Thursday, January 31, 2008

Judicial Appointments Commission - England no different from Scotland as change lacks substance

Judicial reform - a hot topic which usually sees a flow of anti government court judgements after even the ideas of reforming the judiciary are announced, is back in the news in Scotland, but what has happened south of the border by way of judicial reform ?

The Judicial Appointments Commission, stands accused of having a stranglehold over the way judges are appointed .... something the legal establishment in Scotland know all about and have practiced very well for decades.

The Times reports :

Judges still have too much influence

The new Judicial Appointments Commission must change, and soon, if it wants to retain its credibility

Frances Gibb, Legal Editor of The Times

Do the judiciary and executive still have a stranglehold over the way judges are appointed, ensuring a perpetuation of a white, male, middle-class oligarchy?

The answer, according to the Law Society, is a resounding "yes". It is more than year since the Judicial Appointments Commission (JAC) was set up as a new independent and transparent body overseeing judicial appointments, and to create more diversity. But the society believes that little beneath the surface has changed.

In its response this month to Gordon Brown's Governance of Britain proposals for reform, the Law Society, which represents 100,000 solicitors in England and Wales, is scathing in its verdict.

The creation of the JAC, it notes, was "an opportunity to sweep away the old and bring in the new; an opportunity which we believe has not yet been fully realised". The Government retains "too much influence" , both over the staff of the commission itself (82 per cent of whom are on secondment from the Ministry of Justice or Whitehall); over its members, "selected primarily by the Lord Chancellor and the Lord Chief Justice"; and over appointments: the Lord Chancellor is responsible for considering and deciding on selections that the commission makes.

And it is not just a question of Government. Judges, of course, must have an input, but the society "remains concerned by the influence of the serving judiciary". Five of the 15 JAC members must be judges, while at present three others happen to be current or former judges.

Finally, for good measure, it notes that procedures remain skewed towards judicial influence: the practice of seeking references before deciding who should be interviewed rather than after interview has "tended to give disproportionate weight to the views of the judges in the selection process". In turn, that will tend to disadvantage those from less traditional backgrounds: women, black and ethnic candidates and solicitors.

It is true that the progress up the judicial ladder of women, candidates from ethnic minorities and solicitors remains slow, especially at the higher levels. A total of 21 candidates have been approved to become High Court judges under the new system. Ten have so far been put in post, all white, male and former barristers. Of the 11 still awaiting appointment as vacancies arise, three are women — which will, when they make it to the bench, at least boost the total of 10 women out of the current 108 High Court judges. None of the three ethnic minority solicitors who applied made it to the final round and none of the seven solicitors who did made the shortlist.

When set up in 2006, the commission was meant to herald an end to a system felt to be too closed, too reliant on so-called "secret soundings" and "taps on the shoulder" — in short an "old boys' network." But solicitors are disillusioned with the pace of change.

Ironically judges and barristers are not happy either. The JAC has come under fire for being over-bureaucratic; painfully slow, bogged down in procedures that require lengthy form-filling and a host of modern selection techniques such as self-assessment and written tests. The old system, senior judges say, may have required modernising, but it worked when judged by the quality of candidates selected.

The JAC accepts that all is not rosy. In its own response to the Governance of Britain proposals, it calls for a series of reforms to help it in its task: in particular it wants an overhaul of the management of the appointments process so that estimates of vacancies are better forecasted and candidates are not left "in professional limbo" with many months of uncertainty as to where their futures will lie.

But it makes the point, with justification, that the arrival of the commission itself was "nothing less than a quiet revolution". A spokeswoman says: "Remember we have come a long way from the old system. Appointment is now only by open competition."

The recent awards of Queen's Counsel give qualified grounds for hope. Not all QCs become judges and many judges are not QCs. But it is one measure of how the senior ranks of the profession are being selected by another body. Of the 98 QCs appointed, only 20 were women, but that was 39 per cent of all applicants. The picture for ethnic minority applicants was less encouraging: four were appointed (or fewer than one in five of the applicants) and only one QC was a solicitor (representing 17 per cent of all applicants).

Yet although women did well proportionately, they did less well than last time, when 33 of the 175 appointed were women, 49 per cent of all female applicants.

The JAC rebuts suggestions that its procedures are not fair; but recognises that references, with self-assessment, are not an adequate basis for decision in many cases. So it is moving towards shortlisting for the "vast majority" of appointments on written tests. Panels will use a mix of tests, interviews and roleplays as well as self-assessment and interview to enable "well-informed and fair" selection, it says.

In its current competition for 76 recorder positions, there will be a new qualifying test for all candidates, the first large-scale exercise to use the test. (When this was tested on existing recorders recently most of them scored very poorly.)

Meanwhile, it has embarked on a strategy with the Bar Council and Law Society to reach a more diverse group of candidates. Research will be undertaken into the pool of candidates and barriers to entry; and roadshows held to promote judicial posts. Five have been held this month (Newcastle, Liverpool, Manchester, Cardiff and Leeds). The challenge is, it insists, "for all of us in the legal and judicial world, not just us". The profession has to do its bit. If people don't apply — or reach senior levels of the profession — they can't be appointed.

Its touchstone is still appointment on merit and that, in time, its selection processes (open and fair to all applicants, regardless of their gender, race or background) will "deliver a more diverse judiciary". Timeliness is all, however. If it is retain credibility, the pace of change must now be quicker

Tuesday, January 29, 2008

Attorney General forced out of political cases in England

With power over instigating criminal actions in political cases being lost south of the border, perhaps its time to take a look at how the Crown Office and Lord Advocate control investigations and the initiation of criminal proceedings in similar cases in Scotland ....

The Times reports :

Law minister is forced to give up power over political cases

Frances Gibb, Legal Editor

The Attorney-General has been forced to drop the task of instigating criminal proceedings in political cases such as “cash for honours” after fallout from a series of apparent conflicts of interest.

Responsibility for initiating proceedings involving politicians will instead be handled by the Director of Public Prosecutions. Baroness Scotland of Asthal, QC, will also hand over responsibility for consenting to prosecutions in nearly 100 other kinds of case.

The move comes after apparent conflicts in the office were exposed under Lord Goldsmith’s tenure: first over his legal advice on going to war in Iraq; secondly over the Serious Fraud Office’s halting of its inquiry into the BAE Systems arms deal; and thirdly over “cash for honours”. Crucially, though, the Government’s chief law officer would keep the right to decide on prosecutions in a small but significant group of cases where there is state or public interest at stake. These involve the Official Secrets Act, national security and contempt of court prosecutions. It could mean that the Attorney would still have a key role in cases such as the alleged corruption in the BAE arms deal in Saudi Arabia.

The reform package also recommends that the Attorney retain the role as the Government’s chief legal adviser, as a minister who can attend Cabinet and as the minister responsible for the Crown Prosecution Service. Further, the Attorney would keep her role in deciding what sentences to challenge as unduly lenient.
Related Links

* Attorney-General's first task is to rewrite her job description

* What’s the future for the A-G?

* Legal basis for wars may have to be disclosed

The proposals have been put forward by Lady Scotland as part of Gordon Brown’s governance reforms. They are expected to be published in a White Paper in March as a prelude to a constitutional reform Bill. They may go some way towards appeasing critics of the multi-faceted roles of the Attorney. But others will say that the changes pay lip service to reform.

The package has yet to be approved by the Cabinet. If accepted, it will be claimed as a victory by Lady Scotland, who was facing complete dismantlement of her office when she assumed it in June.

One senior political source said: “The Attorney has fought a very hard rearguard action over these proposed reforms and was determined to keep most of her existing powers.”

In July, the Commons Constitutional Affairs Select Committee, under Alan Beith, Liberal Democrat MP for Berwick-upon-Tweed, concluded that the role of the Attorney — then Lord Goldsmith, QC — was not sustainable and must be reformed.

The Attorney’s role in directing prosecutions has been the most contentious area of the consultation. Lady Scotland gave up the role pending the consultation period. But she told the Lords constitution committee recently that if the power to direct prosecutions was substituted with a power to consult, then “the account taken of your consultation may not be as strong”.

Lord Lyell of Markyate, a Conservative former Attorney, backed her. He said: “It would be responsibility without power and that is, in my view, constitutionally deeply objectionable.”

