High numbers of Catholics in prisons & poorest housing to be examined by Scottish Parliament

The Scottish Parliament will this week examine a petition to investigate the high numbers of Catholics in Scotland's prisons and in the poorest housing.

The Public Petitions Committee of the Parliament, has broke from usual procedure where the petitioner has a few minutes to speak on the issue, and has denied Mr Thomas Minogue, the author of the petition a chance to speak.

Here follows the Sunday Herald report on the matter, along with a Press Release from Mr Minogue sent to media outlets.

The Sunday Herald reports (print edition, without online link)

Sunday Herald 30 Sept 2007

JUSTICE: PETITION

RC prison numbers to be examined

By Marcello Mega

QUESTIONS about the high numbers of Catholics in Scotland's jails and in Scotland's poorest housing will be faced by the public petitions committee of the Scottish parliament on Tuesday.

But the retired Fife businessman who raised the petition has been denied the chance to address the committee by its convener, Frank McAveety.

Tom Minogue is asking that the Scottish government keeps promises,made six years ago by then justice min-ister Jim Wallace, to examine the social issues behind the disproportionate numbers of Catholics in jail and in the most deprived housing.

His petition has been signed by Alex Mosson, former lord provost of Glasgow, the composer James MacMillan and several academics and clergymen.

In 2001, a study of Scotland's prison population showed that Catholics were 66 more likely than their fellow Scots to end up in jail. By 2004, that figure had risen to 100, with Catholics making up only 13 of the Scottish population but 26 of the jail population.

Petitioners commonly have three minutes to address' the committee, but Minogue has been told that McAveety would not allow him to speak.

A spokesman for the committee said Minogue had submitted a detailed petition and it had not been considerednecessary for him to expand on it.

Press Release from the petitioner Mr Thomas Minogue :

Press release in lieu of 3-minute address in support of Public Petition to the Scottish Parliament PE 1073, to be considered by the Public Petitions Committee of the Parliament on Tuesday 2nd October 2007 at 2pm in Committee Room 1.

Broadcast live on the Internet at http://www.holyrood.tv/committee.asp

Release 29/09/2007 09:05

Submission: In June 2005 I Googled “Donald Findlay, Q.C.” as part of my research in connection with a complaint I had lodged with the Faculty of Advocates that Mr. Findlay had acted in a racist and bigoted manner and brought the Faculty into disprepute1.

Of the many controversial articles thrown up by Google about our best-known senior counsel one in particular struck me as unbelievable. It was an article from the Sunday Times of January 21st 2001, relating to the disproportionate number of RCs in Scottish Prisons which were said to be: “ almost double the percentage of Catholics in the population as a whole.”

The article entitled: “High Catholic prison numbers spark probe”, reported how Pauline McNeill MSP had raised the question of the disproportionate number of RCs in Scottish Prisons with the then Justice Minister, Jim Wallace who—after denying any discrimination in the legal system—stated: “The most puzzling issue to emerge from the statistics is why Catholics should be represented in prison at twice the level they are in society. These figures merit further investigation.”

The Times reporter sought the view of the legal establishment from Donald Findlay, Q.C. Mr Findlay explained the anomalous disproportion by stating “I would guess any distortion has less to do with religion than with the strong presence in the west of Scotland of people with Irish roots.”

Being predominately Irish descended, and nominally RC, I had a personal interest, and also a general concern in this shocking statement, as well as the statistics that elicited it. Consequently I wrote to the Scottish Prison Service (SPS) to see if this disproportion still existed. To my surprise I was told by the SPS that the disparity had got worse, the “almost double” had increased to “double”! So I wrote to the First Minister Jack McConnell to ask: Did he know about this? Care about it? Could he explain it?

For almost a year I attempted to get a response from the First Minister but after much correspondence in this period I eventually gave up and lodged Petition 1073 with the Public Petitions Committee (PPC). The nearest I had got to an answer—which I was promised—to my three questions from Mr. McConnell, was a statement from an official purportedly speaking on his behalf, which explained the disproportion away by stating that more RCs lived in slums in the West of Scotland. A statement that there was no bias in the justice system accompanied this explanation. As in the case of the statement for the Justice Minister in 2001, this defence was of an accusation that had not been made.

Since lodging my e-petition there has been a fairly brisk discussion on the PPC website about the petition and possible explanations for the facts that spawned it. Many of the comments linked Catholicism and Irishness and many of these were derogatory towards the Irish and Catholics and had to be removed. It was also apparent that many critical contributions in the discussion of the petition were anti-Irish and anti-Catholic and blamed Catholic schools and the Catholic religion for criminality.

Of the more reasonable contributions, one contributor argued that sectarian or tribal bias exists in social provision or judicial process and must be expunged, another contributor argued that the possible cause could be freemasonry which is “greatly present” in the criminal justice system, and because freemasonry and the Catholic religion were opposed to each other there might be a bias by those dispensing justice against non-masons. Another maintained that freemasonry wasn’t anti-Catholic.

Two contributors in particular impressed me. The first a former Lord Provost of Glasgow simply stated that he agreed that there was prejudice in society against Catholics, and the second, from a prison inspector living in England, who perceived that the disproportionate number of Catholics in past years in goals in England was now being replaced by a Muslim predomination. This contributor also had a perception that anti-Irish and anti-Catholic residual prejudice was still present in Scotland.

This latter perception is supported by the fact that as recently as 2002 the Church of Scotland, (to their credit)—after over 100-years of preaching, or condoning by silence, anti-Irish racism and anti-Catholic bigotry—frankly and unreservedly apologized for their long history of anti-Irish racist preaching, which they described as being akin to Enoch Powell’s “rivers of blood” speech.

The March 2007 case2 of a Procurator Fiscal in Greenock who resigned after using the word Fenian (derogatory reference to Irish/Irish descended Catholics) in an offensive manner when drunk suggests that residual anti-Irish/Catholic bigotry is alive and well in the legal establishment. I am inclined to think that the disproportionate number of RCs in Scottish prisons is in some way linked to such residual anti-Irish and anti-Catholic prejudice as well as the influence of the predominately non-Catholic freemasons whose members are present if not prevalent in the police and the legal establishment.

It is my perception, based on personal experience that there is a degree of anti-Irish and anti-Catholic prejudice entrenched in Scottish society. This is hardly surprising and is only to be expected when it was part of the established view for so long. Perhaps this proposition is what Mr. Findlay was alluding to in a cryptic way when he appeared to simply blame the disproportionate number of RCs in prison on the Irish.

It is hard to tell what Mr. Findlay means as he has two roles in life, one as an advocate and one as a comedian/entertainer. Assuming it was the barrister and not the buffoon that spoke to the Times reporter I can only guess that Mr. Findlay was blaming residual anti-Irish anti-Catholic prejudice for the disproportionate RC prison numbers—any other interpretation of his remarks would surely be racist and if such overt racism existed in the ranks of our senior barristers then we are in trouble.

Regardless of my perceptions, I trust that the PPC will ensure that the new Scottish Government does not allow this unexplained stain on the Scottish criminal justice system to remain ignored or simply swept under the carpet as in the past. I would urge the PPC to recommend a full and far-reaching investigation into this matter with no preconceptions or limit of remit. And as a first step to ask the Justice Secretary in the new Scottish Government for his comments on this issue.

Yours sincerely, Tom Minogue. Petitioner.

Note. 1 On 14th December 2005 a Faculty of Advocates Complaints Committee consisting of 2 senior Q.C. and 2 Scottish Executive Lay-members found Mr. Findlay guilty of bringing the Faculty into disrepute in relation to my complaint.

Note. 2 Link to article: http://www.sundaymail.co.uk/news/tm_headline=i-plead-guilty&method=full&objectid=18805261&siteid=64736-name_page.html

NB. A recital of this release was timed at just under the 3-minutes that I would have taken to deliver it, had the Convener of the PPC not refused me permission to speak to the petition.

Lawyer delays work for 10 years, gets a fine

Admittedly a story from south of the border, but one can only think ... poor Mr Davies ... if only he had been a member of the Law Society of Scotland !

It's a common enough complaint up here too, so don't laugh too much ...

The Times reports :

Lawyer fined for decade of delay

A solicitor who spent more than a decade delaying work on a case that should have taken only an hour to complete was fined £4,000 and ordered to pay costs of £3,304 at a disciplinary hearing yesterday.

The initial work was carried out in 1994 but the client then changed her solicitor to Mr Davies’s firm, Parkington Holiday in Denton, Manchester. Mr Davies, 54, needed to process the file so that the previous firm, Bouchers, could be paid £1,600 in legal aid, but 11 years later he still had not processed it. Mr Davies admitted charges of failing to undertake a professional obligation and failing to answer correspondence. He told the Solicitors’ Disciplinary Tribunal hearing: “It was something I was going to sort out tomorrow and tomorrow never came.”

