Wednesday, October 31, 2007

Miscarriage of Justice victim Stuart Gair dies before compensation payout

Stuart Gair who was jailed in 1989 for murder died on Tuesday in Edinburgh just months before he was to receive compensation after the Court of Appeal quashed his conviction last year, citing yet another disclosure failure by the Crown Office, who failed to hand over witness statements to the late Mr Gair's solicitors.

The Scotsman reports :

Innocent man jailed for 12 years dies just months before £1m compensation

TANYA THOMPSON AND EAMONN O'NEILL

THE victim of one of Scotland's most shocking miscarriages of justice has died, months before he was to receive £1 million in compensation.

Stuart Gair, who was jailed in 1989 for murder, died yesterday at Edinburgh Royal Infirmary following a heart attack.

Mr Gair, 44, who spent 17 years protesting his innocence, was last year cleared by appeal judges who attacked a failure to disclose witness statements to his lawyers.

Jailed for life, he served 12 years but protested his innocence from day one. He was released in 2000 pending an appeal, but it took a further six years before his conviction was quashed at the Court of Appeal in Edinburgh in July last year. He insisted he had been the victim of a police frame-up.

Mr Gair, originally from Alloa, was cleared after it was ruled he had suffered a miscarriage of justice. In the judgment delivered by the Appeal Court, Lord Abernethy said it meant "the defence were deprived of a powerful argument on the crucial issue of identification".

John McManus, co-ordinator for Glasgow-based Mojo, the Miscarriages of Justice Organisation, said he was with Mr Gair when he died.

He added: "This is a tragedy. Stuart had been waiting for compensation and the whole thing had put him under a lot of strain. He had suffered dreadfully, and had only just started to get some counselling."

In 1989 after a five-day trial at the High Court in Glasgow, Mr Gair was found guilty of murdering Peter Smith, a former soldier, who was stabbed in Glasgow city centre.

Mr Gair denied murder and put forward a defence of alibi, insisting he was in another part of Glasgow at the time. But he was convicted on a majority verdict.

He protested his innocence and campaigners rallied to his cause. Eventually, his case was sent to the Appeal Court by the Scottish Criminal Cases Review Commission.

Mr Gair had petitioned the Scottish Secretary over his case and was freed on bail in 2000. Identification was the key issue at the trial and lawyers acting for Mr Gair argued that, crucially, the Crown failed to disclose important information to his defence.

During the trial, a witness, Brian Morrison, who was 19 at the time, identified Mr Gair as a man he saw come out of public toilets and go in the direction of North Court Lane, where the attack happened.

In an initial statement, he said he would definitely be able to identify the two men he had seen and that one of them had threatened him.

But later, he told officers: "A lot of what I have already told the police is not the truth. I made up some of it to attract attention."

Mr Gair's defence counsel, Gordon Jackson, QC, argued that if this information had been available to his lawyers Mr Morrison could have been cross-examined in such a way as to show the jury they could not trust a word he said.

A note had been attached to Crown papers for the trial which said that at one point Mr Morrison had signed himself into a psychiatric hospital. It went on: "Morrison and his vivid imagination certainly set the police off on the trail of a red herring initially."

In the Appeal Court judgment, Lord Abernethy concluded: "In these circumstances, we have come to the conclusion that the non-disclosure of these police statements and other information resulted in a miscarriage of justice."

Sources close to Mr Gair said that, had he lived, he would have received about £1 million in compensation.

Crown Office allows alleged sex offender to walk free after case errors

The Crown Office, never known for competently handling cases, made such an extent of errors in a case involving an alleged sex offender, the Sheriff halted the case saying the charges were "fundamentally incompetent" because they did not mention the legislation they fell under ...

The Scotsman reports :

Anger as Crown blunder sees child-sex trial collapse

LINDSAY MCINTOSH

PROSECUTORS came under fire last night after a sheriff allowed an alleged paedophile to walk free from court, ruling that the charges against him had been wrongly worded.

Hamish Paterson, 56, had pleaded not guilty of acting indecently towards five girls, aged between 12 and 15, at his home in Alloa - and on one occasion in a car - over a period of 15 months.

Yesterday morning, however, after five days of evidence, his trial was halted after the sheriff said the charges were "fundamentally incompetent" because they did not mention the legislation they fell under.

All five girls had given evidence before Sheriff Maxwell Hendry at Stirling Sheriff Court, with one, now 16, continuously breaking down as she appeared via video link. Last night, Bill Aitken, the Scottish Conservatives' justice spokesman, said: "As far as I can see, the sheriff is perfectly correct.

"What is surprising is that no objection was taken at the start, which would have obviated the need for the alleged victims to give what may have been distressing evidence. The Crown got this badly wrong."

Outside court, one of Paterson's alleged victims, now a 16-year-old care student, said: "I'm really angry. We all told our stories, but the jury never got a chance to decide."

Her mother added: "I'm furious. You'd think they'd have realised there was something wrong with the case before they put my daughter and the other girls through the ordeal of giving evidence. It's a prosecution bungle. Heads ought to roll."

A Crown Office spokesman said: "We are reviewing the decision." It is understood this will involve looking at whether Paterson can be retried.

After listening to legal submissions at the end of the prosecution case, Sheriff Hendry had ruled that as the charges before the court did not name the Act of Parliament which Paterson's alleged actions were supposed to have contravened, they could not be put to the jury.

He told Paterson: "As a matter of law, not as a matter of fact, I find you not guilty."

Tuesday, October 30, 2007

Lord McCluskey - time to clean up our Human Rights

Lord McCluskey pontificates on the rights & wrongs of slopping out, and the woes or not of Human Rights - just as long as it doesn't interfere in the judiciary & its mode of operation of course ...

The Scotsman reports :

The time has come to 'clean up' our Human Rights Act

LORD McCLUSKEY

I N FEBRUARY, The Scotsman published an article in which I highlighted some of the anomalies resulting from the ways in which the Courts and the Scottish Executive were applying the Human Rights Act and the European Convention on Human Rights. I wrote: "In Scotland, we have the revolting spectacle of criminals being compensated to the tune of millions of taxpayers' money, because they had to use chamber pots in their cells overnight. Just think about it: when the European Convention on Human Rights was written in 1950, half the people of Europe were still using chamber pots overnight, or holes in the ground! Did anyone imagine that, 50 years later, convicted murderers and rapists would be entitled to financial compensation because they didn't have en suite facilities?"

The same scandal has now been thrown into dramatic focus by a decision of the highest court, the House of Lords, as reported in The Scotsman last Thursday. The issue before the court was: "Can a claim for damages based on an alleged breach, by the Scottish Executive, of a prisoner's right under the European Convention become time-barred by a section of the Human Rights Act

If that sounds a bit technical, then don't read the judgements: they are fiendishly complicated. The implications, however, are clear. Prisoners in Scottish jails during the last eight years or so who had to slop out are now free to sue for damages as compensation for the indignities of having to do so. Most will get Legal Aid. The Scottish Executive believed that claims older than one year were "time-barred", so the sums involved were not unacceptably great. The Lords have decided that the Executive was wrong. The consequence is that some £70m of taxpayers' money (plus legal expenses) will have to be paid over to countless convicted criminals. So if you try to persuade your MSP that a few hundred thousand pounds spent in your district would save lives, reduce accidents or improve public services, you are likely to be met with the reply: "Sorry: all our spare funds have had to be allocated to alleviate the suffering of convicts caused by their having had to slop out."

It is more than a pity that some politicians have decided to use this ludicrous situation to make political points about the decision of the newly-elected Scottish government in 1999 not to celebrate its birth by spending millions on installing en suite facilities in every prison cell in Scotland. What a wonderful start to devolution that would have been! It is not difficult to imagine the scorn of opposition politicians if Donald Dewar's opening statement to the new parliament was that the government's first priority was to build a thousand loos for crooks.

What the newly-elected ministers actually did when they inherited the age-old problem of no en suite facilities in some prisons was to decide that the financial resources available were severely limited. So, before spending millions on ending slopping out, they decided to tackle first the increasing - and also inherited - problems of drugs, and overcrowding, in Scottish prisons. As Lord Bonomy recorded in the original slopping out case (Napier), "the increasing prison population, the huge increase in the number of prisoners with drug problems requiring special attention in prison, and unforeseen problems, such as occasional prison riots and a significant increase in suicide in the mid to late 1990s, all combined to put pressure on limited resources." The new government also had to find money to build two new prisons to accommodate the rising prison population: en suite facilities had to wait. Remember also that the Human Rights Act 1998 was not yet in force and its consequences were then barely understood.