On lenient sentences, it is understood that the DPP, Sir Ken Macdonald, had argued that this responsiblity should logically be transferred to his office, which could grant leave to prosecutors to challenge a sentence. But the Attorney’s office believes that there needs to be an independent filter over the prosecution service to decide which cases are worthy of challenge.

The 100 offences now falling to the Attorney include prosecutions for torture under the Criminal Justice Act 1998 and certain offences under the Landmines Act 1998.

An ancient office

— The office of Attorney-General originated in 1315 when the Crown began to appoint an individual to prosecute its business in the Court of Common Pleas

— In 1327 the office was designated “King’s Attorney”. In 1452 the title was changed to Attorney-General

— By the 16th century, it was the most important office in the State’s legal department and the Crown’s chief representative in the courts

— The offices of Attorney-General and Solicitor-General attained their modern “shape” in the 17th century when they became the Crown’s legal advisers

Source: The Attorney-General’s Office

Saturday, January 26, 2008

You Tube video forces resignation of Law Chief who misled Justice Committee, Cabinet Secretary over 'negligence claims' memos

Law Society Chief Executive Douglas Mill has been forced to resign after widespread distribution of video clips showing the Law Chief contradicting the content of his own case memos to the Justice 2 Committee of the Scottish Parliament and the now Cabinet Secretary for Finance John Swinney MSP.

Law Society Chief Executive Douglas Mill misleads Scottish Parliament & John Swinney - Q: When is a lie a big lie ? A: When it comes from a Law Chief ...

Mill, who has served as dictator Chief Executive of the Law Society of Scotland for the past 11 years, leaves the profession badly damaged after many failed policies and a disastrous anti client witch hunt which some say has even led to suicides.

Leading members of the legal profession and law critics today suggested there should now be term limits on the post of Chief Executive, as the last 11 years under Douglas Mill's rule has seen record scandals involving solicitors embezzling clients funds, record numbers of complaints many of which went unresolved, record negligence actions which were halted in their tracks by Law Society officials - some of them by Mill himself, and bitter public witch hunts against clients & law critics in the media and in their personal lives - all supported and sanctioned by the Chief Executive's office.

Law campaigner Peter Cherbi said : "Its high time the solicitor membership of the Law Society got themselves a vote in what goes on in their own institution. People in positions such as Douglas Mill cannot be left in office for years to pursue their own policies out of self interest & self preservation at the expense of the rest of society"

A solicitor who did not wish to be identified said : "I am relieved a sad chapter in the history of our profession is coming to an end. Here's hoping a streamlined Law Society might actually speak for the rest of us instead of telling us what to do"

While Mill may be best remembered for telling extensive porkies to John Swinney & the Scottish Parliament, he also smuggled an English QC north of the border to threaten the Parliament with legal action over the LPLA (Scotland) Act 2007, which saw the Law Society lose control of service complaints, and he even had a pop at the FSA, inferring they would come to blows with the Parliament over the same complaints-busting legislation which Mill feared so much.

Lets also not forget the access to legal services debate where Douglas Mill definitely does not want any public choice in an opened up legal services market .. preferring the closed shop monopoly the Law Society has presided over for decades.

Peter Cherbi sums up Mill's departure very well, in what can only be described as a blow by blow account of Mill's blatant and very public hunt against the well known law critic - read that here : Breaking News : Law Society Chief Executive Douglas Mill who lied to Parliament, pursued 'personal vendetta' against critics - to resign

Business Journalist Ian Fraser, who writes for the Herald, has a very good story on Douglas Mill's departure which can be seen here : Douglas Mill takes a hike

Douglas Mill to go in October - a lingering departure of failure .... oh and just a couple of days before the new Scottish Legal Complaints Commission begins its work .. coincidence perhaps ?

The Herald reports :

Law Chief leaves post

BRIAN DONNELLY
January 26 2008

The chief executive of the Law Society of Scotland is to leave the post after 11 years, it was announced yesterday.

Douglas Mill, 57, will continue as chief executive until he leaves in October. Mr Mill said: "It has been a time of much change and there is a great deal more to come. I wish the society all the very best for the future and look forward to seeing it continue to thrive."

Richard Henderson, president of the society, said: "I would like to put on record the considerable debt the soc-iety owes to Douglas for his work over the past 11 years."

The Law Society Press Release ... forgive the spin !v:

Chief Executive of Law Society of Scotland to leave in October 2008

Douglas Mill, has decided to leave his position as Chief Executive of the Law Society of Scotland in October 2008.

Until that time Douglas, who joined the Society in 1996, will continue to undertake some of his duties and commitments as Chief Executive and will also undertake some project work for the Society.

In addition Douglas will continue to act as an ambassador for the Scottish Solicitors profession in undertaking his duties as President of ILACE (International Institute of Law Association of Chief Executives).

Richard Henderson, President of the Society said: "I would like to put on record the considerable debt which the Society owes to Douglas for his work over the past eleven years.

"The Society is a more business like and modern organisation than the one Douglas joined as Chief Executive and under his leadership the organisation has met many significant challenges.

"It is indicative of Douglas' professionalism that he is ensuring that the transition can be as smooth as possible."

Douglas Mill said: "It has been an honour to be the Chief Executive of the Law Society of Scotland for the past 11 years. It has been a time of much change and there is a great deal more to come. I wish the Society all the very best for the future and look forward to seeing it continue to thrive."

Tuesday, January 22, 2008

ICAS signs deal with Chinese accountants institute

ICAS, sometimes known as the Institute of Crooked Accountants of Scotland, has signed a deal with the Chinese Institute of Certified Public Accountants.

The Herald reports :

ICAS signs pact with counterpart in China

DOUGLAS HAMILTON January 22 2008

The Institute of Chartered Accountants of Scotland (ICAS) and the Chinese Institute of Certified Public Accountants (CICPA) yesterday signed an agreement to foster co-operation between the two professional bodies.

ICAS and the Chinese organisation will work together in the areas of research and development, the education of accountants and auditors, staff and technical exchanges and internships, joint conferences, developing links with UK and Chinese universities.

A memorandum of understanding was signed by ICAS president, Isobel Sharp and CICPA president, Liu Zhongli, at a ceremony in Beijing.

Sharp said: "By working together and combining the expertise of both of our bodies, ICAS and the CICPA can make major contributions to the development of the global profession."

She added: "The Chinese accountancy profession, led by the CICPA, is doing a good job of providing stability and quality financial information to an enormous market.

"I believe that this agreement will enable the best ideas and practice in UK accountancy and accountancy education to be shared with the Chinese profession. In return, we hope to learn from the CICPA in developing their members' expertise to operate in a rapidly changing economy of unlimited potential."

Liu said: "Developing and promoting international co-operation with overseas accountancy bodies has been among the major initiatives and strategies of CICPA."

He went on to say the agreement between the two professional organisations will help promote staff and technical exchanges, international accountancy standards, training and examinations.

Mairi MacRae, China head for Scottish Development International, described the agreement as "a great example of how Scotland and China can develop significant and mutually beneficial partnerships in sectors such as education and financial services where Scotland is internationally recognised as excellent."

Since it was set up in 1988, CICPA has enjoyed one of the world's fastest growing accountancy membership. It has 6800 organisations among its members and 140,000 individuals across China.

ICAS has more than 17,000 members worldwide.

Saturday, January 19, 2008

Crown Office to re-examine death of young man in Moray 1991

The Crown Office has decided to re-examine the death of Neil Riddel in 1991 after concerns were raised by the family

BBC News reports :

Prosecutors to re-examine death

A man's death is to be re-examined by the procurator fiscal, following concerns raised by his family.

Neil Riddel, 19, was found dead near his home in Moray in 1991. A fatal accident inquiry ruled that he had overdosed on anti-depressant tablets.

However, Mr Riddel's family rejected the suicide finding and have continued to appeal for information on his death.

Scotland's Solicitor General Frank Mulholland QC has instructed prosecutors to re-examine the evidence.

The Crown Office said witnesses would be re-interviewed, including family members, who had recently spoken with the solicitor general.

The solicitor general has commissioned this work to ensure that Neil Riddel's family have the assurance that all available evidence in the case has been fully and properly considered
Crown Office spokesman

A Crown Office spokesman said: "In the years since Neil Riddel's death, we have developed and improved how we investigate deaths and in particular how we ensure that families are kept advised and supported through what is a very difficult process for them.