Law Society legal services debate reveals deep divisions between lawyers demands & consumer interest

Reports on yesterday's 'Public Interest debate' held by the Law Society of Scotland tell of lawyers heckling the Which? consumer representative on how entrants to the opened legal services market will be policed.

Peter Cherbi reports on developments from the debate in his Diary of Injustice in Scotland blog, and gives short shrift to the idea the Law Society of Scotland should have anything to do with regulation of anyone in the legal profession ....

Law Society 'not acting in the public interest' as lawyers fight legal services market reforms

The news from yesterday's Law Society of Scotland "Public Interest" debate at the National Gallery in Scotland, is that lawyers will try to delay as long as possible the OFT's recommendations for opening the legal services market in Scotland.

The Law Society agreed to come up with it's own recommendations by February 2008, while the OFT expects a response from the Scottish Government by December 2007. Of course, the Law Society is used to doing things as it likes, so it will take longer. I hope the OFT call them to book on that one.

While the Law Society still determines the profession's policy towards such issues, well known divisions have emerged with some legal firms preparing for the inevitable when the current monopolistic legal services market, controlled by the Law Society of Scotland forcing the public to use a solicitor or advocate when requiring legal services or access to courts, is finally opened up to new competition.

I am of course, a supporter of opening the legal services market, but not for the aim of generating vast profits for new firms to come in and replace the legal profession in representing clients interests.

I am rather, a supporter of opening the legal services market to ensure that everyone, and I mean e-v-e-r-y-o-n-e, has access to justice and access to legal services, without prejudice, and without having to suffer the whim of the Law Society and lawyers deciding whether a particular individual should have such access to legal services & access to justice - as is presently the case.

There is a problem though, in this rush to open the legal services market, which I have been saying all along - that problem is one of regulation and maintaining quality, trustworthy, accountable and fully regulated legal services offered by the incoming firms to the legal services market.

This problem was highlighted yesterday by the in-house lawyers for the Law Society (wolves within wolves ?) and the Herald newspaper reports it as follows :

"This was evident during a question-and-answer session attended by Julia Clark of Which?, architect of the super-complaint. She was howled down with cries of "rubbish" when pressed by a representative of the society's in-house lawyers' group over precisely how banks and building societies offering legal services would be policed.

"You proposed this, you should have some sort of concept about how this will work," Clark was told."

Indeed yes, Which? and yes, the OFT too, do need to tackle the regulatory bull by the horns, and particularly the OFT, must come out of it's shell on regulation and recommend that a fully independent regulatory body be formed to police the new firms coming into the legal services market, rather than allowing the Law Society of Scotland to control or deal with new non-solicitor firms coming into the legal services sector, as it is currently campaigning for. To allow the latter to happen, would equal the disaster which has become the Scottish legal profession.

Why should the Law Society of Scotland, have any right to claim a foothold in regulating an opened legal services market, when its own failures and prejudice against clients and the public in general, have caused the harm to people that it has ?

Why should the Law Society of Scotland be allowed to regulate an opened legal services market, when it has campaigned for so long to keep that market closed for its own members to make as much money as possible ?

Why should the Law Society of Scotland be believed in anything it says, after it's disastrous performance as self regulator of solicitors, and protector (as it claims) of the public's interest in legal affairs ?

The answer of course to those questions is that the Law Society has no right, no claim, no credibility and no purpose to be involved in regulating what will be a new legal services market where many firms, banks, individuals and others will do the work currently undertaken only by lawyers.

The problem is though, that no one seems to be thinking ahead to that very matter, of regulating the incoming firms to the legal services market, and I don't buy arguments that firms, such as Banks, Building Societies, and yes, even the likes of Tesco, can be relied upon to either police themselves or rely on the regulations which govern their respective sectors.

It is time for a new fully independent regulator of legal services in Scotland to emerge, and with the opening of the legal services market, the Justice Secretary, OFT and campaign groups, consumer groups etc must get together and come up with a solution to that, avoiding letting the regulatory operation slide unwillingly back to the Law Society of Scotland, who currently are the only regulators of the legal profession in Scotland.

The easy solution of course, is to give more regulatory powers to the new Scottish Legal Complaints Commission, extending their remit to cover anyone who will act in the legal services market, whether that be a solicitor, banker, accountant, or a qualified individual without a professional affiliation.

However to have power and authority in an opened legal services market, the SLCC will have to be given the full regulatory remit it should have had in the first place, also considering conduct complaints as well as service complaints, the latter of which the SLCC currently can only investigate, after interference from the Law Society during Parliamentary consideration of the Legal Profession & Legal Aid (Scotland) Act 2007, which saw a reduced complaints remit pass to the SLCC, sharing regulation with the Law Society in a distinctly unhappy marriage not in the public interest.

The OFT to a certain extent, understand there needs to be a fully independent regulatory body for legal services, but the problem is getting the OFT to say it.

If they say it for Scotland, they will have to say it for England & Wales, admitting what many a client who has had the misfortune to be forced to make a complaint to the Law Society north or south of the border - and that is that lawyers, regulating complaints against lawyers, does not work, is invariably prejudiced, lacks accountability, lacks transparency, and has no scale of redress for the hurt, financial damage and personal damage that such issues cause the client, while the solicitor happily goes on practicing law.

Again, quoting the Herald newspaper's report on the debate, the OFT were critical of those supporting the current solicitors monopoly on legal services.

"As expected, defenders of the status quo were given short shrift by Sean Williams, executive director for markets and projects at the OFT.

He was asked whether the watchdog would act to block wealthy organisations such as banks from elbowing their way into the legal services market through what one delegate called "predatory pricing".

Williams countered by demanding to know why Scotland's legal services sector should be protected from competition if this was in the interests of clients.

"To say we should prohibit entry by very major suppliers because they have deeper pockets is a route to a smaller profession," Williams said."

Sean Williams is indeed correct in his response.

Why should Scotland's legal services market be protected from competition, if competition was in the interests of the client - which it certainly is, providing wider access to justice and legal services currently denied by solicitors & advocates. Why should the likes of Banks and other 'wealthy organisations' be prohibited from entering the legal services market ?

The answer of course is there is no reason other than filling the pockets of members of the Law Society of Scotland, to maintain the current monopoly on legal services, forcing me & you to use a solicitor to access legal services or get to court. It is in our interests, the client, to open up the legal services market and allow us to choose who will represent our legal affairs - whether that choice be a solicitor, or a legal agent from a bank, or even a supermarket legal service.

As long as strong, effective independent regulation is provided to oversee the opened legal services market, enforcing standards of service and qualification, while giving the public an independent route for pursuing complaints against poor service or conduct issues, and making financial claims for compensation against such poor service or conduct issues, the problems we have seen in the past with the likes of the Law Society of Scotland allowing virtual armies of crooked lawyers to remain in practice will not be an issue.

If of course, the Law Society of Scotland had done all this from the very start, administered complaints properly, dealt with clients who took issue with poor legal service in a non adversarial manner, enforced & maintained standards vigorously, paid compensation to those who were ruined by poor service from solicitors, and worked from a willingness to resolve issues generally, rather than going hammer and tongs against clients at every turn, the issues which now face the legal profession would simply not exist.

How sad particularly, the membership of the legal profession have done nothing to rectify their regulatory body's shortcomings. So much could have been achieved, put right, healed, and confidence restored to legal services in Scotland, but sadly, the impotice for change and reform, has to come from outside.

Following article from the Herald newspaper :

Law Society promises recommendations

PAUL ROGERSON, City Editor

The governing body for Scottish solicitors has pledged to issue landmark recommendations by the end of February which could trigger a revolution in the way legal services are delivered in Scotland.

Speaking at a landmark conference in Edinburgh, Law Society of Scotland president Richard Henderson conceded that the organisation needs to respond quickly to urgent calls for reform of Scotland's closed shop, which prevents organisations such as banks and supermarkets from offering legal services and bans Scots lawyers from seeking external capital or forming partnerships with other professionals.

A society consultation paper discussing the reform options is planned for late October. Henderson said the ruling council plans to issue draft policy recommendations by the end of February.

Yesterday's event at the National Gallery of Scotland, "The Public Interest, Delivering Scottish Legal Services", was acknowledged to be one of the most important forums the society has ever staged.

In England and Wales, reforms collectively dubbed "Tesco Law" are set to take effect in 2010 and Scotland is under pressure to produce its own blueprint for change.

As The Herald reported yesterday, Justice Secretary Kenny MacAskill is obliged to act after the OFT upheld calls by consumer watchdog Which? for reform of Scotland's legal services market.