Lord Bonomy, looking at the special facts of Napier's case - Napier was an untried prisoner with special health problems - posed the issue before him in this way: "The question... is whether Napier was subjected to conditions of detention which reached a level of severity amounting to 'serious ill-treatment' in light of a consideration of all the circumstances of his detention... including his own personal circumstances." On the basis of medical evidence that applied mostly to Napier himself, he decided that this untried prisoner had been subjected to "inhuman and degrading treatment" and that his right to a private life had been violated.

For myself, I fail to understand why these conclusions were not fully challenged on appeal. But, even if Lord Bonomy was right about Napier, it does not follow that his findings apply to all prisoners, including those convicted and sentenced. The idea that convicted murderers, rapists and drug dealers sentenced to imprisonment should enjoy the same sort of right to a "private life" as ordinary citizens is undiluted nonsense. If the Human Rights Act or Convention really create such rights, it is time they were changed. But even before legislators take steps to amend that act, or to have the statement of rights in the European Convention rewritten, the Scottish Executive should refuse to pay anything to slopping-out claimants, forcing them to go to court to have the underlying principles considered in cases not affected by the circumstances uniquely relevant to Napier. If the Executive loses in our courts, an appeal should be taken to the European Court of Human Rights to have the basic issues reconsidered.

Many judges in that court come from countries where prison conditions are so primitive that our jails look like rest and recreation camps. I know that from personal experience. I take lawyers and others from countries in Europe and beyond to visit our prisons. They marvel at the modern conditions there, contrasting the much inferior conditions in their prisons. I find it difficult to believe that a court comprising judges from such backgrounds would take a tender-hearted view when applying the "inhuman and degrading" test to the sensibilities of convicted criminals. If the alternative to paying out £70m to convicts is an appeal to Strasbourg, it surely must be worth a try.

Monday, October 29, 2007

Legal Services Agency calls for rise in Criminal Injuries Compensation in abuse cases

The Legal Services Agency, inspired by another tag team member in the legal profession has come up with a call for a rise in compensation for victims of violence.

This coming not long after the legal profession were boycotting abuse cases in the court to gain more legal aid payments ...

The Scotsman reports :

We can prevent victims suffering another injustice

JENNIFER VEITCH

VICTIMS of sexual abuse are often receiving "laughably low" levels of criminal injuries compensation for their harrowing ordeals, according to a leading solicitor. Paul Brown, principal solicitor at the Legal Services Agency (LSA), has called for the tariff levels used by the Criminal Injuries Compensation Authority (CICA) to be reviewed across the board - and particularly for abused children, and adults who have suffered sexual abuse or domestic violence.

Brown, who heads the LSA's Criminal Injuries Compensation Unit, says the tariffs - which were calculated based on average pay-outs in the early 1990s and last reviewed in 2001 - started from a low base rate but should have risen substantially, even if they had only gone up in line with inflation.

Speaking ahead of the LSA's conference, "Getting Compensation for Victims of Violence: Principles, Practice and Problems" being held in Glasgow today, Brown reckons the tariffs should now be updated.

"The sexual abuse tariffs are sometimes laughably low," he says. "Take disabling mental illness lasting up to 28 weeks - that's six months of being disabled emotionally - and that's only £2,500.

"Even in 2001, that wasn't very much. It is certainly not a very strong expression of social solidarity or sympathy, which is what the philosophy of the scheme is."

The current tariff applies to more than 400 injuries linked to 25 compensation levels, starting at £1,000 and rising to £250,000. According to CICA's latest annual report, between 2005 and 2006 the authority made 33,792 financial awards, paying out a total of £165.5 million with an average of £4,898.

Brown adds child victims, and adults with either low or no earnings, also lost out because they were not eligible for additional compensation for wage loss.

"If somebody is working or could be working, they should be able to get wage loss," he says. "For people who are working or could be working, it could be quite substantial. But for someone who is a child or wasn't working because they were physically or mentally disabled already, these tariff levels are pretty derisory. All these systems are based on the common law idea that the more that you lose, the more you get, which is wage loss. There is a cap, but if you are an accountant who can't work you get an awful lot more than if you are a child with the same injury but wasn't working in the first place."

Brown, who was one of the first solicitors to submit claims to CICA on behalf of child victims in the 1980s, also expressed concern that the system does not recognise their special needs. He says there are difficulties in showing that children have suffered mental harm as a result of abuse, as they are rarely formally assessed and diagnosed by psychiatrists and clinical psychologists, as the scheme requires.

"If a child has a mental injury, it has to be proven by a psychiatric or psychological diagnosis," he says. "Most children don't see psychiatrists or clinical psychologists, even if they have a bad mental injury, because they are cared for by social workers and counsellors. Getting even these levels [of compensation] is easier said than done for children."

Brown adds there are also challenges in cases of domestic abuse, with problems arising from delays in reporting incidents to the police. He says: "The main problem is the same requirements there are for all criminal injuries compensation claims generally, which is to report things to the police.

"Sometimes it takes a long time to be reported to the police, and the issue you then have is should the award be made for the last incident reported to the police or the whole lot, even though it may have taken years for it to be reported?

"Even if there is no doubt the incident took place, they sometimes are not keen on making awards just because it has not been reported to the police because that is a requirement of the whole scheme - things must be reported to the police in reasonable time."

He adds many victims of domestic abuse are unable to claim any compensation, even if there has been a conviction, because the incidents took place before 1979.

But while the scheme is not without its problems for particular groups of claimants, and has been criticised by victims of the London bombings, Brown stressed it is a good system, which should be protected.

"Some people do get treated well and even generously which is why I am a supporter of the scheme," he says. "It needs to be updated, but I wouldn't have said it has major flaws - on the contrary, it is a very good scheme. It needs to be protected. People need to express their enthusiasm and appreciation of it because it has a lot of strong points."

Brown hopes today's conference will inform the debate surrounding the future of the compensation scheme. Other speakers will include Roger Goodier, chair of the Criminal Injuries Compensation Appeal Panel, barrister Clare Padley, and Julie Smith, a solicitor with Castlemilk Law Centre, who works with women and children who have been the victims of domestic abuse, rape or assault. CICA will also give a presentation on internal reforms.

A spokesman for the CICA says that, while the tariff levels are a matter for the Home Office, it has been working to improve its internal operations for the benefit of applicants.

"We have undertaken a couple of reviews in the last year into our case-working process and also our customer service," he says. "That has developed into a new way of case-working which we are currently testing. Our key criteria are to provide a faster, fairer service to people who apply for compensation."

• For more information about the Legal Services Agency, visit www.lsa.org.uk For details on the Criminal Injuries Compensation Authority, see http://www.cica.gov.uk

Lord Advocate reveals £2million clawed back from criminals

A nice little earner for the Crown Office is revealed by the Lord Advocate in that £2million has been clawed back from criminals under the Proceeds of Crime Act in the past six months.

That should cover a few politicians expenses - maybe even some of the recent failures of the Crown Office's legal teams ...

The Herald reports :

£2m clawed back from criminals in past six months

MARTIN WILLIAMS

More than £2m has been clawed back from criminals in Scotland in the past six months under the Proceeds of Crime Act, it was announced yesterday.

The Lord Advocate, Elish Angiolini, has revealed that prosecutors secured confiscation orders worth £1,167,782 from criminals convicted of various offences since April. A further £839,396 was recovered through civil recovery orders and cash seizures.

It takes the total figure secured through the courts since the powers were granted five years ago to £17.5m.

Prosecutors have also restrained approximately £10.5m worth of assets from convicted and alleged drug dealers, money launderers and fraudsters during the first six months of this financial year. Ms Angiloini said: "We continue to use the Proceeds of Crime Act to disrupt criminal activity at every level.

"The act strips individuals of profits from criminal activity and stops them from moving money around or freeing up money through the sale of assets, and ultimately helps put criminals out of business.

"All of us who are involved in tackling crime, and especially serious and organised crime, will continue to use the full extent of the law to ensure that those who would seek to profit from crime, whether they are street corner drug dealers, high level drug barons, or people who commit white collar' crime, will not succeed."

Money recovered under the Proceeds of Crime Act, up to a maximum of £17m a year, is invested by Scottish Ministers in community projects aimed at alleviating the effects of crime.

