and pled guilty (Condescendence 4).
<li>On 7 July 2010, the liquidator was appointed to HC (Condescendence 1).
<li>On 5 November 2012, Mr Levene was sentenced to 13 years imprisonment (Condescendence 4).</li></ul>
<p><b></b>
<p><b>Relevant legislation<br></b>[22] The Prescription and Limitation (Scotland) Act 1973 provides <i>inter alia:</i>
<p>“<b>6 Extinction of obligations by prescriptive periods of five years</b>
<ol>
<li>If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of five years –
<ol>
<li>without any relevant claim having been made in relation to the obligation, and
<li>without the subsistence of the obligation having been relevantly acknowledged,</li></ol></li></ol>
<p>then as from the expiration of that period the obligation shall be extinguished …
<ol>
<ol start="2">
<ol>
<li>Schedule 1 to this Act shall have effect for defining the obligations to which this section applies …</li></ol></ol></ol>
<p>(4) In the computation of a prescriptive period in relation to any obligation for the purposes of this section –
<ol>
<li>any period during which by reason of –
<ol>
<li>fraud on the part of the debtor or any person acting on his behalf, or
<li>error induced by words or conduct of the debtor or any person acting on his behalf, </li></ol></li></ol>
<p>the creditor was induced to refrain from making a relevant claim in relation to the obligation …
<p>shall not be reckoned as, or as part of, the prescriptive period:
<p>Provided that any period such as is mentioned in paragraph (a) of this subsection shall not include any time occurring after the creditor could with reasonable diligence have discovered the fraud or error, as the case may be, referred to in that paragraph …
<p><b></b>
<p><b></b>
<p><b>11 Obligations to make reparation</b>
<ol>
<li>Subject to subsections (2) and (3) below, any obligation (whether arising from any enactment, or from any rule of law or from, or by reason of any breach of a contract or promise) to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss injury or damage occurred …</li></ol>
<p>(3) In relation to a case where on the date referred to in subsection (1) above … the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred, the said subsection (1) shall have effect as if for the reference therein to that date there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware …
<p><b>Schedule 1</b>
<p><b>Obligations affected by prescriptive periods of five years under section 6</b>
<p>1 Subject to paragraph 2 below, section 6 of this Act applies – …
<ol>
<ol>
<li>to any obligation based on redress of unjustified enrichment, including without prejudice to that generality any obligation of restitution, repetition or recompense …</li></ol></ol>
<p>(d) to any obligation arising from liability (whether arising from any enactment or from any rule of law) to make reparation …
<p>(g) to any obligation arising from, or by reason of any breach of, a contract or promise, not being an obligation falling within any other provision of this paragraph.”
<p><b></b>
<p><b>Submissions<br></b>[23] Senior counsel’s submissions relating to the 5‑year prescription and sections 11(3) and 6(4) are noted below, in an abbreviated and paraphrased form. <p><b></b>
<p><b>Submissions for the liquidator (in both BP and LM cases) <br></b>[24] Lord Davidson QC submitted that HC’s averments were sufficient to engage section 11(3); Lord Doherty’s approach to section 6(4) should be preferred to Lord Tyre’s; BP and LM erred in their cross‑appeals in contending that HC’s averments disclosed (i) actual knowledge on the part of HC; and (ii) in the BP case, imputed knowledge on the part of HC <i>via </i>one of its directors (Volpe). They also erred in their assertion that, on HC’s averments, there had been no conduct on the part of BP and LM qualifying within section 6(4). In the result, each action should go to a proof before answer, all pleas standing (<i>Jamieson </i>v<i> Jamieson </i>1952 SC (HL) 44).
<p>[25] It was neither necessary nor appropriate to plead evidence (<i>John Doyle Construction Ltd </i>v <i>Laing Management (Scotland) Ltd </i>2004 SC 713 at pages 722‑723; Court of Session Practice Note No 6 of 2004 (Commercial Actions) paragraph 3(1); <i>Watson </i>v<i> Greater Glasgow Health Board </i>[2016] CSOH 93 at paragraphs 22‑23). <p><i></i>
<p><i>Section 11(3) and reasonable diligence <br></i>[26] HC averred sufficient reasonable diligence, including examining all avenues; involving accountants; complaining to criminal authorities and regulators; and investigations by non‑executive directors. Evidence likely to be led was set out in an appendix to HC’s Note of Argument. Mr King had concealed the true fraudulent scheme by his diversionary “cover story” involving Mr Volpe and possible fraud at the second level SPVs. But the level of reasonable diligence required was no higher because HC had been warned of an element of fraud.
<p>[27] The liquidator was appointed in 2010. He received the documents electronically in February 2011, and began to examine them. It took expert accountants and regulatory authorities such as the FCU considerable time to work out what had happened. Standing the complexity of matters, the difficulties being experienced by accountants and regulators, and the fictional fraud actively propagated by Mr King, it could not be suggested that the non‑executive directors of HC should have uncovered matters more promptly. The auditors’ letter of 4 January 2008 had been taken out of context and given too much weight.
<p>[28] Both Lords Ordinary had gone too far too fast. The BP pleadings had been amended following upon the debate before Lord Tyre, in particular enhancing the averments relating to reasonable diligence, which were now in effect common to both actions. Both BP and LM were entitled to proof, standing authorities such as <i>Peco Arts Inc </i>v <i>Hazlitt Gallery </i>[1983] 1 WLR 1315 at page 1323, and <i>Glasper </i>v <i>Rodger </i>1996 SLT 44 at page 48. Nothing in HC’s pleadings or the productions demonstrated that HC was aware that it had suffered loss. Senior counsel referred <i>inter alia</i> to the auditors’ qualifications and caveats in HC’s accounts; Mr Bourbon’s email of 28 March 2008; Mr McGarry of KPMG’s interview with the FSA; and KPMG’s sign‑off letter dated 28 May 2008. The averments relating to awareness and reasonable diligence were sufficient for a proof before answer.
<p><i>Section 6(4) and error induced <br></i>[29] Lord Doherty’s reasoning was to be preferred. “Conduct” included an omission or silence. In addition, in the BP case, Mr Wilson of BP had sent Abacus (HC’s administrator) the formal documentation relating to Bayhill, Brookhill, Hampsey and Bellwood, as if the transactions had been successfully completed. That was a positive action, in addition to silence.
<p>[30] As for <i>onus</i>, once HC established error induced, the onus shifted to the defender to prove the proviso in section 6(4): paragraph [10] of <i>Graham </i>v<i> E A Bell & Co </i>(Lord Hardie, unreported, 24 March 2000). The averments relating to section 6(4) were sufficient for a proof before answer.
<p><i>Awareness of loss <br></i>[31] Awareness of Mr King’s cover story did not amount to awareness of the real loss. Neither the letter of 4 January 2008, nor the settlement of the liquidator’s action against the non-executive directors, demonstrated an awareness of loss.
<p>[32] HC’s response to any argument based on <i>Gordon’s Trs </i>v <i>Campbell Riddell Breeze Paterson LLP </i>2016 SLT 580 was as follows: (i) HC had not paid for the auditors’ additional investigative work (a feeder company, Sargon, paid); (ii) no causal link between the defenders’ conduct and the alleged losses existed: HC had not sued the defenders in respect of any investigative expenditure, and that expenditure was unconnected to any breaches of duty on the part of the defenders: it was part of Mr King’s cover story.
<p>[33] In the result, HC had been unaware of any loss until after the appointment of the liquidator.
<p><i>Imputed knowledge <br></i>[34] BP had knowledge of the Bayhill, Brookhill, Hampsey and Bellwood transactions, but not of the WBP transaction. BP’s knowledge was therefore irrelevant in the LM case. In any event, BP’s knowledge should not be imputed to HC (Lord Hoffmann at pages 703e to 704a of <i>El Ajou </i>v<i> Dollar Land Holdings plc </i>[1994] 2 All ER 685).
<p>[35] Mr Volpe was a co‑conspirator (Condescendence 5). The knowledge of a criminal director should not be imputed to the company (<i>Bilta (UK) Ltd </i>v <i>Nazir (No 2) </i>[2016] AC 1, Lord Neuberger paragraph [7]).
<p><i>Result <br></i>[36] In conclusion, senior counsel submitted that both actions should be sent to a proof before answer, all pleas standing.
<p><b>Submissions for LM <br></b>[37] Mr Duncan QC for LM submitted that the liquidator’s reclaiming motion should be refused, and LM’s cross‑appeal allowed. Lord Doherty’s interlocutor of 31 August 2016 should be recalled, LM’s pleas‑in‑law 1, 2 and 6 sustained, and <i>absolvitor </i>granted (or alternatively if the “no loss” submission succeeded, dismissal).
<p><i></i>
<p><i>Awareness of loss: section 11(3) <br></i>[38] The 5‑year period began to run when HC was aware that it had suffered a loss (<i>Morrison & Co Ltd </i>v<i> ICL Plastics Ltd </i>2014 SC (UKSC) 222). A loss was suffered when a loan was made and inadequate (or no) security was given in return. It was irrelevant whether or not the loss might subsequently be reversed (<i>Jackson </i>v<i> Clydesdale Bank plc </i>2003 SLT 273 paragraphs [23] to [24]; <i>Heather Capital Limited </i>v<i> Burness Paull LLP </i>[2015] CSOH 15 paragraph [26]). <p><i></i>
<p><i>Actual knowledge <br></i>[39] When Mr King referred to “some sort of fraud” on 26 November 2007, HC was inevitably aware that it had suffered a loss in that it had advanced funds to an unknown and/or unsuitable borrower in circumstances suggestive of fraud, for an unknown purpose, without adequate security, and with an unverifiable destination for the funds (cf the earlier email dated 7 September 2007 from Mr McGarry of KPMG). Further, the auditors’ letter dated 4 January 2008 unequivocally advised HC that it had suffered a loss. The extent of the non-executive directors’ knowledge by that time was as detailed in the defence to the liquidator’s Isle of Man action against them. Lord Doherty erred in accepting that there was a distinction between fraud at first level SPVs and fraud at second level SPVs, as the first level SPVs were shell companies with no assets, and security for the loans came from the heritable securities granted by the second level SPVs.
<p>[40] In any event, HC had been obliged to incur additional cost and expense as a result of learning about the disappearance of the funds. HC had to instruct its auditors to do extra work; pay for a non‑executive director’s trip to Gibraltar to try to obtain information from Triay & Triay; instruct a legal opinion from Bird Semple, solicitors, about the apparent repayments. Those additional costs or liabilities were clearly known to HC, and they triggered the 5‑year prescription even if they might not have appeared to be a loss at the time (<i>Gordon’s Trs </i>v <i>Campbell Riddell Breeze Paterson LLP </i>2016 SLT 580). <p><i>Reasonable diligence: section 11(3) <br></i>[41] Lord Doherty was correct to exclude any reference to section 11(3). The auditors had urged HC to make investigations (for example, Mr McGarry’s email of 7 September 2007). The FSC had given similar advice (FSC’s letter dated 18 October 2007). The non-executive directors were told to find out “where the money went when it left HC”. In those circumstances, clear and specific averments of steps taken by HC were required before section 11(3) could be invoked (<i>Beveridge & Kellas WS </i>v<i> Abercromby </i>1997 SC 88; <i>Heather Capital Limited </i>v<i> Burness Paull LLP </i>[2015] CSOH 150, paragraph [30]). The lack of averment as to why inquiries had been made of Triay & Triay, solicitors, and Cannons, solicitors, but not of Burness Paull, solicitors (who acted in 4 out of the 12 transactions) whose partner Mr Scott Wilson would readily have disclosed the necessary information – in particular the destination of the funds – was fatal to HC’s case. BP was not questioned until 2012. HC’s averments in Condescendence 39 disclosed that £28.412 million had been “paid out to third parties, about whom no, or no proper, enquiries had been made, undocumented, and without security”. Why had HC not asked LM and BP where the money had gone? Bank records would have disclosed this. The auditors told the non‑executive directors that they must find out where the money went. But the solicitors were not asked. HC had been put on major alert (Answer 39), and yet had not made basic inquiries.
<p><i>Imputed knowledge <br></i>[42] LM did not rely on Mr Volpe’s knowledge, but on BP’s (as HC’s agents). That knowledge was to be imputed to HC, regardless of whether or not BP in fact communicated it (<i>Chapelcroft Limited </i>v<i> Invergordon Egg Producers Limited </i>1973 SLT (Notes) 37; <i>Adams </i>v<i> Thorntons WS (No 3) </i>2005 1 SC 30; <i>Blackburn Low & Co </i>v<i> Vigors </i>(1887) 12 App Cas 531; <i>Muir’s Exrs </i>v<i> Craig’s Trs </i>1913 SC 349; <i>Johnston, Prescription and Limitation </i>(2<sup>nd</sup> ed) at paragraph 6.89). On HC’s own averments in the action against BP, that knowledge would have led to their detecting and preventing the alleged fraud months before LM were instructed.
<p><i>Conclusion: </i>In conclusion, Lord Doherty had been right to conclude that section 11(3) of the 1970 Act could not assist HC.
<p><i>Error induced: section 6(4) <br></i>[43] Mr Duncan QC submitted that the onus of establishing reasonable diligence in terms of the proviso to section 6(4) lay on HC: cf Lord Penrose in paragraph 36 of <i>Adams </i>v<i> Thorntons WS </i>2005 1 SC 30; Lord Hope in <i>BP Exploration Operating Co Ltd </i>v<i> Chevron Transport (Scotland) </i>2002 SC (HL) 19. Lord Doherty’s contrary opinion (that the onus lay on LM) placed too much weight on an <i>obiter </i>observation of Lord Millett in the <i>BP Exploration </i>case (an observation not taken up by either Lord Hope or Lord Clyde) and relied on too narrow a reading of the <i>dicta </i>of Lord Penrose in <i>Adams </i>v <i>Thorntons WS </i>2005 1 SC 30. The onus lay squarely on HC. <p>[44] In their pleadings, HC focused on two alleged errors induced, namely (i) error as to the destination of the funds and (ii) error in being kept in ignorance of a possible claim against LM. However in relation to (i) while HC might have been under the erroneous misapprehension that the funds in question were destined for a particular first level SPV Westernbrook Properties Ltd (WBP) (Lord Doherty’s Opinion paragraph [5]), HC was disabused of that misapprehension by the letter of 4 January 2008 from its auditors KPMG, giving clear written advice to the effect that nothing could be verified about where the funds had gone; the source of the purported repayments was unknown; and further investigations were required. (ii) As for the second alleged error, that presupposed the existence of a duty to confess or a duty to tell on the part of LM: but there was no authority for such an alleged duty (<i>Maharaj </i>v<i> Johnson </i>[2015] PNLR 27; <i>Bell </i>v <i>Peter Browne & Co </i>[1990] 2 QB 495). If such a duty existed, the underlying cause of action would never prescribe. In any event, the directors had the necessary knowledge by January 2008.
<p>[45] Thus the attempt to invoke section 6(4) failed. Also the attempt to invoke the proviso to section 6(4) failed as HC could not demonstrate reasonable diligence (cf paragraph [41] above).
<p><i>Conclusion <br></i>[46] Lord Doherty was correct to exclude the averments relating to section 11(3), but had otherwise erred in the context of the short negative prescription. The interlocutor of 31 August 2016 should be recalled; LM’s sixth plea‑in‑law should be sustained to the effect that the defenders should be assoilzied from any claim for breach of contract, fault or negligence or assistance or fraud.
<p><b>Submissions for BP <br></b>[47] Mr Dunlop QC for BP adopted Mr Duncan’s submissions. Further, he submitted that there was a concurrence of <i>injuria </i>and <i>damnum </i>in 2006, as the payments were made in 2006 (<i>Dunlop </i>v<i> McGowans </i>1980 SC(HL)73). Yet the action against BP was not raised until October 2014 (with an amendment to the instance in the spring of 2015). Thus HC’s claims so far as directed to breach of contract, reparation, negligence, and dishonest assistance were extinguished by prescription in terms of section 6 and Schedule 1 of the 1973 Act, unless sections 11(3) and 6(4) applied.
<p><i>Imputed knowledge <br></i>[48] Mr Volpe was aware of everything. As the averments concerning his complicity were inadequate, HC could not rely upon the <i>dicta </i>of Lord Neuberger in <i>Bilta (UK) Ltd </i>v<i> Nazir (No 2) </i>2016 AC 1. HC was accordingly fixed with the relevant knowledge <i>via </i>Mr Volpe (Condescendence 5 at page 8B of BP reclaiming print; Condescendence 16 at page 26; Condescendence 20 at page 29).
<p>[49] <i>Esto </i>the court took a different view, Mr Dunlop submitted that everyone at HC knew that BP had actioned the payments. It would have been an easy matter to ask BP where the money had gone. In early December 2007 the auditors told HC that there was a problem. It was irrelevant that repayments were apparently made in May‑June 2007, or that Mr King told the board a cover story in November 2007. <i>Injuria </i>met <i>damnum </i>in 2006, and the 5‑year period began to run.
<p><i>Reasonable diligence: section 11(3) <br></i>[50] For section 11(3) to assist HC, HC had to demonstrate an excusable state of ignorance in 2009‑2010: but they could not do so. HC knew that BP had actioned the payments. When Scott Wilson, the banking partner of BP, was eventually asked in 2012 “to whom did you send the money”, he immediately and truthfully advised that he had sent the money to the destination he was told to send it, and gave full information. Had the question been asked earlier, the information would have been forthcoming. Against that background HC had not averred sufficient reason for the application of section 11(3). <p><i>Section 6(4) and error induced <br></i>[51] Mr Dunlop submitted that it was for HC to establish an error <i>induced by BP. </i>HC could not rely upon Mr King’s cover-up. On the averments, HC were advised by KPMG in 2007 that there was a problem. It was irrelevant that documentation had been sent to Abacus in 2006; or that in May‑June 2007 apparent repayments had been made; or that in November 2007 Mr King told HC’s board a misleading cover story. HC could not claim that any error on their part had been induced by BP: to do so would require a principle in law that the 5‑year prescription would not start to run until the solicitor <i>ex proprio motu </i>volunteered information about where the money had been sent. But there was no authority for such a proposition. Lord Doherty was correct in his statement of the law in <i>Trustees of Rex Proctor & Partners Retirement Benefits Scheme </i>[2015] CSOH 83 at paragraph [207] and Lord Tyre was correct to agree with him on that matter; see too <i>Maharaj </i>v<i> Johnson </i>[2015] PNLR 27.
<p>[52] As for the proviso to section 6(4), i.e. demonstrating reasonable diligence in discovering where the money went, HC could not satisfy that test for the same reasons as those relating to section 11(3).
<p>[53] On the averments, therefore, HC was unable to pray in aid section 6(4).
<p><i></i>
<p><i>Conclusion <br></i>[54] Lord Tyre had not erred. The court should adhere to his interlocutor of 6 November 2015.
<p><b></b>
<p><b>Reply for the liquidator<br></b>[55]<i> Inter alia, </i>senior counsel pointed out that HC had not averred that it had suffered loss by incurring extra investigative costs as a result of any breach of duty on the part of the defenders (contrast with the circumstances in <i>Gordon’s Trs </i>v <i>Campbell Riddell Breeze Paterson LLP </i>2016 SLT 580). The <i>ratio </i>in <i>Gordon’s Trs </i>could not therefore assist the defenders.
<p><b>Discussion<br></b><i>Awareness of loss and section 11(3) <br></i>[56] The actions were raised in 2014. As noted in paragraph [14] above, HC avers that the date of “actual knowledge of loss” was 17 April 2012 (in the BP case) and 31 August 2012 (in the LM case). Nevertheless, it is not disputed that, as a matter of law, <i>damnum </i>met <i>injuria </i>when large amounts of HC’s investment funds were diverted away from their proper destinations into unknown hands for unknown purposes for a period of time. As senior counsel for LM submitted, in the context of a claim by a lender, loss is suffered when the lender advances funds and receives in exchange a bundle of rights less valuable than that which was anticipated, typically by reason of a defective or inadequate security. The prospect that the borrower might nevertheless repay notwithstanding the lack of security does not prevent the loss being suffered. Thus, on a proper application of the 5‑year prescription to the undisputed facts, and subject to section 11(3), the <i>terminus a quo</i> was agreed by counsel to be 2006 in the BP case (Lord Tyre, paragraph 21) and 2007 in the LM case (Lord Doherty, paragraphs 14 and 32). <p>[57] In those circumstances, senior counsel for HC accepted that the burden lay upon HC to aver, and in due course establish, that HC had brought itself within the terms of section 11(3). LM and BP contended that HC was given “unequivocal advice that it had suffered loss” more than 5 years before the raising of the actions. HC in its pleadings denies having been given such advice. Even if we take into account the terms of the email of 7 September 2007 and/or the letter of 4 January 2008, and indeed any other production to which we were referred (as distinct from the averments or any documents agreed by parties), whether individually or taken together, we are not persuaded that we can be satisfied that HC was unequivocally advised more than five years before raising the actions that it had suffered loss. We accept that HC’s averments are to the effect that HC was given repeated warnings that a very serious situation had arisen; that there had been questionable activities and unknown uses of the company’s investment funds during a period when the monies could not be traced, which “could lead to material loss”; and that further investigation by the company should be carried out. But it could equally be argued that HC was not in fact, and could not with reasonable diligence have been, aware of any loss to the company until the liquidator and his team managed to disentangle matters and to identify a loss of millions of pounds that HC had indeed suffered. Much may depend upon the evidence adduced in relation to these matters.
<p>[58] However even if HC can establish that it was not aware, and could not with reasonable diligence have been aware, of any loss represented by the diversion of the company’s funds, such an argument might be fatally undermined by HC’s averments appearing to acknowledge that, in 2006 and 2007, HC incurred liability for costs which would not otherwise have been incurred but for the questionable events of those years. In particular, on HC’s averments as they stand, it can be seen that HC appears to have incurred liability for (i) fees charged by the auditors KPMG in respect of additional work (including, for example, a special full scope audit; a special nine month audit; and Mr McGarry of KPMG conducting a long interview with the solicitor Mr Cannon); (ii) the costs of a non‑executive director’s (Mr Bourbon’s) investigative trip to Gibraltar to interview Triay & Triay about the suspicious events; and (iii) the liability incurred in respect of the legal opinion obtained from Bird Semple on the question whether the apparent “repayments” could be treated as such, without the risk of being claimed by a third party on the basis of a constructive trust. Applying the recent guidance given by the Supreme Court in <i>Morrison & Co Ltd </i>v <i>ICL Plastics Ltd </i>2014 SC (UKSC) 222 (as was done in <i>Gordon’s Trs </i>v<i> Campbell Riddell Breeze Paterson LLP </i>2016 SLT 580), it is the defenders’ contention that HC’s pleadings in both the LM case and the BP case disclose HC’s awareness in 2007 of those costs (or one or other of them). The defenders submit that, as the law currently stands, it is irrelevant that such expenditure might not have been seen by HC’s non‑executive directors as a “loss” at the time. It is also irrelevant that HC has not claimed damages for such losses in the present actions: the averments relating to these apparent additional costs are on record, and in the context of prescription, they <i>prima facie </i>disclose liability for those losses being incurred by HC. <p>[59] Nevertheless senior counsel for HC disputed the correctness of such an approach: see paragraphs [32] and [33] above. It was said that another party had paid the cost of additional investigative audit work. It was contended that the costs were not being sued for, and were not considered to be costs or expenses arising from any breach of duty on the part of the current defenders. Thus it was submitted that HC had not suffered any such loss in 2007.
<p>[60] In my opinion, this disputed issue calls for a proof before answer on the question of any loss suffered by HC as a result of any additional costs and outlays incurred in 2007. If, after evidence and submissions, it is established that HC did indeed incur costs or outlays in 2007 which would qualify as “loss” caused by any breach on the part of the defenders, and if it is established that HC was aware of those costs, the averments in Condescendence 5 to the effect that HC “could not with reasonable diligence have been aware that loss … had occurred” would appear to be of little assistance to HC. An element of HC’s loss would be the otherwise unnecessary expenditure referred to above, of which HC was presumably fully aware in 2007. Applying <i>Morrison </i>and <i>Gordon’s Trs, </i>it would arguably be irrelevant that the main bulk of HC’s loss was only discovered some years later (in 2012, or at the earliest, February 2011).
<p>[61] The fairness or unfairness of such an approach might be a matter for debate (cf <i>dicta </i>of Lord Malcolm in <i>Gordon’s Trs, </i>paragraphs [21] to [24]; Scottish Law Commission Discussion Paper on Prescription No 160, February 2016, Chapters 3 to 5, and in particular paragraphs 3.17 and 4.21; <i>Johnston, Prescription and Limitation </i>(2<sup>nd</sup> ed) paragraph 6.94, final paragraph). But it is a matter requiring exploration of both facts and law before any final view can be formed.
<p><i></i>
<p><i>Error induced and section 6(4) <br></i>[62] On the basis of HC’s pleadings, properly construed, HC’s error was a compound one, including in my opinion the following components:
<ul>
<li>An erroneous assumption that solicitors would act in accordance with their normal professional standards and practices, and would not, for example, send a client’s funds to a third party who was not the intended recipient in the transaction, about whom little was known, without any clearcommercial rationale, without adequate documentation and security, and without intimating to the client that the funds had in fact been paid to someone other than the expected recipient (with whom all the formal documentation and security had been completed).
<li>An erroneous assumption that the relevant funds had indeed been paid to the appropriate first level SPVs (an assumption not necessarily contradicted by the auditors’ reports of problems in 2007, as the auditors were focusing upon the discrepancies and lack of documentation at the second level SPVs).
<li>An erroneous conclusion that HC appeared to have suffered no significant loss as a result of the funds being untraceable for a period, followed by the apparent repayment of the funds or their equivalent, with interest.
<li>HC’s conclusion (based to some extent upon the errors outlined above) that all relevant avenues of investigation appropriate to an investment company such as HC had been pursued, and that it was neither necessary nor profitable for HC to investigate further, or to try to ascertain exactly what had happened.
<li>HC’s lack of awareness that it might have a claim against its own solicitors BP and LM (cf <i>Johnston, Prescription and Limitation </i>(2<sup>nd</sup> ed) paragraph 6.108, second paragraph).</li></ul>
<p>[63] “Conduct” is not defined in the 1973 Act. The approach to section 6(4) adopted by the courts suggests that the word should not be construed in a narrow or restrictive way: see for example Lord Hope (paragraphs [29] to [33]), Lord Clyde (paragraphs [66] to [67]), and Lord Millett (paragraph [100]) in <i>BP Exploration Operating Co Ltd </i>v<i> Chevron Transport (Scotland) </i>2002 SC (HL) 19; Lord Drummond Young at paragraph [20] of <i>Dryburgh </i>v<i> Scotts Media Tax Ltd </i>2014 SC 651; Lord Penrose at paragraph [68] <i>seriatim </i>in <i>Adams </i>v<i> Thorntons WS </i>2005 SC 30; Lord Emslie at paragraphs [75] to [78] of <i>ANM Group Ltd </i>v<i> Gilcomston North Ltd </i>2008 SLT 835; Lord Doherty at paragraphs [44] to [46] of <i>Heather Capital Limited </i>v <i>Levy & McRae </i>[2016] CSOH 107; and <i>Johnston, Prescription and Limitation </i>(2<sup>nd</sup> ed) paragraph 6.108. Adopting that approach, it is my opinion that relevant conduct in the context of prescription may be active or passive. It may involve positive action, but equally, in certain circumstances, it may involve a silence or a lack of action. The conduct need not be deliberate, or blameworthy, or careless, or be carried out with any particular motive such as deception or concealment: Lord Emslie in <i>ANM Group Ltd cit sup, </i>paragraph [75]; <i>Johnston,</i> paragraph 6.124. The conduct does not have to constitute a crime or a breach of duty (whether contractual or delictual or fiduciary): <i>Johnston, </i>paragraph 6.108, fourth paragraph. The conduct does not require to be the sole cause of the error: Lord Emslie in <i>ANM Group Ltd, </i>paragraph [75]; <i>Johnston, </i>paragraph 6.107, second bullet point. <p>[64] It follows from the above that the relevant question, in my opinion, is simply whether any conduct on the part of the solicitors concerned, viewed objectively, induced or contributed to inducing some or all of the error as defined above, with the result that HC refrained (in the broad sense explained in <i>BP Exploration</i>) from making any claim against the solicitors.