"The solicitor general has commissioned this work to ensure that Neil Riddel's family have the assurance that all available evidence in the case has been fully and properly considered and that they have a clear understanding of how he died and achieve their expressed desire for closure in this difficult matter."

He added that Grampian's procurator fiscal Morag McLaughlin would prepare a report setting out all of the available evidence relating to Mr Riddel's death, "and any conclusions to be drawn from that".

Force assistance

The Crown Office spokesman added that the re-investigation would not examine how the case was handled by Grampian Police.

The force said it would help with the fresh inquiry.

A spokesman said: "Grampian Police recognises the distress that the family has experienced over a number of years in connection with Neil Riddel's death.

"We appreciate the reasons for and acknowledge the area procurator fiscal's re-examination of the evidence in the case, and will provide whatever help is required to facilitate that."

Mr Riddel was found a mile from his home at Aultmore, near Keith, at about 1000 BST on 20 July 1991.

A fatal accident inquiry was held at Elgin Sheriff Court a year later, when the sheriff ruled that death had been caused by a voluntary overdose of Prothiaden.

Friday, January 18, 2008

Justice Secretary MacAskill defends decision to delay youth courts

The Justice Secretary makes plans for youth courts, delays them, then explains the delays.All in a days work ...

The Herald reports :

MacAskill defends decision to put youth courts on hold

ROBBIE DINWOODIE, Chief Scottish Political Correspondent January 18 2008

The Justice Secretary stressed yesterday that he was a supporter of youth courts and believed the system would be extended across the country next year.

But he defended the decision to put the roll-out on hold so that proper evaluation could be carried out to confirm anecdotal evidence that the pilot courts in Airdrie and Hamilton are successfully tackling the reoffending rate.

"I am actually a big fan of youth courts," said Kenny MacAskill, who was a court solicitor before turning to politics. "But we cannot proceed with spending large sums of taxpayers' money based on nothing more than anecdotal impressions."

As The Herald revealed yesterday, ministers have decided to delay establishing new youth courts in Paisley, Kilmarnock and Dundee until spring next year, by which time an evaluation will have been made of the two pilot courts.

"I think I can hold off until 2009 and make sure that we have the funds available then. If we're going to expand youth courts, and I'm very sympathetic to that, I'm on record as having said that, I do have to have some empirical evidence on which its based.

"The review that was set up a while back was to report in 2009. Let's hold off to see that the empirical evidence backs up the anecdotal evidence and then we can act on the basis of all the facts."

He was backed in this stance by First Minister Alex Salmond who told MSPs: "It was the previous executive who decided that there should be a review of the youth court system, which I think has broad support and there is certainly anecdotal evidence in favour."

He said this was to allow a review to take place next spring in the light of the impact of changes to the summary justice system.

But Labour leader Wendy Alexander said: "The last executive decided to open three more youth courts. There were no ifs or buts from your own benches when they saw the results of these courts."

She cited SNP MSPs who had asked for youth courts for their own areas and demanded: "Have they all changed their minds overnight?"

Earlier, Liberal Democrat justice spokeswoman Margaret Smith said: "The government seems lukewarm on domestic abuse courts and now are turning their backs on youth courts.

"There is no evidence to suggest that the pilot youth courts are failing and an evaluation of domestic abuse courts found a high level of support for the scheme to be rolled out across Scotland."

Borders phone threat cop suspended

A Policeman who sent threatening phone calls to a Football Club manager has been suspended.

BBC News reports :

Phone threat policeman suspended

A policeman in the Scottish Borders has been suspended after admitting sending threatening phone messages to the manager of Peebles Football Club.

Pc Timothy Rees, 41, from Peebles, got Mark Lamb's details from police computers without permission.

He pleaded guilty to two charges at Selkirk Sheriff Court this week and sentence was deferred until next month.

The offences took place between December 2005 and December 2006 at Galashiels Police Station.

A Lothian and Borders Police spokesman confirmed a 41-year-old police officer had pleaded guilty to two offences following an investigation into a complaint made in December 2006.

He added that he was currently suspended from duty.

Thursday, January 17, 2008

Justice Secretary MacAskill holds up youth court plans

More ideas from the Justice Secretary put on hold again ...

The Herald reports :

Dismay as youth court plans are put on hold

Exclusive by ROBBIE DINWOODIE, Chief Scottish Political Correspondent January 17 2008

Ministers have halted the expansion of youth courts, a decision which has enraged Labour and will dismay SNP back benchers.

Several SNP members have campaigned for the new specialist courts in Paisley, Kilmarnock and Dundee but this decision has now been put off for at least a year as the whole summary justice system is re-evaluated.

The government says the cost involved - each court would cost £1m a year - "cannot be accommodated within the new baseline for offender services for the next three years".

If youth courts are abandoned it will have serious implications for other specialist hearings such as drug courts and community courts which have also been seen as a way of breaking the cycle of overcrowded prisons.

Youth courts were launched in 2003 to tackle crime and disorder. It was hoped the courts would prevent some youngsters slipping into a lifetime of crime and imprisonment.

However, last year a report by Audit Scotland challenged the effectiveness of the government's measures to crack down on youth crime, including youth courts, questioning whether the initiatives offered value for money.

The decision to halt expansion, expected to be announced today, was branded "absurd" last night by Labour's Pauline McNeill, who said the courts had been popular with police, prosecutors and the bench, and had been backed by many SNP MSPs.

She said: "I find it astonishing that their calls have gone unheard by their own minister. Labour found the money for the extension of youth courts because they work."

The tone of advice to ministers, which The Herald has seen, suggests that the whole youth court experiment faces being abandoned.

An advice note by a senior civil servant states: "We suggest that rather than outright dismissal of the possibility of further youth courts we should indicate that a decision has been deferred to spring 2009 to coincide with the review of the Hamilton and Airdrie youth courts.

"This will put all decisions regarding the future of youth courts on a similar time frame and will allow for an assessment to be made of the need for this type of specialist court in the light of the summary justice reforms.

"More importantly it would also allow a piece of work to be undertaken to assess the effectiveness of youth courts in terms of impacting on reconviction rates."

However, a government spokes-man said the delay was not about diluting or undermining the concept: "Youth courts are an important part of the adult court system that is about to go through major change, meaning that decisions have to be taken in the round," he said.

Three new youth courts proposed for Paisley, Kilmarnock and Dundee will not now go ahead for a period of at least a year, while the fate of the original pilots at Hamilton and Airdrie will also be decided after the completion of a review in spring of next year.

The Herald understands that a key consideration about running costs of youth courts is that they are likely to hand down complex disposals involving intensive social work intervention.

The advice to ministers makes clear that the last administration put in place resources for three new youth courts, but sheriffs in Dundee had said establishing one there would require "disproportionate levels of capital expenditure".

Joint summit on firearms reform laws planned

Firearms summit invite by MacAskill goes nowhere.

The Herald reports :

Scotland plans joint summit on reform of firearms laws

WILLIAM TINNING January 17 2008

Scotland is to host a summit to identify how the law on firearms, including air weapons, can best be reformed.

Home Secretary Jacqui Smith, who was seized on last week by Scottish ministers after announcing proposed gun law reform at Westminster, has been invited by Justice Minister Kenny MacAskill to jointly host the summit .

The Scottish Government said a date for the summit would be confirmed for later this year once gun control campaigners, rural and shooting groups, law enforcement officials and other interested parties had been contacted.

It is claimed that the summit aims to support a "comprehensive review of our firearms controls and laws" - making them simpler to understand, administer and enforce, as envisaged in the 2004 Home Office consultation.

Dr Mick North, Sharon McMillan and Andy Morton, all of whom have campaigned for tougher, more-effective firearms controls, are due to meet Mr MacAskill today ahead of a debate on the issue in the Scottish Parliament.

Despite welcome past reforms, no government can say the job is done

Dr North's five-year-old daughter Sophie was among 16 children and a teacher who were killed by gunman Thomas Hamilton at Dunblane Primary School in 1996.

Mr Morton and Ms McMillan are the parents of Andrew Morton, who was aged two when he was killed by an air gun while playing near his home in Glasgow in 2005.