The National Casework Division in the Crown Office deals with the confiscation of the proceeds of crime following conviction.

The Civil Recovery Unit can recover money from those suspected to have profited from crime or money which was intended for use in crime.

Legal Ombudsman attacks conveyancing complaints system as 'confusing'

Complaints from clients against solicitors who have not performed well on conveyancing services suffer from deliberately confusing procedures at the Law Society of Scotland, according to those who have suffered the embarrassing efforts of the Law Society's Client Relations team to investigate such complaints ...

The Scottish Legal Services Ombudsman seems to agree, although the following article from the Scotsman focuses more on Law Society babble, which no one really believes ...

The Scotsman reports :

À la carte menu may improve conveyancing

À la carte menu may improve conveyancing
JENNIFER VEITCH

COMPLAINTS about conveyancing are likely to "escalate" unless consumers are given clearer information about the service to expect from solicitors, according to Scotland's legal services watchdog. Jane Irvine, the Scottish Legal Services Ombudsman, has raised concerns with the Law Society of Scotland following complaints highlighted confusion over the conveyancing process.

Around a fifth of complaints reaching the ombudsman's office relate to residential property transactions, with issues ranging from lack of communication to misunderstandings about the checks solicitors will carry out, including those relating to liabilities for common repairs and access rights.

Irvine told The Scotsman she had become "increasingly concerned" about the lack of clarity surrounding what constituted inadequate professional service in conveyancing cases, particularly as the marketplace is set to become more competitive.

"Without it being clear what a 'basic' conveyancing standard is, complaints are likely to escalate as either solicitors fail to appreciate what service they should provide or clients and indeed other professionals, such as mortgagors and surveyors, do not understand where their duties start and those of solicitors end," she says.

In one recent case, a couple complained because they were unaware the property they were attempting to buy did not have the necessary certificates to satisfy their lender's requirements. The purchase fell through after the missives had concluded.

In another complaint, the client did not receive any explanation of title before being bound to purchase a property with a loft she could not use but could be accessed by others through her flat.

Irvine has suggested the society consider whether consumers should be offered different levels of conveyancing service, from the basic conveying of title to the higher level including advice on title, finance and wills.

Janette Wilson, the convener of the society's conveyancing committee, agreed there is a need for a wider debate about what consumers want from solicitors. But she warns producing such clearly defined levels of service may not be possible due to the complexity of some cases.

"I think Jane [Irvine] would like us to produce a definitive list of what happens in a transaction and what should be done, but you can't do that because you can start something that seems to be straightforward and it turns out to be quite complicated," she says.

"Also, houses in Scotland can come in all sorts of shapes and sizes and obviously what you would do if you were buying a former croft house in the Western Isles and what you would do for a Wimpy for a large estate in Glasgow is really quite different.

"It is a complicated topic, and it is one we are not going to get easy and quick answers for, but it is something that the Law Society is keen to be looking at and working with the public, Jane and anybody else who might be interested in starting a dialogue about it.

"I would like there to be some responsible and informed debate, because it is helpful for solicitors to know what their clients really want. At the end of the day, that's really what they are trying to deliver."

Wilson adds that the committee recognises consumers may need clearer information, and the society plans to update its information leaflets for the public.

"A lot of solicitors send out quite a lot of bumf to explain the process as a matter of routine, and obviously the letter of engagement that solicitors have to send out often has quite a level of detail in there to explain to people what they can expect for their money," she says. "But I think there is always room for improvement. I don't know that a lot of solicitors send out material routinely at the outset to inform people about the house-buying process.

"There are a number of sources of material on the market that various bodies have produced including leaflets from the Law Society. What we are going to do is look at these again and try and update them."

Wilson adds it would be useful for clients to know what information they may need to give their solicitor at the outset to get the best service in return.

"For example, it is a standard part of the service to get a property enquiry certificate for the property, that covers all sorts of things such as that there are no statutory notices. It will give details about any outstanding planning matters but of course it doesn't cover all the properties round about and, because they are about £100 a go, you would not automatically get one for the house next door or the piece of land opposite.

"Clearly, if somebody is wanting to buy a house because of its wonderful view and when they view it there are folk in there digging holes, it would be useful for them to say to the solicitor, 'I would like that checked out,' and the solicitor will do it. It's trying to tease out what might be expected but what really has to be a kind of bolt-on."

Wilson adds it may be useful for the a distinction to be made between basic and higher service levels, not only to give consumers a choice, but for complaints. "One would imagine the market may change and people may want to choose the level of service that they want - whether they want the cheap and cheerful, or a more detailed level of service. At the moment, we don't differentiate, particularly when complaints are being considered, between the Mini and the Rolls Royce. I think this is something that is going to have to be explored quite widely, and with the public."

But, she adds, there are limits to how basic a conveyancing service can get, and this was underlined by the fact Tesco is relaunching its online property conveyancing service as a fully-fledged estate agency following intervention by the Office of Fair Trading (OFT).

"People are obviously making a very important purchase here and it isn't like a can of beans," she says.

Dianne Paterson, a partner with Russel + Aitken in Edinburgh who specialises in residential property, suggested clients could be offered a menu of services to ensure they were clear about the service to expect.

"It's important to ensure consumers are fully informed about the services on offer from a firm, and that they feel confident in whatever services they choose," she says. "In order for this to happen it should be clarified at the outset exactly what is included in any service offered, what systems are in place, and who might be doing the work.

"This could be in the form of a menu of individual conveyancing services charged out at different rates, or a fixed fee that includes whatever might arise in a standard conveyancing transaction. Whether that service is factory conveyancing or bespoke, provided the service offered is explained in detail in advance consumers should be clear as to what is on offer."

Saturday, October 27, 2007

Lawyer charged in Davinci painting theft resigns

Calum Jones, the solicitor who was arrested in connection with the theft of the Duke of Buccleuch's Davinci painting has resigned as a corporate partner with HBJ Gateley Wareing in Glasgow.

The Herald reports :

Lawyer implicated in theft quits

MARTIN WILLIAMS

A lawyer who is one of four men charged in connection with the theft of a £30m da Vinci masterpiece from a Scottish stately home, resigned yesterday as a corporate partner with his legal firm.

Executives at HBJ Gateley Wareing's Glasgow office were said to be shocked when corporate partner Calum Jones was arrested and charged with conspiracy to rob and extort money.

Yesterday the lawyer tendered his resignation and it is understood that he has parted company with the legal firm with immediate effect.

He was arrested on October 4 and appeared in court the following day, after a raid on his Glasgow office led to the recovery of the Leonardo da Vinci painting, Madonna with the Yarnwinder, which was stolen from the late Duke of Buccleuch's Drumlanrig Castle in Dumfriesshire in August 2003.

The 500-year-old painting was discovered in what detectives described as a "prolonged and thorough investigation". Mr Jones, of Kilmacolm, Renfrewshire, along with Robert Graham, 55, John Doyle, 58, and Marshall Ronald, 51, all from Lancashire were arrested.

An HBJ Gateley Wareing source said that Mr Jones, 52, a company law specialist, had been "embarrassed" by the proceedings. "The whole story came as a shock to the guys at HBJ Gateley Wareing who are top of the tree in Scotland," said the source.

Friday, October 26, 2007

Borders General Hospital in 100K medical negligence award to MRSA victim

Borders General hospital - known to some in the Scottish Borders as a 'butchers shop with a one way ticket to death' and to others as a life saver, is to pay an award of more than £100,000 to a victim of a quad bike accident in August 1997, who then contracted the MRSA infection at the Hospital who failed to treat it in time, necessitating the amputation of the patient's leg.

Ten years on after being forced to take the case to Court - a terrible indictment of both the Hospitals conduct in this matter, and the legal system ....

BBC News reports :

Amputation man awarded £100,000

A Borders farmer who had his leg amputated below the knee after becoming infected with MRSA has been awarded more than £100,000 by a sheriff.

Michael McColm, from Fairnilee, Galashiels, was injured when his quad bike overturned in August 1997.

He took Borders General Hospital NHS Trust to court over his treatment.

A sheriff ruled that "on the balance of probabilities" he would not have had his leg amputated but for negligence in failing to treat his MRSA infection.

Mr McColm was admitted to Borders General Hospital on 18 August, 1997 and was diagnosed with a broken leg.

NHS Borders notes the court judgment and will consider the details contained in this lengthy and complex report - NHS Borders statement

It was manipulated under anaesthetic, put in plaster and, three days later, a metal rod was inserted.