<p>[65] On a proper construction of HC’s pleadings, and for the reasons set out in paragraphs [66] to [69] below, I consider that there are sufficient relevant averments of error induced by the conduct of BP, entitling HC to a proof before answer on the question of the suspension of the 5‑year period<i> </i>in terms of section 6(4). I also consider that there are sufficient relevant averments of error induced by the conduct of LM, entitling HC to a proof before answer on the question of the suspension of the 5‑year period<i> </i>in terms of section 6(4).
<p>[66] In the BP case, the averments are to the effect that HC erroneously assumed that the funds had been properly and regularly transferred to the intended recipients namely Bayhill, Brookhill, Hampsey and Bellwood, with all the necessary formal documentation such as debentures duly completed and delivered. HC’s position is that BP’s conduct contributed to that erroneous assumption, as on the averments BP gave HC no indication that the funds had, unexpectedly, been transferred to other destinations, unaccompanied by the necessary documentation or security. Even if BP themselves were tricked or misled into such actions by Mr King or Mr Volpe or anyone on their behalf, and even if BP thought that they were properly carrying out clear instructions from an appropriate source, it is in my opinion arguable, depending on what facts are proved, that BP’s own conduct induced, or contributed to inducing, the error on the part of HC.
<p>[67] It will be seen that it is my opinion that silence on the part of BP, or their lack of intimation to or communication with HC (ie not telling HC that the funds had in fact been transferred to destinations other than the intended recipients) could qualify as “conduct” inducing error on the part of HC, as defined in paragraph [62] above.
<p>[68] Furthermore in the BP case, there was an additional factor: it is averred that Mr Wilson of BP sent the completed formal documentation relating to Bayhill, Brookhill, Hampsey and Bellwood to Abacus, HC’s administrator, as if all had gone well and the transactions with the four first level SPVs (Bayhill, Brookhill, Hampsey and Bellwood), had been successfully and properly carried out, leaving HC in possession of appropriate documentation and security. If established as a fact, that would amount to a positive act, and if that act contributed to HC’s error, it would be a relevant factor in terms of section 6(4).
<p>[69] In the LM case, the observations and conclusions in paragraphs [66] to [67] above apply, <i>mutatis mutandis, </i>but without the additional positive act of sending the completed formal documentation to Abacus. I also agree with and adopt the reasoning of Lord Doherty in paragraphs [42] <i>et seq </i>of <i>Heather Capital Limited </i>v<i> Levy & McRae </i>[2016] CSOH 107.
<p>[70] In the result, it is my opinion that it cannot be said in either case, on the basis of HC’s averments, that HC is bound to fail when seeking to rely upon section 6(4) (the test set out in <i>Jamieson </i>v<i> Jamieson </i>1952 SC (HL) 44).
<p><i>Reasonable diligence <br></i>[71] The question of reasonable diligence on the part of HC remains a live issue, certainly in the context of the proviso to section 6(4), but possibly also in the context of section 11(3), depending upon the answer to the question whether HC suffered any loss as a result of additional costs and outlays incurred in 2007 (see paragraph [60] above).
<p>[72] I consider that HC’s averments are sufficient to entitle it to a proof before answer on the question of reasonable diligence. Bearing in mind the guidance given by Webster J in <i>Peco Arts Inc </i>v<i> Hazlitt Gallery Ltd </i>[1983] 1 WLR 1315 at page 1323, and applying that guidance <i>mutatis mutandis </i>to the present case, the issue becomes whether HC did what “an ordinary prudent [company and its directors] would do having regard to all the circumstances”. Although the word used in section 6(4) is “could”, it is qualified by the phrase “with reasonable diligence”. Thus, as was pointed out in <i>Peco Arts Inc:</i>
<p>“ …reasonable diligence means not the doing of everything possible, not necessarily the using of any means at the plaintiff’s disposal, not even necessarily the doing of anything at all, but it means the doing of that which an ordinary prudent [company and its directors] would do having regard to all the circumstances …” <p>That approach was adopted by Lord President Hope in <i>Glasper </i>v<i> Rodger </i>1996 SLT 44 at page 48; see too <i>Johnston, Prescription and Limitation </i>(2<sup>nd</sup> ed) paragraph 6.100 <i>et seq.</i>
<p>[73] Accordingly the relevant question is: what was reasonable for HC and its directors in the particular circumstances of the case?
<p>[74] The averments in the BP case (Condescendence 48 and 5 <i>as amended</i>, and thus containing averments which were not before Lord Tyre) are as follows:
<p>“48 … neither the board of directors of HC nor the liquidator upon his appointment were aware, nor could they with reasonable diligence have been aware or discovered, at any point prior to the liquidator’s appointment, that HC suffered loss, injury or damage as condescended on above …
<p>5 … all avenues of enquiry were considered to have been pursued by HC’s board of directors. These avenues included (i) John Bourbon meeting with KPMG to discuss how the matter could be investigated further in or around September 2007; (ii) John Bourbon attempting to arrange various meetings with Santo Volpe to discuss the SPV loans and obtain the information required by KPMG in or around September 2007. Santo Volpe declined to meet with John Bourbon; (iii) John Bourbon meeting Joseph ‘Melo’ Triay of Triay & Triay in Gibraltar to obtain further information about the loans in September 2007. Joseph ‘Melo’ Triay refused to provide access to the books or records of the first level SPVs on the basis that HC did not own or control the first level SPVs. He falsely stated that Santo Volpe was the beneficial owner of the first level SPVs and had not authorised the disclosure of documents. Gregory King e-mailed Santo Volpe on 27 September 2007 stating that Joseph ‘Melo’ Triay had ‘played a blinder for us’; (iv) John Bourbon, Andrew Beeman and Andrew Ashworth attending a meeting with the Isle of Man Financial Services Commission to discuss the matter in or around October 2007; (v) seeking to obtain further information from Gregory King and Andrew Millar about the SPV loans, and (vi) sending a ‘Disclosure’ of [suspicious] activity to the Isle of Man Financial Crime Unit in respect of Mr Volpe in or around October 2007 … These enquiries amounted to reasonable diligence in the circumstances of this case. These enquiries did not disclose the existence of a loss …”
<p>[75] The averments in the LM case (Condescendence 39 and 5) are as follows:
<p>“39 … the auditors had informed the relevant board of directors of HC that no loss had occurred and confirmed the position in subsequent years.
<p>5 … all avenues of enquiry were considered to have been pursued by HC’s board of directors, including discussing matters with the FSC and making disclosure to the FCU; meeting with KPMG to discuss how the issue could be further investigated; obtaining legal advice; and seeking to obtain further information from <i>inter alia </i>Gregory King, Santo Volpe and Triay & Triay. These enquiries amounted to reasonable diligence in the circumstances of this case. HC’s board of directors, Abacus and KPMG believed that whilst there had been irregularities with the securities granted by the Second Level SPVs and as explained in the letter from Gregory King to the board of directors of HC dated 26 November 2007 that ‘some form of fraud had been deliberately introduced with invalid land registry details’, the funds advanced had been repaid in full, with interest, and HC had not suffered a loss. HC’s board of directors’ understanding was supported by KPMG’s investigations. KPMG verified HC’s accounts as reflecting a true and fair view of HC’s financial conditions. This remained KPMG’s position in subsequent reports. In those circumstances, the board of directors of HC were not, and could not with reasonable diligence, have been aware that HC had suffered a loss until after the appointment of the Liquidator. The true destination of these funds was confirmed on 31 August 2012. From the date of his appointment the Liquidator (assisted by staff from the Fraud Investigations and Dispute Service at Ernst & Young LLP) sought to reconstruct HC’s affairs and so account for the losses HC and its investors sustained. This process of identifying the destination of the funds commenced in February 2011. This included a detailed review of electronic documentation recovered from various sources. In around June 2012, the Liquidator’s team identified documents which indicated that the payments to WBP had not been on lent to the Second Level SPVs but had instead been paid to Niblick [a Panamanian company owned by Mr Levene] and Hassans [Gibraltar, under reference “Rosecliff Limited”, a company owned by Mr King]. This was only confirmed on 31 August 2012, when [LM] produced copies of its client ledger to the Liquidator as part of a response to a request for information made by the Liquidator under section 236 of the Insolvency Act 1986. The ledger produced showed that the funds paid to the defenders by HC had been paid to Niblick and to Hassans … ”
<p>[76] In my opinion, the averments in each action (which seek to record a complex factual situation) are, in the particular circumstances of each case, sufficient for a proof before answer on the question of reasonable diligence. The context is that of prudent company directors whose primary purpose was to operate a profitable commercial concern. It is at least arguable that their paramount goals and duties in the circumstances were to ascertain whether the company had suffered an actual identifiable loss; to attempt as best they could (with the assistance of their auditors) to understand what had happened, particularly with a view to preventing repetition; to reorganise staff and procedures as necessary to avoid repetition; to continue running the business of the company with a view to making profits; and to report any questionable or apparently criminal or fraudulent activities to the appropriate public authorities such as the Isle of Man Financial Services Commission (FSC) and the Isle of Man Financial Crime Unit (FCU). While some might adopt the position that the directors could and should have followed the advice given in Mr McGarry’s email of 7 September 2007 (thus devoting staff and resources to obtaining “all possible evidence regarding the movement of monies out of Heather Capital into these SPVs and onwards to whatever purpose the funds were applied – ie sight of bank statements, payment/remittance instructions, certified extracts from solicitors clients’ money accounts etc”), it is at least arguable that in circumstances where no significant loss to HC had apparently been identified, the advisability of devoting significant company time and resources to the company’s own investigations with a view to ascertaining with greater certainty what had occurred had to be weighed against the company’s primary purpose, namely the making of profits for its investors and shareholders. When weighing up these matters, it must be remembered that HC and its directors are averred to have been actively misled by their own executive director Mr King, whom on the averments they had no reason to distrust. Furthermore, as averred, the auditors’ focus was upon problems at the second level SPVs, and not upon any apparent diversion of funds at the first level SPVs. Against that background, HC had to assess whether and to what extent the resources of a commercial investment company should properly be devoted to what appeared to be an open-ended investigation of some complexity. In this context, I consider that it is instructive to note that the liquidator, assisted by a team from the Fraud Investigations and Dispute Service in Ernst & Young LLP, did not discover certain critical facts about what had happened to HC’s funds until 2012.
<p>[77] In the result, it is my opinion that sufficient has been averred to entitle HC to a proof before answer on the question of reasonable diligence. I therefore agree with the conclusion reached by Lord Doherty. Questions of onus in respect of the proviso to section 6(4) are best addressed once evidence has been led (cf <i>Johnston, Prescription and Limitation </i>(2<sup>nd</sup> ed) paragraphs 6.109 to 6.110; Lord Hardie at paragraph [10] of <i>Graham </i>v<i> Bell, </i>24 March 2000 (unreported), referring to a shifting onus, depending on the evidence).
<p><i>Imputed knowledge <br></i>[78] As a proof before answer at large is required, any question of imputed knowledge would also, in my opinion, be more appropriately addressed once evidence has been led.
<p><b></b>
<p><b>Decision and further procedure <br></b><i>A proof before answer (not a preliminary proof before answer)</i><br>[79] In the light of the possible significance of any additional costs and expenses incurred by HC in 2007 (paragraphs [58] to [61] above), it might be thought that a preliminary proof before answer on that issue would be an expeditious way forward. However there remain live issues in relation to section 6(4) and the question of reasonable diligence: the wording of section 6(4) is such that it is unaffected by the <i>ratio </i>in <i>Morrison & Co Ltd </i>v<i> ICL Plastics Ltd </i>2014 SC (UKSC) 222, in that for the purposes of assessing error induced in terms of that subsection it is relevant that the creditor has been left “entirely unaware that he might have a claim [against a particular person], and he had never so much as considered claiming” (cf <i>Thorn EMI Ltd </i>v<i> Taylor Woodrow Industrial Estates Ltd, </i>Lord Murray, 29 October 1982, unreported, approved in <i>BP Exploration, </i>2002 SC (HL) 19 at paragraph [32], and referred to in <i>Johnston, Prescription and Limitation </i>(2<sup>nd</sup> ed) paragraph 6.108 second paragraph). Thus even if the defenders succeed in relation to section 11(3), it seems to me that the issues concerning section 6(4) and its proviso of reasonable diligence would require to be explored: and those issues cover much of the material in the case. Similarly it is my opinion that a proof on the issue of prescription alone, possibly (depending on the initial outcome) followed by a proof before answer on the merits, would result in an unwelcome duplication of evidence and expense.
<p><i>Trust issues and the 20‑year long negative prescription <br></i>[80] On the view which I have reached, I consider that it would be premature and inappropriate to explore any trust issues at this stage, prior to a proof before answer. If the 20‑year prescription applies to a trust obligation, such a trust obligation has not yet been extinguished by prescription. If any trust obligation is affected by the 5-year prescription (a matter which may be in dispute), the conclusion reached in the present opinion means that the extinction or otherwise of such an obligation will form part of the proof before answer at large. It is therefore unnecessary to consider trust matters at this stage. <p><i>Ultimate decision <br></i>[81] For the reasons given above, I propose that we allow the reclaiming motions; refuse the cross‑appeals; recall the interlocutors of the Lords Ordinary; in each case allow a proof before answer at large, all pleas standing; remit the cases to the Outer House to proceed as accords; and meantime continue any question of the expenses of the reclaiming motions and cross-appeals.
<p><b>EXTRA DIVISION, INNER HOUSE, COURT OF SESSION</b>
<p><b>[2017] CSIH 19</b>
<p>CA207/14 and CA208/14
<p>Lady Paton Lady Clark of Calton Lord Glennie
<p>OPINION OF LADY CLARK OF CALTON
<p>in the cause
<p>HEATHER CAPITAL LIMITED (in liquidation) and PAUL DUFFY (as liquidator) <u>Pursuer and Reclaimer</u>
<p>against LEVY & McRAE and others <u>Defenders and Respondents</u>
<p>and
<p>HEATHER CAPITAL LIMITED (in liquidation) and PAUL DUFFY (as liquidator) <u>Pursuer and Reclaimer</u>
<p>against
<p>BURNESS PAULL LLP <u>Defender and respondent </u><b>Pursuer and reclaimer: Lord Davidson of Glen Clova QC, Tariq; </b>
<p><b>Shepherd & Wedderburn LLP </b><b>Defenders and respondents (Levy & McRae): Duncan QC, Brown; </b>
<p><b>Clyde & Co (Scotland) LLP </b><b>Defender and respondent (Burness Paull LLP): Dunlop QC, C Paterson; </b><b>Messrs CMS Cameron McKenna LLP</b>
<p><u>28 February 2017</u>
<p><b>Summary<br></b>[82] In a separate Opinion, Lady Paton sets out the context of the two actions in which the liquidator of HC sues two firms of solicitors, LM and BP. Lady Paton considers in detail whether issues relating to prescription focused in the pleadings can be resolved without proof. I agree with her reasoning and decision which she sets out in her opinion.
<p><b></b>
<p><b>The relevancy of the averments of loss by HC<br></b>[83] I have chosen to consider in some detail a different but connected issue which arises in the cross appeals on behalf of LM and BP as to whether there are sufficient relevant averments of any loss suffered by HC to go to proof.
<p>[84] The factual averments in relation to loss made by HC in the actions against LM and BP are different but neither counsel for LM or BP submitted that any argument relied on by them depended on any factual averments, specific to one case, to distinguish the position of the respondents in relation to the averments of loss. In their submissions to this court, the challenge to the averments of loss was dealt with in oral submission only by counsel for BP<i>. </i>These submissions were also given prominence by counsel in the BP case when presenting the case to Lord Tyre. Counsel for LM adopted the oral submissions made by counsel for BP and the written submissions by counsel for LM were consistent with that. I consider, therefore, that this dispute can best be examined in the context of the submissions and pleadings in the BP case. <p><b>Submissions by Counsel for BP</b><i><br></i>[85] Counsel for BP directed attention to Articles 5, 27A and 27B of the averments by HC. He submitted that there are express averments by HC that the sums loaned to various companies namely Bayhill, Brookhill, Hampsey and Bellwood were repaid by companies Mathon and Bathon during April and June 2007. Said sums were treated as repayments of said loans in HC’s financial statements. It is wrong to describe the repayments as “purported” as set out in the pleadings by HC. What is averred is not purported but actual payments. Relying on <i>National Commercial Bank</i> v <i>Millars</i> <i>Trustee </i>1964 SLT (Notes) 57 and <i>Capital Homes Ltd</i> v <i>Countrywide Surveyors Ltd</i> [2011] 3 EGLR 153, counsel submitted that properly interpreted what is averred by HC is appropriation by HC and consequent extinction of the debt, that is, monies advanced in respect of the Bayhill, Brookhill, Hampsey and Bellwood transactions. Counsel also referred to <i>Heather Capital Limited (in liquidation) </i>v <i>KPMG Audit LLC</i> (unreported). He submitted in that litigation against the auditors of HC, there is an acceptance on behalf of HC that there was repayment.
<p>[86] Counsel was critical of the reasoning of Lord Tyre in his considerations of the criticisms of the relevancy of the pleadings about loss. Lord Tyre stated in paragraph 20:
<p>“I reject this contention. The authorities referred to are clearly distinguishable because they are not concerned with fraudulent conduct. According to the pursuer’s averments in the present case, the loans to Mathon and Bathon were fictitious. Their effect was that money went round in a circle and left the pursuer no better off than it had been after the fund recorded as destined for Bayhill, Brookhill, Hampsey and Bellwood had been paid out. The apparent ‘repayment’ was accordingly nothing of the sort. It was no more than an attempt to conceal the frauds alleged by the pursuer to have occurred when instructions were issued and accepted by the defenders to make payment to persons other than Bayhill and the others. The defenders are not being sued for repayment but for damages for loss caused by the facilitation of fraud, and are not therefore, in my view entitled to be treated in the same way as one of the SPVs would have been, if sued after receipt of the funds from Cannons. The pursuer’s case, which I regard as relevantly made, is that the loss sustained when the funds were originally diverted was not recovered by the subsequent attempt at concealment.”
<p>[87] Counsel submitted that Lord Tyre erred in distinguishing the authorities of <i>National Commercial Bank</i> <i>of Scotland </i>and <i>Capital Home Ltd</i> on the basis that they were not concerned with fraudulent conduct. There are no averments by HC in relation to Mathon or Bathon’s involvement in any fraud. On the averments, any loss is the loss of Mathon or Bathon, not HC. Actual money in excess of 7 million was actually paid by Mathon and Bathon to HC and this equated to the sum released by BP from the client account. There are no averments that HC required to repay Mathon and Bathon and indeed any such requirement to repay would have prescribed. Counsel further submitted that the Lord Ordinary erred in drawing support for his conclusion from the fact that BP is being sued for damages and not repayment as this overlooks a major part of the case advanced by HC which is based on breach of trust for which HC are seeking repayment.
<p><b>Submissions by Counsel for LM<br></b>[88] The written submissions by counsel for LM pray in aid <i>National Commercial Bank of Scotland Ltd</i> and <i>Capital Home Loans Ltd</i> in support of the contention that the averments made are predicated upon a false proposition that HC never received any repayment of the sums it advanced to the company Westernbrook. It is averred that Cannons, solicitors on behalf of Westernbrook, repaid the sums in full and this was recorded in the books of HC. It is averred that HC delivered an executed discharge and the directors of HC took legal advice as to the entitlement to treat the funds received in that manner. Cannons received the money from a company Bathon. On the averments of HC, any loss suffered is a loss to Bathon as it was Bathon who made repayment on behalf of the company Westernbrook. It is further submitted that if the loss averred is a loss attributable to HC, it arises from the decision by HC to lend to Bathon which is not the basis of the action pursued against LM.
<p><b>Submissions by Counsel for HC<br></b>[89] Counsel for HC<i> </i>did not attempt in oral or written submissions to focus the issues in dispute about loss by reference to any detailed analysis of the pleadings. In relation to the criticisms about the averments of loss by HC in both cases, he submitted that Lord Tyre gave a correct and sound analysis at paragraph 20 of his opinion. He founded upon that. Lord Tyre correctly concluded that the cases relied on by counsel for LM and BP are distinguishable in that in both cases a complex fraud of a similar nature is averred by HC. Counsel submitted that both Lord Tyre and Lord Doherty were correct to reject the submissions that no loss had been relevantly averred by HC.
<p><b>Decision and reasons in relation to the relevancy of the pleadings about loss<br></b>[90] Counsel for BP invited the court to focus on Articles 5, 27A and 27B but I consider that is too narrow a focus. The pleadings in said Articles require to be seen in the context of the full case pled and developed by HC in order to understand the nature of the fraud. It is averred in Article 4 of condescendence that:
<p>“During the period of its operation, HC and its investors were defrauded by the diversion of invested funds exceeding £90 million, under the guise of fictitious loans to various shelf companies incorporated in Gibraltar. This sum includes the sum sued for in the present action. The mechanism of the fraud was essentially the same in each case,. A number of companies, owned and/or controlled by Gregory King, were incorporated in Gibraltar. HC then entered into a number of credit facility agreements with these companies (the ‘First Level Special Purpose Vehicles’ (or the ‘First Level SPVs’)), each agreement secured by a debenture. On the information available to it, HC recorded these loans in its books of account as loans to the First Level SPVs in question. In fact, the money was never paid to them. It was instead paid out of the client accounts in which it had been deposited, undocumented and without security, to third parties (typically on the basis of instructions from persons with no authority to give them, for example John Caulfield). In most cases, the third party recipient was a man named Nicholas Levene or companies owned and controlled by him. None of it was consistent with the strategy and principles set out in the investment particulars. In 2009, the Serious Fraud Office opened an inquiry into Mr Levene’s business affairs, as a result of which he was charged with, and pleaded guilty to, fourteen counts of fraud, false accounting and obtaining money by deception. On 5 November 2012, he was sentenced to thirteen years’ imprisonment…”
<p>Further specification of the allegations including alleged wrongful acts and omissions by BP, are set out in Articles 5-31 of condescendence. Article 5 sets out averments about loans, alleged to be fictitious, to Bayhill, Brookhill, Hampsey and Bellwood and the steps taken to create the false impression that the fictitious loans had been repaid between April and June 2007 by these companies. In Articles 27A and 27B there are specific averments about payments, using HC<i> </i>funds transferred from HC to Mathon and Bathon, to make “repayments due” from Bayhill, Brookhill, Hampsey and Bellwood. <p>[91] In relation to the averments of loss, in summary HC offer to prove <i>inter alia</i>; that HC money was paid into their client account at BP; a false impression was created that secured loans had been made to and repaid by four companies namely Bayhill, Brookhill, Hampsey and Bellwood; no money was paid out of the HC<i> </i>client account by BP to these companies; instead BP wrongfully paid in excess of £7 million without any security to a third party, Mr Levene; there are no averments by HC that any repayment was made by Mr Levene or on his behalf; there is a general denial of the respondents’ averment in answer 5 that the monies paid out by HC and forming the basis of the claim were in fact repaid to HC.
<p>[92] In support of his submission that the pleadings about loss were irrelevant, counsel relied mainly on <i>National Commercial Bank of Scotland </i>and <i>Capital Home Loans Limited. </i>I do not consider that these cases support the submission made. The pleadings in both actions raised by HC<i> </i>are grounded in averments based on the relationship between HC and their solicitors, LM and BP<i>. </i>I am not persuaded that relationship equates to the relationship of banker (lender) and customer (debtor) and the special rules which may apply in such a relationship.
<p>[93] In any event, even if the special rules do apply, it is difficult to understand how the principles relating to appropriation of debt payments in a creditor/debtor relationship have relevance to the averments in this case. I note that according to the averments, the creditor is HC and the debtor, who received the money, is Mr Levene; the Bayhill, Brookhill, Hampsey and Bellwood companies owed no money to HC as BP did not pay money to them but to Mr Levene; HC make no averments that the debtor, Mr Levene, repaid any money to HC or that anyone else repaid money on his behalf. I do not consider that the averments to the effect that payments to HC were credited as repayments by said companies to HC in the accounts of HC assist BP in their submissions. The context of the case pled by HC<i> </i>is to the effect that HC offer to prove that the “repayment” was a fiction as no sums had been paid to said companies Bayhill, Brookhill, Hampsey and Bellwood; said companies were not liable for any repayment; HC were unaware that further money borrowed from them by other companies (Mathon and Bathon)had been used to pay sums to them purportedly on behalf of secure debts owed to them by Bayhill, Brookhill, Hempsey and Bellwood. Further I consider that in both actions, where complex averments are made in the context of multiple transfers through different companies, I am unable to conclude on the pleadings alone, without evidence, that there is no loss. Whatever the basis of the claim made by HC culminating in Article 47 of condescendence, I consider that HC has made relevant averments of loss.
<p>[94] In reaching that conclusion, I have taken into account the submission made about the case of <i>Heather Capital Limited (in liquidation) </i>heard in the High Court of Justice of the Isle of Man. Counsel for BP<i> </i>referred<i> </i>to the judgment of His Honour Deemster Corlett delivered 17 November 2015 and invited the court to consider the position adopted by HC in that case. Paragraph 16 states: <p>“It is common ground that the making of circular loans did not itself lead to any net loss for Heather because it received back what it lent out. Any loss was therefore avoided or Heather has to give credit for gains in the form of recoveries of the repayments of the earlier loans which completely offset its losses under the later circular loans. Accordingly, the liquidator accepts that KPMG is entitled to credit in respect of the repayments made…”
<p>I do not consider that the apparent concession in that case is without qualification and an acceptance that HC<i> </i>suffered no loss at all. In any event, I consider that a decision requires to be made on the basis of the pleadings by HC in the actions before this court. If there is an inconsistency in the position of HC and the liquidator, I consider that this is a matter to be explored in evidence and cannot be resolved at this stage.
<p>[95] In relation to the LM case, I note that the averments relate to different facts and circumstances and involve different companies and different personnel. I consider, however, that the same structure of averments in the pleadings which I identify in paragraph [91] is apparent. Counsel did not seek to persuade the court that there were any averments in the LM<i> </i>case which made any difference to the submissions about the relevancy of the pleadings about loss compared with the BP case. In the LM case, the main focus in the debate before Lord Doherty related to issues about prescription. Counsel for LM dealt very briefly with some additional issues relating to relevancy which included a submission that the averments made by HC that it had sustained a loss were irrelevant. Lord Doherty considered it possible to deal briefly with these submissions and in paragraph 61 concluded:
<p>“... I am not satisfied that if the pursuer proves its averments it will fail to prove that it has suffered a loss.”