Mr MacAskill last week welcomed Ms Smith's plans to ban deactivated guns by the end of the year. She said exemptions could be made for responsible collectors of deactivated firearms. It is estimated that there are 120,000 such guns in Britain.

However, the Justice Minister said at the time that the UK Government's refusal to devolve control of firearms to the Scottish Parliament, or at the very least to allow the parliament to legislate on air guns, was "extremely disappointing".

Commenting on yesterday's announcement of plans to host a firearms law reform summit in Scotland, Mr MacAskill said: "Communities across Scotland are crying out for tougher action to tackle the spread and misuse of firearms, in particular air weapons.

"Despite welcome past reforms, no responsible government can say the job is done. Not when firearms casualties in Scotland rose by one-quarter last year - one in three of them children - and when cases of attempted murder involving firearms are almost three times that of a decade ago."

A Home Office spokeswoman yesterday said the Home Secretary had not yet received any formal invitation and would therefore not comment on whether or not she would be able to attend

Wednesday, January 16, 2008

Hospital sued over MRSA

A Grandmother who contracted MRSA while in hospital has launched a damages action at the Court of Session.

No doubt the Health Service's indemnity insurance scheme will kick into full swing and try to kill off the claim ... and use any means to do so ...

The Herald reports :

Grandmother sues hospital over MRSA

BRIAN HORNE January 16 2008

A grandmother yesterday launched an attempt to sue a hospital where she contracted the MRSA bug while recovering from an operation.

Elizabeth Miller, 71, is seeking £30,000 in damages at the Court of Session in Edinburgh.

The action is being seen as a test case. Mrs Miller's solicitor, Cameron Fyfe, said other cases waiting in the wings could end up costing the health service millions.

However, lawyers for Greater Glasgow Health Board asked judge Lady Clark to dismiss the action, because Mrs Miller's claims were not detailed enough to pin the blame on them.

Mrs Miller of 8 Maxwell Place, Kilsyth, was found to have contracted MRSA while recovering from a heart operation in Glasgow Royal Infirmary in October, 2001.

She claims that she probably picked up the potentially deadly organism in the hospital ward and blames staff for not washing their hands thoroughly.

Court papers lodged on her behalf claim: "If the hospital's hand hygiene policy had been implemented, enforced and adhered to, Mrs Miller would not have become infected with MRSA."

Greater Glasgow NHS Board, which is contesting the action, denies any breach of its "duty of care" towards its patient and says she could have been carrying the infection before being admitted to hospital.

As the six-day legal argument got under way yesterday, Mr Fyfe said: "People might think it is a shame the health service has to pay out money but many of those affected see legislation as a last option and a method of encouraging health boards to clean up hospitals."

Mrs Miller was admitted to the hospital on October 18, 2001, for an aortic valve replacement. The operation took place the following day.

On October 28 the consultant surgeon found the wound was infected and later tests revealed MRSA.

Mrs Miller says that after she returned from the operating theatre at least 13 members of the hospital staff were involved in "hands on" treatment.

She claims that an inspection the following month, after an MRSA outbreak had affected nine other patients, revealed a lack of soap and paper towels.

Dust levels on the ward were also noted to be high and some equipment was described as dirty. There had been previous complaints about the standard of cleaning there, claims Mrs Miller.

The health board claims the precise role of cleaning in the control of hospital bugs is unknown. It has also told the court that organising cleaning and hygiene and dealing with outbreaks of infections are matters of judgment, which was exercised properly.

After the MRSA was detected, Mrs Miller needed treatment with powerful anti-biotics and a further operation.

If Lady Clark allows the case to continue, the Court of Session could hear from Mrs Miller in person at a later date about the effects of her ordeal. She was not in court yesterday.

Monday, January 14, 2008

Court reforms 'cause imbalance' in rights

Last month's reforms in the criminal law system which saw less serious offences being dealt with outside the courts by fiscal fines are being criticised by lawyers as handing too much power to the police & procurator fiscal service.

The Sunday Herald reports :

Justice reforms ‘sideline courts’

By Adam Forrest

Lawyers concerned over fair hearings for accused

THE TIME-HONOURED civil liberties of the court system in Scotland are under threat, lawyers fear, claiming reforms introduced last month have handed too much power to the police and procurator fiscal service.

The changes to criminal law stem from legislation passed last year under the Lib-Lab administration, and are designed to un-clog the courts by allowing swifter sentencing and a tougher approach to bail provision.

Since December 10, many less serious offences are being dealt with outside the courts by fiscal fines, while police now have the power to set the conditions of bail by imposing curfews and exclusion orders before the accused has even appeared in court.

But lawyers say the emphasis on speed is beginning to hamper the interests of a fair hearing, and the Scottish justice system is moving toward a presumption of guilt.

Human rights lawyer John Scott, of the Edinburgh Bar Association, said: "There is concern at decision making of that importance being left in the hands of the police, and things that should be dealt with by the courts are slipping away from judicial oversight. Wherever you grant extra powers, without the proper safeguards, the scope for abuse of those powers is massive.

"These are some of the most radical changes in criminal justice in my lifetime. The justice system is supposed to ensure there is a proper forum for determining the guilt or innocence of the individual. If you scrap accountability then you run the risk of miscarriages of justice."

The latest figures reveal the use of warning letters and fiscal penalties to deal with low-level offences shot up from 72,000 in 2005-06 to 117,000 in 2006-07. Sara Matheson, president of the Glasgow Bar Association, said taking so many cases out of the courts posed long-term risks of re-offending. "Going to court was a disincentive to offending," she said. "Now there is a danger of turning too many cases into paper exercises."

Scott agreed the reforms could not be perceived as part of a get-tough policy, claiming some crime was becoming downgraded. "In Edinburgh recently, there was a case of fraud of several thousand pounds dealt with by a fiscal fine of a few hundred pounds. And there will be more cases like that. You will see assault cases and other serious crimes being dealt with this way because the fiscal decides to take it out of court."

Bill McVicar, convener of the Law Society of Society's criminal law committee, said: "We do appreciate the court system does have problems with the number of cases going through, but we raised the concern that the public might think people were getting off lightly. One of my colleagues described it as justice-lite rather than proper justice."

Yet it is concerns over civil liberties that remain at the forefront of the legal establishment's criticisms. Before the summary justice reforms, penalty notices from the fiscal were an invitation to appear in court if the accused did not respond. Now the accused is assumed to have accepted a fine and criminal conviction unless they explicitly deny the charges.

Glasgow criminal solicitor Gerry Considine said the powers of the Crown Office and procurator fiscal were greater than ever before. "The presumption of innocence has always been one of the cornerstones of our justice system, but now there is a presumption of guilt.

"Decisions in the court have always been based on the interests of justice, but this act has brought in new cost-driven criteria. It's a move from justice to expediency."

Justice minister Kenny MacAskill defended the reforms, citing recent figures showing more than a third of summary cases have taken longer than six months to reach a conclusion. He insisted the need to end delays was compatible with the fairness and independence expected of the judiciary.

"There is simply too much delay and inefficiency at the moment. My vision for a quicker, more efficient and more effective summary justice system is one shared by all sides of the parliament."

Outgoing Legal Services Ombudsman may bring harmony to SLCC

The outgoing Scottish Legal Services Ombudsman, Jane Irvine, appointed recently as Chairman of the new Scottish Legal Complaints Commission, may bring a slight touch of harmony to proceedings .... not if the lawyer membership have their way of course ...

The Scotsman reports :

Irvine brings stability to new commission

By JENNIFER VEITCH

WE'VE known for more than a year that it was coming and now, at last, we know who is going to be running the new Scottish Legal Complaints Commission.

The appointment of Jane Irvine, the current Scottish Legal Services Ombudsman, as chairwoman of the new commission seems like a sensible move. From the profession's perspective, at least they know who they will be dealing with, and both can build on the existing relationships established since 2006.

Irvine's pragmatic and plain-speaking approach certainly appears to have earned her respect from the Law Society of Scotland and Faculty of Advocates. Along with commissioners – including lawyers Alan Paterson, David Smith, Margaret Scanlan and David Chaplin – Irvine should bring continuity and stability after a period of uncertainty about the new gateway for service complaints.

The focus can now firmly shift to ensuring there is a smooth transition – both for the profession and for the public – from the old to new complaints handling systems.