However, by 6 October a bacteriology report found a heavy growth of MRSA from the wound.

A week later a decision was made not to admit Mr McColm for intravenous antibiotics as his wound appeared to be "healthy and improving".

After that he was seen on several occasions and given various treatments - including further operations - but he remained in considerable pain.

By April 1998 his GP, unhappy at his lack of progress, referred Mr McColm to the Royal Infirmary of Edinburgh for a second opinion.

Prof Charles Court-Brown was immediately pessimistic that his right leg could be saved.

A below the knee amputation was carried out on 18 August, 1998 - exactly a year after Mr McColm's accident.

The court heard evidence about possible MRSA treatments

In defence evidence, Sheriff James Gilmour was told that administering intravenous antibiotics was not automatic in the treatment of MRSA.

He also heard a detailed defence of the other treatments which were offered.

However, the sheriff found failings in the treatment at Borders General Hospital offered by surgeons William Dennyson, John Driver-Jowitt and Christopher Tiemessen.

He ruled that the amputation of Mr McColm's right leg below the knee was caused by the "fault and negligence" of the NHS Trust.

The sheriff awarded him a total of more than £102,000.

NHS Borders issued a short statement on the ruling.

"NHS Borders notes the court judgment and will consider the details contained in this lengthy and complex report," it said.

"It is too early to make any comments about individual parts of the judgment."

Thursday, October 25, 2007

Scottish Public Services Ombudsman refuses to rule on personal care

Not much use an Ombudsman who refuses to look into complaints .. but one way to do it is to lay the blame at Parliament & the politicians ... who is right and who is wrong ? and who should have been asking for wider powers all along ?

The Herald reports :

Impossible to rule on personal care, says ombudsman

DOUGLAS FRASER, Scottish Political Editor

The Public Services Ombudsman warned yesterday she has had to suspend investigations into "unremedied injustice" facing patients who have problems with NHS provision of Continuing Care.

Professor Alice Brown said she cannot rule on them because the Scottish Government's guidelines are so out of date, linking the problem to her repeated warnings to ministers that they have to sort out the confusing law on Free Personal Care.

In her monthly briefing on cases the public bring to her with complaints about public services, the Ombudsman said yesterday that she has formally suspended investigations into complaints on NHS Continuing Care until ministers address the weaknesses in the system.

Continuing Care is the provision for those assessed as having medical needs, often with chronic conditions, which is provided by the NHS in a care home or their own homes, often after being discharged from hospital. The guidelines were published in 1996.

The Ombudsman said no single health board could address the issue until it is tackled nationally.

Previous warnings to the Scottish Executive before the election had led to a promise that there will be a report in January.

Next week, there is to be a meeting in Perth hosted by the executive to discuss the problems involved.

"The concern and belief that unremedied injustice exists is raised in a number of complaints about Continuing Care brought to this office," said Professor Brown.

"This continues to cause distress and anxiety for vulnerable individuals and their families and to take up considerable amounts of NHS time and resources in addressing these.

"This office will, in turn, continue to receive complaints which it is unable to determine."

Her suspension of investigations follows her ruling from a woman whose mother suffers from Alzheimer's, claiming she had been wrongly charged for care in her nursing home.

The Ombudsman did not rule in favour of the woman, because she found the health board cannot be held responsible for a lack of provision in the legislation for a clear, accessible and transparent assessment system.

She has linked it to her concerns about the lack of clarity in the legislation on Free Personal Care, funded through local authorities, after a Court of Session judge ruled last week that the law did not secure provision for more than 9000 care home residents who fund their own places.

This is to be debated at Holyrood this morning, with Conservatives using their parliamentary time to pressure SNP ministers over their decision to turn down Lord Macphail's request to explain their policy in his court, during a legal battle between the Ombudsman and Argyll and Bute Council.

Speaking in advance of the debate on free personal care, David Manion, chief executive of Age Concern said yesterday: "What the judge made clear was that the words of politicians are not what counts in law.

"The law determined by parliament is what counts and until the legislation is amended, the confusion will continue."

Privatisation blocks freedom of information says FOI Commissioner

The PFI deal on the new Edinburgh Royal Infirmary comes in for criticism from the FOI Commissioner, Kevin Dunion, who berates the way privatisation obstructs and effectively removes the public's right to know.

The Herald reports :

Public must know, says FoI chief

ROBBIE DINWOODIE, Chief Scottish Political Correspondent

The information watchdog today launches a strong attack on the way privatisation removes the public's right to know.

Kevin Dunion, the Scottish Information Commissioner, yesterday ordered NHS Lothian to release the full contract it signed with Consort Healthcare to build and operate the new Edinburgh Royal Infirmary.

Today he goes further, claiming that the drift towards private finance in education and housing as well as health endangers the spirit of the Freedom of Information legislation.

He calls for a re-think of the law to ensure that the public's right to know "follows the money" when services are transferred into the private sector, although he confirms that genuine commercial confidentiality should be protected.

He will tell the annual Freedom of Information Conference in Edinburgh: "When council housing is transferred to a housing association or when a charitable trust is established to run local authority leisure and recreation services, local people and employees may find that they have lost freedom of information rights at a stroke, as these bodies are not regarded as public authorities."

Making clear that his judgment on the Edinburgh Royal Infirmary was not a one-off, but reflected a broader view about the hidden danger of privatisation, he makes clear his misgivings. "One of the key purposes of the freedom of information legislation was to allow authorities to be held to account publicly for their spending," he says.

"However, in recent investigations I have found that contracts to build schools and hospitals can run to thousands of pages, and that authorities are able to withhold these on the grounds of cost or attempt to argue that the whole contract is confidential."

Mr Dunion argues: "I think it is important that we review which bodies are covered by the freedom of information laws, and in addition take steps to ensure that information rights follow the money', where significant sums of public spending are concerned.

"Measures can be taken to ensure that the new trusts are publicly owned and there could be a requirement to publish PPP contracts subject to safeguarding genuinely confidential elements."

The office of the Scottish Information Commissioner points out that anomalies have arisen since the legislation came into force, and much of these relate to privatisation.

Edinburgh successfully withheld details of its PFI/PPP schools contracts on the basis that providing information would exceed the £600 cost threshhold, and NHS Lothian attempted to argue the same in the case of the new Edinburgh Royal Infirmary.

As an example of good practice Glasgow ensured that its new arts, museums and sports subsidiary was constituted as a public company - and therefore within FoI legislation - but North Ayrshire did not do this.

Mr Dunion said of his judgment yesterday: "NHS Lothian sought to withhold all of these contracts with Consort Healthcare Consortium by claiming it was confidential." He said he asked the health board to justify this position several times but it failed to do so other than saying Consort did not want the information released.

"Eventually I decided that the whole contract should be released," Mr Dunion said. "This is a wake-up call to all of those entering into contracts to say that you simply can't assume that there is such a thing as confidentiality under the Freedom of Information Act. Information will be disclosed unless there is good reason not to disclose it."

Meanwhile, Lothians MSP Shirley-Anne Somerville yesterday welcomed Mr Dunion's ruling on Edinburgh Royal Infirmary. The SNP MSP said: "NHS Lothian must now adopt a more open and transparent way of working.

Slopping out payments - Lawyers land SNP Executive with multi million pound bill

Never one to shy away from a quick legal aid fee, the legal profession has landed the Scottish Executive with a £76million pound plus bill for payments to prisoners over slopping out.

The Herald reports :

Jails ruling opens way for human rights cases

LUCY ADAMS, Chief Reporter

Taxpayers are facing a bill running into hundreds of millions of pounds after a landmark ruling by Law Lords yesterday against Scottish ministers.

Their verdict on the impact of the European Convention on Human Rights (ECHR) will sanction compensation claims by thousands of prisoners, estimated to cost at least £76m.

But because the Law Lords, the highest appeal court in the UK, decided that the usual time limit of one year on human rights cases should not apply, experts believe legal actions against a range of other public bodies could follow.

Yesterday's ruling focused on four men kept in segregation in prison, but was seen as an important test case for inmates who have suffered inhumane or degrading conditions since 1999, when the ECHR was introduced under the Scotland Act.

The ECHR has a statutory one-year limit, but there is no time-bar for cases brought under the Scotland Act, and the Law Lords, in a 3-2 ruling, said the latter legislation should prevail. It will put Scotland into what appears to be a unique position in human rights law.