<p>[96] For the reasons given, therefore, I am of the opinion that Lord Tyre in the BP case and Lord Doherty in the LM case were both correct to conclude that HC had made relevant averments of loss and that the cross appeals should be refused. <p><b>EXTRA DIVISION, INNER HOUSE, COURT OF SESSION</b>
<p><b>[2017] CSIH 19</b>
<p>CA207/14 and CA208/14
<p><b></b>
<p>Lady Paton
<p>Lady Clark of Calton
<p>Lord Glennie
<p>OPINION OF LORD GLENNIE
<p>in the cause
<p>HEATHER CAPITAL LIMITED (in liquidation) and PAUL DUFFY (as liquidator)
<p><u>Pursuer and Reclaimer</u>
<p>against
<p>LEVY & McRAE and others <u>Defenders and Respondents</u>
<p>and HEATHER CAPITAL LIMITED (in liquidation) and PAUL DUFFY (as liquidator) <u>Pursuer and Reclaimer</u>
<p>against
<p>BURNESS PAULL LLP <u>Defender and respondent</u>
<p><b></b>
<p><b></b>
<p><b>Pursuer and reclaimer: Lord Davidson of Glen Clova QC, Tariq; </b>
<p><b>Shepherd & Wedderburn LLP</b>
<p><b>Defenders and respondents (Levy & McRae): Duncan QC, Brown; </b>
<p><b>Clyde & Co (Scotland) LLP</b>
<p><b>Defender and respondent (Burness Paull LLP): Dunlop QC, C Paterson; </b>
<p><b>Messrs CMS Cameron McKenna LLP</b>
<p><u>28 February 2017</u>
<p>[97] I have had the advantage of reading in draft the opinions to be given by Lady Paton and Lady Clark of Calton. I agree with them and, for the reasons they give, I too would allow parties a Proof Before Answer of all their averments on record preserving all pleas. <p>[98] I would wish to add two comments of my own. <p>[99] The main focus of the debate in each case was whether the pursuer, HC, had made sufficient and relevant averments of “reasonable diligence” for the purposes of section 11(3) and the proviso to section 6(4) of the 1973 Act. In both cases the Lord Ordinary held that HC had not said enough and in sufficient detail to justify sending the matter to a Proof Before Answer. The matter could be determined on the pleadings. Lady Paton has explained why we take a different view. But I have a more general concern about this approach. <p>[100] In his note of argument in the LM case, under reference to cases such as<i> John Doyle Construction Ltd </i>v <i>Laing Management (Scotland) Ltd </i>2004 SC 713 at pages 722 - 723 and <i>Watson </i>v <i>Greater Glasgow Health Board</i> [2016] CSOH 93 at paragraphs 22-23, Lord Davidson QC was at pains to remind us that the purpose of pleading is to give fair notice of the assertions of fact sought to be established in the evidence as well as to identify the essential propositions of law on which a party founds. Elaborate pleading is unnecessary in any action, not just in a commercial action. The purpose of the pleadings is to give notice of the essential elements of the case. The pleadings should set out the bare bones of the case. They are not the place to set out in full the evidence intended to be adduced. In the present cases that appears to have been overlooked. To that extent I have some sympathy with Lord Davidson’s submission. The Closed Record in the BP action, as it appears in the Reclaiming Print, runs to some 59 pages, while that in the LM action extends to 93 pages. This has happened, so it seems to me, because in their pleadings parties have indulged in a process akin to trial by pleading. The defenders have made averments of fact intended to undermine the pursuer’s case on reasonable diligence; the pursuer has responded by making further averments addressed to those points; this in turn has caused the defenders to make further averments or raise further questions; the pursuer has tried to answer by making yet further averments; and this is constantly repeated until parties are finally exhausted. The process resembles one of cross examination and response, a process for which pleadings are quite unfitted. I do not seek to apportion blame. In a case such as this, the temptation to pile pressure on to the pursuer by pleading a wealth of detail is difficult to resist; and a pursuer who does not respond in kind runs the risk of being thought to have no answer to the points which have been raised. Difficulty arises when the matter comes to debate on the question of whether, for example, the pursuer has made sufficiently relevant and specific averments that it “could not with reasonable diligence have been aware” that loss had occurred (section 11(3)) and that it could not “with reasonable diligence have discovered” the fraud or error induced by the debtor which induced it to refrain from making a relevant claim at an earlier stage (section 6(4), proviso). Points are made in argument about the failure to take certain steps or to follow up on the particular line of enquiry; and the Lord Ordinary is invited to form a view that what was done was insufficient or that the reasons given for not doing it are inadequate. Such an invitation should, in my view, be resisted save in the most obvious case. The judgments which the court is being asked to make are essentially value judgments, assessments of the reasonableness or otherwise of a party’s conduct. Such judgments should seldom if ever be made on the basis of the pleadings without hearing evidence. It may seem obvious, on paper, that something ought to have been done or that a line of enquiry ought to have been pursued; but when evidence is led it might seem less obvious, or there might be good reasons for not taking that course. It is not the function of pleadings to set out every reason why each relevant individual took or did not take any particular step. In many cases issues of credibility and reliability might arise, the evidence may be far more nuanced than it is possible to convey on paper, explanations may be given more fully and persuasively than can come over in the pleadings, and some of the criticisms may, in light of all the evidence, be seen to be informed by hindsight. I should emphasise that I make these observations without reference to any of the particular points decided in the particular cases with which we are here concerned. But it does seem to me that the cases with which we are concerned illustrate the danger of the court being drawn into deciding cases on detailed averments of fact when it would be more appropriate that all the evidence be heard before any decision is made. <p>[101] The other comment I would wish to make concerns the question of whether the claims advanced in both actions on the basis of the existence of a trust are subject to the 5‑year prescriptive period in section 6 of the 1973 Act or are subject to the 20-year long negative prescription in section 7. This matter was discussed by Lord Doherty in the LM action at paragraphs [25]-[31]. He concluded that the obligation of a trustee to produce trust accounts is an imprescriptible obligation; that the liability to make payment of the sum found due in an accounting for trust funds is subject only to the long negative prescription; and that the obligation of a trustee to restore the value of trust property paid away in breach of trust is also subject only to the long negative prescription. The matter was not discussed by Lord Tyre in the BP case for reasons which are slightly unclear – matters appear to have proceeded in that debate on the basis that all obligations were subject to the 5-year prescriptive period and that the only issues in that respect concerned the pursuer’s case on sections 6(4) and 11(3) – but it was not suggested before us that the point is not live in that action too. Detailed submissions on the point were made by Mr Duncan QC on behalf of LM and adopted by Mr Dunlop QC on behalf of BP. Lord Davidson QC responded on behalf of HC. I, for one, was grateful for their submissions. It emerged in the course of those submissions, as it had to some extent at the debate in the LM case, that not only was there a dispute as to the law to be applied in a case of accounting and/or breach of trust but there was also a dispute as to whether the circumstances of the present cases gave rise to a relationship of trust at all or, alternatively, a trust of a kind intended to be excluded from the 5-year short negative prescription. In light of this, it seems to me that it would be desirable that all of the relevant facts be determined before the issues are decided. For that reason, and for the reasons given by Lady Paton in paragraph [80] of her opinion, I am persuaded that it would be premature to attempt to decide these points at this stage.</p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-53568968133217714042016-11-10T15:39:00.000+00:002016-11-10T16:15:52.930+00:00Questions over stalled probe of Borders solicitor Andrew Penman accused of allegations of dishonesty, missing files & funds, investigation continues two years after suspension<p align="justify"><em><a title="Andrew Paterson Penman" href="http://scottishlaw.blogspot.com/search/label/Andrew%20Penman"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://drive.google.com/uc?export=download&id=0B1nFZkYr7uS2eXBaTWZ0cnd2Tk0" align="left"></a>Probe of Andrew Penman & ruined clients continues.</em> <strong>QUESTIONS</strong> are being asked about why investigations into a well known Borders solicitor who was suspended over two years ago have not resulted in further action by the Law Society of Scotland and Scottish Legal Complaints Commission.
<p align="justify"><a title="Andrew Paterson Penman" href="http://scottishlaw.blogspot.com/search/label/Andrew%20Penman"><strong><u>Andrew Paterson Penman</u></strong></a> - a solicitor based at the now closed firm of Stormont Darling Solicitors in Kelso – remains suspended by the Law Society of Scotland in movember 2016, yet complaints in relation to his activities at the Kelso law firm are still being investigated over two years later.
<p align="justify">Earlier reports by SLR revealed Andrew Penman was previously accused by Law Society investigators of faking up evidence in executry files, deceiving banks including the Royal Bank of Scotland and the Inland Revenue (now HMRC).
<p align="justify">Penman’s suspension was published in the Gazette: <strong>Notice is hereby given that the practising certificate of ANDREW PATERSON PENMAN, solicitor, Stormonth Darling, Bank of Scotland Buildings, 8/9 The Square, Kelso, TD5 7HQ was suspended under Sections 39a and 40 of the Solicitors’ (Scotland) Act 1980 with effect from 2 October 2014.</strong>
<p align="justify">The order publishing Penman’s suspension was signed by <strong>James Ness</strong>, Deputy Registrar.
<p align="justify">Records also reveal Ness - a partner at Austins Solicitors, Dalbeattie, Dumfries & Galloway - represented Penman at secretive Law Society complaints hearings.
<p align="justify">An investigation concluded Ness launched personal attacks on former clients to alter a decision already taken to prosecute Andrew Penman before the Scottish Solicitors Discipline Tribunal in the 1990s.
<p align="justify">It was also reported last year Penman was ‘signed off sick’ to protect him from ongoing investigations and court litigation.</p>
<p align="justify">After a period of weeks leaving clients unable to contact Mr Penman or gain control of their legal affairs, the Law Society of Scotland closed down Stormonth Darling.
<p align="justify">The law firm’s business was then taken over by another Kelso based law firm – Cullen Kilshaw.
<p align="justify">It was then reported the Law Society of Scotland and the Scottish Legal Complaints Commission were investigating serious complaints made by clients against Mr Penman and his former law firm.
<p align="justify">Legal insiders claimed there were allegations of significant amounts of money <strong>“gone missing”</strong>, allegations relating to fraud and the collection or payments of rents, and allegations relating to the misuse of trusts, wills and executries – with significant sums involved.
<p align="justify"><strong>It has also been claimed the names of a number of other firms and businesses located in the Scottish Borders have cropped up during investigations into Penman’s conduct.</strong>
<p align="justify">These include one firm of Borders accountants who appear to have been used to conceal client’s affairs, and two other law firms, one also based in Kelso – who both appear to have facilitated <strong>“transactions unauthorised by clients”</strong>.
<p align="justify">Allegations have also emerged clients who complained about Penman’s conduct in the past experienced personal intimidation by parties - after they had lodged complaints about Penman with the Law Society of Scotland.
<p align="justify">One former client of Stormonth Darling described how in a previous case, Mr Penman had falsified documents in a bid to thwart an earlier investigation into allegations of fraud and missing funds.
<p align="justify">Of the current situation, the former branded the Law Society & SLCC as protective of solicitors, telling SLR:<strong> “The Police should be brought in to investigate Penman and his activities.”</strong>
<p align="justify">Another former client told how the wording of wills had been suspiciously altered, and how property titles <strong>“had disappeared without trace”</strong>.
<p align="justify">During 2014, <a href="http://scottishlaw.blogspot.com/2015/02/law-scandal-hits-borders-law-firm.html"><strong>Penman was linked to a case in the Court of Session</strong></a> - A398/14 <b>Ladykirk</b> <b>Estates</b> <b>Ltd</b> <b>v</b> <b>Stormonth</b> <b>Darling</b> WS :
<p align="justify"><strong>Ladykirk Estates Limited, Academy House, Shedden Park Road, Kelso, (Ledingham Chalmers Llp) Roxburghshire AG V Stormonth Darling W.S. Solicitors, Drew Penman, Terry Mcnally and Craig Wood, Bank Of Scotland Buildings, The Square, Kelso, Roxburghshire</strong>
<p align="justify">Court staff indicated the case was one of a significant financial claim against Penman and other solicitors based at Stormonth Darling in Kelso.
<p align="justify">Andrew Paterson Penman was employed as a Director (SOLICITOR) at <a href="http://www.companieslist.co.uk/SC015891-ladykirk-estates-limited">LADYKIRK ESTATES LIMITED</a> from 01 June 2007 to 17 September 2012 , Company address: LADYKIRK ESTATES LIMITED ACADEMY HOUSE, SHEDDEN PARK ROAD, KELSO, ROXBURGHSHIRE, TD5 7AL
<p align="justify">Andrew Paterson Penman was also employed as a Director (SOLICITOR) at <a href="http://www.companieslist.co.uk/SC123505-s-p-c-borders">S.P.C. BORDERS</a> from 31 January 2006 to 30 November 2014 Company address: S.P.C. BORDERS 27 MARKET STREET, GALASHIELS, TD1 3AF
<p align="justify">It has also been revealed Penman and his law firm are being investigated by the Scottish Legal Complaints Commission & Law Society of Scotland in connection with a number of complaints made by clients where <strong>substantial sums of money into hundreds of thousands of pounds</strong> along with <strong>queries regarding unpaid rent and disappeared funds</strong> are alleged.
<p align="justify">Late last year, Solicitor Craig Wood - the only remaining solicitor at Stormonth Darling ‘took ill’ leading to the Law Society closing the firm down.
<p align="justify">Wood – who was named in a writ against the law firm at the Court of Session - has since died from his illness.
<p align="justify">It is not known whether Mr Wood gave any statements to clients or the Law Society regarding the problems at Stormonth Darling.
<p align="justify">In an update to the report, as of 23 October 2015, SLR has been approached by several individuals from Kelso and around the Scottish Borders who have provided documentation on their dealings with Penman and Stormonth Darling.
<p align="justify">In one case, a client alleges he received visits from officers from the former force of Lothian & Borders Police after he raised questions with the Law Society over significant sums of missing funds & assets under the control of Stormonth Darling.
<p align="justify">Solicitors based at Stormonth Darling and an accountant caught up in accusations of hundreds of thousands of pounds gone missing from a will – appear to have used their influence with public services based in the rural Borders backwater to cause difficulties in the lives of clients whose funds and assets were being systematically stripped by the now defunct law firm.
<p align="justify">The names of two former LibDem politicians, one from Holyrood, another from Westminster - have also been connected to the difficulties at Stormonth Darling.
<p align="justify">In 2009, Scottish Law Reporter covered a story relating to Ladykirk Estates & Andrew ‘Drew’ Penman – after both lost a legal challenge in Scotland’s Land Court. LadyKirk Estates objected to the transfer of a farm tenancy from an elderly tenant to his younger nephew. Ladykirk had also claimed their ECHR rights had been in breach. Full report <a href="http://scottishlaw.blogspot.com/2009/05/dodgy-lawyer-director-drew-penman.html"><strong>HERE</strong></a>
<p align="justify"><strong>CHEQUERED HISTORY OF BORDERS LAWYER WHO RUINED CLIENTS:</strong>
<p align="justify">Penman – Originally from Hawick then moved to Kelso to work at Stormonth Darling Solicitors, has been subject to numerous complaints from local clients in the Scottish Borders over the years, One investigation carried out by the Law Society of Scotland issued reports finding Penman had deliberately rearranged evidence before investigating officers took possession of the files in an attempt to prevent the Law Society’s own reporter from investigating the circumstances of the losses. The Law Society investigating reporter found <strong>“there was also evidence of what appeared to be a bungled and unsuccessful attempt to put the file into order”</strong>
<p align="justify">The Law Society investigator recommended a prosecution of Andrew Penman, saying : <strong>“In respect of the extraordinary delays and the repeated failures to respond to correspondence and the apparent, deliberate attempt to mislead the Royal Bank the reporter was of the view that the professional misconduct was such that it would warrant prosecution before the Scottish Solicitors Discipline Tribunal The reporter was or the view that there had clearly been an inadequate professional service but in the, event of a referral to the Scottish Solicitors Discipline Tribunal this would be incorporated into the complaint.”</strong>
<p align="justify">Neither the Law Society of Scotland or Scottish Legal Complaints Commission could not be reached for comment.
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-68674674227904631152016-10-20T13:31:00.001+01:002016-10-20T13:31:46.619+01:00Police 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<p align="justify"><em><a title="Lord Brodie - Prosecutors used inaccurate information to obtain warrant" href="https://www.scotcourts.gov.uk/search-judgments/judgment?id=e78420a7-8980-69d2-b500-ff0000d74aa7"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://drive.google.com/uc?export=download&id=0B0NRqCqye5F9LWhKb3g4MGUtRFU" width="430" align="left" height="315"></a>Lord Brodie – Prosecutors lied to obtain warrant.</em><strong> A SENIOR JUDGE</strong> has claimed the Edinburgh offices of a law firm <strong>employing members of the judiciary </strong>- were hit with “oppressive” conduct by the <a href="http://www.crownoffice.gov.uk"><strong><u>Crown Office & Procurator Fiscal Service</u></strong></a> during prosecutors attempts to secure documents in relation to historical sex crime allegations.</p>
<p align="justify">The ruling, by Lord Brodie – issued three months after the incident - comes after the Edinburgh offices of law firm<strong> </strong><a title="http://www.clydeco.com/locations/office/edinburgh" href="http://www.clydeco.com/locations/office/edinburgh"><strong>Clyde & Co</strong></a> – 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.</p>
<p align="justify">The stand off between Police Scotland and lawyers at Clyde & Co only ended when Lord Brodie suspended the search warrant.</p>
<p align="justify">Lord Brodie said fiscals had provided <strong>“inaccurate and misleading”</strong> information to obtain a court order to raid the Edinburgh offices of UK law firm Clyde & Co.</p>
<p align="justify">Prosecutors had sought the warrant as they supported police in carrying out the investigation into what are understood to be historic sex crime allegations</p>
<p align="justify">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.</p>
<p align="justify">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.</p>
<p align="justify">This week - three months after the aborted raid – the Scottish Courts & Tribunals Service finally made public Lord Brodie’s critical note about his decision. </p>
<p align="justify">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.</p>
<p align="justify">He ruled: <strong>"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.</strong></p>
<p align="justify">The judge added: <strong>"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.</strong></p>
<p align="justify"><strong>"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."</strong></p>
<p align="justify">Simpson & Marwick – now Clyde & Co are known to have acted as agents for the Law Society of Scotland’s Master Insurance Policy. </p>
<p align="justify">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.</p>
<p align="justify">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.</p>
<p align="justify">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.</p>
<p align="justify">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. </p>
<p align="justify">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.
<p align="justify">The law firm claims the heart of their practice is defending personal injury claims.
<p align="justify">The full opinion of Lord Brodie:</p>
<p align="justify"><a title="HIGH COURT OF JUSTICIARY [2016] HCJAC 93 HCA/2016-24/XJ" href="https://www.scotcourts.gov.uk/search-judgments/judgment?id=e78420a7-8980-69d2-b500-ff0000d74aa7"><strong>HIGH COURT OF JUSTICIARY [2016] HCJAC 93 HCA/2016-24/XJ</strong></a></p>
<p align="justify"><strong>NOTE BY LORD BRODIE in BILL OF SUSPENSION by CLYDE AND CO (SCOTLAND) LLP Complainers;</strong></p>
<p align="justify"><strong>against THE PROCURATOR FISCAL, EDINBURGH Respondent:</strong></p>
<p align="justify"><strong>Complainers: Smith QC; Clyde & Co</strong></p>
<p align="justify"><strong>Respondent: No appearance</strong></p>
<p align="justify"><strong>22 July 2016</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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:</strong></p>
<p align="justify"><strong>“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.”</strong></p>
<p align="justify"><strong>Insofar as material to the issues raised in the bill, the averments in the petition were as follows:</strong></p>
<p align="justify"><strong>“[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 …</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>The solicitor has indicated that they will provide the originals of the documents already provided in copy format only.</strong></p>
<p align="justify"><strong>“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].”</strong></p>
<p align="justify"><strong>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..</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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:</strong></p>
<p align="justify"><strong>“[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. </strong></p>
<p align="justify"><strong>[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. …</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.”</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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”.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>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:</strong></p>
<p align="justify"><strong>“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.”</strong></p>
<p align="justify"><strong>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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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. </strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>
<p align="justify"><strong>[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.</strong></p>Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-20855066.post-85789561004224888332016-09-28T14:00:00.000+01:002016-09-28T14:23:57.916+01:00Appeals to Scottish Information Commissioner up 14% as concerns remain over Scots public bodies handling of Freedom of Information requests<p align="justify"><em><a title="Scottish Information Commissioner Annual Report 2015/16" href="https://drive.google.com/file/d/0B0NRqCqye5F9TmdWQVZCQnBoREE/"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://drive.google.com/uc?export=download&id=0B0NRqCqye5F9SC1hQXp1RUwxTFk" width="350" align="left" height="480"></a>Report – improvements in Transparency not universal</em>. <strong>A REPORT</strong> 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.
<p align="justify">The <a title="Annual Report 2015/16" href="https://drive.google.com/file/d/0B0NRqCqye5F9TmdWQVZCQnBoREE/"><strong>Annual Report 2015/16</strong></a> published by the <a title="Scottish Information Commissioner" href="http://www.itspublicknowledge.info/"><strong>Scottish Information Commissioner</strong></a> - reveals that <strong>540 appeals were made to the Commissioner in 2015/16 - </strong>a 14% increase on last year. The report also discloses there were 68,000 FOI requests made in Scotland in the last year.
<p align="justify">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.
<p align="justify">Speaking at the launch of her 2015/16 Annual Report, Scottish Information Commissioner Rosemary Agnew said: <strong>"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. </strong>
<p align="justify"><strong>"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."</strong>
<p align="justify">The Commissioner's 2015/16 Annual Report reveals that:
<ul>
<li>
<div align="justify"><strong>540 appeals were made to the Commissioner in 2015/16.</strong> This is a 14% increase on last year, but is down from 578 appeals two years ago. </div>
<li>
<div align="justify"><strong>The number of "failure to respond" appeals fell significantly in 2015/16.</strong> 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. </div>
<li>
<div align="justify"><strong>Appeals volumes fell for some sectors. </strong>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). </div>
<li>
<div align="justify"><strong>Appeal volumes increased for others. </strong>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.<br>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%. </div>
<li>
<div align="justify"><strong>61% of appeals came from members of the public. </strong>The media accounted for 20% of appeals, and prisoners 7%. </div>
<li>
<div align="justify"><strong>60% of the Commissioner's decisions found wholly or partially in the requester's favour. </strong>If an authority has incorrectly withheld information, the Commissioner's decision will require it to be released. </div>
<li>
<div align="justify"><strong>73% of cases were resolved by the Commissioner within 4 months.<br></div></strong>
<li>
<div align="justify"><strong>Public authorities reported receiving 68,156 information requests in 2015/16. </strong>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. </div>
<li>
<div align="justify"><strong>Public awareness of FOI is at its highest ever level, at 85%. </strong>This is up from 84% last year, and 78% in September 2013. </div>
<li>
<div align="justify"><strong>FOI awareness is lower amongst 16-24 year olds. </strong>Ipsos MORI polling also revealed lower awareness amongst young people. The Commissioner is working in partnership with Young Scot to address this lower awareness. </div></li></ul>
<p align="justify">Rosemary Agnew added: <strong>"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." </strong>
<h3 align="justify">Towards a transparent Scotland:</h3>
<ul>
<li>
<div align="justify">Public awareness of FOI reached its highest ever level, at 85% </div>
<li>
<div align="justify">We reduced "failure to respond" appeals by 24% (and by 35% from 2013/14) </div>
<li>
<div align="justify">We issued our highest ever number of EIR decisions, at 61 </div>
<li>
<div align="justify">540 appeals were made to the Commissioner - a 14% increase on last year </div>
<li>
<div align="justify">We resolved 20% of our cases without the need for a decision </div>
<li>
<div align="justify">We met or exceeded almost all of our investigation performance targets </div>
<li>
<div align="justify">We answered 100% of our own FOI requests within 20 working days </div>
<li>
<div align="justify">We delivered 3 regional roadshows, with 97% of participants rating them as "good" or "excellent". </div></li></ul>
<h4 align="justify">Appeal statistics - by region and sector:</h4>
<p align="justify">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 <strong>all</strong> of the appeals received by the Commissioner since 2005, when FOI law came into effect in Scotland. <p align="justify">You can view this information by either geographic region, or by public authority sector (central government, local government, health, etc).
<p align="justify"> <a href="http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID=10192&sID=10373">Public authority tables by Region 2005 - 2016</a> (Excel - 1.98MB) </p>
<p align="justify"><a href="http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID=10193&sID=10373">Public authority tables by Sector 2005 - 2016</a> (Excel - 1.94MB) </p>
<p align="justify">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 <a href="mailto:scottishlawreporter@gmail.com"><strong>scottishlawreporter@gmail.com</strong></a></p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-2199236240875498262016-09-27T12:22:00.001+01:002016-09-27T12:22:49.085+01:00Lord Carloway opens new Legal Year 2016-2017– review, reforms, & modernisation - reality clogged courts with huge public price tag, erosion of rights & shiny new QCs<p align="justify"><em><a title="Lord Carloway" href="http://scottishlaw.blogspot.com/search/label/Lord%20Carloway"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://drive.google.com/uc?export=download&id=1PEV7QDd6PByuLpOxgZsiMzBteFdnaQEpHw" width="300" align="left" height="512"></a>Lord Carloway opens the 2016-17 legal year.</em><strong> SCOTLAND’S</strong> top judge – the Lord Justice General & Lord President – Lord Carloway (Colin Sutherland) has opened the new legal year with<strong> </strong><a title="Lord Carloway - new legal year 2016-2017" href="https://drive.google.com/file/d/0B0NRqCqye5F9WWxHMy0xT2RTUUE/"><strong>traditional speech</strong></a>, full of traditional fare.</p>
<p align="justify">OPENING OF THE LEGAL YEAR 2016-2017 </p>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>It is now my pleasure to introduce those who have gained the rank and dignity of Her Majesty's Counsel. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>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. </strong>
<p align="justify"><strong>The court will now adjourn.</strong></p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-64427152036033234232016-09-22T16:00:00.000+01:002016-09-23T15:32:36.236+01:00Independent Observer concludes Queen’s Counsel appointments for 2016 based on merit, no evidence of discrimination or bias<p align="justify"><em><a title="Appointment of Queen's Counsel in Scotland 2016" href="https://drive.google.com/file/d/0B0NRqCqye5F9TnFuQ2RCZDdVNlk/"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://drive.google.com/uc?export=download&id=0B0NRqCqye5F9ckVvTmloaHNuLVU" width="340" align="left" height="328"></a>QC appointments ‘fair’ – ‘Independent’ Observer.</em> <strong>THE</strong> 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.</p>
<p align="justify">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.
<p align="justify">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".
<p align="justify">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.</p>
<p align="justify">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.
<p align="justify">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.