Certainly there are many logistical issues that need to be addressed before the commission opens for business in October.

For example, when exactly will the window shut on complaints being made under the existing system and open for the new one? What approach will the commission take in looking at historical cases?

Irvine needs to ensure the commission communicates early and effectively with the public and the profession to raise awareness of the new system and all the changes it will bring.

Even bigger challenges remain to be resolved, however, not least of which is how complaints about the legal service will be judged by the commission, when the Law Society of Scotland is still working on a new set of standards for the profession.

Last year, Irvine warned that the profession was being hampered by a "weak" code of conduct for solicitors, with a "patchwork" of rules and guidelines, "sprinkled with confusing exclusions".

The profession may yet risk having standards imposed upon it from the commission's rulings.

Also, will the commission be able to clearly distinguish between service and conduct issues? If this is not always possible, how will this fit with the Law Society of Scotland's own investigations into solicitors?

Many of these issues have already been flagged up by Irvine and Richard Smith, the commission's interim chief executive, who has been speaking to the profession about its role since last summer. Irvine may wish to use less slightly less bullish language than Smith, however, who once commented that the commission was holding out a hand to the profession with "a fist inside the glove".

To start with at least, the commission should enjoy a generous degree of public, and some professional, goodwill. Despite the Law Society of Scotland's repeated protestations about the tiny proportion of complaints arising from transactions, the new complaints gateway is being introduced in response increasing consumer frustration with the existing system.

It is worth remembering that solicitors are not always happy with the current system either, as Caroline Flanagan acknowledged during her presidency, when the Law Society of Scotland gave up trying to retain control of service complaints handling.

Of course, it remains to be seen whether the new system will be better than the old. It won't be a magic bullet, and it seems unlikely that most complaints will reach a different resolution just because the commission looks at the same set of facts.

But, as Irvine herself wrote when she presented her last annual report, there has been a "constant theme of lack of trust" in the Law Society of Scotland. "Clients simply do not believe an institutional members' body can deal with consumer complaints fairly," she said.

If the commission can provide greater transparency and clarity for all concerned, then that seems very much in the public's and the profession's interests.

Sunday, January 13, 2008

Calls to reopen the files on Wick Harbour death

Eleven years on after the death of Kevin McLeod in Wick Harbour, there are growing calls for the case, which had been poorly investigated by Northern Constabulary, to be reopened.

The Guardian reports :

Family want file on son's death reopened

Police apologise for the handling of inquiries into harbour 'accident' as murder fears remain

Sunday January 13, 2008
The Observer

The family of a young man found drowned in a harbour after a night out are demanding a new cold-case investigation, after police were forced to apologise for their handling of the original inquiry.

Almost 11 years after his body was pulled from Wick harbour, the family of Kevin McLeod still believe his death was not as simple as the police would have had them believe.

According to Northern Constabulary, the 24-year-old electrician died as the result of a tragic accident in which he suffered severe abdominal injuries from a fall on to a quayside bollard or a boat, and then toppled into the water and drowned. However, his family are convinced he was murdered - a view shared by at least two independent leading pathologists and a highly experienced retired senior detective.

Last week Hugh and June McLeod received an apology from the board of Northern Constabulary for the way the investigation into their son's death was conducted.

'To get this apology has been an amazing turn-around in attitude,' said Allan McLeod, an uncle of the dead man and spokesman for the family. 'While we welcome and accept this apology, it won't dampen the family's determination to bring Kevin's killers to justice. We want an independent review by an outside force.'

On the morning of Saturday, 8 February 1997, Kevin's body was dragged from the water by police divers. The previous night he had gone to play pool with a friend and was last seen in a nightclub in the town, where he got into an argument with another man.

Before there had even been a postmortem, police told Kevin's parents there was nothing suspicious. However, later examination of the body showed that Kevin had sustained a severe blow to the upper abdomen. Although the cause of death was drowning, pathologists claimed the injury would have killed him even if he had not ended up in the harbour first.

Initially the police theorised Kevin had collided with a bollard on the quayside. Then it was suggested he might have fallen off the quay onto the bow of a fishing boat and rolled into the water.

However, inquiries carried out by private detective Les Brown destroyed that theory. Brown discovered that at the time Kevin entered the water the tide was such that the boats moored alongside the quay would have been level with the harbour wall - ruling out a fall from a great height.

'There is no doubt in my mind that Kevin McLeod was murdered,' said Brown, who has investigated more than 200 murders. 'There are witnesses who saw Kevin being attacked and I have even supplied the police with the name and details of a man whose own girlfriend told me had admitted to the killing. She told me he had come home that night and said: "I have done something I will regret for the rest of my life. I have killed Kevin McLeod." I emailed the Crown Office and named this guy, but the police said he declined to be interviewed.'

However, Northern Constabulary refused to reopen the case and the Crown Office announced that no further investigations were to be carried out - until now.

A damning report by Jim Martin, the Police Complaints Commissioner for Scotland, into how McLeod's death was investigated criticised Northern Constabulary for its 'institutional arrogance' in the way it had handled complaints from Kevin's family. Northern Constabulary chief constable Ian Latimer and the police board were forced to apologise publicly and consider reopening the investigation.

'The force has issued an apology to the family for the way their complaints were handled,' said a police spokesman. 'The chief constable met with the family and they had a very positive meeting about the possibility of a cold-case review for Kevin McLeod.

'We don't know at this stage what is going to happen. We will have to wait and see.'

Friday, January 11, 2008

Justice Secretary fails public interest' as outgoing Legal Ombudsman & Police make it to 'independent' lawyers complaints commission

The Scottish Legal Complaints Commission seems to have fell the way of all other efforts to reform complaints handling procedures of the legal profession - into failure, with the startling appointment of Jane Irvine, the outgoing Scottish Legal Services Ombudsman to the post of Chairman of the new independent complaints body which is supposed to deal with service only complaints against solicitors.

Ms Irvine, with a long background in complaints against the Police and other areas, finds herself jumping from one quango to another, in what many see as a poor selection for the post of the new commission which was intended to be a break from the past, which has drawn so much criticism from both solicitors & clients alike in the way the Law Society has poorly dealt with complaints ...

It is also interesting to note the various reviews of Police complaints procedures over the term of Ms Irvine's service has only produced a Police Complaints Commissioner with the same limited powers as the outgoing Scottish Legal Services Ombudsman - which is basically not much power at all, with no powers of enforcement of decisions ...

The following comes from an email from a staffer at the Law Society of Scotland to us at Scottish Law Reporter :

Mrs Irvine's history records she ha acted as an ombudsman type figure in such issues as holiday to even funeral and financial service complaints.

Ms Irvine also sits on the disciplinary board of the Institute of Actuaries, and also acts as a mediator in consumer and commercial disputes and works voluntarily as a member of the Mediation Panel for Edinburgh Sheriff Court.

As a past HM Lay Inspector of Constabulary for Scotland, Mrs Irvine reviewed the manner of responses by Scottish Police forces to complaints by members of the public for three years between 2001 and 2004. She was also the elected chair of the Scottish branch of the Chartered Institute of Arbitrators 2003-2005.

The post of Scottish Legal Services Ombudsman has over the years, done little for clients concerns at the way the Law Society of Scotland has handled complaints against solicitors, and frequently, the SLSO has failed to take a critical stand on issues which have severely affected the public expectation of a transparent & more accountable legal services framework ...

Perhaps Ms Irvine may turn over a new leaf and put right her office's mistakes of the past for clients and solicitors alike ?

It does rather seem the Justice Secretary has made a hash of the SLCC .. not really sticking to the spirit of the Legal Profession & Legal Aid (Scotland) Act 2007 and the publics expectation of better, independent, more accountable regulation .. but then again, Mr MacAskill is a lawyer ...

Perish the thought any 'real people' outside the establishment could ever make it to an independent commission ...

The Scotsman reports :

Legal watchdog roles for ex-police chiefs

By JOE QUINN

TWO former senior police officers have been appointed to an independent body for legal complaints, it was announced yesterday.

Ian Gordon, former deputy chief constable of Tayside Police, and Douglas Watson, an ex-head of CID with the Lothian and Borders force who worked on the Jodi Jones case, will be among the four non-lawyer members of the newly-created Scottish Legal Complaints Commission.