Claims are expected from thousands of prisoners who have been forced to slop-out since 1999 and yesterday's ruling will also extend the length of time they can claim to have suffered. Many cases had been frozen, awaiting yesterday's outcome.

Tony Kelly, solicitor for the four men, said: "I am delighted that the Law Lords, after careful and detailed scrutiny of the petitioners' cases, have decided that they were correct in basing their challenges under the Scotland Act.

"This is a definitive ruling about the correct procedural route to be taken when the Scottish ministers are to be sued. This is not simply a legal nicety.

"The Law Lords have held that Scottish citizens do not need to look beyond the Scotland Act when seeking to ensure that their government acts within its powers and respects (ECHR) rights. This gives litigants in Scotland the full measure of protection in court actions, free from any technical restraints."

The four at the centre of the ruling are Andrew Somerville and Ricardo Blanco, serving life for murder; armed robber Sammy Ralston; and David Henderson, a violent offender. They claimed their human rights were abused when they were forced to live in segregated conditions, without recourse to representation.

The appeal court in Edinburgh ruled last year that the cases were time-barred. The Law Lords have now overturned that decision, meaning their case can go ahead.

The ruling follows the case of Robert Napier, a remand prisoner in Barlinnie, in Glasgow, who claimed he had suffered degrading "treatment" in breach of article 3 of the ECHR, for having to slop-out.

Awarding Napier £2450, Lord Bonomy said it was clear ministers could have fixed the problem of slopping-out earlier, but chose not to do so. The figure was based on two months of slopping-out. The amount claimed by those who have been slopping-out for years will be considerably higher.

Lord Bonomy highlighted the decision by Jim Wallace, the former justice minister, to use £13m to tackle drug trafficking and domestic abuse instead of slopping-out, which effectively ended in England and Wales in 1996.

The Scottish Prison Service (SPS) is now spending £1.5m a week on modernising prisons. Accounts for this year show a contingency sum of £76m, allowing for the possibility of losing the case yesterday.

A spokesman said: "We have received the judgment and are considering the wider implications. We have already made provision within the SPS accounts for claims under ECHR legislation. The Scottish Government has made considerable financial commitments to providing a prison estate fit for purpose for the 21st century. This will eliminate the conditions which have given rise to many of these claims."

SNP break election promise of 1000 extra Police Officers

Scotland to get 1000 extra Police if the SNP are elected. SNP elected, no extra Police. Promise broken ...

The Scotsman reports :

SNP accused of breaking vow on 1,000 extra police

LOUISE GRAY

THE Scottish Government has come under fire from rank-and-file police over its pledge to recruit 1,000 officers.

Joe Grant, chief executive of the Scottish Police Federation, insisted officers understood the commitment was for new officers to be recruited, not for existing staff to be redeployed, as the SNP now claims.

Uncertainty arose when ministers said that capacity would be increased by "the equivalent" of 1,000 extra officers. Mr Grant said: "When you hear the term new police officers, there is no doubt about that.

"If you think there are enough efficiencies to produce anywhere near the 1,000 extra officers needed in Scotland, you are up a gum tree."

In a motion to the Scottish Parliament yesterday, the Scottish Government admitted 1,000 "additional officers in our communities" would include officers kept on through "improved retention and redeployment".

Annabel Goldie, the leader of the Scottish Conservatives, said the SNP had broken an election pledge.

Crown Estate urges Parliament to stay out of it's business

Transparency is good for some but not for others, and the Crown Estate certainly doesn't want too much transparency ...

The Herald reports :

Crown Estate urges MSPs ‘not to intervene’ in operation

ROBBIE DINWOODIE, Chief Scottish Political Correspondent

The body that serves as landlord for Crown property in Scotland faces a review by MSPs after its leading figures appeared at Holyrood yesterday.

The chairman of the Crown Estate, Ian Grant, who is also its Scottish Commissioner, pleaded yesterday with members of the Rural Development Committee not to intervene in the way it operates.

He claimed that handing over its estates or seaboard portfolio to anyone else, such as local authorities, would force them to buy in the expertise to operate them and would not be cost-effective.

But his pleas are likely to fall on deaf ears with SNP, Labour and LibDem members of the committee more convinced than ever that the body has failed to replicate in its own structures the devolution settlement in the UK.

Mr Grant offered to report to the committee on an annual basis, but insisted that the current structure was good for Scotland because it gave access to capital investment drawn from a UK-wide organisation.

Criticism of the Crown Estate came earlier this month when councillors from six councils in the Highland area as well as Highlands and Islands Enterprise and the local authority umbrella group Cosla told the committee of a "quite extraordinary" lack of accountability. Mr Grant today insisted it had a good record and said it had acknowledged the need to put its message across better. He told Tory MSP John Scott: "We believe the Crown Estate is operating in a beneficial way for Scotland."

But LibDem MSP Mike Rumbles questioned why the body raised more money than it spent in Scotland, and convener Roseanna Cunningham said the three senior officials who were present yesterday appeared to have "a Westminster mindset".

Wednesday, October 24, 2007

Tennis fan ex lawyer holds up Court of Session with tennis elbow

Lawyers have been known to come up with some rather unbelievable excuses not to attend SSDT disciplinary hearings, or avoid court appearances, but playing tennis does stretch the credulity of ones position a little far.

However, for one fairly well known ex lawyer, Michael G Robson, stretching the credulity of the Court of Session itself has become a sport, playing backhand after backhand in beating off appearances & the inevitable in the case of Michael Robson V SSDT LAW 82/195.

Here are excerpts from the excuses given to m'lordships, who must have definitely been out to lunch allowing this to go on for several years !

"Mr Robson was unable to attend as his employers were contracted to provide his services as a LTA tennis coach to West Lothian Council."

"Mr Robson had a tennis training course in the North of England from 15th - 17th May."

"Mr Robson was unable to attend this hearing as he was attending a tennis leaders course. It was the first course to be run in Scotland and he had been committed since June."

Bizarrely, the English Legal Services Ombudsman has become involved in the case on behalf of clients dissatisfied with the way the Law Society of Scotland handled the original investigations into Mr Robson's conduct.Apparently the Scottish Legal Services Ombudsman felt it was not able to investigate the complaint properly, some four plus hears ago and nothing has been done since.

PA Reid, 'Solicitor Advocate' of Messrs Fleming & Reid, 180 Hope Street, Glasgow, is known to be the Law Society's 'prosecuting fiscal' in this case .... *ahem*

Roll of Court Appearances of Michael G Robson before the Court of Session - not pretty reading, but definitely a lesson in stalling :

Michael Robson v SSDT Page 1Michael Robson v SSDT Page 2Michael Robson v SSDT Page 3

Michael Robson v SSDT Page 4Michael Robson v SSDT Page 5Michael Robson v SSDT Page 6

Michael Robson v SSDT Page 7Michael Robson v SSDT Page 8Michael Robson v SSDT Page 9

More can be read on Mr Robson's downfall as a solicitor HERE

The Sunday Mail reports

Shamed Lawyer in Tennis Racket - Sunday Mail 21 October 2007

Shamed Lawyer In Tennis Racket

Oct 21 2007 By Russell Findlay

Exclusive Brief Accused Of Stringing Along Court With Excuses

A SHAMED lawyer missed a string of dates to defend himself against complaints - because he was too busy playing tennis.

Michael Robson gave the crazy excuse to Scotland's highest court after appealing against a punishment for ignoring clients' wishes.

He was disciplined by legal watchdogs in 2005 but the ruling remained secret because he appealed to the Court of Session.

Robson, 55, missed a court date in April last year as he was working as a Lawn Tennis Association coach.

In May 2006, he went on a two-day tennis training course in England and that September he was at a tennis "leaders course".

Client Peter Cherbi plans to sue Robson for failing to act in a medical negligence claim over the death of his mother in 2000.

Mr Cherbi claims Robson's delays may be a tactic to avoid a court case.

He said: "The deadline for my action against Mr Robson is next year when it will become time barred.

"I suspect he is cynically playing for time. It is extraordinary judges should accept a tennis match is more important than a court appearance." In 2001 the Scottish Solicitors' Discipline Tribunal found Robson had ignored 50 letters from the Law Society, criticised his "cavalier attitude" and ordered that he work under supervision for three years.

In 2002 he was struck off but that was reduced to five-years of supervision on appeal.

He is banned from working as a solicitor as result of the 2005 ruling.

When we called Robson, of Ratho, Edinburgh, he said he would phone back but failed to do so.