<p align="justify">The full report of the Independent Observer:</p>
<p align="justify"><strong>Appointment of Queen's Counsel in Scotland 2016</strong></p>
<p align="justify"><strong>Report by Heather Baillie, Independent Observer</strong></p>
<p align="justify"><strong>Introduction</strong></p>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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: -</strong><a href="http://www.scotland.gov.uk/resource/0040/00401924.pdf"><strong> http://www.scotland.gov.uk/resource/0040/00401924.pdf</strong></a>
<p align="justify"><strong>I was not advised of any substantive changes to the appointments procedure in the last year.</strong>
<p align="justify"><strong>Review of the process of recommendation for appointment</strong>
<p align="justify"><strong>I was provided with the following documents:</strong>
<p align="justify"><strong>• All application forms</strong>
<p align="justify"><strong>• Equality Act 2000 monitoring forms</strong>
<p align="justify"><strong>• References</strong>
<p align="justify"><strong>• Self- Assessments by applicants</strong>
<p align="justify"><strong>• Criteria for assessment by Senators</strong>
<p align="justify"><strong>• Assessments by Senators,</strong>
<p align="justify"><strong>• Copy advertisement, and</strong>
<p align="justify"><strong>• Copies of the newspapers, journals and websites where the advertisement was placed.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>I considered the Guidance provided for Applicants and the application forms.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>Analysis of information considered</strong>
<p align="justify"><strong>Guide for applicants.</strong>
<p align="justify"><strong>The Guide was updated in March 2016 and can be found at the Judiciary of Scotland website: </strong><a href="http://www.scotland-judiciary.org.uk/"><strong>http://www.scotland-judiciary.org.uk</strong></a><strong> 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.</strong>
<p align="justify"><strong>Timetable and advertisements.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>Advertisements were placed with: Thomson Reuters; Herald Times Group (S1 jobs - 4 March, Sunday Herald - 6 March, The Herald - 4 and 11 March, and </strong><a href="http://www.heraldscotland.com/"><strong>www.heraldscotland.com</strong></a><strong> - 3 March); Johnston Publishing Ltd (Scotland on Sunday - 6 March, The Scotsman - 4 and 11 March and Scotsman Recruitment </strong><a href="http://www.scotsman.com/"><strong>www.scotsman.com</strong></a><strong> - 4 March); Law Society of Scotland - 4 March; </strong><a href="http://www.lawscotjobs.co.uk/"><strong>www.lawscotjobs.co.uk</strong></a><strong>, Law Society Journal, Judicial website and the Scots Law Times.</strong>
<p align="justify"><strong>Number of applications received from Advocates and Solicitor Advocates in 2016 and since 2004/5</strong></p>
<p align="justify">
<table cellspacing="0" cellpadding="0" border="0">
<tbody>
<tr>
<td valign="top" width="107">
<p>Year</p></td>
<td valign="top" width="137">
<p>Advocates</p></td>
<td valign="top" width="261">
<p>Solicitor - Advocates</p></td></tr>
<tr>
<td width="107">
<p>2016</p></td>
<td width="137">
<p>23</p></td>
<td width="261">
<p>8</p></td></tr>
<tr>
<td valign="top" width="107">
<p>2015</p></td>
<td valign="top" width="137">
<p>20</p></td>
<td valign="top" width="261">
<p>5</p></td></tr>
<tr>
<td valign="top" width="107">
<p>2014</p></td>
<td valign="top" width="137">
<p>20</p></td>
<td valign="top" width="261">
<p>2</p></td></tr>
<tr>
<td valign="top" width="107">
<p>2013</p></td>
<td valign="top" width="137">
<p>26</p></td>
<td valign="top" width="261">
<p>5</p></td></tr>
<tr>
<td valign="top" width="107">
<p>2012</p></td>
<td valign="top" width="137">
<p>26</p></td>
<td valign="top" width="261">
<p>4</p></td></tr>
<tr>
<td valign="top" width="107">
<p>2011</p></td>
<td valign="top" width="137">
<p>26</p></td>
<td valign="top" width="261">
<p>4</p></td></tr>
<tr>
<td valign="top" width="107">
<p>2010</p></td>
<td valign="top" width="137">
<p>23</p></td>
<td valign="top" width="261">
<p>3</p></td></tr>
<tr>
<td valign="top" width="107">
<p>2009</p></td>
<td valign="top" width="137">
<p>25</p></td>
<td valign="top" width="261">
<p>1</p></td></tr>
<tr>
<td valign="top" width="107">
<p>2008</p></td>
<td valign="top" width="137">
<p>32</p></td>
<td valign="top" width="261">
<p>5</p></td></tr>
<tr>
<td valign="top" width="107">
<p>2006/7</p></td>
<td valign="top" width="137">
<p>38</p></td>
<td valign="top" width="261">
<p>6</p></td></tr>
<tr>
<td valign="top" width="107">
<p>2004/5</p></td>
<td valign="top" width="137">
<p>36</p></td>
<td valign="top" width="261">
<p>11</p></td></tr></tbody></table></p>
<p align="justify"><strong>Recommendations by the Lord Justice General to the First Minister for Scotland.</strong>
<p align="justify"><strong>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).</strong>
<p align="justify"><strong>Equality Act 2000 monitoring.</strong>
<p align="justify"><strong>All applicants completed the Equalities monitoring form.</strong>
<p align="justify"><strong>Gender of applicants.</strong>
<p align="justify"><strong>23 Advocates (9 female and 14 male)</strong>
<p align="justify"><strong>8 Solicitor Advocates (one female and 7 male)</strong>
<p align="justify"><strong>Black or ethnic group other than white/Scottish or white/British - none</strong>
<p align="justify"><strong>Disability Applicants who declared a disability - one.</strong>
<p align="justify"><a name="bookmark9"><strong>Age</strong></a><strong> and year of calling/qualification</strong>
<p align="justify"><strong>Applicants declared years of birth ranging from 1937 to 1975.</strong>
<p align="justify"><strong>Advocates called to the Bar since 2000 - 7; prior to 2000 - 16</strong>
<p align="justify"><strong>Solicitor Advocates qualified since 2000 - 5; prior to 2000 - 3.</strong>
<p align="justify"><strong>The equalities monitoring form did not gather information relating to other Protected Characteristics as defined by section 4 of the Equalities Act 2010.</strong>
<p align="justify"><strong>Senators' Assessments.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>The assessment form allowed Senators to grade each applicant.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>The second section invites comment on the criteria for recommendation identified in the Guide - Advocacy Skills, Legal Ability and Practice and Professional Qualities.</strong>
<p align="justify"><strong>The third section allows the Senator to grade the application as follows:</strong>
<p align="justify"><strong>A Well fitted for Silk now and sufficiently outstanding to merit appointment this year.</strong>
<p align="justify"><strong>B Possibly ready for Silk now but not in the front rank of applicants for appointment this year.</strong>
<p align="justify"><strong>C Not obviously fitted for Silk at present.</strong>
<p align="justify"><strong>D Not fitted for Silk.</strong>
<p align="justify"><strong>P This application is premature.</strong>
<p align="justify"><strong>N Insufficient knowledge of the applicant to express a view.</strong>
<p align="justify"><strong>Discussion with the Lord Justice General.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>Independent Observer's Comments</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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</strong>
<p align="justify"><strong>senators indicated "insufficient knowledge of the applicant" to comment. This amounted to 68.5%.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>Conclusion</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>Recommendations</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>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.</strong>
<p align="justify"><strong>Heather Baillie 19 July 2016<br></p></strong>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-89814027459354432152016-09-16T18:00:00.000+01:002016-09-23T21:21:33.733+01:00Alison Di Rollo appointed Queen’s Counsel, three months after appointment as Solicitor General for Scotland<p align="justify"><em><a title="Crown Office' Alison Di Rollo takes silk" href="http://scottishlaw.blogspot.com/search/label/Crown%20Office"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://drive.google.com/uc?export=download&id=0B0NRqCqye5F9dTI2TklOMGV4bkE" width="291" align="left" height="378"></a>Solicitor General made a QC</em>. <strong>THE</strong> 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 <a title="Solicitor General" href="http://scottishlaw.blogspot.com/search/label/Solicitor%20General"><strong>Solicitor General</strong></a> at the <a href="http://www.crownoffice.gov.uk"><strong>Crown Office & Procurator Fiscal Service</strong></a><u></u> (COPFS).</p>
<p align="justify">Di Rollo fills the empty shoes of former Solicitor General <a href="http://petercherbi.blogspot.com/search/label/Lesley%20Thomson"><strong>Lesley Thomson</strong></a> - who was widely tipped to become Lord Advocate after the resignation of Frank Mulholland in May.</p>
<p align="justify">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 - <a title="Revealed: Lord Advocate's brother Iain Mulholland at centre of dirty money probe after arranging £550k mortgage for rogue lapdance tycoon" href="http://www.dailyrecord.co.uk/news/scottish-news/revealed-lord-advocates-brother-iain-7636196"><strong>reported in the Sunday Mail newspaper</strong></a>.</p>
<p align="justify">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.</p>
<p align="justify">Alison Di Rollo was appointed Solicitor General for Scotland on 2 June 2016. </p>
<p align="justify">She joined COPFS in 1985, following a legal traineeship with the now defunct law firm of <strong>McGrigor Donald</strong> based in Glasgow.</p>
<p align="justify">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.</p>
<p align="justify">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.</p>
<p align="justify">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.</p>Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-20855066.post-62865464192847445862016-09-13T18:00:00.000+01:002016-09-23T23:24:00.385+01:00Crown Office compromised by crime victims rights gone too far - Dean of Faculty Jackson QC offers suggestions to new Lord Advocate Wolffe QC<p align="justify"><em><a title="Gordon Jackson QC - Dean of Faculty of Advocates" href="http://www.advocates.org.uk/"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://drive.google.com/uc?export=download&id=0B0NRqCqye5F9Vm1KVVlxRFhjWmc" width="320" align="left" height="437"></a>Suggestions on law, from Gordon Jackson QC.</em> <strong>AN OPEN</strong> 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”.</p>
<p align="justify">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.</p>
<p align="justify">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.</p>
<p align="justify"><strong>Dear James,</strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>You will be told that none of this over-influences decisions. I don’t believe it. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>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. </strong></p>
<p align="justify"><strong>If you ensure that happens, your time as Lord Advocate will be of great value. </strong></p>
<p align="justify"><strong>With best wishes Gordon</strong></p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-32591586575808830872016-09-02T12:00:00.000+01:002016-09-28T13:14:47.685+01:00Court of Session rules Legal Complaints Commission’s consideration of “hybrid” service & conduct complaints against solicitors - is improper<p align="justify"><em><a title="SLCC's consideration of Hybrid complaints rulled improper by Court" href="https://www.scottishlegalcomplaints.org.uk"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://drive.google.com/uc?export=download&id=0B0NRqCqye5F9NmE2VndjZ3FpQzg" align="left"></a>Hybrid service & conduct complaints ruled “improper” – Lord Malcolm</em> <strong>THE PRACTICE of </strong>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.</p>
<p align="justify">The ruling, delivered by Lord Malcolm (Colin Campbell, 62) - in a case brought against the <a href="https://www.scottishlegalcomplaints.org.uk"><strong>Scottish Legal Complaints Commission</strong></a> (SLCC)<strong><u></u></strong> - is certain to have a significant impact on cases under investigation by the SLCC.</p>
<p align="justify">The long standing practice of treating complaints cases as both service and conduct – was previously and frequently in use by the <a href="http://www.lawscot.org.uk/"><strong><u>Law Society of Scotland</u></strong></a> in numerous and sometimes high profile cases of complaints involving well known solicitors over a number of years.</p>
<p align="justify">Full Court of Session ruling:</p>
<p align="justify"><a title="SECOND DIVISION, INNER HOUSE, COURT OF SESSION [2016] CSIH 71 XA16/15" href="https://www.scotcourts.gov.uk/search-judgments/judgment?id=1d0c1da7-8980-69d2-b500-ff0000d74aa7"><strong>SECOND DIVISION, INNER HOUSE, COURT OF SESSION [2016] CSIH 71 XA16/15</strong></a></p>
<p align="justify">Lord Justice Clerk, Lady Clark of Calton, Lord Malcolm</p>
<p align="justify">OPINION OF THE COURT</p>
<p align="justify">delivered by LORD MALCOLM</p>
<p align="justify">in appeal under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007</p>
<p align="justify">by</p>
<p align="justify">ANDERSON STRATHERN LLP and ANOTHER Appellants; </p>
<p align="justify">against A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION DATED 30 JANUARY 2015</p>
<p align="justify">Act: Dunlop QC; Anderson Strathern LLP</p>
<p align="justify">Alt: Ross; Brodies LLP</p>
<p align="justify">Interested Party: McConnell; Maclay Murray & Spens</p>
<p align="justify">31 August 2016</p>
<p align="justify">[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.</p>
<p align="justify">[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:</p>
<p align="justify">“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.”</p>
<p align="justify">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. </p>
<p align="justify">[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. </p>
<p align="justify">[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.</p>
<p align="justify">The relevant statutory provisions<br>[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.</p>
<p align="justify">[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. </p>
<p align="justify">[7] The Scottish Government’s explanatory notes to the bill for the Act stated in paragraph 6:</p>
<p align="justify">“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.”</p>
<p align="justify">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. </p>
<p align="justify">[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.</p>
<p align="justify">[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:</p>
<p align="justify">“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 –</p>
<p align="justify">(a) a conduct complaint;</p>
<p align="justify">(b) a services complaint;</p>
<p align="justify">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.”</p>
<p align="justify">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. </p>
<p align="justify">Section 5(2) provides:</p>
<p align="justify">“Where it appears to the Commission that the complaint may constitute both –</p>
<p align="justify">(a) a conduct complaint; and</p>
<p align="justify">(b) a separate services complaint,</p>
<p align="justify">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.”</p>
<p align="justify">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. </p>
<p align="justify">[10] The Current Law annotations to the section are in the following terms:</p>
<p align="justify">“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.”</p>
<p align="justify">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.</p>
<p align="justify">[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. </p>
<p align="justify">[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. </p>
<p align="justify">[13] Section 6 is headed “Complaint determined to be conduct complaint”. It provides as follows:</p>
<p align="justify">“Where, or to the extent that, the Commission determines under section 5(1) that a complaint is a conduct complaint, it must –</p>
<p align="justify">(a) remit the complaint to the relevant professional organisation to deal with (and give to the organisation any material which accompanies the conduct complaint); …”</p>
<p align="justify">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:</p>
<p align="justify">“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).</p>
<p align="justify">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? </p>
<p align="justify">[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. </p>
<p align="justify">[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. </p>
<p align="justify">[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:</p>
<p align="justify">“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”.</p>
<p align="justify">[17] Section 46 contains the interpretation provisions for part 1 of the Act. “Unsatisfactory professional conduct” means, for example in respect of a solicitor,</p>
<p align="justify">“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…”.</p>
<p align="justify">“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</p>
<p align="justify">“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”.</p>
<p align="justify">The submissions of parties on the question of hybrid complaints</p>
<p align="justify">The appellants</p>
<p align="justify">[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. </p>
<p align="justify">The Commission</p>
<p align="justify">[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</p>
<p align="justify">“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)”.</p>
<p align="justify">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.</p>
<p align="justify">[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. </p>
<p align="justify">[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. </p>
<p align="justify">The interested party</p>
<p align="justify">[22] On the hybrid question, the interested party, namely the complainer, adopted a neutral stance. </p>
<p align="justify">Discussion and decision on the hybrid issue<br>[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.</p>
<p align="justify">[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.</p>
<p align="justify">[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. </p>
<p align="justify">[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.</p>
<p align="justify">[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.</p>
<p align="justify">[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. </p>
<p align="justify">[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). </p>
<p align="justify">The circumstances of the present appeal<br>[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.</p>
<p align="justify">[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. </p>
<p align="justify">[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</p>
<p align="justify">“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.”</p>
<p align="justify">Issue 3 was a complaint that the solicitor</p>
<p align="justify">“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).” </p>
<p align="justify">Issue 5 was a complaint that the solicitor</p>
<p align="justify">“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.”</p>
<p align="justify">[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. </p>
<p align="justify">[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. </p>
<p align="justify">[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. </p>
<p align="justify">[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. </p>
<p align="justify">[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. </p>
<p align="justify">[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. </p>
<p align="justify">[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. </p>
<p align="justify">Decision on the appeal</p>
<p align="justify">[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.</p>
<p align="justify">[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. </p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-41877231595692217112016-07-13T16:17:00.000+01:002016-07-13T20:23:26.150+01:00Court Speeding: Court reforms hasten trial hearings - according to taxpayer funded report compiled by the Courts<p align="justify"><em><a title="Scottish Courts and Tribunals Service (SCTS)" href="https://www.scotcourts.gov.uk/"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-KMAZyaljt3I/Uu2K0bskkkI/AAAAAAAAAs0/3MbcoaSl9a05gklmbPzxVKwgzJ_JmlvDACCo/s400/Parliament%2BHouse%2BEdinburgh.jpg" width="330" align="left" height="220"></a>Scotland’s courts are faster – claim the Courts.</em> <strong>NOTORIOUSLY</strong> slow for the past 400 years - as any solicitor, crook, client & litigant can testify – delays in court – from the Court of Session to Sheriff courts and the broom cupboards of Justices of the Peace - are commonplace.</p>
<p align="justify">However, Scotland’s courts have now managed to reduce waiting time for criminal trials – so say the people who ‘run’ the courts.</p>
<p align="justify">The ‘proof’ - offered up in a report compiled by - the <a title="Scottish Courts and Tribunals Service (SCTS)" href="https://www.scotcourts.gov.uk/"><strong>Scottish Courts and Tribunals Service (SCTS)</strong></a> - claims almost all trials in sheriff courts in 2016 began within 16 weeks, whereas two years earlier the ‘official’ figure was half.</p>
<p align="justify">The SCTS claim this was despite a significant increase in mostly criminal cases, particularly relating to domestic abuse and sexual violence.</p>
<p align="justify">However, the report – widely seen as more Public Relations than fact – fails to take account of rising numbers of cancelled or abandoned prosecutions of criminals and secretive plea deals by Crown Office prosecutors which have the effect of speeding up trials awaiting court time.</p>
<p align="justify"><a title="shaping-scotland-39-s-court-services---an-evaluation---july-2016" href="https://drive.google.com/file/d/0B0NRqCqye5F9VUxkclhpdkRGNHc/"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-du_OiXnYQbE/V4aRmm74c-I/AAAAAAAABJI/yBPk-Xy8Iq4fwaWlkuxX7JopIFBfenRWwCCo/s400/shaping-scotland-39-s-court-services---an-evaluation---july-2016.jpg" width="260" align="left" height="361"></a>Compiled at taxpayers expense, the SCTS report goes on to claim the closure of 17 courts - 10 sheriff and seven Justice of the Peace courts - had been successfully implemented, with savings already realised of £2.1m and further annual savings expected of £1.3m.</p>
<p align="justify">SCTS said while concerns were expressed that court performance would suffer as a result of the transfer of business from smaller centres, there has been "strong and improved performance".</p>
<p align="justify"><a href="http://www.scotcourts.gov.uk/about-the-scottish-court-service/scs-news/2016/07/13/new-court-structure-allows-targeted-investment"><strong>New Court Structure Allows Targeted Investment</strong></a></p>
<p align="justify">Three years on from the report which described a future court structure for Scotland, an evaluation report confirms the vision set out in ‘Shaping Scotland’s Court Services’ is fully on track. To date:</p>
<p align="justify">The closure of 10 sheriff courts and 7 justice of the peace courts has been successfully implemented;</p>
<p align="justify">The business redistributed following those closures is handled within normal performance targets at the receiving courts;</p>
<p align="justify">The expected level of financial savings from the changes are being realised,</p>
<p align="justify">The SCTS has been able to target funding more productively on the maintenance and development of its retained estate; and</p>
<p align="justify">The longer term vision for an efficient court structure is largely in place and the remaining elements continue to progress in parallel with the deployment of the new summary sheriff posts. </p>
<p align="justify">While there were concerns expressed that court performance would suffer, the evaluation data clearly demonstrates strong and improved performance. In all courts, the 16 week waiting period between the first calling availability of a criminal trial is being achieved, indeed, in some courts we have re-adjusted the programme as the waiting period was becoming short, with the risk of not allowing sufficient time for crown and defence preparation. Similarly, all courts are meeting, and in most cases significantly below, the 12 week waiting period for civil proofs and hearings. </p>
<p align="justify">This level of performance continues to be achieved against the background of a significant increase in case levels in both summary and solemn business, particularly in relation to domestic abuse and sexual offences, with a far greater proportion of these cases proceeding to evidence-led trials. </p>
<p align="justify">In April 2014 the percentage of sheriff courts setting criminal trials at the optimum 16 weeks was 50%, at April 2016 this figure is 95%. </p>
<p align="justify">Referring to the evaluation report, SCTS Chief Executive Eric McQueen said: <strong>“The SCTS Board’s ten year vision is to create a stronger court service which improves access to justice, reduces delay and costs, and maximises the use of digital technology to improve our services. We are now delivering on that, the evaluation report confirms that annual recurring savings of £1.3 million will be achieved, allowing us to target investment to create a modern court structure throughout Scotland, with digital innovation at its heart.</strong></p>
<p align="justify"><strong>Last year we installed new ICT infrastructure that provides the speed and resilience we require for digital evidence presentation, video links, case management systems and Wi-Fi access across our courts. This technology supports digital access, particularly for vulnerable witnesses and our prison to court facilities which reduces personal appearances by the accused. </strong></p>
<p align="justify"><strong>With the introduction of the new civil simple procedure later this year, we are planning to make online processing available for most payment actions up to £5000. This includes an online portal to enable the legal profession and the public to commence actions, submit case documents, pay fees and track progress online. We will extend this to all areas of simple procedure by mid-2017, allowing over 60% of all civil business in the sheriff courts to be processed online.</strong></p>
<p align="justify"><strong>Our priority now is to develop the recommendations in our “Evidence and Procedure Review – Next Steps” report. For too long it has been easy to describe our criminal courts as products of the Victorian age. Our task now is to bring them right into the 21st Century, not by tinkering at the edges, but by radical digital reform to improve the quality of justice for all concerned. Through technology we can allow children and vulnerable witnesses to give their evidence, and have it examined, outwith the trauma and pressures of the court environment and modernise the way we do business in summary criminal cases through a digital case management system.”</strong></p>
<p align="justify"><em>Feeling any faster in court – tell us about it! – Ed</em></p>Unknownnoreply@blogger.com3tag:blogger.com,1999:blog-20855066.post-50590712827971530272016-06-03T16:00:00.000+01:002016-09-23T21:52:14.467+01:00First Minister appoints James Wolffe as new Lord Advocate, Alison Di Rollo handed post of Solicitor General for Scotland<p align="justify"><em><a title="Crown Office has two new bosses - James Wolffe & Alison Di Rollo" href="http://scottishlaw.blogspot.com/search/label/Crown%20Office"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://drive.google.com/uc?export=download&id=0B0NRqCqye5F9ZWlfTkQ0ZDZhZmc" width="500" align="left" height="365"></a>Faculty of Advocates boss Wolffe takes back post of Lord Advocate.</em> <strong>FIRST</strong> Minister Nicola Sturgeon appointed James Wolffe QC and Alison Di Rollo as Scotland’s new law officers in charge of the <a href="http://www.crownoffice.gov.uk"><strong>Crown Office & Procurator Fiscal Service</strong></a><u></u> (COPFS).</p>
<p align="justify">James Wolffe QC, Dean of the Faculty of Advocates was appointed to the position of Lord Advocate, replacing Frank Mulholland QC who stepped down following the Scottish parliamentary election.</p>
<p align="justify">There is currently an on-going Crown Office “dirty money probe” into Mulholland’s brother - <a href="http://www.dailyrecord.co.uk/news/scottish-news/revealed-lord-advocates-brother-iain-7636196"><strong>reported in the Sunday Mail newspaper</strong></a>.</p>
<p align="justify">Senior Advocate Depute Alison Di Rollo was appointed as Solicitor General, succeeding <a href="http://petercherbi.blogspot.com/search/label/Lesley%20Thomson"><strong>Lesley Thomson</strong></a> in a surprise move after legal insiders tipped Thomson to become Lord Advocate.</p>
<p align="justify">The Scottish Government’s Press Centre stated Ms Thomson, who was appointed to the post in 2011, “has informed the First Minister that she wishes to pursue new challenges” (<em>lol – Ed</em>).</p>
<p align="justify">The appointments were made by the Queen on the recommendation of the First Minister, with the agreement of the Scottish Parliament. </p>
<p align="justify">The appointments complete the First Minister’s newly-appointed ministerial team.</p>
<p align="justify">Speaking prior to Holyrood approval of the two new law officers, First Minister Sturgeon said:<strong> “I am extremely pleased to recommend the appointments of James Wolffe and Alison Di Rollo as Scotland’s senior law officers.</strong></p>
<p align="justify"><strong>“James has an outstanding legal background and extensive experience at all levels, including the House of Lords, the Judicial Committee of the Privy Council, the Supreme Court of the United Kingdom, the European Court of Human Rights and the Court of Justice of the European Union.</strong></p>
<p align="justify"><strong>“Alison led the work of the ground-breaking National Sexual Crimes Unit (NSCU) for three years, having previously held the role of deputy. Her outstanding leadership in this most sensitive of areas has inspired confidence in all connected to it.”</strong></p>
<p align="justify">James Wolffe said: <strong>“I thank the First Minister for nominating me to the office of Lord Advocate. If I am appointed, it will be a great privilege to serve Scotland in that role.”</strong></p>
<p align="justify">Alison Di Rollo said:<strong> “I am both delighted and honoured to be nominated for this role by the First Minister and I am looking forward to working with James in his new role.”</strong></p>
<p align="justify">The First Minister thanked both Frank Mulholland QC and Lesley Thomson QC for their service in the roles.</p>
<p align="justify">She said: “<strong>In his time as Lord Advocate, Frank has made a substantial contribution to both the law and to Scottish society. The creation of the National Sexual Crimes Unit was just one example of the increased specialisation of the Crown Office that Frank Mulholland presided over. In her role as Solicitor General, Lesley’s work, particularly around domestic abuse, was pivotal in moving towards a system that instils confidence in victims of abuse and ensures that their abusers are held to account. I thank both Frank and Lesley for their dedicated service to the Government, to justice and to Scotland as a whole.”</strong></p>
<p align="justify">Biographies</p>
<p align="justify">James Wolffe QC is a leading Senior Counsel. He became an advocate in 1992 and took silk in 2007. In 2014 he was elected Dean of the Faculty of Advocates. He was First Standing Junior Counsel to the Scottish Ministers from 2002 to 2007, and served as an Advocate Depute from 2007 to 2010. He has extensive experience of both commercial and public law. He is a member of the Faculty Dispute Resolution Service and was also called to the bar of England & Wales in 2013.</p>
<p align="justify">Alison Di Rollo is a Senior Advocate Depute. She joined the Crown Office and Procurator Fiscal Service in 1985 as a fiscal after a legal traineeship at now defunct Glasgow law firm <strong>McGrigor Donald</strong> . </p>
<p align="justify">Ms di Rollo then worked in the Policy Group at the Crown Office prior to being appointed Deputy Head of the High Court Unit and later Head of Operational Policy. In May 2008, Ms Di Rollo was seconded from COPFS to take up an appointment as a trial advocate depute. She was appointed as deputy head of the National Sexual Crimes Unit in 2011 and became head of the unit in January 2013.<br>Notes to editors</p>
<p align="justify">The Lord Advocate is a Minister of the Scottish Government and acts as principal legal adviser, but decisions by him about criminal prosecutions and the investigation of deaths are taken independently of any other person. In that way, he is not subject to the ordinary rules about collective ministerial decisions.</p>
<p align="justify">The Solicitor General is the Lord Advocate’s number two. She assists the Lord Advocate to carry out his functions. She is also a Minister of the Scottish Government.</p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-61358484286637858682015-11-11T13:20:00.000+00:002015-11-12T13:31:48.425+00:00Tenant farmers face few rights after 2012 Landowners Human Rights ruling by Lord Gill & Court of Session - which resulted in suicide of farmer Andrew Riddell<p align="justify"><em><a href="https://picasaweb.google.com/lh/photo/02yddwRB0VV7mHXwO2fugpF3pyvt7BTOia1fcFZ6Jn8?feat=embedwebsite"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-PLtsSE6X9kM/VkM9MeDmE9I/AAAAAAAABH4/Vyv8n1vFc50/s400-Ic42/Gill%252520Riddell%252520case.jpg" width="350" align="left" height="182"></a>Farmer shot himself in 2012 after Lord Gill ruled landowners Human Rights breached.</em> <strong>TENANT </strong>farmers continue to fight eviction from their farms after Lord Brian Gill ruled in 2012 that landowners human rights were breached by legislation aimed at protecting tenant farmers passed by the Scottish Parliament.</p>
<p align="justify">This week, another eviction of a tenant farmer has been reported where <a title="https://commonspace.scot/articles/2886/what-is-legal-is-not-always-right-protesters-hand-in-19-000-signatures-to-stop-lothian-farmer-eviction" href="https://commonspace.scot/articles/2886/what-is-legal-is-not-always-right-protesters-hand-in-19-000-signatures-to-stop-lothian-farmer-eviction"><strong>a petition attracted over 19,000 signatures backing Andrew Stoddart, of Colstoun Mains Farm, Haddington, who is fighting eviction by his landlord - the Colstoun Trust</strong></a></p>
<p align="justify">Mr Stoddart and his young family have been told they have to leave by November 28, with the trust claiming it wants to have “greater involvement in the running of the farm”.</p>
<p align="justify">The Stoddarts, along with the two workers they employ on the 900-acre arable and sheep farm, will have to leave their homes and livelihoods behind. This would also be without compensation for the investment they have made.
<p align="justify">The eviction follows a ten-year dispute over a rent review requested by Mr Stoddart.