Other non-lawyer members are former nursing director Linda Pollock and George Irvine, former director of social work at North Ayrshire council.

The new body will be chaired by Jane Irvine, who is currently the Scottish Legal Services' ombudsman. It will begin work in October.

Kenny MacAskill, the justice secretary, said: "I am confident that independent scrutiny will safeguard the rights of both the profession and users of legal services throughout Scotland. "

The Law Society of Scotland said the new body would act as a "gateway" for all complaints about solicitors, adding that it would continue to receive complaints, via the commission, about solicitors' conduct.

Now the Press Release from the Scottish Government on the appointments to the Scottish Legal Complaints Commission ....

Scottish Legal Complaints Commission

10/01/2008

Justice Secretary Kenny MacAskill today announced the appointment of Jane Irvine to chair the Scottish Legal Complaints Commission (SLCC), the new independent legal complaints handling body. Jane Irvine is currently the Scottish Legal Services Ombudsman. Mr MacAskill also announced Alan Paterson, David Smith, Margaret Scanlan and David Chaplin as lawyer members and Douglas Watson, Linda Pollock, George Irving and Ian Gordon as non-lawyer members of the Commission. The SLCC will be a new, independent, complaints handling body which will receive and deal with complaints which could not be resolved at source. The Commission will be located in Edinburgh and is expected to be operational in October 2008.

Kenny MacAskill said:

"This Government is committed to modernising the legal complaints handling system to ensure that any complaints against the legal profession are resolved quickly and effectively. That is why we supported the setting up of this Commission.

"Jane Irvine and her fellow commissioners will have a strong remit to deal with complaints and I am confident that their independent scrutiny will safeguard the rights of both the profession and the users of legal services throughout Scotland.

"Complaints handling is not just about dealing with things that go wrong, but ensuring that things go right. The commissioners will help to build a culture of learning from complaints through their oversight and promotion of standards. This focus on the quality of service will undoubtedly benefit both consumers and the profession alike."

Jane Irvine said:

"This new Scottish Commission is an important body. It will provide a modern system for resolving complaints about legal services that both the profession and public can have confidence in. I am delighted to have been appointed with such a strong group of commissioners who bring with them a diverse and exceptional range of skills and experience."

Chairing member

Jane Irvine has been the Scottish Legal Services Ombudsman since April 2006. She is a specialist in consumer complaints having held a number of positions as a mediator, arbitrator and adjudicator of consumer complaints. Between 2001-05 she was HM Lay Inspector of Constabulary considering handling of complaints against the police in Scotland. She later prepared a report on modernising police complaint and conduct systems for the Justice Minister. She has sat on a range of disciplinary tribunals and currently sits on the Discipline Board of the Institute of Actuaries.

Non-lawyer members

Douglas Watson has been a police officer for 30 years and is currently an adult protection development officer for Edinburgh, Lothian and Borders Executive Group. Mr Watson has previously been a chairing member of the Child Protection Committee, Scottish Borders Council and Edinburgh Drug and Alcohol Action Team. He is currently a Committee member for the Law Society of Scotland and is a sessional inspector for the Social Work Inspection Agency.

Linda Pollock has had a broad based career in the NHS with clinical, teaching, research and management experience. She has been in leadership roles since 1989, an Executive Nursing Director until 2006, and interim Board Nurse Director (2002-2003). Her last role, before leaving the NHS, was a full time secondment as the Chief Nursing Officer's Advisor for Nurse Prescribing. Dr Pollock was a part time nurse member of the Mental Welfare Commission (1997-2005) and is currently a registrant member of the Nursing and Midwifery Council Appointments Board

George L Irving CBE was Director of Social Work North Ayrshire Council and during the period 1999-2000 he served as President of the Association of Directors of Social Work (Scotland ). From 2001-2006 he was Chair of NHS Ayrshire and Arran. He led the National Support Team, Management of Offenders 2005-2007 and is currently a Visiting Professor to Glasgow Caledonian University School of Health and Social Care.

Ian Gordon OBE, QPM, LL.B (Hons) is a retired Deputy Chief Constable of Tayside Police. He is currently an associate professor in policing for Charles Sturt University (Australia). He was Chair of the Association of Chief Police Officers in Scotland (ACPOS) Professional Standards Business Area and Vice-Chair of ACPOS General Policing Business Area.

Lawyer members

Alan Paterson is Professor of Law and Director of the Centre for Professional Legal Studies at Strathclyde University, an independent "Think Tank" on the Scottish Legal System. He has researched in, and published on, the regulation of lawyers and the provision of public legal services for over twenty years. Although he is qualified as a solicitor in Scotland, Professor Paterson has never practised. He is currently a research adviser to the Scottish Legal Aid Board, a lay member of the Judicial Appointments Board and a co-opted member of the Council of the Law Society.

David Smith has been a partner in Shepherd and Wedderburn for 33 years. He has spent over 20 years as part of the firm's management board and was Chairman between 1999-2005. Mr Smith is a senior commercial property lawyer. Since 2004 he has been the Client Relations Partner within Shepherd and Wedderburn and since 1998 he has chaired the firm's Compliance Committee which monitors professional indemnity claims, client complaints and risk management issues.

Margaret Scanlan is an accredited specialist in family law at Russells Gibson McCaffrey. She has also tutored in family law at Glasgow Caledonian University. Mrs Scanlan was a member and latterly Deputy Chair of the Scottish Legal Aid Board between 1997-2007. She has also been Director of the Legal Defence Union between 1998-2002. Mrs Scanlan was a founder member of both Strathkelvin Women's Aid and the Family Law Association. She held the post of Chair of the latter between 1992-93.

David Chaplin has been a senior partner in Anderson Fyfe for the last 15 years and is a specialist in insolvency law. He has been the Client Relations partner for his firm for ten years. Mr Chaplin advises in pre litigation resolution of commercial disputes for clients. He was a member of the Education Committee of the Royal Faculty of Procurators in Glasgow during 2004-05.

The SLCC is established by virtue of the Legal Profession and Legal Aid (Scotland) Act 2007. Its main functions are to resolve complaints alleging inadequate professional service or negligence by legal practitioners, to refer complaints which allege professional misconduct or unsatisfactory professional conduct to the relevant professional body and to promote good practice in complaints handling.

The chairing member has been appointed for a five year term from 1 January 2008 to 31 December 2012. The lawyer and non-lawyer members' appointments will be for four years, from 1 January 2008 - 31 December 2011.

The posts are part-time and attract daily fees of £302 for the chairing member for a time commitment of four-six days per month and £205 for the lawyer and non-lawyer members with a time commitment of four days per month. Jane Irvine holds one other public appointment, that of the Scottish Legal Services Ombudsman, with remuneration of £56,746 for 37 hours a week. All the other members do not hold any other Ministerial appointments.

These Ministerial public appointments were made in accordance with the Commissioner for Public Appointments in Scotland's Code of Practice.

All appointments are made on merit and political activity plays no part in the selection process. However, in accordance with the original Nolan recommendations, there is a requirement for appointees' political activity (if there is any to be declared) to be made public. Within the last five years members have not been involved in any political activity.

Wednesday, January 09, 2008

Law Society plays the spin game to survive as Chief Executive creates more 'puppet posts' to stifle reforms

People used to sipping from the golden trough will do anything to survive these days, particularly when its on someone else's money.

Douglas Mill proves just that as the Law Society's 10,000 strong membership is taken on another financial ride, creating what some in the profession dub "puppet posts" to further his own distinctly personal policies of taking the Law Society far out of reach of its membership.

Perish the thought that one solicitor one vote - or even one client one vote might ever be allowed in Mr Mill's rather silly looking personal quango ...

The Scotsman reports :

'We can emerge as a different organisation'

By JENNIFER VEITCH

IF THE turn of a new year is a time for looking ahead to new challenges, then Neil Stevenson has more change than most to grapple with.

In his new post as the Law Society of Scotland's head of strategic change, he will be trying to stay on top of all the big issues currently facing the profession – revamping education, standards and, of course, alternative business structures.

If that wasn't enough to keep his in-tray piled high with lever arch files filled with background reading, the society is also carrying out a governance review that could lead to significant changes in its internal structure.

This newly created post represents a promotion for Stevenson, who was previously the society's deputy director of education and training.