A "super complaint" lodged with the OFT in May by Which? had recommended the watchdog address fears that the current regulation of Scottish legal firms is hindering competition in the market, restricting choice and pushing up the price.

MacAskill must respond to the OFT by December. He told yesterday's conference that he expects Scotland's legal profession, not its government, to plot the way forward, but left the society in no doubt that he expects action soon. "You do not have the luxury of endless time to decide," said the Justice Secretary. "I shall be meeting Law Society officials within the week and expect to hear a positive outcome."

The debate around so-called "alternative business structures" is a deeply divisive one among lawyers. There are fears that many small Scots firms could be wiped out by a competitive free-for-all and that permitting external ownership could compromise professional integrity.

This was evident during a question-and-answer session attended by Julia Clark of Which?, architect of the super-complaint. She was howled down with cries of "rubbish" when pressed by a representative of the society's in-house lawyers' group over precisely how banks and building societies offering legal services would be policed.

"You proposed this, you should have some sort of concept about how this will work," Clark was told.

As expected, defenders of the status quo were given short shrift by Sean Williams, executive director for markets and projects at the OFT.

He was asked whether the watchdog would act to block wealthy organisations such as banks from elbowing their way into the legal services market through what one delegate called "predatory pricing".

Williams countered by demanding to know why Scotland's legal services sector should be protected from competition if this was in the interests of clients.

"To say we should prohibit entry by very major suppliers because they have deeper pockets is a route to a smaller profession," Williams said.

Lord Advocate v Lord Justice General in World's End trial failure fallout

The fall out between the Lord Advocate & Lord Justice General hits the headlines, with letters released from both sides, criticising each other.

Prepare yourselves for the following match between Lord Advocate Elish Angiolini and the Lord Justice General Lord Hamilton, as reported in the Herald newspaper :

The Herald reports :

WORLD'S END: Lord Justice General letter to Lord Advocate

Lord Hamilton, has taken the unusual step of writing to Elish Angiolini, expressing concerns about her statement to the Scottish parliament about the collapse of the World's End murder trial of Angus Sinclair.

In that statement she described the trial judge's decision as "final".

The following is the letter:

The Rt Hon Lord Hamilton
The Lord Justice General
Parliament House
Edinburgh EHI lRQ
26 September 2007
The Rt. Hon. Elish Angiolini, Q.C.,
The Lord Advocate,
Lord Advocate's Chambers,
25 Chambers Street,
Edinburgh,
EH11LA.

HM ADVOCATE v SINCLAIR

I address this letter to you in formal terms because its subject matter involves an important principle concerning the relationship between the court and the public prosecutor in Scotland.

I was on leave when you addressed the Scottish Parliament on Thursday 13 September following the acquittal of the accused by the trial judge in the above case on Monday, 10 September. I have, however, now read a transcript of your address. I conclude from your reference (column 1765) to the judge's decision as "final" that you do not intend to refer any point of law arising in relation to that decision to the High Court under section 123 of the Criminal Procedure (Scotland) Act 1995. Given that such a reference could not result in a reversal of the acquittal, I can understand that position.

However, the resultant situation is that the trial judge's decision on the section 97 submission made to him is for all purposes final and that in your address to the Parliament you treated it as such.

At column 1766 you are recorded as saying - "Although I would not normally think it appropriate as Lord Advocate to comment following such a judgment, given the extent of the misunderstandings about the case and the Crown's approach, I feel that I have to set the record straight about the Crown's understanding of the case and the evidence that was made available to the court.

I am of the clear opinion that the evidence that was made available to the court was sufficient to put before the jury to allow it the opportunity to decide on the case against Angus Sinclair. Let me set out the Crown case presented to the court."
If such respect is not afforded, the independence of the judiciary as the final arbiter of legal issues is put at risk.

You then set out, in a detailed and carefully crafted narrative, the evidence apparently adduced by the Crown and conclude at column 1769- "It was the Crown's position that the evidence in this case allowed '" an inference of guilt to be drawn."

It is clear that you were, as Lord Advocate, stating to the Parliament that in your "clear" opinion there was sufficient evidence to go to the jury. The plain implication from that statement was that you were publicly asserting that the decision of the trial judge was wrong.

Although I have read the whole of your statement to Parliament and the statement which the trial judge issued giving detailed reasons for his decision, I have formed no view as to whether or not that decision was sound in law. I am, however, concerned that you have thought it appropriate to challenge, in a public and political forum and in the way which you have, a final decision of the court (whether that decision be right or wrong).

Section 1(1) of the Judiciary (Scotland) Bill provides that certain office holders, including the Lord Advocate, must uphold the continued independence of the judiciary. That section, I believe, reflects an existing recognition that the Lord Advocate, among others, has such a duty. The independence of the judiciary depends, in my view, not only on freedom of individual judges from prior interference with decisions they have to take but a preparedness by the Lord Advocate and others to recognise, in all public pronouncements, that final decisions made by judges, whether on points of law or on applications of the law to particular facts or to particular evidence, reflect the law as it stands and must be respected as such. If such respect is not afforded, the independence of the judiciary as the final arbiter of legal issues is put at risk. An open challenge to the correctness of a final decision does not afford the requisite respect. Rather, it tends to undermine for the future the confidence which judges, faced with difficult decisions in controversial cases, can reasonably expect to have that their decisions will not be openly criticised by other organs of government.

The public prosecutor may of course entertain private views as to the soundness of legal decisions. In the light of experience steps may be taken to amend the law or in a legal forum to challenge the soundness of an earlier decision. But public criticism in a political forum of particular decisions, especially in controversial and sensitive areas, is in my view inappropriate.

My concern is not restricted to this case. The same situation might well arise in any case in which a trial judge sustained a submission under secton 97. It might also arise where, on an appeal against conviction, the court held that there had been insufficient evidence in law to warrant it. While such events commonly occur without public interest, they may well occur in controversial cases. It would be most unfortunate were the Lord Advocate to adopt a practice of publicly criticising such decisions.

I can readily understand that, given the issue which had arisen as to whether the Advocate depute had properly exercised his discretion as to what evidence he should lead (or not lead), you would find it appropriate publicly to support him. But such support could have been afforded without public criticism of the judge. In particular, respect for what was treated as being a final decision of the High Court of Justiciary might have been expressly afforded.

I have discussed this letter with the Lord Justice Clerk. He agrees with its terms. He also agrees with my view that the letter should be made public. I am sorry to have to write in these terms but I think it important that you know my views. If a discussion would assist, I would be happy to meet you at your convenience.

The Lord Justice General has made the letter public because of the importance he attaches to the issues which have arisen.

and now, the Lord Advocate's response to Lord Hamilton :

WORLD'S END: Lord Advocate response to Lord Justice General

HM ADVOCATE v SINCLAIR

Dear Lord Justice General Thank you for your letter of 26 September.

You express concern that I have publicly asserted that the decision of the trial judge in this case was wrong and that the independence of the judiciary as the final arbiter of legal issues is thereby put at risk.

You recognise, however, that it might be appropriate for me publicly to support the Advocate Depute without public criticism of the judge and you point out that respect for what was treated as being a final decision of the High Court of Justiciary might have been expressly afforded.

I would wish to make it clear that in my statement to the Parliament, to which I am accountable, I endeavoured to stress the independence of the judiciary and the need to respect that.

I said explicitly that "as the law stands the decision of the judge is final and we all have to respect that".

I do not think I could have gone further expressly to afford greater respect for the final decision of the trial judge in the circumstances.

I do, of course, fully understand the importance of independence of functions in the criminal justice system.

My own independence is already recognised in statute, in the Scotland Act itself, which provides that any decision taken by me in my capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by me independently of any other person.

My independence does not and can not make my decisions immune from comment or criticism. In a democracy such as ours, where public institutions are subject to greater scrutiny and accountability, the Lord Advocate must be able to explain her position in public where that is necessary.

Law Officers and prosecutors are from time to time criticised and we must be free to respond publicly to that criticism in appropriate circumstances.

In the particular circumstances of this case I considered it necessary to respond to the criticism of the Crown's handling of the case which followed on the trial judge's decision. This criticism extended to adverse comment regarding the Crown's approach to the case, why evidence was not led and to the strength of evidence in other potentially related cases. There was an unprecedented interest in the actions of the Advocate Depute, there were calls for an inquiry and for a statement be made to the Parliament on the Crown's handling of the case.

It was suggested that the case had damaged public confidence in the criminal justice system. I considered that it was important for me to allay public concerns as quickly as possible and that this should be done by a full statement to the Parliament.

I chose my words to the Parliament with great care. I explained the background to and the basis of the Crown's decision making in the case and sought to address the concerns which I have set out above. In doing this I stressed the independence of the judiciary and the need to respect that.

I repeated this during questions following the statement. Indeed, in almost six years as a Law Officer I have avoided any public criticism of judicial decisions.