English Solicitors Regulation Authority denies racism accusation

Racist or not racist ? The English Solicitors Regulation Authority seems to be in a bit of a mess after being accused by a senior Police Chief of being 'institutionally racist.

The Times reports :

Solicitors Regulation Authority: we are not institutionally racist

The chief executive of the SRA says it is determined to understand why certain groups figure more highly in some areas of regulation

During the past week we have found ourselves in the firing line. Media reports have suggested that a majority of those we investigate are black or ethnic minority solicitors and we are in denial about the possibility that we are institutionally racist.

Neither of these allegations is true but there are complex and serious issues to do with regulation and race that the Solicitors Regulation Authority (SRA) are tackling.

It was our concern that more black and ethnic minority solicitors were figuring in our work that led us to examine the facts in more detail. Last year we published this initial analysis. Although the research found no evidence of deliberate discrimination, it did confirm the concern.

In some, but not all cases, solicitors from black and Asian groups were figuring more highly than expected in some areas of regulation. This disproportion was evident when we looked at the figures for interventions (when we have to close down a firm usually because of suspected dishonesty) and also the figures for the number of serious cases we sent to the Solicitors Disciplinary Tribunal, which has the ultimate power to strike off solicitors.

This analysis concluded that there was no single reason for this over-representation, but indicated that a range of possible factors may explain the situation, including the fact that black and ethnic minority solicitors are more likely to work on their own or in small firms in deprived areas where the financial challenges are more acute.

As part of our programme to overhaul the procedures that we have inherited from the old Law Society regulatory directorates, we have reviewed how we take decisions. We are making sure that they are consistent, transparent and made according to published criteria so that they can be audited. This is so our decisions can be seen as fair and made without bias.

It has never been the case that we have targeted solicitors for regulatory action based on any racial grouping. Much of our work concerns information and intelligence that comes from outside bodies. For example, banks and building societies tip us off if they suspect financial irregularities. We have now put in place systems so that this intelligence can be analysed objectively, so that we can check that we are responding in a consistent and fair way.

We also now undertake an impact analysis of our new policies so that we can ensure that equality and diversity are taken into account from the start.

But as well as looking at our internal processes, we need to work with ethnic minority solicitors to get a better understanding of why certain groups figure more highly. The background reasons for some of this disproportion look complex and some even may be beyond our control as a regulator — we are undertaking further analysis on this issue. Working together will prove the best solutions to what we should not be ashamed to acknowledge is a difficult and complex issue.

As a regulator we cannot turn a blind eye to evidence that the public are at risk; nor can we ignore our duty to behave fairly to those we regulate, and to help them to meet the standards we set. The opening words of our strategy are “In all our work we will promote equality and diversity”. I am determined that we will live up to that.

Tuesday, October 23, 2007

Crown facing fresh disclosure challenge over drugs smuggling conviction

Another week, another case where a convicted cocaine smuggler is to appeal his conviction following the discovery of new evidence, leaving the Crown in yet another awkward position over disclosure.

The Herald reports :

Cocaine smuggler to appeal over non-disclosure of evidence

Exclusive by LUCY ADAMS, Chief Reporter October 22 2007

A man convicted of being one of Scotland's biggest cocaine smugglers is to appeal his case following the discovery of new evidence.

William Gavin Grant was arrested in 2002 and charged with trying to import one of Scotland's largest consignments of cocaine, worth an estimated £50m. He and three other men were caught by Customs and police officers in a complex sting operation.

The drugs, which the gang were transporting direct from South America, had already been seized at an English port and replaced with sand. When some of the group went to pick up what they thought was cocaine, they were arrested.

Grant, 42, from Bothwell in Lanarkshire, was accused of being a ringleader alongside James Mair, and they were jailed for 18 years each at the High Court in Edinburgh.

However, new evidence has come to light which suggests Grant had nothing to do with the smuggling, and Mair has written to him from Barlinnie Prison in Glasgow, apologising for the fact he was accidentally caught up in the operation.

The main evidence against Grant came from the testimony of Hannah Smith, Mair's secretary, and the analysis of a fax machine which officers claimed Grant used to organise the shipment.

The Herald has seen the transcript of a taped police interview with Ms Smith, which has only just been handed to the defence and highlights major discrepancies between her different statements.

In addition, lawyers and investigators have uncovered flaws in the expert claims that the fax organising the shipment came from Grant's machine and suggestions that evidence was improperly handled.

Evidence seals were broken on the evidence with no mention why, yet traditionally if officers need to remove something or open the evidence bag, they have to explain reasons and log the action.

Grant's appeal will be led on a number of grounds, including non-disclosure, insufficiency of evidence, and discrepancies in the statements of the key witness.

The case is likely to reignite the debate about non-disclosure. The Crown is still refusing to hand over the surveillance logs involved or allow access to the original fax machine.

Peter Ritchie, a retired detective superintendent from Lothian and Borders police who spent five years at Europol and worked as the head of the organised crime squad in NCIS (National Criminal Intelligence Service), has been working on the case for the past two years.

Grant, speaking to The Herald from Glenochil Prison, said: "The appeal was granted in January 2004 and I have been waiting since then to get a date set and to get the Crown Office to hand over the remaining documents that we need. The transcript of the police interview with Hannah Smith was only made available at the end of August this year and they are still not allowing us access to the original evidence to allow our forensic experts to look at it.

"It is just so incredibly frustrating. The strain it's putting on me and my family is incredible. My mum is really struggling to cover my mortgage payments and keep things going.

"I just want a date set so I can get the appeal heard. All I was doing was looking after someone's business while they were on holiday. This could happen to anyone - that's one of the scariest things about it. Mair wrote to me in Barlinnie saying don't worry about this, it's got nothing to do with you. But I'm still here."

Do we get the whole truth?

LUCY ADAMS, Chief Reporter October 22 2007

It was an intricate sting, set up to foil one of the biggest cocaine smuggling consignments ever destined for Scotland.

Police and Customs officers waited and watched as the drug trafficking gang spent hours unloading 500 bales of rubber at a warehouse in a business park in Stepps, north-east of Glasgow.

The gang expected the bales to be packed full of Class A drugs worth £50m, in 1kg blocks sealed in wax to fool sniffer dogs. Unknown to them, however, the cargo had already been intercepted by customs officials at Felixstowe in Suffolk and the cocaine replaced by millions of grains of sand.

Afterwards, four Scots were arrested and jailed for almost a combined 70 years in June 2003 at the High Court in Edinburgh. Businessmen James Mair and William Grant were each sentenced to 18 years, while David Frew and Sean McAdam received terms of 12 and 10 years respectively.

However, now it appears the smugglers may not have been the only ones to make a mistake. New documents seen by The Herald indicate that Grant was not aware of what the consignment contained, nor directly involved in the operation.

Grant was convicted for sending the bogus faxes which were used to lend some legitimacy to the cargo. However, since the trial an independent fax expert has verified that these faxes could easily have been rigged so it seemed as if they were sent from a different machine.

In addition, Nicola Smith, Mair's secretary, told the court that Grant had told her about the shipment, but in a police statement that has only just been disclosed to the defence, she explained Mair had phoned from Benidorm to tell her about the delivery.

In this statement, she explained Grant did not even know anything about the delivery. At the trial, the prosecution argued that Mair and Grant ran aspects of the business together. Lord Carloway said that Grant was "entwined" to a "material degree" in Mair's company G&L Distribution.

However, in the previously unseen statement, Ms Smith said Grant was simply one of the drivers.

Peter Ritchie, a retired detective superintendent from Lothian and Borders police who spent five years at Europol and worked as the head of the organised crime squad in the National Crime Intelligence Service, has been working on the case for the past two years.

Mr Ritchie, currently working on the Billy Wright inquiry in Northern Ireland, said he was convinced of Grant's innocence. "The more I looked at the evidence, the more convinced I became that he is innocent," he said. "Technically, once we analysed the evidence, we realised it just did not stack up.

"He seems to have been convicted on the grounds that he sent a fax and that Nicola Smith said he was involved. The expert we asked to look at this indicated the fax could have been sent from anywhere. Based on my experience, the fact that he, unlike the rest of the group, was not handed a new mobile phone is just unthinkable in a drugs trafficking case.

The more I looked at the evidence, I became convinced of his innocence

"In court, they said a notebook found in his car was financial evidence of his involvement. I don't understand how they came to this conclusion when this book is all about his notes on things like buying petrol as he went about his business."