<p align="justify">It is worth remembering how these evictions have come about.</p>
<p align="justify">The quest by Landowners to eject tenants from land was made all the more easy by Scotland’s own landed gentry at the Court of Session after another ten year legal battle - which saw Lord Brian Gill rule in favour of landowners ‘Human Rights’ in 2012.</p>
<p align="justify">In the upheld appeal, senior judge Lord Gill ruled that measures put in place to protect tenants in such areas were not compatible with the European Convention on Human Rights.</p>
<p align="justify">Lord Gill’s ruling in <a title="https://drive.google.com/file/d/0B0NRqCqye5F9cVRPQlo1aDNMQU0/view" href="https://drive.google.com/file/d/0B0NRqCqye5F9cVRPQlo1aDNMQU0/view"><strong>Salvesen v Riddell [2012] CSIH 26, 2012 SLT 633</strong></a> allowed billionaire landlord Alistair Salvesen to evict tenant farmer Andrew Riddell (52) from land his family had farmed for 100 years.</p>
<p align="justify">After the ruling from the Court of Session, <a title="http://www.heraldscotland.com/news/13076318.Farm_tragedy__Row_over_land_reform_pledge/" href="http://www.heraldscotland.com/news/13076318.Farm_tragedy__Row_over_land_reform_pledge/"><strong>it was widely reported in the media Mr Riddell committed suicide</strong></a>. He was found dead after he had harvested his final crop.</p>
<p align="justify">The father of four killed himself just weeks before he was due to leave Peaston Farm, near Ormiston, East Lothian.</p>
<p align="justify">Andrew had been involved in a 10-year court battle with his landlord, Scotland’s third richest man Alastair Salvesen.</p>
<p align="justify">Mr Riddell's battle began in 2003 when he was given notice to quit by landowner Alastair Salvesen, who bought the farm in 1998.</p>
<p align="justify">The problem stemmed from an outdated law that left the family few rights despite being on the land since 1902.</p>
<p align="justify">Salvesen served notice to the farmer after a ruling from Lord Gill and the judiciary enforced a notice for the farmer to quit.</p>
<p align="justify">The ruling overturned Mr Riddell’s previous security of tenure award in 2010 that meant he could stay living on the land.</p>
<p align="justify">Speaking in 2012 after the suicide of Mr Riddell, his neighbour and close friend George Mudie, 60, said: <strong>“The farm was Andrew’s life. He was affected very badly by the court’s decision.”</strong></p>
<p align="justify"><strong>Lord Gill: The Landowner</strong></p>
<p align="justify">Records now show at the time of Lord Justice Clerk Lord Gill’s ruling against tenant farmer Andrew Riddell, Lord Gill owned or had an interest in several properties, among them - a large Victorian mansion in one of the richest parts of Edinburgh. </p>
<p align="justify">The mansion – owned by the top judge was put on the market last year for £1.7m just before the independence referendum in 2014.</p>
<p align="justify">Gill also declared in his now<strong> </strong><a title="register of Scottish Court Service Board interests" href="https://docs.google.com/file/d/0B3y3fRjsv8Y7dktUTkpCMFlSSUk/"><strong>publicly available register of Scottish Court Service Board interests</strong></a> he owns or holds property interests in London identified by an entry in the SCS Board register as “<strong>Vestry Court Ltd</strong>” –which leads to a multi million pound property listing in London. </p>
<p align="justify">Documents at Companies house list Lord Gill and his wife as holding interests in <strong>“Vestry Court Ltd”</strong> dating back to the mid 1990’s.</p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-64003724231595367282015-11-06T15:12:00.001+00:002015-11-06T15:12:13.829+00:00CLUB TIE JUDGES: Diversity in judiciary proposals dubbed ‘window dressing’ as Law Society recommend back to school approach for angry old white male club tie judiciary<p align="justify"><em><a title="Judiciary of Scotland" href="http://www.scotland-judiciary.org.uk/"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-fCqZ_OfiLJU/VjzAQV7DBzI/AAAAAAAABHg/JX2dmMpe54Y/s400-Ic42/Sturgeon%252520Sworn%252520in.jpg" width="380" align="left" height="190"></a>Scotland’s judiciary - elderly, white, rich and male.</em> <strong>CALLS</strong> to promote diversity within Scotland’s predominantly <a title="http://www.scotland-judiciary.org.uk/" href="http://www.scotland-judiciary.org.uk/"><strong>elderly, white, wealthy judiciary</strong></a><strong> </strong>will not be significantly advanced by today’s publication of recommendations by the Law Society of Scotland to widen the club class ranks of Senators of the Court of Session, Sheriffs & even the occasional JP.</p>
<p align="justify">Scotland’s judiciary - many of whom share the same private school backgrounds and jealously guard their secretive earnings & business interests need fear not for any impending change to their club class ranks and tap on the shoulder techniques for recruitment.</p>
<p align="justify">The latest instalment on judicial diversity, in which the Law Society promotes outreach work in schools, mentoring and reviewing the current skill set for sheriffs and judges as a method of creating a more diverse judiciary means current ways will be preserved for a few <strike>pounds</strike> years more – much to the relief of the many ermine clad ranks of Scotland’s current judicial fraternity.</p>
<p align="justify"><a title="http://www.lawscot.org.uk/news/2015/11/law-society-publishes-recommendations-to-improve-diversity-in-the-judiciary/" href="http://www.lawscot.org.uk/news/2015/11/law-society-publishes-recommendations-to-improve-diversity-in-the-judiciary/"><strong>Law Society publishes recommendations to improve diversity in Scotland’s judiciary</strong></a></p>
<p align="justify">The Law Society of Scotland has published a series of recommendations in a paper responding to a judicial appointments diversity steering group (DSG) report on its conference ‘Merit and diversity – Compatible aspirations in judicial appointments?’. </p>
<p align="justify"><a title="Diversity in the Judiciary - Law Society of Scotland recommendations" href="https://drive.google.com/file/d/0B0NRqCqye5F9WUpwNWtkZU52SmM/view"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-RmoHy8kXRhE/VjzAQ_IXGbI/AAAAAAAABHo/NGtQSN7i1Xw/s400-Ic42/Council-Paper-JABS-Report-FINAL.jpg" width="250" align="left" height="356"></a>The Law Society, a member of the DSG, believes that while good progress has been made in increasing diversity within the judiciary, more can be done to bring about further improvement.
<p align="justify">Rob Marrs, head of education at the Law Society, said: <strong>“There have been great strides made since the inception of the Judicial Appointments Board for Scotland in improving transparency in the appointments process and other more recent changes resulting from the conference held last year on merit and diversity within the judiciary, including a review of its application process to make it more accessible and increased engagement and outreach work with interested parties.</strong>
<p align="justify"><strong>“However it’s undeniable that there is currently a lack of diversity in our judiciary and, with men making up more than 70% of judicial posts, it is not representative of the legal profession or of the population at large. </strong>
<p align="justify"><strong>“Our key recommendations include reviewing the existing criteria for judicial appointments and examining if there are unnecessary barriers which prevent potential candidates from applying. It’s important that as well as considering those recommended for appointment, we look at what can be done to broaden the pool of potential candidates. </strong>
<p align="justify"><strong>“We also think there should be more consideration given to career development and ensuring that judicial appointment is an attractive option for a range of would-be candidates. This could include developing a distinct judicial career path– a model adopted in several European jurisdictions – with specific training for advocates and solicitors who are interested in a career on the bench. </strong>
<p align="justify"><strong>“Informing and engaging groups who may be interested in becoming a sheriff or a judge should start at the earliest opportunity and there could be outreach work done in schools, during university and at the early stages of people’s legal careers. Providing shadowing and mentoring opportunities for less well represented groups has also worked well in England and Wales, where there has been a lot of work done on this, and could easily be adopted here to encourage those who may not previously have considered applying for judicial appointment.”</strong>
<p align="justify">The Law Society has also recommended a review of the current criteria and eligibility for those who can apply for a judicial appointment.
<p align="justify">Marrs said: <strong>“It’s important that we consider the attributes needed by those on the bench. For example, at the moment a key part of the criteria to become a sheriff is experience in court work and case presentation skills. This means that more court practitioners will apply as they can more easily provide evidence to meet the required competencies for the role. However, while this type of experience may be highly desirable, it is important to consider the full range of skills required to prevent any artificial barrier to potential appointment. </strong>
<p align="justify"><strong>“In our view the relevant competencies for a judicial appointment are the ability to make good reasoned decisions within a reasonable time frame, knowledge of the law, knowledge of the rule of law and court procedure. These sit alongside the ability to deal with and understand those appearing before them and to be able to communicate complicated concepts in straightforward language – something which could become increasingly important if more people choose to represent themselves in court if they are unable to access legal aid.” </strong>
<p align="justify"><strong>The Law Society has also recommended having specialist judges who have an in depth knowledge of certain areas of law and a review of the current barriers in place which prevent tribunal judges, who are experienced in dealing with highly complex cases, from moving to judicial posts in Scotland’s courts. </strong>
<p align="justify"><strong>“Our paper sets out several areas where we think there are opportunities to improve diversity within our judiciary. Instigating change will take a coordinated approach from all the organisations which are involved or have an interest in judicial appointments and I look forward to discussing our ideas in more detail with them.”</strong>
<p align="justify">The Judicial Appointments Diversity Steering Group (DSG) is a collaborative group of organisations with an interest in diversity in the judiciary. Its diversity conference report is available to read on the Judicial Appointments Board website: <a href="http://www.judicialappointmentsscotland.org.uk/files/diversityconferencereport.pdf">Judicial Appointments Diversity Steering Group report.</a>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-48923571631272962002015-10-26T10:00:00.000+00:002015-10-27T11:15:34.408+00:00Revealed: The ex Lord Advocate appointed to review deaths in Police custody, and the £56K public cash link to the suspended Sheriff advising cops involved in Sheku Bayoh custody death<p align="justify"><em><a title="Former Lord Advocate linked to lawyer representing custody death cops - is given role chairing deaths in custody inquiry" href="https://www.gov.uk/government/news/home-secretary-announces-chair-for-deaths-in-custody-review"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-kBMtg_1FXTI/Vivhlg2pGEI/AAAAAAAABGg/V5PvjMsLnZo/s400-Ic42/Angiolini%252520Watson%252520Sheku%252520Bayoh.jpg" width="350" align="left" height="205"></a>Custody deaths review role for ex Lord Advocate linked to lawyer advising Police in Sheku Bayoh custody death.</em> <strong>A FORMER</strong> Lord Advocate with links to a suspended judge who is now representing Scottish Police Officers in a controversial custody death case - has been appointed by the Home Secretary to chair a UK wide review into deaths & accidents in Police custody. </p>
<p align="justify">Last week, <a title="https://www.gov.uk/government/news/home-secretary-announces-chair-for-deaths-in-custody-review" href="https://www.gov.uk/government/news/home-secretary-announces-chair-for-deaths-in-custody-review"><strong>Home Secretary Theresa May announced Dame Elish Angiolini DBE QC will chair the independent review into deaths and serious incidents in police custody</strong></a>.
<p align="justify">However, it can be revealed <a href="http://scottishlaw.blogspot.com/search/label/Elish%20Angiolini"><strong>Dame Elish Angiolini DBE QC</strong></a><u></u> (55) (nee McPhilomy) used the services of the very same suspended Sheriff - Peter Watson - who is now representing and advising <strong> </strong><a title="http://www.dailyrecord.co.uk/news/scottish-news/revealed-full-extent-injuries-suffered-6348506" href="http://www.dailyrecord.co.uk/news/scottish-news/revealed-full-extent-injuries-suffered-6348506"><strong>Police Officers involved in the death in Police custidy of Sheku Bayoh</strong></a>.
<p align="justify">According to <a title="Schedule of payments COPFS to Levy and McRae - Peter Watson" href="https://drive.google.com/file/d/0B1nFZkYr7uS2aUFBbEp5MWlMeE0/view"><strong>documents</strong></a> in the possession of <a href="http://www.audit-scotland.gov.uk/"><strong>Audit Scotland</strong></a> – who are investigating claims about public cash spent by the Crown Office – Elish Angiolini <strong>billed taxpayers for upwards of £56,000 for personal legal services provided by Peter Watson</strong> and his former law firm – Glasgow based Levy & McRae.
<p align="justify">The final amount of public cash paid to Watson & Levy & McRae for their services to Angiolini may be higher - as the Crown Office are resisting calls to disclose documents and final figures.
<p align="justify"><a title="Levy & McRae" href="http://www.lemac.co.uk/"><strong>Levy & McRae</strong></a> – where Watson was based until late last year - are also known to have represented Police Officers who were charged and prosecuted for a number of serious criminal offences including rape, assault & fraud.
<p align="justify">Watson (61) served as a Sheriff until he was suspended earlier this year by Scotland’s top judge, Lord Brian Gill.
<p align="justify">The suspension came after <a title="Heather Capital collapse: Court of Session hears £200K payment was made to suspended Sheriff Peter Watson - who represented ex-Lord Advocate Elish Angiolini & former First Minister Alex Salmond" href="http://scottishlaw.blogspot.com/2015/08/heather-capital-collapse-court-of.html"><strong>Sheriff Watson was named in a multi million pound writ seeking £90m in damages for the collapse of hedge fund Heather Capital</strong></a>.
<p align="justify">Levy & McRae are also named in the writ, which alleges the firm was involved in multiple fraudulent cash transfers to offshore jurisdictions.
<p align="justify">In August of this year, the Court of Session heard how Watson received a £200K payment from an Gibraltar based law firm – Hassans.
<p align="justify">Suspended from his judicial duties, Watson is now giving legal advice to and issuing media comment on behalf of Police Officers involved in the controversial death in custody of Sheku Bayoh.
<p align="justify">Last week, a Press Release was issued by Media House International on behalf of suspended Sheriff Peter Watson - in his role of representing Police Officers involved in the Sheku Bayoh case.
<p align="justify">Watson, along with former Justice Secretary Kenny MacAskill – attacked public interest media coverage of the death of Sheku Bayoh while in Police custody.
<p align="justify">The 31-year-old trainee gas engineer, who left Africa and settled in Kirkcaldy, died in May of suspected asphyxia while in police custody after he was <a href="http://www.dailyrecord.co.uk/news/scottish-news/revealed-full-extent-injuries-suffered-6348506"><strong>restrained by up to nine officers</strong></a> .
<p align="justify">A post-mortem examination revealed he had cuts and bruises all over his body, including more than 20 facial injuries and tiny blood spots in his eyes.
<p align="justify">Sheku’s death is being investigated by PIRC - Scotland's Police Investigations and Review Commissioner - but former justice secretary Kenny MacAskill appeared to prejudice the investigation in comments he made last week. MacAskill said he did not <a href="http://www.dailyrecord.co.uk/news/scottish-news/former-scottish-justice-secretary-kenny-6663160"><strong>expect police officers to face charges</strong></a> .
<p align="justify">And, right after MacAskill made his remarks - as if following a script - current Lord Advocate Frank Mulholland intervened, appealing for calm following a row between Kenny MacAskill and Aamer Anwar, the lawyer representing Mr Bayoh's family.
<p align="justify">Yesterday, Justice Secretary Michael Matheson said on BBC Politics Scotland it is not helpful if people give a "running commentary" on the death in police custody of Sheku Bayoh.
<p align="justify">It has <a title="http://www.dailyrecord.co.uk/news/scottish-news/police-wanted-sheku-bayohs-body-6704409" href="http://www.dailyrecord.co.uk/news/scottish-news/police-wanted-sheku-bayohs-body-6704409"><strong>since emerged Police Scotland tried to have the body of Sheku Bayoh returned to his country of birth - Sierra Leone - two days after Mr Bayoh died in Police custody</strong></a><strong>.</strong>
<p align="justify">Police Officers in Scotland contacted the High Commission (Embassy)of Sierra Leone to discuss repatriating his body but officials at in London were alarmed and contacted the father-of-two’s family – who were unaware of Police Scotland’s attempt to remove the body from the UK.
<p align="justify"><strong>Press Release from suspended sheriff Peter Watson claimed “open season of hunting Police Scotland”:</strong>
<p align="justify">Last week, a Press Release was issued by Media House International on behalf of suspended Sheriff Peter Watson - in his role of representing Police Officers involved in the Sheku Bayoh case.
<p align="justify">Watson, along with former Justice Secretary Kenny MacAskill – attacked public interest media coverage of the death of Sheku Bayoh while in Police custody.</p>
<p align="justify">The Press Release, featured in some Scottish newspapers earlier this week read: SHEKU BAYOH – THE 10 VITAL QUESTIONS (Issued on behalf of Prof. Peter Watson BA LLB SSC of PBW Law)
<p align="justify">Glasgow, October 19, 2015: Kenny MacAskill, the former Justice Secretary, has made a timely and important intervention in openly criticising the media campaign waged against Police Scotland, the PIRC and the officers involved in the Sheku Bayoh case. </p>
<p align="justify">He points to an <strong>“open season of hunting Police Scotland”</strong> rather than allowing due process to follow and for the investigation to be completed. He highlights the importance of protecting the integrity of whatever judicial process will follow, most likely a Fatal Accident Inquiry. He also points to a litany of assumptions of racism and homicide, and the misrepresentation of statistics of deaths in custody in England. The statistics surrounding deaths in custody in England have little to do with what happens in Scotland, where most deaths in custody relate to drink or drugs. </p>
<p align="justify">Mr MacAskill rightly points to the poisonous atmosphere which has been created and recognises that those who are the subjects of these wild accusations and criticisms cannot comment as they are involved in this process, and can do no more than co-operate in that process.</p>
<p align="justify">Prof. Peter Watson said: <strong>“As the lawyer representing the Police Officers involved, I welcome these comments from the former Justice Secretary and I agree the sooner we get to whatever Judicial Proceedings are to follow the better. This will most likely be a Fatal Accident Inquiry. This will establish the facts and do so on evidence tested in Court. In broad terms, the Inquiry will set out to explain what happened on May 3 which led to Sheku Bayoh, known locally as Chris and by some as “socks” to be on the streets of Kirkcaldy in the early morning, being confronted by the Police and sadly dying.</strong></p>
<p align="justify"><strong>“I will not engage in speculation as to the outcome nor make wild allegations. The information which has come into the public domain suggests there was a fight in a house, and that Sheku Bayoh had taken drugs. This information will shape some of the questions which must be answered. The family say there is no justice without truth. There are, I suggest, ten questions that will lead us to the truth:</strong></p>
<p align="justify">Along with 10 questions, alleging a number of ‘what ifs’, Prof. Watson added: <strong>“These questions will be asked. Answers to these questions will help get to the truth, as will the post mortem and toxicology reports. The family have their own reports. Although information has been drip fed to the media with details of bodily injury, the family have so far refused to release their reports, whilst at the same time demanding that the PIRC or the Crown release evidence, which as the investigating agencies, they clearly cannot do. There is no reason why the family cannot release the reports they hold if they want the public to have a full and balanced understanding of their position.</strong></p>
<p align="justify"><strong>“I doubt whether these questions will be answered until evidence is given in Court by all those involved but my hope is that until then, the PIRC and the Crown are allowed to complete their investigation in an atmosphere free of orchestrated media events and unsubstantiated allegations.”</strong></p>
<p align="justify">The press release issued on behalf of Peter Watson came after a number of media reports revealed a number of allegations including <a title="http://www.bbc.co.uk/news/uk-scotland-34529611" href="http://www.bbc.co.uk/news/uk-scotland-34529611"><strong>racism & violence</strong></a> against Police Officers involved in the Bayoh case.
<p align="justify">Concerns have also been expressed by many including the family of Mr Bayoh on the progress of an ‘independent’ investigation by PIRC - Scotland's Police Investigations and Review Commissioner into the circumstances surrounding the death of Mr Bayoh while he was in Police custody.
<p align="justify"><strong>Ex Lord Advocate linked to lawyer defending custody death cops - to chair deaths in Police custody inquiry:</strong>
<p align="justify">The Home Office website reveals the terms of reference for the Home Office inquiry chaired by Elish Angiolini on deaths in Police custody:
<ul>
<li>
<p align="justify">to examine the procedures and processes surrounding <b>deaths</b> and serious incidents in police <b>custody</b>, including the lead up to such incidents, the immediate aftermath, through to the conclusion of official investigations. It should consider the extent to which ethnicity is a factor in such incidents. The review should include a particular focus on family involvement and their support experience at all stages.</p>
<li>
<p align="justify">to examine and identify the reasons and obstacles as to why the current investigation system has fallen short of many families’ needs and expectations, with particular reference to the importance of accountability of those involved and sustained learning following such incidents.</p>
<li>
<p align="justify">to identify areas for improvement and develop recommendations seeking to ensure appropriate, humane institutional treatment when such incidents, particularly <b>deaths</b> in or following detention in police <b>custody</b>, occur. Recommendations should consider the safety and welfare of all those in the police <b>custody</b> environment, including detainees and police officers and staff. The aim should be to enhance the safety of the police <b>custody</b> setting for all.</p></li></ul>
<p align="justify">It has also been confirmed that there will be a formal role for INQUEST, a charity that offers advice to families bereaved by death in police <b>custody</b>. Deborah Coles, Director at INQUEST, has been appointed as a special adviser to the chair and the charity will:
<ul>
<li>
<p align="justify">facilitate family listening days so that the Chair can hear evidence first-hand from those who have lost loved ones in police <b>custody</b> to ensure their views are taken into account.</p>
<li>
<p align="justify">play a leading role on an advisory board which will offer expert advice to the Chair during the course of the review.</p></li></ul>
<p align="justify">Home Secretary Theresa May said:<strong> I am pleased that Dame Elish Angiolini has agreed to chair the independent review into deaths and serious incidents in police custody. When I announced this review, I said that the Chairman would be someone with the ability to work closely with victims, families and the police alike, and with a proven track record of being willing to ask difficult questions. Dame Elish has all of these qualities.</strong>
<p align="justify"><strong>Thankfully, deaths and serious incidents in custody are rare. And no one – least of all police officers – wants such incidents to happen, and I know everyone involved takes steps to avoid them. But when such incidents do occur, they are a tragedy that has the potential to undermine the relationship between the public and the police. As Home Secretary, I have been struck by the pain and suffering of families still looking for answers.That is why I set up this independent review and I’m grateful to Dame Elish and Deborah Coles, as special advisor to the chair, for agreeing to take on this important work.</strong>
<p align="justify">Failing to mention any previous link to suspended Sheriff Watson, Dame Elish Angiolini DBE QC said: <strong>“This is a matter of critical importance to many families and I hope that this review can identify pragmatic and effective responses to this longstanding issue.”</strong>
<p align="justify">The Home Office has not commented on the links between Angiolini & the suspended Sheriff Peter Watson.</p>Unknownnoreply@blogger.com2tag:blogger.com,1999:blog-20855066.post-53906898863794820602015-10-23T12:00:00.000+01:002015-10-24T15:56:33.920+01:00Quango Law: Scottish Sentencing Council established after two top judges condemn Ministers sentencing quango as an 'attempt to undermine independence of the judiciary'<p align="justify"><em><a title="Scottish Sentencing Council" href="https://www.scottishsentencingcouncil.org.uk/"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-SSOTs5lq0so/ViuZQ1Db1UI/AAAAAAAABGI/q9XHUR52FpM/s400-Ic42/SSC.jpg" width="350" align="left" height="240"></a>Judges must now give nod to quango on sentencing</em>. <strong>SIX YEARS</strong> after proposals to create a<strong> </strong><a href="https://www.scottishsentencingcouncil.org.uk/"><strong>Scottish Sentencing Council</strong></a> (SSC) were condemned by Scotland's longest serving judge as a "quango" - with constitutional issues, the sentencing body has finally been established by the Scottish Government, with a brief to “raise public awareness and understanding of sentencing practice”.</p>
<p align="justify">The ‘arms length’ body – which some fear may begin to interfere with sentencing on a case by case basis, is headed by the Lord Justice Clerk - Lord Carloway.</p>
<p align="justify">Carloway previously backed the Scottish Government’s ‘unfinished plan’ to remove the long held safeguard of<strong> </strong><a href="http://scottishlaw.blogspot.com/search/label/Corroboration"><strong>corroboration</strong></a> – where evidence in a criminal trial is required from two separate sources for a conviction.</p>
<p align="justify">Earlier this week, legal insiders told SLR it was revealing the sentencing council has only came into being after the retirement of Lord Gill from the post of Lord President, earlier this year.</p>
<p align="justify">Gill, who was opposed to the Scottish Government’s plan to create a quango style sentencing council retired in May 2015. </p>
<p align="justify">It is thought Gill remained opposed to the idea of political meddling in sentencing to the end of his term as Lord President.</p>
<p align="justify">Welcoming the establishment of the Sentencing Council, Justice Secretary Michael Matheson said: <strong>“The creation of the Scottish Sentencing Council is extremely important for the criminal justice system in Scotland and I welcome today’s official launch. </strong><strong>We know that sentencing can be an extremely complicated and emotive issue which is why we want to provide greater clarity and openness around why and how sentences are decided.</strong></p>
<p align="justify">Matheson also claimed, unconvincingly, the courts would remain independent of ministers desires for sentencing headlines to suit the Scottish Government’s policy of cooking the books on crime statistics & convictions.</p>
<p align="justify">The Justice Secretary said:<strong> “While the independence of Scotland’s judiciary of course remains a fundamental part of the Scottish legal system, as does judicial discretion in individual sentencing decisions, the Council will help to ensure transparency and consistency in all sentencing decisions made in Scotland, as well as helping the public better understand the sentencing process.”</strong></p>
<p align="justify">However, legal insiders say the sentencing quango is little more than thinly veiled political meddling in matters constitutionally reserved to the courts.</p>
<p align="justify">Both of Scotland’s previous Lord Presidents have publicly criticised the sentencing council since proposals were first made in 2009 as part of the <a href="http://www.legislation.gov.uk/asp/2010/13/contents"><strong>The Criminal Justice and Licensing (Scotland) Act 2010</strong></a>.</p>
<p align="justify">During evidence heard at the Scottish Parliament’s Justice Committee in 2009, Lord Brian Gill – in his role as Lord Justice Clerk criticised the sentencing plan, branding the Scottish Government’s proposal to create a sentencing council as muddled legislation interfering with the sentencing duties of the courts.</p>
<p align="center"><strong><iframe height="315" src="https://www.youtube.com/embed/ck-MKVD_6zc?rel=0" frameborder="0" width="420" allowfullscreen></iframe></strong></p>
<p align="justify">Lord Gill said: <strong>I am slightly troubled by the term "inconsistency". Forgive me for going back to a slightly earlier point, but it relates to the point that has just been raised with the Lord Justice General.</strong></p>
<p align="justify"><strong>If the legislation sets out to achieve what is described as consistency, it seems essential that it should define what it means by consistency and inconsistency. The consultation paper started off by talking about inconsistency and then spoke about a perception of inconsistency, which is rather a different thing. It is not quite clear yet what the legislation seeks to achieve. There is no definition of consistency in the draft, and it seems to me that those who would form a sentencing council would find some difficulty in knowing exactly what they were trying to do unless the legislation gave them a clear definition by which to judge their own views and decisions.</strong></p>
<p align="justify"><strong>That raises in a clear way the constitutional issue that underlies legislation. It is part of the constitution that it is for the appeal court to determine sentencing, except to the extent that legislation lays down what the sentence should be. To read the bill, one might think that it involved merely the creation of some quango but, in fact, there is a huge constitutional question underlying the bill. That is what troubles me."</strong></p>
<p align="justify">The Justice Committee also heard from the then Lord President – Lord Hamilton – who accused the Scottish Government of putting forward proposals to undermine the independence of the judiciary.</p>
<p align="center"><iframe height="315" src="https://www.youtube.com/embed/mpHhdlMaHYY?rel=0" frameborder="0" width="420" allowfullscreen></iframe></p>
<p align="justify">The current complement of the Scottish Sentencing Council includes 12 members selected by the Scottish Government are:</p>
<p align="justify">Lord Carloway (Lord Justice Clerk, Council Chair), Lord Turnbull (Senator Member), Sheriff Principal Ian R. Abercrombie QC (Sheriff Principal Member), Sheriff Norman McFadyen (Sheriff Member), Allan Findlay (Stipendiary Magistrate Member), Gillian Thomson (Justice of the Peace Member), Catherine Dyer (Crown Agent, Prosecutor Member), Stephen O’Rourke (Advocate Member), John Scott QC (Solicitor Member), Val Thomson (Assistant Chief Constable, Constable Member), Sue Moody (Lay Member with knowledge of victims’ issues), Professor Neil Hutton (Lay Member), </p>
<p align="justify">Sentencing quango member, Sue Moody, who has knowledge of victims’ issues, said: <strong>“I am delighted to be part of the new Sentencing Council. The Council is good news for the victims of crime in Scotland. It will help to demystify sentencing for the public, and will ensure that the interests and needs of victims are taken into account when sentencing guidelines are prepared. This is an important opportunity for victims to contribute their views.”</strong></p>
<p align="justify">Chair of the Scottish Sentencing Council Lord Carloway said: <strong>“Sentencing is much more complex than it sometimes appears - there can be many different factors involved. T</strong><strong>he Council will work to raise awareness and understanding of sentencing practice - not only for our justice partners but for the wider public - helping to build confidence in our justice system. </strong><strong>I expect the Council to take Scotland into a new era, in which we pursue a more principled approach to sentencing with improved consistency. This will be at the heart of our programme.”</strong></p>
<p align="justify">The Scottish Sentencing Council will also:</p>
<p align="justify">help develop sentencing policy<br>conduct research into sentencing practice<br>publish information about sentences<br>provide general advice and guidance on sentencing<br>publish guideline judgments. (These are court opinions which provide guidance on sentences in similar cases)<br>The High Court, new Sheriff Appeal Court and Scottish ministers can request the Council to prepare or review sentencing guidelines on any matter.</p>
<p align="justify">Every three years the Council must prepare and submit a three year business plan to the Scottish Ministers, after consulting the Ministers, the Lord Advocate, the Lord Justice General, and any other people it considers appropriate.