My comments were about the Crown's decision making, and not anyone else's.

I am happy to meet you to discuss the matter further if you would find this of assistance.

Elish Angiolini QC Lord Advocate

further report from the Herald :

WORLD'S END: Scotland's top judge slates law chief over murder trial collapse

Scotland's most senior judge today launched an unprecdented attack the country's chief prosecutor over her reaction to the collapse of the World's End murder trial.

The Lord Justice General criticised Lord Advocate Elish Angiolini over a speech made to the Scottish Parliament in the wake of the case's dismissal from the courts last month.

The law officer insisted to MSPs that there had been enough evidence to prosecute Angus Sinclair for the murders of teenagers Christine Eadie and Helen Scott.

But today Lord Hamilton, Scotland's most senior judge, took the unusual step of writing a strongly-worded letter to Ms Angiolini describing her comments, which implied judge Lord Clarke was wrong to dismiss the case, as "inappropriate".

In the letter, which was made public, he wrote: "Public criticism in a political forum of particular decisions, especially in controversial and sensitive areas, is in my view inappropriate."

The case against Sinclair, a convicted killer and paedophile, was thrown out at Edinburgh High Court last month after Lord Clarke ruled that there was insufficient evidence for the jury to reach a verdict.

The trial collapse caused further heartache for the family of the two teenage victims killed 20 years ago.

It also raised questions of the Crown's presentation of the case.

There were calls for a public inquiry by politicians who said that advocate-depute Alan Mackay had not led all the available evidence during the trial.

And criticisms were made over the Crown's decision to bring forward a prosecution at all if a conviction was not likely.

The Lord Advocate's statement to Parliament on September 13 was prompted by the attacks.

Public criticism in a political forum of particular decisions, especially in controversial and sensitive areas, is in my view inappropriate.

She defended her department's handling of the case in the speech, describing its collapse as "deeply disappointing".

The Lord Advocate insisted: "I am of the clear opinion that the evidence made available to the court was sufficient to be put before the jury to allow them the opportunity to decide on the case against Angus Sinclair."

But in his letter today the Lord Justice General wrote: "It is clear that you were, as Lord Advocate, stating to the Parliament that in your "clear" opinion there was sufficient evidence to go to jury.

"The plain implication from that statement was that you were publicly asserting that the decision of the trial judge was wrong."

He went on: "I am concerned that you have thought it appropriate to challenge, in a public and political forum and in the way which you have, a final decision of the court (whether that decision be right or wrong)."

The Lord Advocate concluded: "I can readily understand that, given the issue which had arisen as to whether the Advocate depute had properly exercised his discretion as to what evidence he should lead (or not lead), you would find it appropriate publicly to support him.

"But such support could have been afforded without public criticism of the judge."

In a letter of response to Lord Hamilton, the Lord Advocate said she had chosen her words to Parliament "with great care".

Ms Angiolini stated that her comments related to her department's decision-making "and not anyone else's".

She wrote today: "I considered that it was important for me to allay public concerns as quickly as possible and that this should be done by a full statement to the Parliament.

"I chose my words to the Parliament with great care.

"I explained the background to and the basis of the Crown's decision-making in the case and sought to address the concerns which I have set out above.

"In doing this I stressed the independence of the judiciary and the need to respect that.

"I repeated this during questions following the statement.

"Indeed, in almost six years as a law officer I have avoided any public criticism of judicial decisions.

"My comments were about the Crown's decision-making, and not anyone else's."

The Lord Advocate stated: "I do not think I could have gone further expressly to afford greater respect for the final decision of the trial judge in the circumstances."

The First Minister, Alex Salmond, said during First Minister's Questions that Ms Angiolini was "absolutely right" to make a statement in Parliament about the collapse of the case.

"Given the public interest and concern in this case, no member of this Parliament and I think very few people in Scotland, would expect anything less," he said.

"Inevitably in giving that statement and then answering questions, the Lord Advocate is going to put forward the crown point of view - the prosecution service's point of view, as indeed was done in open court.

"I don't believe that should be taken as a direct criticism of a trial judge.

"That is surely a law officer responding to public concern, subjecting herself to parliamentary scrutiny."

Mr Salmond added that judicial independence is guaranteed in Scotland and a forthcoming Bill will further underline this.

Further report from the Herald :

Angiolini defies top judge over World’s End attack

ROBBIE DINWOODIE, Chief Scottish Political Correspondent

Scotland's top prosecutor yesterday rebuffed unprecedented public criticism from the country's most senior judge and made clear she would not back away from explaining the background to controversial court cases in future.

A remarkable exchange of letters between Lord Hamilton, the Lord Justice General, and Lord Advocate Elish Angiolini emerged in the wake of her statement to parliament on the collapse of the World's End murder trial.

The case against Angus Sinclair folded at the High Court in Edinburgh last month when Lord Clarke ruled there was not enough evidence for the jury to reach a verdict.

In her comments to MSPs two weeks ago, Ms Angiolini insisted that there had been a strong enough case to let the jury decide whether to convict double killer Sinclair for the 1977 murders of teenagers Christine Eadie and Helen Scott.

Lord Hamilton was on holiday when she spoke, but issued a three-page letter yesterday. Written with the full agreement of Lord Gill, Scotland's second most senior judge, he called Ms Angiolini's statement "inappropriate" and said she had not shown "requisite respect" to the judiciary.

He also claimed that it could have been illegal under a new law being considered because this would give her a statutory duty to uphold the independence of the judiciary.

Within minutes of Lord Hamilton's letter being made public, the Lord Advocate responded robustly, stating that she had chosen her words "with great care" and insisting: "I do not think I could have gone further expressly to afford greater respect for the final decision of the trial judge in the circumstances."

Asked whether the Lord Advocate's rejection of the criticism meant she would be prepared to do the same again, a Crown Office spokesman said: "Absolutely."

The open spat between the country's two most senior legal figures prompted the Conservatives to claim it proved the need for the head of the prosecution service to be removed completely from the political sphere.

Tory justice spokesman Bill Aitken said: "There needs to be a complete separation of powers. The situation whereby Scotland's premier judge and chief prosecutor are in conflict is unprecedented and extremely unfortunate. The Lord Advocate was quite correct in coming to the parliament to make a statement following the Sinclair case, but there was no doubt that some of this statement could have been construed as criticising the trial judge's decision and that is what has prompted Lord Hamilton's understandable concern."

Margaret Smith, of the Liberal Democrats, added: "A public disagreement of this nature between the Lord Advocate and Scotland's most senior judge is unprecedented. Many people will be concerned at any claim that the independence of the judiciary is under threat."

Alex Salmond came to Ms Angiolini's defence at First Minister's questions. He said: "Given the public interest and concern in this case, no member of this parliament and I think very few people in Scotland would expect anything less. Inevitably in giving that statement and then answering questions, the Lord Advocate is going to put forward the Crown point of view - the prosecution service's point of view, as indeed was done in open court."

He added: "That is surely a law officer responding to public concern, subjecting herself to parliamentary scrutiny."

For Labour, Pauline McNeill said: "We respect the independence of the judiciary. However the World's End case has raised an important legal point. To tackle this we should consider whether the Crown should have the right of appeal against the decision of a judge."

Freedom of Information makes for more open public bodies but secrecy remains

While all who must, are attempting to obey Freedom of Information law, secrecy remains and many public bodies & services display a reluctance, backed up by prevarication of FOI requests and occasional intimidation of those seeking information.

The Herald reports :

Public bodies more open but reluctant to obey spirit of FoI law, claims study

DAMIEN HENDERSON

Public bodies have become more open since the Freedom of Information (FoI) Act was implemented but are still reluctant to give details, new research suggests.

The study found 89% of authorities felt they were more transparent and three quarters reported they were better at storing and retrieving information.

However, researchers from Glasgow Caledonian and St Andrew's universities found a "legalistic" approach had been taken by many administrations and officials were reluctant to obey the spirit of the law.

There was also evidence the act, introduced in 2002, had been used to delay requests for sensitive information by journalists.

In turn, 25% of officials within public bodies felt some people, journalists in particular, were abusing the process by making frivolous and impractical requests.

One authority claimed it had received 100 separate requests for information in one approach from a journalist.

The report, The Freedom of Information (Scotland) Act 2002: New Modes of Information Management in Scottish Public Bodies?, was commissioned by Scottish Information Commissioner Kevin Dunion and examined how the Scottish Government, police, NHS and councils were fulfilling obligations to respond to public requests.

It found that, although the FoI legislation covers all written requests for information, a two-tier approach had evolved with applications dealt with under the terms of the act or on an informal basis.

Complex or controversial applications to authorities were more likely to be dealt with according to FoI legislation, but straightforward requests were treated as "business as usual", it was found.