Grant, currently serving his sentence in Glenochil, is about to lodge final appeal papers with the courts. He is appealing on the grounds of insufficiency of evidence and non-disclosure. Apart from the discrepancies in Ms Smith's statements, his lawyers are still trying to get hold of a number of documents relevant to the case, including the surveillance logs on Grant that claim he used classic counter-surveillance measures to shake off detectives.

This lack of disclosure, the latest in a long line, is fuelling an ongoing public and legal debate about the fairness of the prosecution picking and choosing what to share with the defence. Last month, a review on disclosure commissioned by the then Scottish Executive said prosecutors should be legally bound to provide full information to defence lawyers in advance of a trial.

Lord Coulsfield, who chaired the review, was also one of three judges who presided at the Lockerbie trial in the Netherlands. He called for legislation requiring the prosecution to have regard to "the overriding requirement of a fair trial".

In 2005, the Judicial Committee of the Privy Council, the highest criminal appeal court, quashed the convictions of two Scots on the grounds that the Crown had failed to disclose vital documents and said that this breached the European Convention on Human Rights.

Two other appeals have since hinged on non-disclosure in part, as will two other pending high-profile cases: the Lockerbie bomber and Nat Fraser. Regardless of this, the Crown is still refusing to fully disclose information.

Fraser's appeal begins around the same time as a special hearing in Edinburgh on disclosure. Advocates are arguing, in relation to four appeal cases including that of Grant, that every document relevant to a case should be disclosed. The aim is to set a precedent for future cases and other appeals.

"It's a disgrace that the Crown is continuing with its policy of only disclosing those documents it wishes to hand over," said one advocate, who did not wish to be named.

"England and Wales and other countries have systems in place explaining what should be disclosed and requiring the prosecution to detail the documents which have not been shown. The Crown's position is utterly untenable. This hearing should decide that."

Although the Crown has improved and speeded up its procedures on disclosure, gaps in high-profile cases, many of which have already been thrown out for being miscarriages of justice, continue to appear.

For justice to be done, in the case of Grant and anyone else before the bench, it seems logical that both defence and prosecution have access to all relevant evidence.

Scottish Legal Awards - Teamwork

More news on the Scottish Legal Awards ... but who wants an award from DM Hall with their record ?

The Scotsman reports ;

Teamwork is the name of the game in five of the Scottish Legal Awards

PETER RANSCOMBE

AS THE Royal Navy say, "the team works", and the 2008 Cuthbert Scottish Legal Awards will be highlighting the hard work of teams throughout the Scottish legal profession.

Five awards will recognise the contributions that teams have made in the fields of residential property, commercial property, private client work, corporate services and to projects.

The awards, which are now in their sixth successful year, are sponsored by Bank of Scotland Corporate and have The Scotsman as their media partner.

Entries are judged by a panel of experts from across the profession and beyond, chaired by Margo MacDonald, the independent list MSP for the Lothians.

The prizes will be presented at a gala ceremony and lunch in Glasgow's Hilton Hotel on Friday 22 February, 2008.

Firms have until the deadline on Wednesday 28 November to submit their entries to the competition's 15 categories.

Rebecca Davies, the director of the Cuthbert Scottish Legal Awards, said: "Team awards are vital, a great motivator and an important boost that can improve productivity.

"There's no doubt that lawyers work exceptionally hard so this is their chance to reward themselves and their clients for a job well done."

The Balvenie Private Client Team of the Year Award seeks to recognise a team "demonstrating an exceptional year of activity in 2007 coupled with evidence of a productivity, client care, and market reputation".

The prize is a new award in the 2008 contest.

The judges say they are looking for nominations from "market-leading firms demonstrating excellence in client care, great results and a growing business portfolio" in the categories for both the residential and commercial property team.

The ESPC Residential Firm or Property Team of the Year and the DM Hall Commercial Property Team of the Year awards will recognise such solicitors.

Murray Beith Murray took the residential title last year, while Harper Macleod carried off the commercial crown.

The other two group categories are the Sound & Vision Project Team of the Year Award and the Bank of Scotland Corporate Corporate Team of the Year.

Last year the Property Standardisation Group won the project team category.

The awards programme was launched back in September, at the Balvenie Live Legal Debates, held at The Scotsman's headquarters in Edinburgh and at the Lighthouse, in Glasgow.

As well as rewarding excellence, the awards programme is also aiming to raise £10,000 for Children 1st, Scotland's leading charity for children's welfare.

Judges joining the panel this year include: Geraldine Gammell, chief executive of the Prince's Trust Scotland; Michael Lugton, chief executive of the Scottish Law Commission; Professor Tom Mullen, head of law at Glasgow University; Alastair Northrop, editor of Scottish Business Insider; Robert Pirrie, chief executive of the WS Society; and Valerie Stacey QC, the Faculty of Advocates' vice-dean.

• For more details about how to enter the 2008 Cuthbert Scottish Legal Awards, log on to http://www.thescottishlegalawards.com or call KDMedia on 0131-624 9840.

MacRoberts holding seminars on 'how to interact' with SNP

As the legal profession has to find new ways of arm twisting the Scottish Executive & politicians, legal firms have begun holding seminars on the best possible ways forward.

So, if you are up for learning fun ways to 'interact' with the SNP, go along to the Dome on George Street, Edinburgh on November 6th, or "The Lighthouse", Mitchell Lane, Glasgow, on November 7th.

The Herald reports :

MacRoberts to hold free seminars

DAVID BLACK October 22 2007

LAW firm MacRoberts is to hold a series of free public seminars on public law and government next month. They will take place at the Dome on George Street, Edinburgh, on November 6, and at The Lighthouse, Mitchell Lane, Glasgow, on November 7.

A spokesman for the firm said: "MacRoberts' public law and government group will examine how Scotland's legislative and policy framework operates today. The political landscape in Scotland has shifted dramatically since the May elections, impacting on everyone doing business in in the country, whether in the public or the private sector.

The structure of the Scottish Government has changed, and interacting with the minority SNP administration requires a fresh approach." MacRoberts is also due to hold a construction law seminar on November 27 at the Roxburghe Hotel, Charlotte Street, Edinburgh.

Monday, October 22, 2007

Northern Constabulary guilty of failures of investigation in unexplained Wick Harbour death

A report compiled four years ago by Andrew Cameron, chief constable of Central Police into Northern Constabulary's investigation into the death of 24 year old Kevin McLeod, and kept secret until now, reveals a disgraceful catalogue of errors on the part of Northern Constabulary which remain without explanation.

The incident, investigated by Northern Constabulary as a 'sudden death', although long thought to be a murder, raises significant questions over the performance of both the Police & Crown Office, where it also comes to light the opinion of one of the prosecutors , Procurator Fiscal Alasdair MacDonald, who believed the death of Kevin McLeod to be suspicious, was left out of the report ....

Kevin Mcleod's family await not only an apology, but a proper investigation and accounting of what happened to their son.

The Sunday Mail reports :

Blunder Cops Rapped Over Dead Clubber

Oct 21 2007 By Marion Scott

Exclusive: Police Chief Accuses Officers Of 'Inexplicable' Errors In Harbour Death Probe

A SENIOR police officer has found colleagues guilty of "inexplicable" blunders in their investigation of a 24-year-old clubber's death.

Kevin McLeod's grieving family are convinced three men battered him to death and dumped him in Wick Harbour.

Now for the first time an official police report reveals damning evidence that Northern Constabulary were wrong to dismiss Keith's death as accidental.

The report by Andrew Cameron, chief constable of Central Police, was kept under wraps for four years and only released after pressure from Kevin's family.

It slams Northern for not apologising to the family and calls for a shake-up in the way they investigate sudden deaths.

Mistakes highlighted by the Cameron report include:

Failing to realise the significance of diamond-shaped marks on Kevin's body even after a procurator fiscal instructed them to treat the death as suspicious.

Failing to keep the clothes worn by Kevin at the time of his death as evidence.

Failing to photograph and record Kevin's injuries properly. Electrician Kevin, 24, was found dead in Wick harbour 10 years ago after a night out at the town's Waterfront Club.

His father Hugh and mother June have battled to prove he was murdered and not the victim of a tragic accident as police insist.

His spleen, liver and pancreas were ruptured and he lost so much blood he would have been unable to get up on his own.

The Cameron inquiry calls for Northern to review management of suspicious deaths, training and staffing.