<p align="justify">The Council must also prepare and submit an annual report on its activities to Ministers. The business plan and annual report are then laid before the Scottish Parliament.
<p align="justify">A launch event for the sentencing council will take place on 17 November. Lord Carloway, the Lord Justice Clerk and Chair of the Council, and Mr Michael Matheson, Cabinet Secretary for Justice, will speak at the event.</p>
<p align="justify">Members of the judiciary, justice partners and other stakeholders have been invited to attend, and further spaces may become available nearer the time. Those involved in the justice system who would like to be added to the waiting list, should contact <a href="mailto:sentencingcouncil@scotcourts.gov.uk"><strong>sentencingcouncil@scotcourts.gov.uk</strong></a>
<p align="justify"><strong>Carloway & Corroboration:</strong> </p>
<p align="justify">Earlier this year, Lord Carloway – who authored <a href="https://docs.google.com/open?id=0B0NRqCqye5F9YWZhMjI5ZDUtMjQzMi00NzM1LTlhMWMtZDAxN2EyODI5YTNi"><strong><u>Carloway Review Report & Recommendations 2011</u></strong></a> - essentially backing up Ministers plans to remove corroboration - was criticised by lawyers after the judge accused the legal profession of opposing the removal of corroboration on the basis of financial greed.</p>
<p align="justify">Lord Carloway said in a speech at a conference of Commonwealth Law Reform Agencies in Edinburgh that his proposals to abolish corroboration has been met with “real hostility” from some lawyers.
<p align="justify">He suggested in his speech that some of this ire came from lawyers who had a financial interest in retaining corroboration.
<p align="justify">Lord Carloway said: <strong>“Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest.”</strong>
<p align="justify">However, the remainder of the judiciary demanded corroboration be retained.</p>
<p align="justify">In October 2013, Scotland’s top judge Lord Brian Gill – who opposed the removal of corroboration, gave evidence to the Justice Committee, reported <a href="http://scottishlaw.blogspot.com/2013/11/scotlands-top-judge-lord-gill-warns.html"><strong>HERE</strong></a>, defining corroboration as one of the <strong>"finest features"</strong> of Scotland’s justice system.</p>
<p align="justify">And, Judges of the High Court of Justiciary opposed Carloway on the removal of corroboration, signing a petition against it, available here:<strong> </strong><a href="https://docs.google.com/open?id=0B0NRqCqye5F9LXRiWGxhajRGVXc"><strong>Response by the Senators of the College of Justice to SG consultation : Reforming Scots Criminal Law & Practice</strong></a><strong> .</strong></p>
<p align="justify">Scottish Law Reporter previously reported on the Scottish Government's plans to remove corroboration from Scots Law, <a href="http://scottishlaw.blogspot.com/search/label/Corroboration"><strong>HERE</strong></a>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-71117339895968783842015-10-16T15:00:00.000+01:002015-10-24T16:20:21.537+01:00Allegations of dishonesty, missing files & funds - Investigations by SLCC & Law Society into Borders solicitor Andrew Penman stall after rogue lawyer is ‘signed off sick’ to protect from court & complaints<p align="justify"><em><a href="http://scottishlaw.blogspot.com/search/label/Andrew%20Penman"><img style="margin: 5px 10px 0px 0px" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjEk0bDF-MCySjwcdq8QDj0JkcBVRcdOxFxslWiR3LQM7Pri9yLy6ai7R2LHnaiYfuz8JndjnHZIqSRDdfnRs9HjxpO3w0Vhz1eEU0NBVHV0uttz8xWmPHNrRac952P38YaKinB4A/s400/Penman%2520Stormonth%2520Darling%2520Kelso.jpg" width="365" align="left" height="206"></a>Andrew Penman – ‘signed off sick as protection from litigation - Law Society.</em> <strong>A SOLICITOR</strong> from a now defunct law firm in the Scottish Borders - who was accused by Law Society of faking up evidence, deceiving banks and the Inland Revenue is now ‘signed off sick’ to protect him from ongoing investigations and court litigation – claim legal sources.</p>
<p align="justify"><strong>Andrew Paterson Penman</strong>, solicitor from the now closed down law firm of Stormonth Darling Solicitors - based in Kelso, Scottish Borders - was suspended in October 2014 without any action before the Scottish Solicitors Discipline Tribunal.
<p align="justify">After a period of weeks were clients were unable to contact Mr Penman or gain control of their legal affairs, the Law Society of Scotland closed down Stormonth Darling. The law firm’s business was then taken over by another Kelso based law firm – Cullen Kilshaw.
<p align="justify">It has now transpired both the Law Society of Scotland and the Scottish Legal Complaints Commission are investigating serious complaints made by clients against Mr Penman and his former law firm.
<p align="justify">Legal insiders claim there are allegations of significant amounts of money <strong>“gone missing”</strong>, allegations relating to fraud and the collection or payments of rents, and allegations relating to the misuse of trusts, wills and executries – with significant sums involved.
<p align="justify">It has also been claimed the names of a number of other firms located in the Scottish Borders have cropped up during investigations into Penman’s conduct.
<p align="justify">These include one firm of Borders accountants who appear to have been used to conceal client’s affairs, and two other law firms, one also based in Kelso – who both appear to have facilitated <strong>“transactions unauthorised by clients”</strong>.
<p align="justify">One former client of Stormonth Darling described how in a previous case, Mr Penman had falsified documents in a bid to thwart an earlier investigation into allegations of fraud and missing funds.
<p align="justify">Of the current situation, the former branded the Law Society & SLCC as protective of solicitors, telling SLR:<strong> “The Police should be brought in to investigate Penman and his activities.”</strong>
<p align="justify">Another former client told how the wording of wills had been suspiciously altered, and how property titles <strong>“had disappeared without trace”</strong>.
<p align="justify">Penman’s suspension was published in the Gazette: <strong>Notice is hereby given that the practising certificate of ANDREW PATERSON PENMAN, solicitor, Stormonth Darling, Bank of Scotland Buildings, 8/9 The Square, Kelso, TD5 7HQ was suspended under Sections 39a and 40 of the Solicitors’ (Scotland) Act 1980 with effect from 2 October 2014.</strong>
<p align="justify">The order publishing Penman’s suspension was signed by <strong>James Ness</strong>, Deputy Registrar – the same solicitor who once defended Penman at Law Society Complaints Committees.
<p align="justify">Ness - a partner at Austins Solicitors, Dalbeattie, Dumfries & Galloway - represented Penman at Law Society complaints hearings.
<p align="justify">In one case, James Ness gave a submission on behalf of the suspended solicitor - demanding the Complaints Committee alter its decision to prosecute Penman before the Scottish Solicitors Disciplinary Tribunal.
<p align="justify">The move was controversial and heavily reported in the national and local press at the time.
<p align="justify">Earlier this year, <a title="Law Scandal hits Borders law firm: Lawyer Andrew Penman suspended, Stormonth Darling Solicitors taken over by Law Society in scandal linked to client complaints & Court of Session case" href="http://scottishlaw.blogspot.com/2015/02/law-scandal-hits-borders-law-firm.html"><strong>Penman was linked to a case in the Court of Session</strong></a> - A398/14 <b>Ladykirk</b> <b>Estates</b> <b>Ltd</b> <b>v</b> <b>Stormonth</b> <b>Darling</b> WS :
<p align="justify"><strong>Ladykirk Estates Limited, Academy House, Shedden Park Road, Kelso, (Ledingham Chalmers Llp) Roxburghshire AG V Stormonth Darling W.S. Solicitors, Drew Penman, Terry Mcnally and Craig Wood, Bank Of Scotland Buildings, The Square, Kelso, Roxburghshire</strong>
<p align="justify">Court staff indicated the case was one of a significant financial claim against Penman and other solicitors based at Stormonth Darling in Kelso.
<p align="justify">Andrew Paterson Penman was employed as a Director (SOLICITOR) at <a href="http://www.companieslist.co.uk/SC015891-ladykirk-estates-limited">LADYKIRK ESTATES LIMITED</a> from 01 June 2007 to 17 September 2012 , Company address: LADYKIRK ESTATES LIMITED ACADEMY HOUSE, SHEDDEN PARK ROAD, KELSO, ROXBURGHSHIRE, TD5 7AL
<p align="justify">Andrew Paterson Penman was also employed as a Director (SOLICITOR) at <a href="http://www.companieslist.co.uk/SC123505-s-p-c-borders">S.P.C. BORDERS</a> from 31 January 2006 to 30 November 2014 Company address: S.P.C. BORDERS 27 MARKET STREET, GALASHIELS, TD1 3AF
<p align="justify">It has also been revealed Penman and his law firm are being investigated by the Scottish Legal Complaints Commission & Law Society of Scotland in connection with a number of complaints made by clients where <strong>substantial sums of money into hundreds of thousands of pounds</strong> along with <strong>queries regarding unpaid rent and disappeared funds</strong> are alleged.
<p align="justify">Late last year, Solicitor Craig Wood - the only remaining solicitor at Stormonth Darling ‘took ill’ leading to the Law Society closing the firm down.
<p align="justify">Wood – who was named in a writ against the law firm at the Court of Session - has since died from his illness.
<p align="justify">It is not known whether Mr Wood gave any statements to clients or the Law Society regarding the problems at Stormonth Darling.
<p align="justify">In an update to the report, as of 23 October 2015, SLR has been approached by several individuals from Kelso and around the Scottish Borders who have provided documentation on their dealings with Penman and Stormonth Darling.
<p align="justify">In one case, a client alleges he received visits from officers from the former force of Lothian & Borders Police after he raised questions with the Law Society over significant sums of missing funds & assets under the control of Stormonth Darling.
<p align="justify">Solicitors based at Stormonth Darling and an accountant caught up in accusations of hundreds of thousands of pounds gone missing from a will – appear to have used their influence with public services based in the rural Borders backwater to cause difficulties in the lives of clients whose funds and assets were being systematically stripped by the now defunct law firm.
<p align="justify">The names of two former LibDem politicians, one from Holyrood, another from Westminster - have also been connected to the difficulties at Stormonth Darling.
<p align="justify">In 2009, Scottish Law Reporter covered a story relating to Ladykirk Estates & Andrew ‘Drew’ Penman – after both lost a legal challenge in Scotland’s Land Court. LadyKirk Estates objected to the transfer of a farm tenancy from an elderly tenant to his younger nephew. Ladykirk had also claimed their ECHR rights had been in breach. Full report <a href="http://scottishlaw.blogspot.com/2009/05/dodgy-lawyer-director-drew-penman.html"><strong>HERE</strong></a>
<p align="justify"><strong>CHEQUERED HISTORY OF BORDERS LAWYER WHO RUINED CLIENTS:</strong>
<p align="justify">Penman – Originally from Hawick then moved to Kelso to work at Stormonth Darling Solicitors, has been subject to numerous complaints from local clients in the Scottish Borders over the years, One investigation carried out by the Law Society of Scotland issued reports finding Penman had deliberately rearranged evidence before investigating officers took possession of the files in an attempt to prevent the Law Society’s own reporter from investigating the circumstances of the losses. The Law Society investigating reporter found <strong>“there was also evidence of what appeared to be a bungled and unsuccessful attempt to put the file into order”</strong>
<p align="justify">The Law Society investigator recommended a prosecution of Andrew Penman, saying : <strong>“In respect of the extraordinary delays and the repeated failures to respond to correspondence and the apparent, deliberate attempt to mislead the Royal Bank the reporter was of the view that the professional misconduct was such that it would warrant prosecution before the Scottish Solicitors Discipline Tribunal The reporter was or the view that there had clearly been an inadequate professional service but in the, event of a referral to the Scottish Solicitors Discipline Tribunal this would be incorporated into the complaint.”</strong>
<p align="justify">Neither the Law Society of Scotland or Scottish Legal Complaints Commission could not be reached for comment.</p>Unknownnoreply@blogger.com2tag:blogger.com,1999:blog-20855066.post-85010103722529897542015-10-15T18:30:00.000+01:002015-10-17T15:23:14.276+01:00Lord Advocate & Crown Office identify two ‘new’ Libyan suspects sought for questioning over 1998 terrorist bombing of flight Pam Am 103 over Lockerbie<p align="justify"><em><a href="http://www.crownoffice.gov.uk/"><img style="margin: 5px 10px 0px 0px" alt="Lord Advocate Frank Mulholland" src="http://farm8.staticflickr.com/7160/6776246153_01a2098418_n.jpg" width="220" align="left" height="244"></a></em> </p>
<p align="justify"><em></em>
<p align="justify"><em>Old Lockerbie suspects sought anew by Lord Advocate.</em> <strong>SCOTLAND’S</strong> Lord Advocate Frank Mulholland has requested the help of Libyan judicial authorities for Scottish police officers and the FBI to interview two Libyan suspects in the bombing of flight Pan Am 103 over Lockerbie in 1988.</p>
<p align="justify">The request – 27 years after the destruction of Pan Am Flight 103 over Lockerbie, Scotland in December 1988, comes after the Crown Office said earlier today that the two men are believed to have acted with Abdelbaset Ali Mohmed al-Megrahi, the only person ever convicted of the bombing, which caused the deaths of 270 people.</p>
<p align="justify">Neither suspect was named by the Crown Office although it is thought the identities of both have appeared in claims by prosecutors at previous stages of the case.</p>
<p align="justify">A Crown Office spokesman said today: <strong>"The Lord Advocate and the US Attorney General have recently agreed that there is a proper basis in law in Scotland and the United States to entitle Scottish and US investigators to treat two Libyans as suspects in the continuing investigation into the bombing of flight Pan Am 103 over Lockerbie. </strong>
<p align="justify"><strong>"The Lord Advocate has today, therefore, issued an International Letter of Request to the Libyan Attorney General in Tripoli which identifies the two Libyans as suspects in the bombing of flight Pan Am 103. The Lord Advocate and the US Attorney General are seeking the assistance of the Libyan judicial authorities for Scottish police officers and the FBI to interview the two named suspects in Tripoli. The two individuals are suspected of involvement, along with Abdelbaset Ali Mohmed Al Megrahi, in the bombing of flight Pan Am 103 in December 1988 and the murder of 270 people."</strong></p>
<p align="justify">BBC News reported: </p>
<p align="justify"><a href="http://www.bbc.co.uk/news/uk-scotland-34543983">Two new Lockerbie bombing suspects identified</a></p>
<p align="justify"><strong>Scottish prosecutors want to interview two Libyans they have identified as new suspects over the Lockerbie bombing.</strong></p>
<p align="justify"><strong>They believe the two suspects acted along with Abdelbaset al-Megrahi - the only person to have been convicted of the atrocity.</strong></p>
<p align="justify"><strong>The BBC understands the pair are Mohammed Abouajela Masud and Abdullah al-Senussi.</strong></p>
<p align="justify"><strong>A total of 270 people died when the Pan Am 103 flight was blown up on the evening of 21 December 1988.</strong></p>
<p align="justify"><strong>The flight was on its way from London to New York when it exploded above Lockerbie, in southern Scotland, killing everyone on board and 11 people on the ground.</strong></p>
<p align="justify"><strong>Senussi was the brother-in-law and intelligence chief of former Libyan dictator Colonel Gaddafi. He is currently awaiting execution in a Libyan jail.</strong></p>
<p align="justify"><strong>Masud is reported to be serving a prison sentence in Libya for bomb making.</strong></p>
<p align="justify"><strong>Scotland's Lord Advocate Frank Mulholland QC recently met the US Attorney General, Loretta Lynch, in Washington to review progress made in the ongoing investigation.</strong></p>
<p align="justify"><strong>They have now requested permission from the Libyan authorities for Scottish police and the FBI to interview the two new suspects in Tripoli.</strong></p>
<p align="justify"><strong>A Crown Office spokesman said: "The Lord Advocate and the US Attorney General have recently agreed that there is a proper basis in law in Scotland and the United States to entitle Scottish and US investigators to treat two Libyans as suspects in the continuing investigation into the bombing of flight Pan Am 103 over Lockerbie.</strong></p>
<p align="justify"><strong>"The Lord Advocate has today, therefore, issued an International Letter of Request to the Libyan attorney general in Tripoli which identifies the two Libyans as suspects in the bombing of flight Pan Am 103.</strong></p>
<p align="justify"><strong>"The Lord Advocate and the US Attorney General are seeking the assistance of the Libyan judicial authorities for Scottish police officers and the FBI to interview the two named suspects in Tripoli.</strong></p>
<p align="justify"><strong>"The two individuals are suspected of involvement, along with Abdelbaset Ali Mohmed al-Megrahi, in the bombing of flight Pan Am 103 in December 1988 and the murder of 270 people."</strong></p>
<p align="justify"><strong>The Libyan attorney general declined to comment to the BBC on whether a letter had been received from the Crown Office and whether the Libyan government would be assisting in the investigation.</strong></p>
<p align="justify"><strong>Rival governments</strong></p>
<p align="justify"><strong>Libya has struggled to stabilise since ousting long-term leader Colonel Muammar Gaddafi in 2011. Elections in 2014 produced two rival governments as Islamist and secular militias fight for control of the country.</strong></p>
<p align="justify"><strong>The Crown Office said it would be inappropriate to confirm any identities to preserve the integrity of the investigation.</strong></p>
<p align="justify"><strong>Megrahi's part in the bombing has been called into question in a series of books and documentaries.</strong></p>
<p align="justify"><strong>And a petition seeking "Justice For Megrahi", backed by politicians and family members of some victims, was raised at the Scottish Parliament in 2012.</strong></p>
<p align="justify"><strong>Jim Swire, whose daughter died in the bombing, told the BBC: "I think there is a need for evidence to be made available as to why these two are suspects.</strong></p>
<p align="justify"><strong>"We have recently been refused permission in Scotland to have to have a further appeal held into Megrahi's conviction, and many in this country simply don't believe Megrahi was involved and that this was a miscarriage of justice.</strong></p>
<p align="justify"><strong>"To try and bolt two more names on top of that is a very difficult situation. It will need to be supported by better evidence than was produced to achieve the conviction of Megrahi."</strong></p>
<p align="justify"><strong>But Frank Duggan, president of Pan Am 103 Relatives, told BBC Radio Scotland's Newsdrive programme he was not confident there would be further prosecutions.</strong></p>
<p align="justify"><strong>'Really gratified'</strong></p>
<p align="justify"><strong>He said: "I would like to think there would be, but they would have to be indicted by the US government or by the Scottish government and the Libyan government would have to turn them over - the Libyans have always said they are not going to turn over anyone to a foreign government.</strong></p>
<p align="justify"><strong>"And it's been 26 years. It's too long, people are dead, stories have been forgotten.</strong></p>
<p align="justify"><strong>"I'd like to think that it will be one small measure of closure but I don't expect the kind of justice that we all hope for."</strong></p>
<p align="justify"><strong>Stephanie Bernstein, who lost her husband in the bombing, told the BBC that she was "surprised, delighted and really gratified" by the announcement.</strong></p>
<p align="justify"><strong>She added: "There are many, many people who I hope are not sleeping so well tonight knowing that the Scottish government and the US government are committed to pursuing this case."</strong></p>Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-20855066.post-86797934736548990762015-10-09T16:00:00.000+01:002015-10-10T02:19:38.415+01:00TRIAL BALLOON: Lord Advocate deflects calls for inquiry on Crown Office handling of mortgage fraud allegations against solicitor who represented MP Michelle Thomson<p align="justify"><em><a title="Frank Mulholland questioned by MSPs about when the Crown Office was first notified of allegations of mortgage fraud against Christopher Hales." href="https://www.youtube.com/watch?v=H-nxHM0lfNA"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-EnFWaesWOL8/VhggfYJ_V1I/AAAAAAAABDM/Kx1aaxNqU9I/s400-Ic42/Frank%252520Mulholland%252520Holyrood.jpg" width="350" align="left" height="256"></a>‘Unconvincing’ Lord Advocate raises fears of cover up. </em><strong>DURING</strong> one of the worst performances ever by a Lord Advocate before the Scottish Parliament – top prosecutor Frank Mulholland said he did not think there should be an inquiry into the handling of an investigation of a lawyer who was struck off over property deals involving SNP MP Michelle Thomson.</p>
<p align="justify">Responding to questions on when the <a title="Crown Office" href="http://www.crownoffice.gov.uk/"><strong>Crown Office & Procurator Fiscal Service</strong></a> (COPFS) was informed of allegations of mortgage fraud involving solicitor Christopher Hales – Frank Mulholland told MSPs that he does not believe there should be an inquiry into when prosecutors knew and how the case has since been handled - after it emerged the Law Society briefly informed the Crown Office of the ‘issue’ in December 2014.</p>
<p align="justify">Hales, who once listed his occupation as “Police Constable” – and is now struck off by the Scottish Solicitors Discipline Tribunal from working as a solicitor - handled numerous property deals for his client – SNP MP Michelle Thomson. Mr Hales acted for Ms Thomson before she was elected as an SNP MP.</p>
<p align="justify">According to <a title="Council of the Law Society of Scotland v Christopher William Hales" href="https://drive.google.com/file/d/0B0NRqCqye5F9QnY4SGlwT0JIdEE/view"><strong>a ruling by the Scottish Solicitors’ Discipline Tribunal</strong></a>, a full version of which has been published by the <a title="Solicitor in SNP MP’s house deals struck off" href="http://www.thesundaytimes.co.uk/sto/news/article1612263.ece"><strong>Sunday Times</strong></a>, Mr Hales failed to provide key information to mortgage lenders in breach of guidelines designed to prevent fraud in numerous cases.</p>
<p align="justify">In the Scottish Parliament on Thursday, Labour MSP Jackie Baillie asked Mr Mulholland about the timeline in the case.</p>
<p align="justify">During the 10 minute session, Lord Advocate Frank Mulholland presented a timeline of events as the Crown Office saw it:</p>
<p align="justify"><strong>18 December, 2014 - The issue of solicitor Christopher Hales was raised "informally" by the Law Society of Scotland with the Crown Office. Neither the clients nor properties were named.</strong></p>
<p align="justify"><strong>28 April, 2015 - The issue was raised again and it was noted that the matter of referral to the Crown Office was still under consideration by the Law Society. Neither the clients nor properties were named. </strong></p>
<p align="justify"><strong>1 July, 2015 - The Crown was advised by the Law Society that it was required to obtain authorisation from its Guarantee Fund Sub Committee to formally refer the case. </strong></p>
<p align="justify"><strong>3 July, 2015 - Referral was received by the Crown following the required authorisation. Documents were handed over to the Crown Office and in those documents the names of clients and properties were disclosed. </strong></p>
<p align="justify"><strong>9 July, 2015 - A formal referral was made to the Crown Office and instructions were issued to Police Scotland.</strong></p>
<p align="center"><strong><a title="Frank Mulholland questioned by MSPs about when the Crown Office was first notified of allegations of mortgage fraud against Christopher Hales." href="https://www.youtube.com/watch?v=H-nxHM0lfNA">Frank Mulholland questioned by MSPs about when the Crown Office was first notified of allegations of mortgage fraud against Christopher Hales.</a></strong></p>
<p align="center"><iframe height="315" src="https://www.youtube.com/embed/H-nxHM0lfNA?rel=0" frameborder="0" width="560" allowfullscreen></iframe></p>
<p align="justify">Mr Mulholland said:<strong> "As the Crown has made clear on a number of occasions, the case of Christopher Hales was first brought to its attention by the Law Society of Scotland at a meeting on 18 December, 2014."</strong></p>
<p align="justify">Ms Baillie asked if Mr Mulholland believed there should be an investigation into the processing of information between the Law Society and the Crown Office.</p>
<p align="justify">She asked if he would order such an inquiry, given that there may have been <strong>"additional opportunities for alleged mortgage fraud"</strong> due to the delay.</p>
<p align="justify">Mr Mulholland responded: <strong>"I don't have the power to order an inquiry, and I don't think there should be an inquiry."</strong></p>
<p align="justify">He said Police Scotland were instructed to investigate the allegations on 3 July 2015 and formally issued officers to do so on 9 July.</p>
<p align="justify">He said the issue was raised at routine quarterly meetings between the Law Society and the Crown Office.</p>
<p align="justify">Mr Mullholland said the Crown Office was first made aware on 18 December 2014 that the case was under consideration for referral. The issue was raised again on 28 April.<br>Image copyright PA Image caption Ms Thomson denies acting illegally</p>
<p align="justify">Mr Mulholland added: <strong>"The first time the Crown was made aware of the identity of the clients and the properties, was the 3rd of July."</strong></p>
<p align="justify">Mulholland was also asked by Jackie Baillie if the Crown Office had begun any Proceeds of Crime actions against those involved. </p>
<p align="justify">Embarrassingly for the Lord Advocate, and appearing to have little clue as to the sequence of events, he responded <strong>“not yet”.</strong></p>
<p align="justify">Police Scotland launched an inquiry only after the Crown Office was finally handed the detailed case files in the Hales case by the Law Society, some seven months from the day it first alerted prosecutors to the case.
<p align="justify"><a title="Solicitor in SNP MP’s house deals struck off - Sunday Times" href="http://www.thesundaytimes.co.uk/sto/news/article1612263.ece"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-L_XPd5oRN2E/VhggYnZnd7I/AAAAAAAABDE/rAWzFUtce3U/s400-Ic42/Solicitor%252520in%252520SNP%252520MP%252527s%252520House%252520Deals%252520Struck%252520Off%252520-%252520Sunday%252520Times.jpg" width="350" align="left" height="268"></a>Hales was banned from the legal profession in May 2014 over 13 property deals linked to Thomson and her business partners. The transactions involved “back to back” sales, where homes – often owned by vulnerable people – were bought at below full market value and then resold at far higher prices, in some cases on the same day; where large cash sums were transferred between the parties involved; where mortgage loans were sought that were higher than the price paid for the home, and where higher prices than those actually paid were recorded in the Scottish land registry.
<p align="justify">Mortgage companies involved in those transactions, including Lloyds, which gave loans through its subsidiary Birmingham Midshires, and Virgin Money, which now owns the mortgage book for Northern Rock, which lent money for one sale, have confirmed they are now in contact with the police.