Some journalists reported questions that would have previously been answered swiftly before the legislation were now dealt with under the 30-day FoI timeframe. Government officials, who remained anonymous in the report, also claimed to have come under political pressure from managers when dealing with controversial requests.

Eleanor Burt and John Taylor, the report's authors, claimed there was a culture clash within public bodies between those who saw the need for openness and bureaucratic departments who only complied with legal duties.

"Systems have been put in place, responsibilities have been formally assigned and requests are being handled pragmatically with little if any sense of democratic considerations," the researchers wrote.

The report urged better leadership in pushing through the "democratic rationality" behind the FoI legislation and ensuring officials were informed about obligations.

Kevin Dunion also came under the spotlight, with the report urging the Information Commissioner to hand out more information about developments in the law.

Disclosures under act

# Paul Hutcheon, Sunday Herald's political correspondent, scored arguably the biggest strike under FoI in 2005 when he got receipts that showed David McLetchie, the then Scottish Conservative leader, paid for taxis for private legal work using public funds. He later resigned.

# Kevin Dunion, Scotland's Information Commissioner, forced the NHS to reveal statistics that showed patient mortality rates of different surgeons.

# Campbell Martin, Independent MSP for the West of Scotland, got North Ayrshire Council to disclose correspondence related to its controversial PPP project.

Lord McCluskey supports Lord Advocate in World's End murder case collapse

Oh no, not again ... Lord McCluskey turns up so much these days in the press, he should really be appearing in Hitchhikers Guide to the Galaxy, or would that be Hitchhikers Guide to Scotland's Injustice system ...

Lord McCluskey decides to support the Lord Advocate against some of his colleagues in the Judiciary ... party politics before legal friends these days ? or just another entertainment show recalling the days of "Spitting Image" ?

The Herald reports :

Former solicitor general backs prosecutors

DAVID LEASK

The Lord Advocate last night won the backing of one of Scotland's most distinguished retired judges.

Former solicitor general Lord McCluskey said he believed Lord Hamilton had no grounds to accuse Elish Angiolini of threatening the independence of the judiciary.

"He's quite wrong," Lord McCluskey said. "What he fails to see is that it is sometimes essential for a minister to comment upon a case. It happens all the time in parliament. He may be asked a question. He may be required by circumstances to make a statement.

"I don't have any objection to people from outside the executive and parliament criticising judges."

Ministers, Lord McCluskey said, were entitled to debate the merits of any decision, just not to comment on the merits of any judge. "He can't say the judge is foolish or the judge doesn't know his rear from his elbow.

"There is everything wrong with a minister saying a judge is a fool or biased, in implying prejudice.

"But if you are to criticise a judgment, there is nothing to stop you doing that, not least in learned articles."

Like most judges, Lord McCluskey is no stranger to criticism of his decisions - either from the public or fellow lawyers. And like most judges, he didn't always like it. "I sometimes felt aggrieved," he said, "that someone had differed from my own point of view, that's a natural human response." Public criticism of judgments is an everyday occurrence, he said. "It is quite common, for example, for people to complain that a judge is too lenient in sentencing."

Lord McCluskey would welcome a public debate on one element of the World's End trial. Charges against Angus Sinclair were dismissed because Lord Clarke felt there was "no case to answer" - not enough evidence to put before a jury. He could not have done so before 1980. That was when the provision was brought into Scots law, an "alien import," said Lord McCluskey, from England.

Lord McCluskey believes the rule of corroboration in Scots law means there is no need for the English-style notion of insufficient evidence.

OFT calls for Scottish legal services market reform at lawyers debate

The OFT are due today, Friday, to call for legal services market reforms at the Law Society of Scotland's "Public Interest" debate at the National Gallery of Scotland.

Rumour has it that anyone critical of the legal profession attending the so-called 'public interest debate' might have to wear body armour, for fear of flying objects from the protectionist minded audience of lawyers ...

The Herald reports :

Scotland urged to ‘sweep away’ closed shop in legal services

PAUL ROGERSON, City Editor

The Office of Fair Trading will today urge Scotland's 10,000 lawyers to embrace greater competition in the nation's legal services market or face being "left behind" by English competitors.

Sean Williams, executive director markets and projects, will tell a landmark conference in Edinburgh that the watchdog is determined to sweep away the "closed shop" which prevents organisations such as banks and supermarkets from offering legal services in Scotland.

He will dismiss the arguments of those who claim "alternative business structures" (ABSs) will wipe out small law firms and leave Scottish legal practices vulnerable to infiltration by organised crime.

The OFT believes a "fit-to-own" test would safeguard the integrity of legal services delivery and claims many small firms and sole practitioners will actually benefit from outside investment.

In England and Wales, reforms collectively dubbed "Tesco Law" are set to take effect in 2010. External investors such as supermarkets and banks are being allowed to own and run law firms for the first time. Practices will also be able to float and appoint non-lawyer partners including accountants, while English barristers and solicitors will be able to form partnerships.

North of the border, there has been limited appetite for implementing alternative ways of doing business. "MacClementi", a working party report on Scotland's legal services market commissioned by the Scottish Executive and published in early 2006 after much prevarication, was widely viewed as a damp squib. That split the profession, with some eminent Scots lawyers in favour of the new freedoms and others hostile.

Before this year's Holyrood elections, the then SNP justice spokesman Kenny MacAskill said Tesco Law was "to be avoided" as "it would not suit Scottish society", while conceding there should be "some opportunity for successful Scottish firms to compete globally".

Now Justice Secretary, MacAskill is under pressure to act after the OFT upheld calls by consumer watchdog Which? for reform of Scotland's legal services market. A "super complaint" lodged with the OFT in May by Which? had recommended the watchdog address fears that the current regulation of Scottish legal firms is hindering competition in the market, restricting choice and pushing up the price.

The Scottish Government must respond to the OFT within 90 days, by early December. MacAskill will tell today's conference that the "status quo is not an option", while warning that he has no intention of "blindly following an English approach, or adopting a model which is unsuited to (Scotland's) needs as a country".

The Justice Secretary will pledge to do all he can to maintain viable legal practices in local communities, suggesting that new business structures may help this by enabling law firms to offer a wider range of business services. But he will warn of the dangers of moving to a wholly open market "at one step" and underline the need for proper regulation of entrants.

MacAskill will concede that law firms may need access to external capital to compete, and will suggest that Scotland could steal a march on England and Wales by piloting new capital-raising models over the next three years.

Today's event at the National Gallery of Scotland, "The Public Interest, Delivering Scottish Legal Services", has been organised by solicitors' governing body the Law Society of Scotland. Billed as a "platform for debate", the event takes place as some lawyers are becoming increasingly frustrated at the absence of concrete reform proposals.

Magnus Swanson, chief executive of Big Four law firm Maclay Murray & Spens, is among those who says there is little point in the profession continuing to prevaricate on ABSs.

He warned earlier this month that it would be a "real shame" if Scotland's larger firms, which had struggled to transform themselves into UK players, were forced to become English-domiciled because of intransigence from the Scottish Government or law society.

Kyla Brand, OFT representative in Scotland, warned yesterday that Scotland's legal sector could soon find English tanks parked on the lawn if it fails to reform. "It would certainly not be beyond the wit of London-based organisations, for example, to recruit Scottish solicitors and user their wider reach to compete in Scotland," she said.

"These issues have been discussed (here) for quite some time and it is now over 18 months since the Executive's working group reported. It is time to look at how the changes can be made to work in Scotland."

Law Society Debate "The Public Interest - Delivering Scottish Legal Services" Friday, Weston Link, National Gallery of Scotland

The Scotsman reports on Friday's Law Society debate on the future of legal services in Scotland - although Douglas Mill has already told the profession not to suggest too much !

Peter Cherbi's report on the debate and possible subject matter can be found on his "Diary of Injustice in Scotland" web blog here : Law Society public interest debate masks lawyers control of access to justice

The Scotsman reports :

Alternatives for firms debated

JENNIFER VEITCH

GROWING tensions between commercial and consumer interests over legal services are to be debated at a Law Society of Scotland conference on Friday.

In the wake of the Office of Fair Trading's (OFT) recent response to the Which? super-complaint, the society will hold a half-day meeting to explore the implications of alternative business structures (ABS) proposed for firms in England and Wales.

ABS is not yet officially on the cards in Scotland but the OFT has recommended the Scottish Government look at lifting market restrictions which "could be causing harm to consumers". These include current rules governing advocates' business structures and third-party entry into the market.

The consumer lobby is pushing for Clementi-style reforms to be introduced in Scotland in order to increase competition and drive down prices. Some larger Scottish firms have also indicated they want to see a level playing field with their English rivals in the post-Clementi era.