Cameron stated: "The failure of the force to seize, retain and submit for examination the clothing worn by KevinMcLeod remains inexplicable."

He added: "The efficiency with which photographic evidence of injury was initially instructed and secured and subsequently assessed over a period of three years is open to question.

"It is not helped by what appears to be a lack of acknowledgement by the force and the Department of Pathology, Raigmore Hospital, Inverness as to the potential significance of the "diamond" pattern mark on the body of Kevin McLeod." Cameron concluded:

"It is this inquiry's view that had the existence and significance of the marks been properly recognised, the investigation may well have been directed differently.

"It is the conclusion of this inquiry that the McLeod family are entitled to an apology from Northern Constabulary over the patent lack of communication of their complaints."

The Cameron report was completed in 2003 but only given to the family this year following a freedom of information request.

A second investigation into Northern's handling of the case by the new Police Complaints Comissioner Jim Martin is expected later this year.

Kevin's uncle Allan McLeod, 49, said: "Even though the Cameron Report supports everything we've known for 10 years, we do not believe anyone will ever be brought to justice for killing Kevin.

"We know the names of three men we believe were responsible for Kevin's death.

"But we have not one shred of confidence that the police will ever do anything about it because they do not want to admit they are wrong.

"We have not received any proper apology from the force."

Northern Constabulary said: "As a result of this independent inquiry, all issues raised by the McLeod family have been dealt with.

"Consideration was given to where improvements could be made and these have been implemented.

"The case has been subject to a great deal of scrutiny and the chief constable will not be reopening the inquiry."

Riddle Of Prosecutor Whose Evidence Was Ignored

Oct 21 2007

Exclusive: Police Chief Accuses Officers Of 'Inexplicable' Errors In Harbour Death Probe

ONE man's verdict on whether Kevin was murdered is missing from the Cameron report.

The victim's family believe Procurator Fiscal Alasdair MacDonald could be key to mounting a case - but he was not interviewed by Chief Constable Cameron. Kevin's uncle Allan McLeod said: "We're incensed that the very man who believed Kevin's death was suspicious was missed out of this report.

"He should have been the first person to be interviewed and the fact he wasn't can only raise our suspicions of a cover-up."

Central Police said questions on the Cameron Report should be answered by the Northern Joint Police Board.

But the Northern Joint Police Board insisted they were "unable to comment".

In the report, Cameron claims MacDonald was "unavailable" to be interviewed. But in a further twist MacDonald has written to the McLeod family saying he would have been happy to co-operate.

He wrote: "Whilst I have no wish to add to the controversy surrounding this matter, I fear I must. I cannot imagine upon what possible basis I could be described as unavailable for interview.

"Despite researches, neither my office manager nor I have any recollection of any contact by the author of this report."

The Crown Office said they did not have "anything further to add" to MacDonald's comments.

Crown Office offer untenable explanations over Annie Borjesson death - still withholding evidence & FAI

The Crown Office, who can always be depended upon to lie through their teeth when caught out in an investigation, have offered up the poorest explanation of anomalies to the family of Annie Borjesson, who died at Prestwick in December 2005.

When the body of the young Swedish woman was returned to her family, Guje Borjesson questioned why her daughters hair had been hacked off, only to be now told it was the undertakers who did it, allegedly to present the body in better circumstances.

The death of Annie Borjesson, which has not yet received a Fatal Accident Inquiry, despite a complete lack of explanation for the death, raises many questions of why the Crown Office have been covering up what seem to be a catalogue of failures on their part, and of the Police investigation into the death, which has seen little or no accountability of events.

The family of Annie Borjesson await a proper inquiry & investigation into their daughters death and release of all the evidence in the case, along with CCTV footage, still under possession of the Crown.

The family's website for a campaign for an investigation into Annie's death can be found here : http://www.annierockstar.com

Read some more about the case from the Scotsman, here : I must know the truth behind my daughter's death

The Sunday Mail reports :

Undertakers Hack Off Annie's Locks

Oct 21 2007 By Marion Scott

Exclusive Mum Of Death Riddle Daughter Wanted To Buy Wig For Corpse

THE body of a Swedish woman who died in Scotland was sent home with her waist-length hair hacked off.

Annie Borjesson's mum is convinced her hair was chopped by her killer.

But the Crown Office have revealed it was cut by funeral staff who did not want the family to see it matted in mud and debris from the sea.

Police say Annie, 30, drowned herself at Prestwick beach.

But mum Guje, 54, who lives near Gothenburg with husband Karoly, said: "The funeral staff said they cut her hair but I don't believe they would have taken it like that. It was roughly hacked off.

"It looked so bad I even considered getting a wig because I knew she would not want to be left like that.

"My daughter had never cut her hair in her life."

The Crown Office said: "It was cut while preparing the body for transfer."

Pathologist Dr Alan J Cromie said: "The hair gets matted or dirty in drowning cases and funeral staff try to present the body as best they can for the family."

Musician Annie came to Edinburgh two years ago and worked at the city's Scottish Whisky Heritage Centre.

Her body was found on December 4, 2005. Her family didn't believe it was suicide and offered a £10,000 reward for information.

The Crown Office added: "There has been a full probe into the death. There is no evidence of a crime."

Worldn's End murder suspect may face further 9 murder charges

When the Crown Office and the Police get it wrong, you can rest assured it will be on a grand scale

Amid reports that Angus Sinclair may face further murder charges, attention will inevitably turn back to the spectacular failure of the Crown Office in the recent World's End murder trial, which saw heated debate and antagonistic comments between the Lord Advocate Elish Angiolini and Lord Justice over who was to blame, while explanations remain lacking over the Crown's Chief Prosecutor Alan MacKay, feeling to England even before the Judge dismissed the case.

The Herald reports :

World’s End suspect ‘faces nine charges of murder’

GERRY BRAIDEN

Angus Sinclair, chief suspect in the notorious World's End killings, has claimed he faces the possibility of nine murder charges.

In a letter understood to have been sent to another inmate before being made public, Sinclair - who has spent all but 14 years of his adult life in jail for killings, rapes and sexual assaults - said he expected to be convicted of the 1977 murders of Helen Scott and Christine Eadie before the trial sensationally collapsed.

He also revealed he recruited the infamous Limbs In The Loch murderer William Beggs for legal advice in the run-up to the trial. Beggs, who murdered Kilmarnock teenager Barry Wallace in 1999, dismembering and dumping his body, is studying for a law degree and has legally advised other prisoners preparing grounds for appeals.

Immediately after being cleared of the World's End killings by Lord Clarke, Sinclair was linked with another four murders: those of Agnes Cooney, Anna Kenny, Hilda McAuley and Frances Barker, all in 1977.

However, among the murders Sinclair now believes he will be charged with are four he has never been publicly linked with.

These are Helen Kane, 25, whose body was found stripped and battered on an Edinburgh building site in 1970; Patricia Black, 22, last seen boarding a bus to Saltcoats from Irvine in 1976; Eddie Cotogno, 63, an amateur pornographer and friend of Sinclair, battered to death in his attic and covered with photographs of naked local women in 1979; and Sandy Davidson, a three-year-old last seen running from his garden in Irvine in 1976.

Sinclair, who killed seven-year-old Catherine Reehill in 1961 and is currently serving life for the 1979 murder of 17-year-old Mary Gallacher, was previously questioned about the Kane and Cotogno deaths.

In his letter, Sinclair claimed to be "a normal person like everyone" and insisted he would never admit to the World's End murders.

He said: "I thought I was going to get done due to the circumstantial evidence but my QC came to see me in the cells and then told me it was going to collapse and what a relief it was to hear that.

"As the law stands now, they can't try me again unless some new evidence comes to light but the PF made a big mistake and showed their full hand at the trial so there is no more evidence to be got.

"As I'm aware, they can change the law for the future but they can't change it for me now that my trial has passed, so I am safe and even if they did try to change it for me that the law is stacked in my favour and we can appeal and win. Did I do the murders? Good question but I would never admit it in a letter if I did."

He added: "I think the police are going to come back and charge me with more murders, maybe as many as nine if what I am led to believe is true.

"Hopefully the trial collapses on them too, if they get that far. Everyone thinks I am a mass murderer but I am just a normal person, like anyone else."

On his relationship with Beggs, who is appealing his murder conviction, Sinclair wrote: "He Beggs studied the evidence and told me what to say to the QC but in the end I never needed it because the procurator fiscal f***** up.

"I trust William. He knows the law inside out and has got out of a few sticky situations."