But when strategic management is usually the domain of a chief executive, why did the society need him to step up?

"You must have picked up on the level of change facing the society at the moment and the profession," Stevenson says. "There is a great list of projects I could rattle off – the highest profile ones are education, alternative business structures and standards in the profession.

"It was just felt that the society had traditionally had real areas of expertise but had not had many people working across all the departments, and so that's really what the role is about. It's trying to make sure all these projects are co-ordinated and that they stay on track within some overall framework."

In recent years, planning must have seemed something of a luxury for the society, which has found itself on the back foot over issues like complaints handling, the Legal Profession and Legal Bill and, thanks to the Which? super-complaint, alternative business structures. Stevenson acknowledges that the society has often had to be reactive and now needs to take a more proactive approach.

"So often when issues that the society is tackling get covered in the press and suddenly become very visible to practising members of the profession, it's because there's been some external driver," he says.

"But actually most of these areas are being worked on, and what these external drivers have done is make the work more noticeable, more visible and more under scrutiny. But it is not necessarily been why the society started off on a project."

While Stevenson will report direct to chief executive Douglas Mill and his deputy, Henry Robson, he stresses that he will be working closely with other senior staff members including his old boss, director of education and training Liz Campbell, director of professional practice, Bruce Ritchie, director of law reform, Michael Clancy, and director of regulation, Philip Yelland.

"It is really about me working with other senior colleagues," he says. "That is why I am so excited about getting the job, because instead of just working with Liz, which was fantastic, now I am getting to work with all my senior colleagues and get involved in all the big projects that are going on. They are still leading them – I am trying to make sure everything is co-ordinating together."

Stevenson, who studied law at Edinburgh University and previously worked for NHS Education for Scotland, has considerable experience in running major projects for the society, such as the research into women and the profession and the recently published profile of the profession. He has also played a significant role in the ongoing consultation into education and training.

While education underpins many issues facing the profession, particularly regarding standards, he says he has much to learn about the bigger picture, and what practising solicitors think.

"There is a certain amount of getting up to speed – I am regularly being passed lever arch files of reading at the moment," he laughs. "I am also trying to make sure I am aware of the profession's views on new areas. I spoke to them a lot over education issues, but I want to make sure I am aware of what people who are practising think, as well as where we are trying to take policy."

With so many pressing changes facing the society and the profession, it will be difficult for Stevenson to have a priority. However, the short-term agenda is likely to be dominated by the society's consultation on alternative business structures, which is due to end on 31 January.

"We are looking at how we analyse the results of that, and what might happen next," he says, adding that this is far from straightforward. "Alternative business structures are something that members of the public will have a view on and will want to have their say on, but they are also in some ways quite difficult to understand.

"There will be complex regulation and overlaps with Companies House and the Financial Services Authority and so on, whereas standards of service that solicitors should be delivering, almost everyone you spoke to would have a view on that."

On standards, Stevenson plans to set up focus groups in the spring to gauge what consumers expect from solicitors, before moving to a full public consultation later in the year.

Of less direct interest to the public – and possibly even many in the profession – will be ongoing work to look at the governance of the society itself. Stevenson believes that structural change could be fundamental to ensuring the society "delivers what people want", but he cautions that it won't necessarily mean the society can respond more swiftly in the future.

"Some of these areas are incredibly complicated and they do take time – what we want to avoid is having a quick reaction just to prove we can move quickly," he says. "We want to make sure that where it's about areas such as public protection, we really are looking into what all the implications are before just making a quick response because one group wants it.

"Having worked in the public sector before coming here, I think we can be faster than some of the areas I have worked in previously. Equally I know there are probably examples of where we have been a bit slower.

"One of things we are trying to do is make sure we get it right and things like involving the public do take time to do properly. In some ways it is very easy to rush out a quick document, give people a few weeks to reply and say that's consultation."

Ultimately, amid the myriad challenges facing the society, Stevenson sees opportunity: "If you look at alternative business structures, standards, education, the fact we are reviewing internal structures – there's actually a huge package of change in place.

"Over the next couple of years, we have an opportunity to emerge as a very different type of organisation. For me, that is what is should be all about."

Tuesday, January 08, 2008

Scotland's judges bring in fines for 'court disrupters' as fears over legal services market reforms gather

Scotland's judges - once lawyers themselves of course, who made a pretty penny standing before their forebears representing clients, have joined the battle against opening the legal services market to those other than their fellow members of the Law Society of Scotland.

Using a case where someone had actually tried to achieve the unthinkable and force the Law Society of Scotland's distinctly corrupt 'Guarantee Fund' (the main aim of which is to compensate victims of crooked lawyers) to actually pay out on a case, their lordships felt secure enough to send yet another warning to the rest of Scotland they will not tolerate any changes to laws & business monopolies which allow their legal brethren to rip clients off at will ...

We here at Scottish Law Reporter could think of a few deserving fines to be imposed against counsel themselves over somewhat lengthy case delays of years ....

The Scotsman reports :

New fines for those who disrupt courts

By JOHN ROBERTSON

SCOTLAND'S senior judges enter 2008 with a growing resolve to get tough with litigants who cause unnecessary expense and disruption to business in the Court of Session, the country's supreme civil court.

While hitting them in the pocket is anything but new, the judges have decided that awarding expenses to an opponent may not always be enough of a penalty for an abuse of process.

In what is thought to be the first ruling of its kind – and a clear warning of what could lie in store for others – a man behind a four-day appeal, which was abandoned at the last minute, has been ordered to pay the court fees of £1,332 which would have applied if the case had gone ahead.

Lord Hamilton, the Lord President, said: "With the very great pressures and demands that there are on court time and judicial resources, it seems clear to us that to allow litigants to act with impunity and without sanction in advising the court, at such short notice and with no just excuse, that a four-day hearing will not proceed, would involve an acceptance by this court that it had no effective control over the administration of its business."

John Billig, from England, and a company controlled by him, had gone to the Court of Session to challenge a decision by the Law Society of Scotland to refuse to make payments to them from its guarantee fund, which compensates the victims of dishonest solicitors.

A judge dismissed the petition in 2006, and Billig and the company lodged an appeal. They confirmed, a few weeks in advance of the appeal hearing, that they were ready and that the appointed four days would be required. However, in the days before the hearing, court officials were advised that the appeal was not to proceed.

Expenses were awarded to the Law Society of Scotland, and Billig and the company were also ordered to pay fees of £1,332 to the Scottish Court Service. They disputed the fees order, but Lord Hamilton, sitting with Lords Nimmo Smith and Clarke, deemed it "both competent and wholly appropriate".

Lord Hamilton said the Court of Session, and in particular its appeal divisions, had been beset for some time with late settlements and short– notice cancellations.

He added: "The court has an obligation under the European Convention for the Protection of Human Rights and Fundamental Freedoms to ensure that parties have a hearing 'within a reasonable time'. That includes a hearing in appellate business. Unless the court can, and does, take steps to discharge that obligation, it will justifiably be criticised by parties, the determination of whose civil rights is unreasonably delayed.

"The inherent jurisdiction of this court to exercise real control and direction of its procedures and timetable requires it to be capable to being updated from time to time, in its application to situations which are identified as productive of disruption of the orderly dispatch of the court's workload. The making of the order in the present case is an example of the court exercising its jurisdiction in such a situation."

Lord Hamilton said the statutory court fees were fixed at levels that fell far short of the actual cost of providing judicial and other resources, but forcing an abuser to pay them could go some way to compensating the public purse.

In this case, a last-minute reshuffle had meant that the court had been able to use one of the lost four days. But that, he added, did not justify reducing the £1,332 in the order against Billig and the company.

"Their action caused a four-day diet to be lost. The fact that, by the efforts of its officials, the court happened to be able to find business for one of those days does not lessen the seriousness of their default."

Psychiatrists verdicts on accused block Sheriffs imposing orders on sex offenders

Changes needed in the law perhaps as Sheriffs fall to the mercy of medical consultants ?

The Herald reports :

Law prevents sheriffs imposing orders on two sex offenders

STEWART PATERSON and MARTIN WILLIAMS

Two sheriffs dealing with cases involving serious sex offenders yesterday were each prevented from imposing the orders they wanted to because of legal restrictions.