But the society and Faculty of Advocates have already expressed concerns about the impact that alternative business structures could have on public access to legal services, particularly in rural areas, if so-called "Tesco law", (firms such as the AA and the Co-op have plans to provide legal services) drives small firms out of business.

Michael Clancy, the society's director of law reform, stressed the importance of solicitors engaging in this week's debate to help find solutions to balancing commercial and consumer interests with the need to maintain access to justice.

He says the profession has now reached a "significant crossroads", with any reforms likely to have far-reaching implications for the entire legal system.

"It is quite clear that there are tensions," he says. "There are the issues of commercial work and commercial interests and there is the high street and the small town and rural areas, and issues about access to justice. What is the solution that satisfies everyone?

"That is one of the reasons why the conference is so important - it is a very significant crossroads for the profession and the Scottish legal system. It will inform the views that set the timbre for developments in the early 21st century.

"There are lots of commercial concerns affecting large and small firms alike. The Scottish Government will want to create an environment where both the large firms can feel satisfied that they are providing a service to their clients and that that service is providing a showcase for Scottish legal skills, and at the same time small firms are providing a service to our communities."

The society is drafting its own proposals for reform, to be published in a green paper this autumn. Clancy says it is "no secret" that a draft document already exists, but he stressed it will be adapted to reflect views put forward by the profession.

"Part of the process of the conference is to inform the society's council about the various views," he says. "Once the conference is over, the council will have the opportunity to consider the things that have been said on the day and the idea is that we should produce an options paper, a kind of green paper, which will put out options into the public domain for comment and response.

"After we have analysed these responses, we will come forward with a more substantive policy statement. Hopefully this will be concluded in the early part of 2008."

Clancy says the process may take some time to conclude but pointed out it is important to find the right solutions for the Scottish marketplace: "This is such a crossroads that the implications will reach far and wide and affect the system for a long time to come. We have to proceed properly so we get the right answer, because getting the wrong answer will be very bad for the public and for the legal system of Scotland."

At Friday's conference in Edinburgh, the keynote address will be made by Kenny MacAskill, the justice secretary. Other speakers include Jonathan Goldsmith, chief executive of the Council of Bars and Law Societies of Europe (CCBE), and Sean Williams, of the OFT. A panel discussion will also hear views from Martyn Evans, the director of the Scottish Consumer Council, Valerie Stacey QC, the vice dean of the Faculty of Advocates, Douglas Connell of Turcan Connell, Julia Clark of consumers' association Which? and Christine McLintock, of McGrigors.

Clancy adds: "It will be extremely interesting to see if the tensions can be substantiated by the people from the larger and smaller firms and from the consumer interest and Faculty of Advocates.

"The discussion will be extremely informative and will assist our council and policymakers to get to grips with the issues and see how these various tensions can be relieved and what middle ground there can be."

Yet any decisions about whether to follow the English model, set out in the Legal Services Bill currently going through Parliament, are hampered by a lack of evidence from other jurisdictions about the longer-term impact of alternative business structures, Clancy says.

Across much of Europe, and even in the United States, Clancy says, there is opposition to the concept of the multidisciplinary practice, and Australia is the only other major jurisdiction in favour of them.

• "The Public Interest - Delivering Scottish Legal Services" will be held at the Weston Link on Friday 28 September. For more info visit www.lawscot.org.uk

Ninety per cent of lawyers claim they will quit civil legal aid work

With the Law Society of Scotland doing the stirring, it's little wonder that many legal firms want to come out of the civil legal aid market, but with the proposed opening of the legal services market by the OFT coming along soon, will consumers really face the advice deserts the Law Society claims will affect Scotland ? or will the new competition simply take on people under civil legal aid instead ?

Peter Cherbi tackles this subject further in his "Diary of Injustice in Scotland" HERE

The Scotsman reports :

Nine out of ten law firms 'plan to quit' civil legal aid

HAMISH MACDONELL SCOTTISH POLITICAL EDITOR

THE future of civil legal aid in Scotland was thrown into doubt today by the publication of a survey showing nine out of ten law firms are so disillusioned with the system they are preparing to withdraw from all such cases over the next four years.

Lawyers across Scotland are frustrated with the bureaucracy, the way payments are worked out and, above all, with the low rates of pay under civil legal aid.

As a result, the number of law firms still offering their services for civil legal aid has gone down, with most of the remaining 736 firms preparing to pull out in the next four years.

Civil legal aid is provided to those who cannot afford the services of a solicitor in non-criminal cases. The most common use is for divorce, but women being abused often need legal aid to get court orders to keep their abusers away. Civil legal aid is also provided for adoption cases, debt and child law.

The survey also suggests that only a rethink of the system will prevent its wholesale collapse.

Oliver Adair, the convener of the Law Society's Legal Aid (solicitors) committee, warned that the most vulnerable in society would suffer if, as now seems likely, solicitors withdraw their services.

And he added that the 2003 reforms to the system, which were supposed to increase access for the most vulnerable, might end up doing the opposite.

The Law Society conducted the survey after hearing increasing amounts of anecdotal evidence of dissatisfaction with the reforms that were introduced by the previous Scottish administration.

The reforms were supposed to make the system simpler and more accessible for those most in need, introducing standard block fees for lawyers for set amounts of work and allowing lawyers to be paid for at least some of their work before the case was completed.

The basic fee is £19 for a block of work, and although the rates vary depending on the type of case, the kind of work involved and the court, it works out roughly at £52.60 an hour for work outside court and £60 an hour for representing clients in court.

However, the survey found 92 per cent of lawyers who provide services under civil legal aid were planning to end the service in the next four years. Most believe that they are getting so much less now, in terms of legal aid fees, that it does not make any sense to stay within the system.

When asked their reasons for either giving up or considering quitting civil legal aid, 80 per cent of lawyers said it was because the system was "financially unviable" and 60 per cent also complained about bureaucracy.

For most firms, civil legal aid amounts to only a small part of their work, so it would not be difficult for them to pull out.

While the Law Society survey stopped short of warning of a crisis, Mr Adair did admit that there were very serious problems ahead unless something was done to reform the system.

He said the funding system was not flexible enough to cope with cases which needed a lot of work. "Unfortunately, the people who will be the worst affected will be the most disadvantaged in society. The people who need help the most will not get access to it if lawyers pull out of the system," he said.

"Instead of improving access to justice, it would appear that the changes are having the opposite effect."

But Colin Sim, from the Legal Aid Board, said a review of the fee level had been started and it would be decided by ministers in the near future.

Mr Sim said: "There have already been changes and there is a review of the fee level under way. It is now a matter of the fee level to give an appropriate fee for solicitors, but it is unlikely to match the increases in private fees over recent years."

A spokesman for the Scottish Government said: "We are aware that civil legal aid fee levels are a major concern for solicitors. That is why the Scottish Legal Aid Board is reviewing the fees paid to solicitors undertaking civil legal aid work to see if the block fee arrangements are providing an appropriate level of remuneration.

"In the meantime, regulations have been laid in parliament this week which will improve payments for undefended (non-divorce) civil actions in the sheriff court. This should make it more financially viable for solicitors to take on work such as seeking a protection order."

The Herald reports :

Nine out of 10 law firms ‘to drop civil legal aid’

DAVID LEASK

Nine out of 10 law firms offering civil legal aid work will drop the service within the next four years, a poll revealed yesterday.

Most said they could no longer afford to do the work after reforms they claim have already turned huge swathes of Scotland into "advice deserts".

The survey, by the Law Society of Scotland, is the latest evidence of growing discontent among lawyers about the way fees are paid for civil legal aid.

Oliver Adair, a Larkhall solicitor who chairs the society's Legal Aid Committee, said the poll backed anecdotal evidence from across the country. Lawyers, unhappy with the system of block fees for civil legal aid work, are simply declining to take new cases, especially in complex family law.

Mr Adair said: "What we are talking about is a potential problem with access to justice for the most disadvantaged people."

The Scottish Government and Scottish Legal Air Board (Slab) yesterday acknowledged lawyers' concerns and said they were reviewing fees, something welcomed by Mr Adair. However, he added: "The survey results would suggest they have not done enough."

The Law Society survey, of more than 100 firms, found that 92% of those offering civil work for legal aid intended to stop doing so within the next four years. Fully 38% said they would drop the business within a year.

Only 3% of firms polled said reforms of 2003 - when the system of block fees was introduced - had increased their income from civil legal aid. Some 70% said their earnings from such business had fallen. Many firms said the amount of legal aid work they were doing had increased - mostly because rivals had dropped the business.

Of those planning to drop civil legal aid, four out of five said it was for financial reasons.

One firm said: "When it costs £60 or so an hour to pay qualified legal staff to undertake legal aid work, one would have to regard it as pro bono to undertake it at the silly rates offered by Slab."