<p align="justify">The Sunday Times disclosed it had submitted new evidence of an unusual property transaction to Police Scotland detectives after a couple who sold a home to Thomson alleged they had £32,000 deducted from the sale proceeds to pay off a loan they had no knowledge of.
<p align="justify">The solicitor involved in that transaction, James Craig, had been found <a href="https://www.ssdt.org.uk/findings/complaints-of-professional-misconduct/law-society-v-james-william-craig/"><strong>guilty of professional misconduct</strong></a> in February 2014 by the Scottish Solicitors Disciplinary Tribunal (SSDT), the body that struck off Hales three months later, and fined £2,500 for breaching money laundering regulations. There was no evidence that Craig acted improperly in the case reported by the Sunday Times.
<p align="justify">The Sunday Mail reported that a second lawyer named in the SSDT judgment on Hales called Christopher Tulips, whose firms Strefford Tulips was involved in several deals for Thomson’s firm M&F Property Solutions, had also been censured and fined £2,500 for his role in back-to-back property deals. The published ruling <a href="https://www.ssdt.org.uk/findings/complaints-of-professional-misconduct/law-society-v-william-christopher-tulips/"><strong>by the SSDT on Tulips</strong></a> is anonymised, so it remains unclear whether his case involved transactions linked to Thomson.
<p align="justify">Last week, the Law Society said its director of financial compliance Ian Messer "informally" raised concerns about the case of Mr Hales during two separate meetings with prosecutors in December 2014 and April 2015.</p>
<p align="justify">However, the Law Society did not <strong>"formally"</strong> submit its evidence to the Crown until July 2015, two months after Ms Thomson was elected SNP MP for Edinburgh West.</p>
<p align="justify">Law Society chief executive Lorna Jack gave an<strong> "absolute and categorical assurance"</strong> last week that the election played no part in the timings of the case.</p>
<p align="justify">She said Mr Messer would have seen Ms Thomson's name in the unredacted report into Mr Hales but may not have been aware she was a Westminster candidate.</p>
<p align="justify">The secretary to the Law Society committee that struck Mr Hales off, Sheila Kirkwood, is said to be a personal acquaintance of Ms Thomson with close links to the SNP.</p>
<p align="justify">Lorna Jack has pledged to look more deeply into Ms Kirkwood's links with Ms Thomson, but said she has received an assurance the secretary was unaware of the MP's links to Mr Hales until she read about it in media reports.</p>
<p align="justify">Ms Thomson is linked to 13 transactions Mr Hales conducted in 2010-11 where properties were said to have been bought cheaply from clients looking for a quick sale and then sold at a huge mark-up on the same day.</p>
<p align="justify">Complicated "cashback" deals were said to have been used to artificially inflate property prices in order to secure bigger loans from lenders.</p>
<p align="justify">Ms Thomson has denied acting illegally.Ms Thomson has surrendered the SNP party whip and has also stood down as the party's business spokeswoman at Westminster until the investigation into Mr Hales has concluded.</p>
<p align="justify">Previously, First Minister Nicola Sturgeon denied having any prior knowledge of a scandal which led to one of her most prominent MPs stepping down from the party. </p>
<p align="justify">During First Minister’s Questions last Thursday, 1 October,<strong> </strong><a title="First Minister's Questions re Michelle Thomson Scottish Parliament 1st October 2015" href="https://www.youtube.com/watch?v=nDcx9-0hsDk"><strong>Nicola Sturgeon said in response to questions</strong></a> that "serious issues" had been raised around the conduct of Michelle Thomson. The First Minister said that a police investigation should be allowed to take its course.</p>
<p align="justify"><strong>NO HOMELESSNESS FOR POLITICIANS:</strong></p>
<p align="justify">The House of Commons Register of Members’ Interests lists 16 SNP MPs as holding property interests from which most receive rental income.</p>
<p align="justify">Under the rules, Members of Parliament are required to list a property if (i) its value is over £100,000 and (ii) if they receive rental income of at least £10,000 a year.</p>
<p align="justify"><strong>Tasmina Ahmed-Sheikh(Ochil and South Perthshire): Three flats in Glasgow and a house in Kingussie, Highlands and Islands (i/ii).</strong></p>
<p align="justify"><strong>Richard Arkless(Dumfries and Galloway): A house in Broxburn, West Lothian, and a flat in Glasgow (i/ii).</strong></p>
<p align="justify"><strong>Ian Blackford(Ross, Skye and Lochaber): Croft, including two holiday rental properties on the Isle of Skye (i/ii). A house in Lanark (i),</strong></p>
<p align="justify"><strong>Deidre Brock(Edinburgh North and Leith): A half share in two Edinburgh flats (i).</strong></p>
<p align="justify"><strong>Lisa Cameron(East Kilbride, Strathaven and Lesmahagow): A house in South Lanarkshire (i/ii). Five residential and holiday let apartments in Edinburgh and South Lanarkshire (i/ii).</strong></p>
<p align="justify"><strong>Martyn Day(Linlithgow and East Falkirk): A house in West Lothian (i).</strong></p>
<p align="justify"><strong>Patricia Gibson(North Ayrshire and Arran): A flat in Edinburgh (i).</strong></p>
<p align="justify"><strong>Calum Kerr(Berwickshire, Roxburgh and Selkirk): A house in Wester Ross (i/ii).</strong></p>
<p align="justify"><strong>Chris Law(Dundee West): A flat in Dundee (i) and a flat in Aberdeen (i).</strong></p>
<p align="justify"><strong>Angus Brendan MacNeil(Na h-Eileanan an Iar): Jointly owns a house in Fort William plus a flat in Glasgow and a flat in London (i/ii).</strong></p>
<p align="justify"><strong>Stuart McDonald(Cumbernauld, Kilsyth and Kirkintilloch East): A flat in East Dunbartonshire (i).</strong></p>
<p align="justify"><strong>John McNally(Falkirk): Owns a hair salon, The Barber Shop, from which he receives £600 a month in rent.</strong></p>
<p align="justify"><strong>John Nicolson(East Dunbartonshire): A terrace house in London’s Tower Hamlets (i/ii). He occasionally receives income for renting it out for photoshoots.</strong></p>
<p align="justify"><strong>Steven Paterson(Stirling): A half share in a flat in Stirling (i).</strong></p>
<p align="justify"><strong>Tommy Sheppard(Edinburgh East): Commercial premises and residential property in Edinburgh (i) owned by entertainment company Salt ‘n’ Sauce Promotions of which he is a shareholder.<br>Share article</strong></p>
<p align="justify"><strong>Michelle Thomson(Edinburgh West): Two residential properties in Edinburgh, one in Falkirk, one on the Isle of Bute, one in East Calder, one in Stirling, one in Dollar, a half share of a property in Edinburgh and a quarter share of a property in Edinburgh (i/ii). She is a shareholder in the property management firm Your Property Shop.</strong></p>Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-20855066.post-54524281191654436752015-10-08T14:00:00.000+01:002015-10-10T11:42:41.033+01:00Lord Hope appointed Chief justice of Abu Dhabi Global Market Court - as Human Rights abusing Gulf States turn to Scottish judges in move to corner global legal business<p align="justify"><em><a title="Scottish judge to head court based in Human Rights wasteland" href="https://en.wikipedia.org/wiki/Human_rights_in_the_United_Arab_Emirates"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-B31joV0Oyns/VhjnzC78buI/AAAAAAAABDk/ex-e3_mwBuI/s400-Ic42/Lord%252520Hope%252520Abu%252520Dhabi.jpg" width="350" align="left" height="267"></a>Lord Hope to head Global Court based in Abu Dhabi </em><strong>GULF STATES</strong> accused of human rights violations including public lashings, stoning, torture, forced disappearances & impositions of censorship and prohibition of a free press – are turning to retired Scottish judges in an effort to corner global legal business.</p>
<p align="justify">In an appointment announced earlier this week, Lord Hope of Craighead, the retired Scots law lord, has been appointed as Chief Justice of Abu Dhabi Global Market Courts ("ADGM"), to help establish the undemocratic Gulf state where elections are banned - as a leading international financial centre.</p>
<p align="justify">Lord Hope, who retired as Deputy President of the UK Supreme Court in 2013, will be responsible for presiding over ADGM’s legal framework through ADGM Courts of the First Instance and of Appeal. </p>
<p align="justify">Abu Dhabi Global Market (ADGM) has appointed a chief justice to head up the legal structure at the new financial free zone in the UAE capital.
<p align="justify">The courts represent one of the three independent authorities within ADGM and will have jurisdiction over civil and commercial disputes on Al Maryah Island, the jurisdiction of ADGM.
<p align="justify">Commenting on the appointment, His Excellency Ahmed Ali Al Sayegh, chairman of ADGM, said:<strong> “We are delighted and privileged to have Lord Hope join us as Chief Justice for our courts. Lord Hope is one of the most respected and experienced senior judges in the UK. His appointment is a testament to our resolve and commitment to delivering a truly world class international financial centre. Lord Hope will be instrumental in ensuring that our member institutions will be fully supported by ADGM’s robust and reliable international legal system when we become fully operational later this year.”</strong></p>
<p align="justify">Lord Hope responded: <strong>“It is a very real personal honour for me to have been appointed to lead the setting up of Abu Dhabi Global Market Courts as their Chief Justice. Our aim is to establish an independent and first class judicial system, equipped with world class judges of unrivalled experience and integrity, to serve the needs of Abu Dhabi Global Market as a business-friendly and well regulated centre for global commerce.”</strong>
<p align="justify">He added: <strong>“We will be working with the legal community and others locally, regionally and internationally, to ensure that our courts are as up to date, efficient and accessible as possible. We will be guided at all times by the ADGM’s core values of respect, trust, performance and responsibility. I look forward very much to meeting the challenges that lie ahead and making the best use of our opportunities in this exciting new environment.”</strong></p>
<p align="justify">According to human rights organizations, the UAE is violating a number of fundamental practices. For example, the UAE does not have <a href="https://en.wikipedia.org/wiki/Democratically">democratically</a>-elected institutions and citizens do not have the right to change their government or to form political parties. There are reports of <a href="https://en.wikipedia.org/wiki/Forced_disappearances">forced disappearances</a> in the UAE, many foreign nationals and Emirati citizens have been abducted by the UAE government and illegally detained in undisclosed locations.In numerous instances, the UAE government has tortured people in custody and has denied their citizens the right to a <a href="https://en.wikipedia.org/wiki/Speedy_trial">speedy trial</a> and access to counsel during official investigations.
<p align="justify"><a href="https://en.wikipedia.org/wiki/Flogging">Flogging</a> and <a href="https://en.wikipedia.org/wiki/Stoning">stoning</a> are legal forms of judicial punishment in the UAE due to Sharia courts.<sup><a href="https://en.wikipedia.org/wiki/Human_rights_in_the_United_Arab_Emirates#cite_note-bergner-3">[3]</a></sup> The government restricts <a href="https://en.wikipedia.org/wiki/Freedom_of_speech">freedom of speech</a> and <a href="https://en.wikipedia.org/wiki/Freedom_of_the_press">freedom of the press</a>, and the local media is <a href="https://en.wikipedia.org/wiki/Censored">censored</a> in order to avoid criticizing the government, government officials or royal families. <a href="https://en.wikipedia.org/wiki/Freedom_of_association">Freedom of association</a> and freedom of religion are also curtailed.
<p align="justify">Despite being elected to the UN Council, the UAE has not signed most international human-rights and labor-rights treaties, including the <a href="https://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights">International Covenant on Civil and Political Rights</a>, the <a href="https://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights">International Covenant on Economic, Social and Cultural Rights</a>, the <a href="https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Protection_of_the_Rights_of_All_Migrant_Workers_and_Members_of_Their_Families">Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families</a>, and the <a href="https://en.wikipedia.org/wiki/United_Nations_Convention_Against_Torture">Convention against Torture</a>. Journalists from overseas frequently record and document human rights abuses that occur within the UAE.
<p align="justify">The United Arab Emirates (UAE) continued in 2014 to arbitrarily detain individuals it perceives as posing a threat to national security, and its security forces continued to face allegations that they torture detainees in pretrial detention. UAE courts invoked repressive laws to prosecute government critics, and a new counterterrorism law poses a further threat to government critics and rights activists. Migrant construction workers on one of the country’s most high-profile projects continued to face serious exploitation, and female domestic workers were still excluded from regulations that apply to workers in other sectors.
<p align="justify">Arbitrary Detention, Torture and Fair Trial in the land of new Global Market Court:</p>
<p align="justify">In January 2014, 20 Egyptians and 10 Emiratis received five-year jail sentences on charges that they set up a branch of the Muslim Brotherhood in the country. They alleged that UAE authorities subjected them to torture in detention and denied them access to legal assistance for many months.
<p align="justify">In August, authorities detained 10 Libyan businessmen, at least 2 of whom forcibly disappeared. In September, UAE authorities detained six Emiratis with suspected links to local Islamist groups. At time of writing, authorities have not charged any of the men, and their whereabouts remain unknown.
<p align="justify">Two British nationals alleged that they endured torture in pretrial detention. Hasnan Ali, whom a court acquitted of drug charges in April 2014, alleged that police in Dubai beat and threatened to shoot and sexually assault him. Ahmed Zeidan, who received a nine-year sentence for drug possession in May 2014, alleged that police in Dubai held him in solitary confinement for eight days and threatened him with sexual assault. Both men claim they signed legal statements in Arabic, a language neither can read.
<p align="justify">In February 2014, the UN special rapporteur on the independence of judges and lawyers criticized the lack of judicial independence in the UAE, arguing that the executive branch exerts <em>de facto</em> control over the judiciary. She also expressed concern over reports of the use of secret detention facilities and the ill-treatment and torture of individuals held in incommunicado detention.</p>Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-20855066.post-68616070638134042682015-10-02T10:00:00.000+01:002015-10-10T15:53:08.148+01:00First Minister says allegations involving struck off solicitor relating to property deals of SNP MP Michelle Thomson are “unacceptable if true”<p align="justify"><em><a title="First Minister's Questions re Michelle Thomson Scottish Parliament 1st October 2015" href="https://www.youtube.com/watch?v=nDcx9-0hsDk"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-Nf9gH7Vbgmo/Vhkgy5fcACI/AAAAAAAABEQ/JEVQJKC65Eo/s400-Ic42/Sturgeon%252520FMQs.jpg" width="350" align="left" height="247"></a>First Minister at FMQs on claims about MP’s property deals.</em> <strong>SCOTLAND’S</strong> First Minister told MSPs yesterday that allegations against an SNP MP would represent "completely unacceptable" behaviour if they are proven to be correct.</p>
<p align="justify">MP Michelle Thomson (SNP,Edinburgh West ) has been linked with property deals involving a solicitor – Christopher Hales - who has since been struck off by the Scottish Solicitors Discipline Tribunal (SSDT) in connection with 13 transactions in 2010 and 2011.</p>
<p align="justify">Speaking at First Minister's Questions, Ms Sturgeon said: <strong>"I said yesterday, I have said again today: the SNP had no prior knowledge of these issues.</strong>
<p align="justify">Scottish Labour leader Kezia Dugdale said the issue was also a "<strong>moral matter"</strong> which she said had resulted in <strong>"vulnerable people being taken advantage of, as their homes are snapped up at knockdown prices".</strong>
<p align="justify">Ms Sturgeon again insisted that she knew nothing of the allegations until they were reported by the Sunday Times.</p>
<p align="justify">She said: <strong>"I am in no doubt whatsoever in my mind that if the allegations - and again I stress the word allegations - are proven to be correct, they will represent behaviour that I find completely unacceptable."</strong></p>
<p align="justify">The First Minister said it would be <strong>"unfair and inappropriate"</strong> to judge someone who maintains their innocence while an investigation was still ongoing.</p>
<p align="justify">She added: <strong>"But when we have all of the facts, when the investigation is concluded, I will take whatever decisions and whatever actions I deem necessary, but those decisions will be driven by facts and not by insinuation and the attempts of opposition parties to stir up political trouble and difficulty."</strong></p>
<p align="justify">Ms Sturgeon also said it was <strong>"ridiculous"</strong> to suggest the SNP would allow a candidate to be put forward for election knowing there were "serious problems" over their integrity.</p>
<p align="justify">She added: <strong>"Our vetting procedures as a party are robust but we keep them under review, as I would hope every political party does.</strong></p>
<p align="justify"><strong>"While we make all reasonable checks and ask all reasonable questions, by definition it is not reasonable to expect that matters of which we have no knowledge can be investigated."</strong></p>
<p align="center"><a title="First Minister's Questions re Michelle Thomson Scottish Parliament 1st October 2015" href="https://www.youtube.com/watch?v=nDcx9-0hsDk"><strong>First Minister's Questions re Michelle Thomson Scottish Parliament 1st October 2015</strong></a><strong> </strong></p>
<p align="center"><iframe height="315" src="https://www.youtube.com/embed/nDcx9-0hsDk?rel=0" frameborder="0" width="560" allowfullscreen></iframe></p>
<p align="justify">But Ms Dugdale accused the SNP leader of <strong>"running away" </strong>from Ms Thomson, who was the SNP's Westminster spokeswoman for business, innovation and skills and was heavily involved with the pro-independence Business for Scotland group ahead of last year's referendum.</p>
<p align="justify">She also said Ms Thomson had for the past two years <strong>"been right at the heart of everything the SNP stands for".</strong></p>
<p align="justify">Ms Dugdale added: <strong>"I am not asking the first minister to comment on the specifics of a live investigation because I accept that criminal matters are for the police.</strong></p>
<p align="justify"><strong>"But this is also a moral matter, and I would expect her to comment on that. What we have here is vulnerable families losing out for the financial gain of others.</strong></p>
<p align="justify"><strong>"Vulnerable people being taken advantage of, as their homes are snapped up at knockdown prices. Can I ask the first minister, does she agree with me that profiteering from vulnerable families is just plain wrong?"</strong></p>
<p align="justify">Ms Sturgeon responded: <strong>"Kezia Dugdale, although she disagrees with me, as she is entitled to do on a whole range of issues, I hope would accept that my commitment to social justice, and helping vulnerable people, like her's, is beyond any question."</strong></p>
<p align="justify">Conservative leader Ruth Davidson questioned whether it was <strong>"believable"</strong> that no one in the SNP knew about the allegations.</p>
<p align="justify">She said: <strong>"We already know that the Crown Office and Police Scotland were asked whether they would investigate this case in July of last year.</strong></p>
<p align="justify"><strong>"We know that the Law Society raised with the Crown Office in December.</strong></p>
<p align="justify"><strong>"We know that journalists have been investigating it all summer and we know that the police were called in nearly three months ago.</strong></p>
<p align="justify"><strong>"Yet the first minister is asking us to believe that nobody in the SNP, the party of government, from the constituency in Edinburgh West right up to the chief executive to the leader herself, knew anything about this until they read it in the paper almost two weeks ago."</strong></p>
<p align="justify">In the decision issued by the Scottish Solicitors Discipline Tribunal (SSDT) which struck off Christopher Hales from the solicitors’ roll, the Tribunal came to a view <strong>“the solicitor must have been aware there was a possibility he was facilitating mortgage fraud.”</strong></p>
<p align="justify"><strong></strong>
<p align="justify"><a href="https://drive.google.com/file/d/0B0NRqCqye5F9QnY4SGlwT0JIdEE/view"><img style="margin: 5px 10px 0px 0px" src="https://lh3.googleusercontent.com/-ra0SZB6LkSw/Vhj7u5JWThI/AAAAAAAABEA/Vs6jYPMZv08/s400-Ic42/1644_hales.jpg" width="230" align="left" height="341"></a>The decision stated: “<strong>The Tribunal had no hesitation in making a finding of professional misconduct. There were numerous breaches of the CML Handbook in respect of 13 different transactions involving an ongoing course of conduct which continued for a period of over one year. The Tribunal has made it clear on numerous occasions that institutional lenders are clients of Respondents in the same way as any other clients and are owed the same duties of care. The CML Handbook has been instituted to help prevent mortgage fraud and emphasise the reporting duties on the part of solicitors. In this case the Respondent had a clear duty to report the back to back transactions, cash backs, increases in prices and deposits being provided by a third party to the lender. These matters would have been very likely to have had a material effect on the lender's decision to lend. The Tribunal consider that the features of these transactions were such that the Respondent must have been aware that there was a possibility that he was facilitating mortgage fraud, whether or not this actually occurred. He generated fees on the basis of allowing this to occur. It must have been glaringly obvious to the Respondent that something was amiss when cash backs of £27,000 or £28,000 from the seller to the purchaser were involved.”</strong></p>
<p align="justify"><strong>“There were so many breaches of the CML Handbook in these cases that the Respondent would have known that he did not have his client's authority to draw down the funds and accordingly the Tribunal also found it a breach of Rule 6 of the Accounts Rules. The Tribunal considered that not only did the Respondent fail to act in the best interests of his lender clients but he failed to act with the utmost propriety towards these lender clients. This is extremely damaging to the reputation of the legal profession.”</strong>
<p align="justify"><strong>“The Tribunal took account of the Respondent's responses contained in the Executive Summary Report but did not consider that these provided any satisfactory explanation for what had happened. The Tribunal note that the Respondent has ceased practice and took account of the fact that the Respondent had cooperated by admitting the averments of fact, duty and misconduct. The Respondent however did not attend at the Tribunal to provide any mitigation in person.”</strong>
<p align="justify"><strong>“In the whole circumstances, given the ongoing course of conduct, the large number of transactions involved, the Respondent's knowledge of the central role of Mrs A and Company 3, which should have set alarm bells ringing and the fact that this type of conduct is likely to bring the profession into disrepute, the Tribunal considered that it had no option other than to strike the Respondent's name from the Roll of Solicitors in Scotland.”</strong>
<p align="justify">Prosecutors have instructed police to carry out an investigation into "alleged irregularities" relating to property deals in the year 2010/11 after the case was referred to the Crown Office by the Law Society of Scotland.</p>
<p align="justify">The society said concerns over potential criminal matters relating to the tribunal's findings were first raised "informally" with the Crown Office in December 2014, and then "formally" in July this year.</p>
<p align="justify">Ms Thomson's solicitor, Aamer Anwar, said in a statement released ahead of FMQs: <strong>"Michelle Thomson maintains that she has always acted within the law.</strong></p>
<p align="justify"><strong>"In the interests of her constituents and her party she thought it best if she voluntarily withdrew from the party whip.</strong></p>
<p align="justify"><strong>"There was no requirement for her to do so, even though she knew it would automatically lead to her suspension from the party. She did so in order to clear her name and return as quickly as possible to frontline politics.</strong></p>
<p align="justify"><strong>"To that purpose we have contacted Police Scotland at Mrs Thomson's request advising them of her wish to assist with their investigation if, or when, they wish to speak to her."</strong></p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-39109080899923283052015-10-01T16:30:00.000+01:002015-10-10T20:35:38.764+01:00Conflict of Interest accusations hit Law Society of Scotland as employee who sat in on decision to refer SNP MP’s struck off solicitor to Crown Office is linked to pro-indy lawyer group<p align="justify"><em><a title="Law Society of Scotland" href="http://www.lawscot.org.uk/"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-moDhWiY8vFw/VhlkUz7xu1I/AAAAAAAABE0/JTL_kYcuqiA/s400-Ic42/Kirkwood%252520Lawyers%252520for%252520Yes.jpg" width="340" align="left" height="239"></a>Sheila Kirkwood, a founding member of Lawyers for Yes.</em> <strong>AN EMPLOYEE</strong> of the <a href="http://www.lawscot.org.uk/"><strong><u>Law Society of Scotland</u></strong></a> who sat on a committee considering the case of a solicitor linked to SNP MP Michelle Thomson’s property dealings - was also a leading pro-independence activist.</p>
<p align="justify">And, papers reporting brief details of the meeting feature no declarations of interest by Kirkwood or any other members of the Committee which then decided to refer the matter to prosecutors.</p>
<p align="justify">Sheila Kirkwood, secretary of the same Guarantee Fund Sub-Committee which eventually took the decision to refer the matter of Christopher Hales to the Crown Office in July 2015 – four years after the event – has since been identified as a founding member of Lawyers for Yes – a pro-independence group set up ahead of the Scottish independence referendum held last September 2014.
<p align="justify">Kirkwood also endorsed Michelle Thomson on her Facebook page.
<p align="justify">Within the minute of the meeting in which Kirkwood was present as secretary of the Guarantee Fund Sub-Committee, there is no mention of any declarations of interests by members of the committee - including Kirkwood.
<p align="justify">Facing calls to explain a significant & potential conflict of interest, Lorna Jack, Chief Executive of the Law Society of Scotland, said she was <strong>“confident there was no conflict of interest”</strong>.
<p align="justify">Chief Executive of the Law Society of Scotland, Lorna Jack, issued the following statement at a press conference held at 3.15pm, 1 October 2015:</p>
<p align="justify"><strong>“The Law Society’s number one regulatory priority is to protect the public from any wrong doing by solicitors. As I have previously commented, following a routine inspection of the accounts of law firm Grigor Hales of Gorgie Road, Edinburgh in July 2011, we believed Christopher Hales had not met the required standards of professional conduct.</strong></p>
<p align="justify"><strong>“We therefore took action to protect the public by suspending Mr Hale’s practising certificate in September 2011. There is a duty on us as a regulator to report suspicious activity quickly to the appropriate authorities. Such reports and timings or information about the report are confidential by law.</strong></p>
<p align="justify"><strong>“I want to stress that Law Society employee Sheila Kirkwood has not acted unprofessionally or inappropriately at any time. Sheila is a hard-working, dedicated colleague. She had no involvement in taking papers on the Christopher Hales case to the Law Society Guarantee Fund sub-committee and in no way delayed these papers being taken to the committee. Sheila’s role as secretary to the committee is to write the minute.</strong></p>
<p align="justify"><strong>“The names of Christopher Hales’s clients were not included in any Law Society papers that Sheila handled. The first time Sheila realised Michelle Thomson was involved in the Christopher Hales case was from recent media reports.</strong></p>
<p align="justify"><strong>“Sheila is entitled to her personal political views. The Law Society is a non-partisan organisation. However, we do not stop our staff from holding or expressing their own views in their personal lives. People in Scotland are legally entitled to express their personal opinions.”</strong></p>
<p align="justify"><strong>“I am confident there was no conflict of interest in relation to Sheila’s role at the Law Society.”</strong></p>
<p align="justify">However – Lorna Jack could not explain why <a title="Minute-of-Meeting-of-the-Law-Society-Guarantee-Fund-Sub-Committee-of-2-July-2015" href="https://drive.google.com/file/d/0B0NRqCqye5F9eUR6OGFjbV9YNmM/view"><strong>the minute of the meeting released by the Law Society</strong></a> (published below) contains no recusal or declaration of interest of those in attendance.