At Glasgow Sheriff Court, an insane man who carried out two attacks on women was ordered to be treated in the community after Sheriff John Baird was left without the power to have him detained at the State Hospital, Carstairs.

Two consultant psychiatrists from the hospital who assessed the "sexually dangerous" man, whom The Herald has decided not to name, said that admission was not necessary.

Sheriff Baird said: "I would have taken the view, if left to my own devices, that the risk to the public of this accused being at liberty was a high one, justifying his compulsory detention in a hospital, and on a basis in which his detention there was restricted."

However, he could not make such an order because the two psychiatrists did not recommend it.

Instead, the sheriff made a compulsion order for treatment by a psychiatrist. He will continue to be kept under 24-hour supervision in the community.

Meanwhile, a rapist said to pose a "very high risk" of reoffending is expected to walk free from court next month without the safeguards a sheriff wanted to place on him.

At Perth Sheriff Court yesterday, Sheriff Robert McCreadie told David McMillan, who is already on the sex offenders' register for life, he was unable to impose an order restricting his movements because Tayside Police had not applied for it.

Last night Tayside Police said it would now consider applying to place McMillan on a Sexual Offences Prevention Order (Sopo) to try to protect the public from him in the wake of the sheriff's recommendations.

Juries should be allowed to set compensation levels in Scottish courts

The public and justice at large could benefit if citizens were allowed to set compensation levels in cases across the board, particularly when it comes to the far too complicated question of negligence claims, which are designed with big business in mind ... not the individual ...

The Scotsman reports :

Let citizens set fair levels of compensation

By ANGUS LOGAN

I RECENTLY had the pleasant experience of helping to arrange a conference of European personal injury lawyers (the PEOPIL organisation) here in Edinburgh.

The conference was all about road traffic accident cases and, in particular, civil compensation in road traffic cases in the different European Union (EU) states.

The delegates were very seduced by Edinburgh as a city and Scotland as a country. They were also interested in the marvellous legal surroundings in which our conference took place: the beautiful Signet Library, cheek-by-jowl with the Court of Session building.

What was of particular interest to these members of PEOPIL was that a civil jury trial was taking place next door in the Court of Session. Not only were the lawyers from the various European jurisdictions surprised that a civil jury trial could take place in an accident-at-work case (as in this particular trial) but that it could also have taken place for a pursuer involved in a straightforward road traffic accident.

The right to civil jury trial in reparation actions that exists in Scotland was also of interest and some bemusement to experienced English lawyers who were present (given that they can only obtain a civil damages jury in cases involving claims against the police). Some of the PEOPIL delegates took the opportunity to observe parts of the jury trial that was going on next door.

The foreign visitors were very struck by the ceremonial aspect of the Scottish court, the wigs and gowns of counsel and the presence of the jury in a civil damages case. In the Court of Session, only two such jury trials are allocated each week because of administrative limitations, although the great majority of such cases do settle.

One of the speakers at the conference was Andrew Hajducki QC, of the Scottish Bar, who has written extensively on the subject of civil juries in our system. Jury trials do put pressure on insurers to settle cases and, equally, place pressure on the pursuer's lawyers to be realistic about what a jury might award or not. A mature lawyer from Porto remarked to me on the sheer dignity but also the peer-group efficacy of the jury proceedings in terms of "instant" justice.

There has been a tendency noted over the years for juries to approach damages actions in a slightly different way from the way in which a judge sitting on his or her own would decide the case. For instance, a jury might make a more generous award for pain and suffering than a judge might make, but sometimes has been known to make a less generous award for future loss of earnings. There is a school of thought that a case with a large and complicated future earnings potential is better heard by a judge.

On the other hand, it is commonly believed that a jury will be more generous, particularly to a sympathetic-seeming pursuer, and that it is a good strategy to bring such a case of that pursuer's serious injuries before a jury for an award .

Juries in civil cases are, of course, quite common in the North American legal jurisdictions but are unknown in England and Wales (other than the police type of case referred to above) and, as I say, are quite common in Scotland, as an exception to both the European and common law systems.

There have been mutterings over the years to abolish civil jury trials in Scotland but I think that these moves should be opposed. Why abolish the very jewel in the crown of our distinct civil justice system?

Indeed, rumours abound that personal injury cases may be removed from the Court of Session and its judges and juries altogether and sent to the Sheriff Courts. We would thus have a system where murderers and criminals have their trials take place before judges and juries in the highest courts in the land but seriously injured victims of personal injury would have no equivalent right to process in the higher courts.

Jury trials in civil-damages actions in Scotland provide a valuable lay input into damages actions and afford to ordinary citizens – balloted from the electoral roll, as in criminal cases – a chance to decide what their peers should be awarded in personal injury compensation cases.

At this time, when the insurance industry has been extremely clever in floating (in my opinion) a canard that there is a "compensation culture" in the UK, civil juries might very well provide an acceptable remedy whereby levels of compensation were decided regularly by juries rather than by judges. It is certainly an idea worth considering.

Perhaps juries could be more widely used to decide civil compensation actions in the UK jurisdictions other than simply in Scotland?

As I watched the high-value jury trial of a badly injured woman pursuer unfold before the admiring gaze of a public that included the PEOPIL European delegates, I felt proud of our Scottish legal system, of its history, traditions and virtues, such as the right to civil jury trial under the 1988 Court Of Session Act. It occurred to me too that it actually might be desirable to extend civil jury trial to Sheriff Courts in addition to the Court Of Session. Then we really would find out from our citizens what levels of compensation are fair and reasonable for men and women in the Scottish street.

• Angus Logan is head of litigation at Ritchie Neill.

Monday, January 07, 2008

Flood of appeals over suspended use of unreliable DNA evidence may not affect Scotland

Scots Police Chiefs hope there wont be a flood of appeals after the ruling on low copy number DNA which saw the release of the only suspect in the Omagh bombing atrocity in England.

Quoting the Scotsman story, one reason there are hopes of no appeals in Scotland is that : "... because in Scotland any evidence presented by the Crown has to be corroborated, it is thought it is highly unlikely such problems will arise here."

Oh really ? .... evidence presented by the Crown, or sometimes the lack of it, seems to be a big problem in many cases recently before the Scottish Courts ...

The Scotsman reports :

Scotland hopes to avoid flood of appeals after Omagh ruling

By Richard Elias

POLICE chiefs in Scotland hope that a different system of law will stop the anticipated flood of appeals expected south of the Border because of the suspension of a controversial DNA technique.

The only suspect in the Omagh bombing atrocity walked free from court last week after doubts were cast on the forensic case presented against him.

Sean Hoey's prosecution centred on so-called low copy number DNA. As a result of the decision, it was immediately announced that any pending cases in England and Wales using the technique would be put on hold.

Lawyers have also warned that a flood of appeals from prisoners already convicted through LCN DNA evidence may now follow.

However, because in Scotland any evidence presented by the Crown has to be corroborated, it is thought it is highly unlikely such problems will arise here.

A spokesman for the Association of Chief Police Officers Scotland said: "The judgment has just come out, and so it is too early to make any comment on its contents.

"However, we will be examining it to see if there are any pressing issues we have to address and any lessons we can learn."

A similar review is being made in Northern Ireland at the request of Chief Constable Sir Hugh Orde.

Lawyer Robert Brown said: "There are lots of cases where LCN DNA could have been part of the evidence.

"In some of these, people will turn to appeal. Whether these appeals will be successful remains to be seen.

"It is very difficult to say what will happen. But in cases where the evidence almost entirely relies on this type of LCN DNA, it is more likely that the conviction could be unsafe, and that could lead to a retrial. It is likely to be a fluid situation."

The review in England and Wales is likely to include thousands of forthcoming court cases.

The forensic science services in England and Wales have been involved in carrying out forensic tests in the Madeleine McCann case, but it is not known if LCN DNA was used in these circumstances.

A spokesman for the McCanns said yesterday: "We are not aware that LCN DNA features in our case, but we would want to be entirely reassured of the absolute accuracy of any technique that the police are using either in Portugal or Britain in the search for Madeleine.

"We and our lawyers will be watching developments in this very closely indeed."

The relatively new LCN DNA testing system, which enables the analysis of a small number of cells, was used on the timers for bombs involved in Real IRA attacks and allegedly linked them to Omagh accused Sean Hoey.