Another said: "If the funding is not forthcoming, the scheme will simply wither away. That cannot be allowed to happen in a caring legal system."

Other firms said they would only do legal aid work for the most vulnerable, children and adults with incapacity. Money was not the only gripe. Some companies also complained that they were tied up in red tape.

The way lawyers were paid for civil legal aid changed in 2003. Until then they always received a "time and line payment". They still do for some work, from £53.60 to £68 an hour. Most of their fees, however, come in blocks of £19 with no hourly rate.

The Law Society sent the questionnaire to all firms registered to carry out civil legal aid, although not all responded.

A spokesman for the Scottish Government said a review of fees was being carried out, and is due to be completed next month. "We're aware civil legal aid fee levels are a major concern for solicitors. That is why Slab is reviewing the fees paid to solicitors undertaking civil legal aid work to see if the block fee arrangements are providing an appropriate level of remuneration.

"In the meantime, regulations have been laid in parliament this week which will improve payments for undefended (non-divorce) civil actions in the Sheriff Court."

The spokesman also said Slab officials had been in talks with the Family Law Association to look at how lawyers should be paid for the kind of complex cases that are not suited for a block payment. Improvements could be made by the end of the year, he said.

The government has already made some moves to fill gaps left by private law firms pulling out of civil legal aid. Slab, for example, appointed a salaried lawyer based in Inverness, not least to help women who are the victims of domestic violence.

The Law Society poll follows a separate survey carried out by Mori more than a year ago. Mori spoke to around half of all firms then taking part in the civil legal aid scheme.

A spokesman for Slab said: "In our survey 62% said they were certain to or likely to still be doing legal aid work in three years time. Nineteen percent said they were not likely to and just 9% were certain not to."

Lord McCluskey on World's End trial collapse : Judges can make mistakes

Never one to be silent when it suits (as many of you who have appeared in front of him will remember), Lord McCluskey cannot resist comment on the collapse of the World's End trial.

Quick fixes to Scots Law suit some but not the country ... so why not make a good job of it this time, instead of having to protect the usual suspects from any significant reform ...

Good thing the issue at hand isn't judicial reforms, because we all know where his lordship stands on those !

The Scotsman reports :

There clearly is a case to answer for Lord Clarke

LORD McCLUSKEY

THE World's End murder trial collapsed on 10 September, following Lord Clarke's decision that there was "no case to answer" because the evidence was "insufficient in law". The unexpected ruling produced a shocked public response - hardly surprising, considering the circumstantial evidence put before the court, the evidence that the accused had sex with the murder victims after they left the pub and within hours of the finding of their naked, murdered bodies, and the realisation that other forensic evidence judged important by the police was not led by the prosecution. Matters were made worse when the analogous criminal record of Angus Sinclair was revealed.

There were criticisms of the judge, the Crown Office and the prosecutor. There were calls for new laws to prevent repetition of what the public thought blatant injustice.

Confidence in the justice system is of the greatest importance. When it is shaken so dramatically, everyone involved needs to think carefully about what needs to be done. Should a judge have the power to deny the jury the right to draw the inference of guilt from such powerful circumstantial evidence? Was the judge right to refer to the test of "reasonable doubt", a test which most lawyers believe does not apply to a "no case to answer" submission? Should it be left to a single judge to take such a momentous decision? Should the court be told of the accused's history of sexual, violent crime? Should the Crown have a right to appeal the judge's ruling if they conclude that he got it wrong? Behind all other questions lies the basic one: did the judge err in denying the jury the chance to decide the case?

Before 1980, "no case to answer" did not exist: a judge could not take a case from the jury on the ground of "insufficient evidence" until all evidence had been heard. When this new procedure was introduced by Parliament in 1980, Lord Justice General Emslie said it was "entirely novel to our accustomed and well-tried procedure", pointing out that it was borrowed from England. Debating the Bill in the House of Lords, I expressed my disquiet. It even created an extra hurdle that did not exist in England because, unlike England, Scotland has a rule requiring corroboration in all criminal cases - so "insufficiency" of evidence means something different.

One unseen result is that prosecutors have to drop cases because they fear they may not be able to jump this hurdle. So this procedure, allied with an accused's right to silence, enables guilty men to escape justice every day of the week. I believe we should revert to our "well-tried" procedure, at least until we reconsider the rule, dating from the days when suspects were tortured, giving an accused the right to remain silent, however powerful the evidence against him.

In most cases, a judge has little difficulty in deciding the "sufficiency" test. But in a narrow, difficult case he has the right to call in two colleagues. This is seldom done unless the question is a purely legal one, and it is less appropriate when the issue requires a grasp of the whole evidence, but that is not an insuperable problem, given the instantaneous recording of all the evidence.

In a case such as this, where the evidence clearly places the accused with a victim in the hours before her murder, having taken her in his car and had sex with her shortly before she was strangled with her own tights, where there is no evidence of any stranger being involved, no-one could have criticised the judge if he had openly consulted other judges to test his own reading of the situation. The issue as to what inferences a jury might legitimately draw from a mix of direct and circumstantial evidence is never easy.

Judges make mistakes: that is why we have vigorous and busy appeal courts. A judge's ruling against the Crown on the "no case to answer" plea ought to be appealable.The accused can appeal against it: and either side can appeal in minor cases prosecuted in the lower courts. There is no time problem: I know of cases where a judge's procedural decision against the Crown in a High Court jury trial has been appealed, and overturned, within 48 hours.

Did this trial judge get it wrong? The reasoning that he gave in open court is careful, thorough and coherent. The Lord Advocate, in a comprehensive, powerful and convincing statement to Parliament, has nevertheless argued strongly that he was mistaken. The issue between them should not be left in such an inconclusive state, especially as the judge has no right of reply. The Lord Advocate can still refer this case to the Appeal Court for a conclusive ruling on the issue, using a "Lord Advocate's Reference". Though the acquittal would stand even if the Crown won the argument, a Reference ought to be made. That would settle the well-publicised differences between the Lord Advocate and the judge, and enable the Appeal Court to give guidance on the extremely important interplay between direct and circumstantial evidence in a case where the victim is dead, the accused is silent, and the rule requiring corroboration before the end of the case can so readily wreak injustice.

I disagree with those who suggest that, in her parliamentary statement, the Lord Advocate should not have said the judge was wrong. Public outrage in this case demanded the Lord Advocate explain the Crown's position publicly, even if the explanation disclosed disagreement with the judge's legal ruling. If it had to be done, it had to be done fully and honestly. It was. Nor is it unusual: every time the Crown announces an appeal against a judge's ruling (for example, regarding unduly lenient sentences) it amounts to a public assertion that the judge erred.

Judges should not be criticised unfairly. But fair and reasoned criticism is perfectly justified, indeed necessary, in a democracy. The best, indeed the only, way to evaluate the criticism that the judge took too narrow a view of the evidence is for the Lord Advocate to take a Reference to the Appeal Court now. That would enable senior judges to deliver a judgment potentially of immense value to those who have to address possible reforms of the criminal trial system. The victims of these appalling crimes surely deserve no less.

A move for many cases from the Court of Session to the Sheriff Courts looks on the cards as Lord Gill makes his recommendations in some long needed reforms to the Scottish Courts system.

The Herald reports :

Bid to give all first hearings to sheriffs

Exclusive by LUCY ADAMS, Chief Reporter

Almost all civil cases in Scotland, including the most complex and expensive divorce proceedings, could be transferred to the sheriff courts under recommendations being drawn-up by Lord Gill, the Lord Justice Clerk.

Currently, the Court of Session, which sits in Parliament House in Edinburgh, is the supreme civil court and is used as a court of first instance for complex commercial cases, divorce and more serious reparation cases. However, under a radical shake-up of the courts, Lord Gill, Scotland's second most senior judge, is considering making the court solely for appeals.

He is understood to have commissioned a paper on how civil cases could be moved to the sheriff courts to free-up the time of more senior judges. This paper will be used as part of an ongoing consultation process during his two-year review of the system.

The proposals, still under consideration, are expected to have constitutional ramifications as the Court of Session's role is detailed in the 1707 Act of Union.

The review is aimed at making sure that cases are dealt with at the right level of the court system, assessing how civil cases are handled and the time it takes to resolve them. The idea is expected to meet with widespread opposition from those who can afford and choose to take expensive divorce proceedings and accident claims to the Court of Session.

One advocate said: "The courts are under a great deal of pressure, there is a backlog of cases in the appeal court and this would help to free up judges' time."

Civil cases take up a huge amount of court time. Last year, around 125,000 civil cases were raised in the sheriff court alone.

If the bulk of civil cases were transferred to the sheriff court, it would reduce the amount of work for advocates specialising in civil cases.