<p align="justify"><strong><a title="Minute-of-Meeting-of-the-Law-Society-Guarantee-Fund-Sub-Committee-of-2-July-2015" href="https://drive.google.com/file/d/0B0NRqCqye5F9eUR6OGFjbV9YNmM/"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-xG2tFQ3xhfI/Vhli6Y0In_I/AAAAAAAABEo/JXm65Fmm5_M/s400-Ic42/Minute-of-Meeting-of-the-Law-Society-Guarantee-Fund-Sub-Committee-of-2-July-2015jpg_Page1.jpg" width="250" align="left" height="333"></a>GUARANTEE FUND SUB COMMITTEE:</strong>
<p align="justify"><strong>Minute of Meeting of the Guarantee Fund Society of Scotland held at 26 2 July 2015 at 9.30am</strong>
<p align="justify"><strong>GRIGOR HALES, EDINBURGH - 20732</strong>
<p align="justify"><strong>Date Considered 2 July 2015</strong>
<p align="justify"><strong>Sub-Committee Members Present 6 solicitors; 5 non-solicitors</strong>
<p align="justify"><strong>Papers considered by Sub-Committee None. This matter was the subject of a verbal report.</strong>
<p align="justify"><strong>Background</strong>
<p align="justify"><strong>The Sub Committee reminded itself that it had previously withdrawn the Practising Certificate of Mr Christopher Hales and that he had subsequently been struck off by the Scottish Solicitors Discipline Tribunal (SSDT). Mr Hales had been the sole partner at the firm which had also ceased. The Sub Committee were asked to consider whether comments made by the SSDT justified a referral of the matter by the Law Society of Scotland to the Crown Office.</strong>
<p align="justify"><strong>Sub Committee's Deliberations</strong>
<p align="justify"><strong>It was noted that the SSDT decision states that "Mr Hales must have been aware that there was a possibility that he was facilitating mortgage fraud" and that "it must have been glaringly obvious to the Respondent that something was amiss when cash backs of £27,000 or £28,000 from the seller to the purchaser were involved".</strong>
<p align="justify"><strong>Sub Committee's Decision</strong>
<p align="justify"><strong>The Sub Committee decided that given the statements made by the SSDT following a complaint arising from a Financial Compliance inspection, that the matter should be referred to the Crown Office for investigation. </strong>
<p align="justify"><strong>Delegated Powers.</strong><a name="bookmark1"><strong>.</strong></a>
<p align="justify"><strong>To refer the above matter to the Crown Office for investigation</strong>
<p align="justify">The<strong> </strong><a title="http://www.theguardian.com/uk-news/2015/oct/01/law-society-of-scotland-under-pressure-over-mps-suspected-mortgage" href="http://www.theguardian.com/uk-news/2015/oct/01/law-society-of-scotland-under-pressure-over-mps-suspected-mortgage"><strong>Guardian newspaper reported</strong></a>: <strong>The row over the official handling of the case deepened further after the Law Society confirmed that its head of investigations, Ian Messer, had received a detailed report from the Scottish Solicitors’ Discipline Tribunal (SSDT) naming Thomson, her husband Peter and Thomson’s business partner Frank Gilbride in July 2014.</strong>
<p align="justify"><strong>Messer first informally told the Crown Office in December 2014 that Hales had been struck off by the SSDT for suspected mortgage fraud, during a routine quarterly meeting between the two organisations. Crown Office lawyers asked Messer to provide them with detailed case files but failed to get them.</strong>
<p align="justify"><strong>At the next meeting on 28 April 2015 – a week before Thomson was elected as MP for Edinburgh West – the Crown Office asked again for the Hales case files. They were not submitted to the Crown Office until 3 July 2015; six days later, the Crown Office alerted fraud officers at Police Scotland, who launched a formal investigation.</strong>
<p align="justify"><strong>Those fresh details emerged when the Law Society’s chief executive, Lorna Jack, took the unusual step of arranging a hurried press conference to defend her organisation’s handling of the affair, and the conduct of Sheila Kirkwood, who is secretary to the society guarantee fund sub-committee which handled the Hales case but had delayed handing the papers over to the Crown Office.</strong>
<p align="justify"><strong>It emerged that Kirkwood was, with her husband and fellow solicitor Paul Kirkwood, a founder of the pro-independence campaign Lawyers for Yes, and as an active nationalist had attended dinners for Thomson’s pro-independence campaign Business for Scotland. Kirkwood had also “liked” Thomson on her Facebook page.</strong>
<p align="justify"><strong>Jack insisted that Kirkwood had had no direct say over the Law Society’s handling of the case against Hales, but she admitted that no independent investigation had yet taken place into whether Kirkwood was aware that Thomson was linked to Hales’s property dealings.</strong>
<p align="justify"><strong>Jack said she had taken Kirkwood at her word that she first became aware of that link when Thomson was named in the media earlier in September. </strong>
<p align="justify"><strong>“I want to stress that Law Society employee Sheila Kirkwood has not acted unprofessionally or inappropriately at any time,” Jack said. “Shelia is a hard-working, dedicated colleague. [I] am confident there was no conflict of interest in relation to Sheila’s role at the Law Society.”</strong>
<p align="justify"><strong>Although it took until July 2015 before the Crown Office and police were handed the case files against Hales, Jack confirmed that the Law Society first became alerted to Hales’s mortgage dealings with Thomson in July 2011 during a routine inspection of his firm’s books.</strong>
<p align="justify"><strong>He was suspended in September 2011 “to protect the public”, she said. “The Law Society’s No 1 regulatory priority is to protect the public from any wrongdoing by solicitors,” she added.</strong>
<p align="justify"><strong>Jack implied too that the Law Society would also have alerted the police to any suspicions because of its legal duties under the Proceeds of Crime Act, but she repeatedly refused to elaborate on whether and when that had been done with the Hales case.</strong>
<p align="justify"><strong>“Under the Proceeds of Crime Act, there is a duty on us as a regulator to report suspicious activity quickly to the appropriate authorities. Such reports and timings or information about the report are confidential by law,” she said.</strong>
<p align="justify">The “Guarantee Fund” of the Law Society of Scotland is possibly one of the murkiest self protection mechanisms operated by the legal profession’s in-house self regulator.
<p align="justify">The Guarantee Fund is tasked with paying out compensation to victims of corrupt or rogue solicitors.
<p align="justify">However, the Guarantee Fund has racked up numerous accusations of obstructive tactics and deliberate falsification of facts to prevent financially ruined clients securing full compensation for their losses to rogue Scottish solicitors.
<p align="justify">Claims against the Guarantee Fund are known to be in the millions of pounds annually.
<p align="justify">Shockingly, the percentage of compensation eventually secured as a payment from the fund where some cases can take 5-10 years to be heard - can be as little as 5% to 10% of a client’s total financial losses to rogue solicitors.
<p align="justify">The ‘aims’ and functions of the Guarantee Fund sub-Committee as claimed by the Law Society of Scotland, but rarely fulfilled in reality, are:
<ul>
<li>
<div align="justify">oversee the fulfilment of the statutory obligations of the <b>Law</b> <b>Society</b> of <b>Scotland</b> regarding the Guarantee Fund and financial compliance </div>
<li>
<div align="justify">ensure that risks to the Guarantee Fund are managed to an agreed and acceptable level </div>
<li>
<div align="justify">ensure that Guarantee Fund operations are in accordance with stated Guarantee Fund policy </div>
<li>
<div align="justify">protect the Guarantee Fund, the profession and the public interest by dealing properly and promptly with significant cases of non-compliance with accepted financial compliance standards (eg accounts rules/money laundering regulations) </div>
<li>
<div align="justify">influence strategic developments regarding financial compliance and the Guarantee Fund to ensure that processes remain up to date and fit for purpose </div>
<li>
<div align="justify">enable effective communications with the profession, public and other stakeholders regarding financial compliance standards and Guarantee Fund claims </div>
<li>
<div align="justify">benefit the Guarantee Find/financial compliance processes by acting as a source of expertise on relevant working practices and issues within the legal profession </div>
<li>
<div align="justify">monitor financial compliance activity (planning, progress, quality & approach) </div>
<li>
<div align="justify">review outputs from financial compliance activity (including the conducting of interviews) and where appropriate (eg as a result of breaches in accounts rules or money laundering regulations), refer matters of professional conduct to the Scottish Legal Complaints Commission and Complaints Investigation Team for investigation or recommend other actions (eg interventions, judicial factories etc) in accordance with the scheme of delegation </div>
<li>
<div align="justify">monitor the consistency and quality of Guarantee Fund claims and intimations processing </div>
<li>
<div align="justify">decide upon Guarantee Fund claims (as detailed in the delegated powers) or refer to the Professional Conduct Committee, as appropriate. </div>
<li>
<div align="justify">consider and approve strategic policy matters related to financial compliance and Guarantee Fund matters </div>
<li>
<div align="justify">consider the continuing adequacy of accounts rules and other guidance to protect the Guarantee Fund, the profession and the public, monitor the development of new or amended rules and recommend these for approval. </div>
<li>
<div align="justify">review financial compliance activity to inform and influence the profession, public and other stakeholders about relevant financial standards, compliance requirements and claims issues </div>
<li>
<div align="justify">monitor Guarantee Fund risk management procedures and approve </div>
<li>
<div align="justify">key policies related to insurance arrangements, financial reserve levels, investment decisions and firms which pose a risk to the fund </div>
<li>
<div align="justify">monitor the financial position of the Guarantee Fund and recommend approval of the annual budget and annual subscriptions to the Council </div>
<li>
<div align="justify">be made aware of operational developments in the workings of the financial compliance and Guarantee Fund functions</div></li></ul>Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-20855066.post-18691670520451210132015-09-30T14:00:00.000+01:002015-10-10T12:56:33.144+01:00The struck off solicitor, and the MP who ‘took advantage’ of homeowners - Michelle Thomson - the SNP Member of Parliament with 17 homes<p align="justify"><em><a href="https://picasaweb.google.com/lh/photo/2eR-PBU9Ut138iLdP1Tj8BHEPbbM5RSx1IJ1uqGJWuE?feat=embedwebsite"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-zWww-iG0Mmw/Vhj422u08oI/AAAAAAAABD0/P94uaAKfY5I/s400-Ic42/Nicola%252520Sturgeon%252520Michelle%252520Thomson.jpg" width="350" align="left" height="234"></a>Lawyer involved in property deals with Michelle Thomson - was struck off by tribunal.</em><strong> A SOLICITOR</strong> - Christopher Hales, who acted for Edinburgh West MP Michelle Thomson and her husband in multiple property deals, has been struck off for professional misconduct over his part in 13 deals involving Ms Thomson or M&F Property Solutions, of which she was a partner. </p>
<p align="justify">Michelle Thomson, the party’s shadow minister for business, innovation and skills, has been accused of taking advantage of vulnerable families by building a property portfolio worth about £1.7 million by buying homes at knockdown prices from families struggling to pay their mortgages.
<p align="justify">Hales, who once listed his occupation as “Police Constable” – and is now struck off by the Scottish Solicitors Discipline Tribunal from working as a solicitor - handled numerous property deals for his client – SNP MP Michelle Thomson. Mr Hales acted for Ms Thomson before she was elected as an SNP MP.
<p align="justify">According to <a href="https://drive.google.com/file/d/0B0NRqCqye5F9QnY4SGlwT0JIdEE/view"><strong>a ruling by the Scottish Solicitors’ Discipline Tribunal</strong></a>, a full version of which has been published by the <a href="http://www.thesundaytimes.co.uk/sto/news/article1612263.ece"><strong>Sunday Times</strong></a>, Mr Hales failed to provide key information to mortgage lenders in breach of guidelines designed to prevent fraud in numerous cases.
<p align="justify">The decision to strike off Christopher Hales came to a view <strong>“the solicitor must have been aware there was a possibility he was facilitating mortgage fraud.”</strong>
<p align="justify"><a title="SSDT: THE COUNCIL OF THE LAW SOCIETY of SCOTLAND v CHRISTOPHER WILLIAM HALES" href="https://drive.google.com/file/d/0B0NRqCqye5F9QnY4SGlwT0JIdEE/view"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-ra0SZB6LkSw/Vhj7u5JWThI/AAAAAAAABEA/Vs6jYPMZv08/s400-Ic42/1644_hales.jpg" width="230" align="left" height="341"></a>The decision stated: “<strong>The Tribunal had no hesitation in making a finding of professional misconduct. There were numerous breaches of the CML Handbook in respect of 13 different transactions involving an ongoing course of conduct which continued for a period of over one year. The Tribunal has made it clear on numerous occasions that institutional lenders are clients of Respondents in the same way as any other clients and are owed the same duties of care. The CML Handbook has been instituted to help prevent mortgage fraud and emphasise the reporting duties on the part of solicitors. In this case the Respondent had a clear duty to report the back to back transactions, cash backs, increases in prices and deposits being provided by a third party to the lender. These matters would have been very likely to have had a material effect on the lender's decision to lend. The Tribunal consider that the features of these transactions were such that the Respondent must have been aware that there was a possibility that he was facilitating mortgage fraud, whether or not this actually occurred. He generated fees on the basis of allowing this to occur. It must have been glaringly obvious to the Respondent that something was amiss when cash backs of £27,000 or £28,000 from the seller to the purchaser were involved.”</strong> </p>
<p align="justify"><strong>“There were so many breaches of the CML Handbook in these cases that the Respondent would have known that he did not have his client's authority to draw down the funds and accordingly the Tribunal also found it a breach of Rule 6 of the Accounts Rules. The Tribunal considered that not only did the Respondent fail to act in the best interests of his lender clients but he failed to act with the utmost propriety towards these lender clients. This is extremely damaging to the reputation of the legal profession.”</strong>
<p align="justify"><strong>“The Tribunal took account of the Respondent's responses contained in the Executive Summary Report but did not consider that these provided any satisfactory explanation for what had happened. The Tribunal note that the Respondent has ceased practice and took account of the fact that the Respondent had cooperated by admitting the averments of fact, duty and misconduct. The Respondent however did not attend at the Tribunal to provide any mitigation in person.”</strong>
<p align="justify"><strong>“In the whole circumstances, given the ongoing course of conduct, the large number of transactions involved, the Respondent's knowledge of the central role of Mrs A and Company 3, which should have set alarm bells ringing and the fact that this type of conduct is likely to bring the profession into disrepute, the Tribunal considered that it had no option other than to strike the Respondent's name from the Roll of Solicitors in Scotland.”</strong>
<p align="justify"><strong><a href="https://picasaweb.google.com/lh/photo/eD0wDv0937ytfFLJcUvx2zJxcwts9LyQyt62wKAW368?feat=embedwebsite"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-L_XPd5oRN2E/VhggYnZnd7I/AAAAAAAABDE/rAWzFUtce3U/s400-Ic42/Solicitor%252520in%252520SNP%252520MP%252527s%252520House%252520Deals%252520Struck%252520Off%252520-%252520Sunday%252520Times.jpg" width="400" align="left" height="306"></a> <a title="Solicitor in Thomson's house deals struck off" href="http://www.thesundaytimes.co.uk/sto/news/article1612263.ece">Solicitor in Thomson's house deals struck off</a></strong></p>
<p align="justify">Sunday Times 27/09/2015</p>
<p align="justify">Mark Macaskill ; Jon Ungoed-Thomas<br></p>
<p align="justify"><strong>NICOLA STURGEON'S frontbench spokeswoman on business has been involved in a series of property deals exposed as possible mortgage fraud, according to a public ruling.</strong></p>
<p align="justify"><strong>Michelle Thomson, the Edinburgh West MP and Scottish National party's shadow minister for business, innovation and skills, was involved in the suspect deals in 2010 and 2011. Many of the vendors were "distressed" and anxious to sell. Thomson has strongly denied any wrongdoing.</strong></p>
<p align="justify"><strong>The solicitor, Christopher Hales, who acted for Thomson, was struck off last year for professional misconduct over his role in the deals.</strong></p>
<p align="justify"><strong>All of the 13 transactions for which Hales was struck off involved Thomson or the property venture M&F Property Solutions, in which a tribunal stated she was a partner.</strong></p>
<p align="justify"><strong>The 53-page Scottish Solicitors' Discipline Tribunal ruling states the "central role of Michelle Thomson and M&F Property Solutions in a number of these transactions should have set alarm bells ringing". A redacted version of the ruling was published last year but released in full to The Sunday Times last week.</strong></p>
<p align="justify"><strong>It said Hales "must have been aware that there was a possibility he was facilitating mortgage fraud, whether or not this occurred". In some cases loans obtained for the properties were greater than the actual purchase price. Hales failed to provide the mortgage company with key information that is used to prevent fraud.</strong></p>
<p align="justify"><strong>The correct facts — if they had been provided to the lender — may have had "a material effect on the decision to lend", the tribunal ruled.</strong></p>
<p align="justify"><strong>The Sunday Times revealed last week that Thomson and her husband, Peter Thomson, a music teacher, had built up a property portfolio, worth about £1.7m according to Registers of Scotland documents, by buying homes at knockdown prices from families in financial hardship.</strong></p>
<p align="justify"><strong>It also reported claims from families of discrepancies on the land registry, alleging that the price on official records was higher than the amount received by vendors. Peter Thomson, who bought some of these properties, denies any wrongdoing and official documents show vendors confirmed the sale values.</strong></p>
<p align="justify"><strong>The Law Society of Scotland said last week it was examining the property transactions detailed by this newspaper's investigation. It can prosecute cases before the Scottish Solicitors' Discipline Tribunal. A tribunal document also confirmed Michelle Thomson's role in mortgage deals set out at the disciplinary hearing against Hales, a former partner at Grigor Hales in Edinburgh, in May last year.</strong></p>
<p align="justify"><strong>In one of the deals, Sarah Capper, 77, responded to a newspaper advertisement to sell her three-bedroom home in Stirling in the autumn of 2010. Capper says she had bought it for £79,000 about two years previously and spent £50,000 on refurbishments, including a new kitchen and a conservatory.</strong></p>
<p align="justify"><strong>Capper, who has two sons, three grandchildren and two great-grandchildren, was being treated for skin cancer, which is now in remission, and was anxious to return to England to be near her family. She was offered £64,000 for the house by Frank Gilbride, a former journalist who was a business partner of Thomson.</strong></p>
<p align="justify"><strong>Capper reluctantly accepted the offer and the house was sold to Gilbride on November 19 2010. On the same day Michelle Thomson bought it from Gilbride for £95,000, but she then received a "cashback" from Gilbride of £28,181.80.</strong></p>
<p align="justify"><strong>Hales, Thomson's lawyer, did not inform the lender — The Mortgage Works — that the property had been bought and sold in a "back-to-back" transaction and that Thomson had got it at a discount, because of the cashback.</strong></p>
<p align="justify"><strong>The tribunal ruled that it must have been "glaringly obvious" to Hales that something was "amiss".</strong></p>
<p align="justify"><strong>Capper, a widow who now lives in Henfield, West Sussex, said last week she wanted an explanation of why Gilbride and Thomson had bought and sold her house on the same day with a £31,000 mark-up.</strong></p>
<p align="justify"><strong>She said: "I am livid. My daughter-in-law had told me not to accept the offer, but I had to do it. I sold it to get back to England and see my family.</strong></p>
<p align="justify"><strong>"I had cancer, and I had no one to fall back on. I could have got a lot more money if I had gone to an estate agent. I am struggling now."</strong></p>
<p align="justify"><strong>In June 2010 Michelle Thomson bought a three-bedroom terraced house near Aberdeen for £245,000 and sold it a few hours later to someone she knew for £315,000.</strong></p>
<p align="justify"><strong>The tribunal ruled that the quick sale — or "back-toback" transaction — was not disclosed by Hales to the mortgage lender, contrary to the Council of Mortgage Lenders Handbook.</strong></p>
<p align="justify"><strong>Experts say back-to-back transactions by two parties operating together can be used to secure a larger mortgage than would otherwise be available. It can also reduce tax, by recording a higher price on the land registry than was actually paid. It means when the property is later sold, the profit — which is subject to capital gains tax — may be understated by thousands of pounds.</strong></p>
<p align="justify"><strong>In 10 of the other deals for which Hales was struck off, M&F Property Solutions, in which both Thomson and Gilbride were partners, provided deposits to other homebuyers.</strong></p>
<p align="justify"><strong>The tribunal said Hales should have told their lenders that some of the funds were "not provided by the purchaser".</strong></p>
<p align="justify"><strong>The tribunal ruled that it had no other option than to strike Hales from the register, the most severe sanction at its disposal.</strong></p>
<p align="justify"><strong>It said his actions had been "extremely damaging" to the reputation of the legal profession. The Mortgage Works, which provided a loan for Thomson for Capper's home, would not say whether it was investigating the matter, but said solicitors were required to warn them of any back-toback transaction. </strong></p>
<p align="justify"><strong>Thomson, 50, trained as a musician at the Royal Scottish Academy of Music and Drama but later embarked on a business and property career. Her husband teaches music at St George's School for Girls, a private school in Edinburgh.</strong></p>
<p align="justify"><strong>Last month her email address appeared on the list released by hackers of the infidelity website Ashley Madison. She said the email address was out of date and that she was the victim of a smear.</strong></p>
<p align="justify"><strong>Registers of Scotland records show at least 17 homes in Scotland are owned by Thomson, her husband or the couple jointly. The Thomsons say they operate to the highest ethical standards, and that they provide support and advice for struggling families.</strong></p>
<p align="justify"><strong>Sandra and Garry Kelly, who sold their Edinburgh home to Peter Thomson in 2009, said they intend to lodge a complaint with the Scottish Legal Complaints Commission. The couple say they were offered £73,000 by an intermediary for their home, but legal papers say the price to be paid by Peter Thomson was £105,000.</strong></p>
<p align="justify"><strong>Sandra Kelly said she signed this document because she was told it was a condition of the sale, but insists the actual price was £73,000.</strong></p>
<p align="justify"><strong>A spokesman for Michelle and Peter Thomson said land registry documents showed that the Kellys had acknowledged receipt of the sum of £105,000 for their property. The spokesman previously said the Thomsons "vigorously deny any allegation of wrongdoing or impropriety". </strong></p>
<p align="justify"><strong>A spokesperson for Michelle Thomson said: "Michelle has always acted within the law and will be giving no further comment."<br>Gilbride did not respond to a request for comment. Hales was not available for comment.</strong></p>
<p align="justify"><strong>A spokeswoman for the Law Society of Scotland said: "The Law Society is considering the information it has received and which has been reported in The Sunday Times."</strong></p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-20855066.post-15685400664376903622015-09-25T13:00:00.000+01:002015-10-12T23:08:41.138+01:00Former Lothians politician & solicitor who was jailed for stealing £70K from disabled friend lands new job as boss of EU funded Moray Leader<p align="justify"><strong><a href="https://picasaweb.google.com/lh/photo/puwVIvzMLBbIkRJHRqOcNjJxcwts9LyQyt62wKAW368?feat=embedwebsite"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-QWF9faueNn0/VhwhLbn-trI/AAAAAAAABFE/wpesyXtMtao/s400-Ic42/Charmed%252520Robber%252520-%252520Scottish%252520Sun%25252020%252520September%2525202015.jpg" width="365" align="left" height="391"></a>A FORMER</strong> solicitor & Tory politician <a title="Jail term for former councillor" href="http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/5381248.stm"><strong>who was jailed for 27 months</strong></a> after stealing at least £70,000 from a disabled client who depended upon him as a close friend – is now handling public cash & EU money flowing into Scotland.</p>
<p align="justify">Iain Catto (51) is now the boss of funding programme <a title="Moray LEADER works with projects that create opportunities for the rural economy" href="http://www.morayleader.org.uk/"><strong>Moray Leader</strong></a>, an EU funded project run by Moray Council which is also part of the <a title="Scotland Rural Development Programme" href="http://www.gov.scot/Topics/farmingrural/SRDP"><strong>Scotland Rural Development Programme</strong></a> (SRDP).</p>
<p align="justify">Catto - formerly a member of Lothian Regional Council from 1990 to 1994 was sacked from his job as a solicitor for gross misconduct. <a title="Iain Catto was also censured by the Scottish Solicitors Discipline Tribunal" href="https://drive.google.com/file/d/0B1nFZkYr7uS2REtOdnl4c2hUeVU/view"><strong>Iain Catto was also censured by the Scottish Solicitors Discipline Tribunal</strong></a>.</p>
<p align="justify">Catto was jailed in 2008 after Edinburgh Sheriff Court heard he systematically stole sums of £11,000 and £9,000 at a time between December 2002 and 2004 from the criminal injuries pay-out his client Francis Fleming - had received. He even sold some of his victim's shares to get more cash. </p>
<p align="justify">The Scottish Sun newspaper reports:</p>
<p align="justify"><a title="CHARMED ROBBER" href="http://www.thescottishsun.co.uk/scotsol/homepage/news/6650412/Charmed-robber.html"><strong>CHARMED ROBBER</strong></a></p>
<p align="justify"><strong>Thieving brief's new job doling out public cash</strong></p>
<p align="justify">By Russell Findlay Scottish Sun 21/09/2015</p>
<p align="justify"><strong>A FORMER Tory politician who stole £70,000 from a disabled friend has landed a new job handing out taxpayers' cash.</strong></p>
<p align="justify"><strong>Crooked ex-lawyer Iain Catto was jailed for 27 months after fleecing partially paralysed Francis Fleming.</strong></p>
<p align="justify"><strong>But he is now the boss of funding programme Moray Leader, which has given away £2million of public money to good causes.</strong></p>
<p align="justify"><strong>And Catto, 51, also works for charity Foundation Scotland as a "community engagement executive".</strong></p>
<p align="justify"><strong>Last night his victim's son Frank MacLennan, 51, slammed the decision to hire the ex-con.</strong></p>
<p align="justify"><strong>He said: "It's a disgrace, he should not be in a trusted position.</strong></p>
<p align="justify"><strong>"I'm surprised that anyone would give him jobs like these."</strong></p>
<p align="justify"><strong>Frank, of Falkirk, added: "He should not be working with large sums of money — especially public and charity money."</strong></p>
<p align="justify"><strong>Former councillor Catto was a rising star in the Scottish Conservatives and worked for blue-chip law firms in Edinburgh.</strong></p>
<p align="justify"><strong>Brother He befriended his client Francis and pretended to be looking after his finances. Catto became so trusted he even had a key to his victim's home in the capital.</strong></p>
<p align="justify"><strong>But he stole blank cheques and blew the haul on flights, hotels, meals and a £300 booze splurge.</strong></p>
<p align="justify"><strong>After he was brought to justice in 2006, his victim Francis, 69, said: "I trusted him better than my brother.</strong></p>
<p align="justify"><strong>"I thought all his advice was for my own good — I didn't realise he was doing me out of all I had."</strong></p>
<p align="justify"><strong>Catto, now living in Elgin, joined Moray Leader in July 2013 and works as the programme coordinator. It is run by Moray Council and funded with EU cash.</strong></p>
<p align="justify"><strong>In April this year Catto joined Foundation Scotland, which covers Moray, Aberdeenshire and Angus.</strong></p>
<p align="justify"><strong>The charity's website mentions his law degree but not his conviction. A spokesman said: "Iain Catto made us aware of his past.</strong></p>
<p align="justify"><strong>"We believe everyone should be given a second chance."</strong></p>
<p align="justify"><strong>Moray Council added: "He was open about his past when we interviewed him. He is not in a position where there is a risk to public funds."</strong></p>
<p align="justify"><strong>Catto refused to comment.</strong></p>
<p align="justify">A NEW BRIEF?</p>
<p align="justify"><a href="https://picasaweb.google.com/lh/photo/_yoGVp6QewrwbeMFzL8_QhHEPbbM5RSx1IJ1uqGJWuE?feat=embedwebsite"><img style="float: left; margin: 5px 10px 0px 0px; display: inline" src="https://lh3.googleusercontent.com/-X3JSlv7626g/Vhwn73nop1I/AAAAAAAABFU/M36KBHcYlvM/s400-Ic42/Iain%252520Catto%252520Foundation%252520Scotland.jpg" width="200" align="left" height="152"></a><a title="https://www.foundationscotland.org.uk/about-us/our-people/community-engagement-team/" href="https://www.foundationscotland.org.uk/about-us/our-people/community-engagement-team/" target="_blank"><strong>Iain Catto’s Foundation Scotland profile shows no mention of his criminal past</strong></a>:</p>
<p align="justify">Iain joined the Foundation in April 2015 and works part time covering Moray, Aberdeenshire and Angus. He is based in Elgin, and currently spends the rest of his working week working for the Moray LEADER Programme, an EU funded rural development grants programme as its Programme Co-ordinator, where he was full time prior to joining Foundation Scotland. Iain has an honours degree in law, and spent much of his working life operating in Edinburgh. He has been a volunteer for various voluntary organisations over the years, including ones operating with the elderly, young people, and in the field of education.
<p align="justify">Iain was brought up in rural areas of Perthshire and Ross-shire, and therefore understands some of the challenges facing rural communities. Iain in his spare time is a follower of Ross County, Leeds United and professional cycling, and is an active member of his local community council, where his particular focus is on transportation issues and licensing matters.
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