Robert Black, professor of law at Edinburgh University, is in favour of the proposal.

"The idea that the Court of Session should concentrate on appellant work is something I would agree with," he said. "I am not, however, sure that all cases should be transferred to the sheriff court. Judicial review cases, for example, which hold public bodies to account, should still be heard in the Court of Session."

Janyce Scott, QC, who specialises in family law cases, said the move could be problematic. "It might, for example, be a case where there's a lot of money concerned and the people involved are figures in public life. Some of my clients would feel uncomfortable in the sheriff court.

"Some sheriff courts are tiny and I can't see how their timetabling would cope with cases which are usually set down in blocks of four days in the Court of Session."

Scottish legal profession not training enough lawyers ?

Are we or aren't we training enough lawyers ?

The Scotsman reports :

Debating the hard questions, such as are we training enough new lawyers?

PETER RANSCOMBE

SCOTLAND still isn't training enough lawyers, according to speakers at the Balvenie Live Legal Debate in Glasgow.

The event, which was held at the Lighthouse on Wednesday, is the second of two debates held to launch the 2008 Scottish Legal Awards, which are sponsored by the Bank of Scotland.

Speaking from the floor, following comments from the panel, Rebecca Davies, founder of Cuthbert Recruitment said: "There are nowhere near enough lawyers. Firms can't find the staff to fill their vacancies. Firms need to introduce flexible working practices".

Her warning came after Neil Stevenson, deputy director of deputy director of education and training and head of diversity at the Law Society of Scotland, defended the rise in the number of students studying law, even though some complain of not being able to find jobs afterwards as lawyers.

"Scotland has an internationally respected legal education system," he said. He commented on the society's review of education and pointed to examples of good practice at universities.

"Second-year students at Strathclyde University are giving advice to the public on housing and other issues under supervision," Stevenson said. "They're not just studying law but also practising it too."

The Glasgow debate - which was chaired by David Lee, assistant editor of The Scotsman, which is the media partner for the Scottish Legal Awards - covered a wide range of topics.

The panellists were: Campbell Deane, head of the media and entertainment department at Bannatyne Kirkwood France & Co; Brian Fitzpatrick, advocate and former MSP for Strathkelvin and Bearsden; Robert Pirrie, chief executive of the WS Society; and Neil Stevenson from the Law Society of Scotland.

The panel dealt with some of the most talked-about legal issues of the day, including the collapse of the World's End trial and the second appeal granted to Abdelbaset Ali Mohmed al-Megrahi, the Lockerbie bomber.

The success - or otherwise - of the "right to roam" legislation was also discussed.

Fitzpatrick produced a map of the grounds around Kinfauns Castle, in Perthshire, around which a sheriff ruled that Ann Gloag, the Stagecoach founder, could exclude the public. He highlighted the fact that the Ramblers Association had been left with a large legal bill following the case, and that if it wanted to appeal then it would need a lot of money.

Fitzpatrick said that a public-interest defence fund, such as that available in England, could help individuals or groups to challenge decisions relating to the "right to roam" legislation, which could become a rule for the rich, he warned.

The debate came a week after a similar event in Edinburgh.

• For details of how to enter the 2008 Scottish Legal Awards, call KD Media on 0131 624 9840. For more information, visit http://www.thescottishlegalawards.com

Accusations of nepotism as Scottish Parliament MSPs revealed to be giving jobs to family members

Another scandal over at the Scottish Parliament, as the Sunday Herald reveals the old ways die hard as MSPs give their family members all the jobs.

Surely an inquiry into crooked politicians would be called for, but who will run it ? Hopefully not the same politicians who are seemingly flouting the expectations of the public yet again ...

The Sunday Herald reports :

Revealed: MSPs who put family on the payroll

By Paul Hutcheon

ALMOST 50 MSPs have given parliamentary jobs to members of their immediate family, a Sunday Herald investigation has revealed. Hundreds of thousands of pounds of public cash have been taken out of the Holyrood expenses scheme to put MSPs' spouses, children and in-laws on the state-funded payroll.

Some have employed two relatives at the same time in what critics describe as a scam to "top up the incomes of their nearest and dearest".

The revelation comes as MSPs demand larger chunks of public money for staff. An independent review is currently examining the parliament's allowances scheme, an inquiry that has prompted members to call for their staffing budget to be increased.

However, Holyrood staff registers show an injection of public funds will have the effect of boosting the family income of a large number of MSPs: 47 of whom have hired a relative since 1999.

Of those elected on May, 18 are currently employing a family member, including seven new members of the Scottish parliament.

Liberal Democrat MSP Jim Tolson has hired his wife Alison, while his colleague, Orkney member Liam McArthur, has also given a job to his spouse, Tamsin Bailey.

The SNP's Angela Constance, MSP for Livingston, employs her mother-in-law, Mary, on a part-time basis and employed her sister-in-law, Heather, temporarily.

Similarly, James Kelly, member for Glasgow Rutherglen, employs his wife Alexa, while colleague Willie Coffey has found space in his office for wife Helen.

Holyrood's youngest MSP, 27-year-old Nationalist Aileen Campbell, is registered as having hired her mum, Ann.

Meanwhile, several members of the new SNP government have given plum parliamentary jobs to relatives.

Health secretary Nicola Sturgeon, who used to employ her sister Gillian, currently has her mother Joan working for her, while communities minister Stewart Maxwell has hired his wife Mary, according to the register.

Brian Adam, the SNP chief whip who used to employ his son David, is now registered as having found work for another of his sons, 21-year-old Alan, while Labour whip Michael McMahon employs his daughter Siobhan and wife Margaret.

Further examination of the current staff register shows a battery of other MSPs hiring spouses, siblings and children. Helen Eadie, the Labour member for Dunfermline East, employs her husband Bob, while colleague Elaine Murray has her spouse Jeffrey on the payroll.

Sandra White, Nationalist MSP for Glasgow, used to employ her daughter Jennifer, and now has her son Christopher working for her. Fellow SNP member Christine Grahame employs her brother Tony, while Labour MSP Marlyn Glen is registered as having found work for her son Alasdair.

MSPs Andy Kerr, John Farquhar Munro and Hugh Henry have all employed their wives in the past, while ex-members Nora Radcliffe and George Lyon reportedly hired their daughters.

LibDem MSP Jamie Stone, an enthusiastic user of the allowances scheme, has employed two relatives, one of whom was his daughter. The Sunday Herald also understands that few, if any, of the jobs awarded to relatives were advertised or offered to a wider group of people. None of the MSPs contacted by the paper revealed how much they were paying their relatives.

In addition, several MSPs are employing the family members of party colleagues, such as Labour MSP Rhona Brankin, who has the wife of former MSP Bristow Muldoon working for her.

Finance secretary John Swinney has employed the son of SNP president Ian Hudghton, while former first minister Jack McConnell used to employ Christina Marshall, the daughter of a Labour MP.

The issue is controversial because the allowances review is being used by MSPs - including some named here - to demand extra cash for staff. Christine Grahame said she wanted an "independent appraisal of existing and proposed staff for placement on that structured pay scale". Jim Tolson said in his allowances submission that his £50,000 annual staffing bill was not generous enough.

Other MSPs who have complained about wages for staff include Labour's Trish Godman and George Foulkes, the latter of whom said the system was "paradoxical and unfair".

MSPs have also suggested other ways in which their allowances budget could be topped up with extra public cash. Labour member Jackie Baillie has floated the suggestion of a special communications budget, with which MSPs could update constituents about their activities. Her colleague Karen Whitefield believes additional allowances for fridges, heaters and fire extinguishers should be made available to MSPs.

One MSP, who did not want to be named, said: "I think employing relatives can be justified on the grounds that MSPs need to be able to trust the people they work with. It's also the case that MSPs hire family members because no-one else will work for such low pay."

The Campaign Director of the TaxPayers' Alliance, Blair Gibbs, said: "If employing family members is not against the parliamentary rules, it should be. They may be performing a valid role, but MSPs are nonetheless using taxpayers' money to top up the incomes and no doubt pensions of their nearest and dearest. If politicians can't see how bad this looks, it only proves how out of touch they've become."

A Scottish parliament spokeswoman said: "Members employ staff to support their work, which is paid for through the Members Support Allowance. Members are responsible for who they recruit to provide this support.

"The Members Support Allowance is part of the Allowances Review currently being undertaken by the review panel, which is expected to report no later than March 2008."

Margo MacDonald, the Lothians MSP, defended the practice of MSPs employing their spouses. "There are a number of husband and wife partnerships at Holyrood and Westminster, and I wouldn't condemn it," she said.

"It keeps a marriage secure in a profession that is notorious for causing marriage break-ups. It could also be said to save taxpayers money."