Friday, November 30, 2007

Law Society sponsored MSPs demand protection for lawyers monopoly on access to justice

In a strange, dangerous alliance, elements of the SNP and Conservative party joined forces at the Scottish Parliament to demand that access to justice reforms are killed off, thus protecting the monopoly on access to legal services held for decades by members of the Law Society of Scotland.

Clearly as we have reported before, there are elements within the Parliament too close to the legal profession to be of any value in an impartial debate. Indeed, as we covered earlier HERE, words used by the likes of Bill Aitken, the Tory Justice Committee Convener at the Scottish Parliament, were almost an effort to control and limit the scope of the legal services debate ...

The Herald reports :

MSPs voice opposition to major deregulation for legal services

IAN FRASER

Members of the Scottish Parliament have expressed their desire to protect Scottish legal services from the full blast of market forces, apparently disregarding some of the views of the Office of Fair Trading.

In a wide-ranging debate on the legal services market held in the Holyrood parliament, a number of leading MSPs stressed their opposition to the idea of non-legal players being allowed to provide legal advice in Scotland or to own law firms.

This is at odds with what is about to happen in England and Wales. Following the Clementi Review and the Legal Services Act, which gained Royal assent last month, English law firms have been given a green light from 2011 to form practices with other professionals, such as barristers and accountants. They will also be allowed to attract external investment or list on the stock exchange.

However, justice secretary Kenny MacAskill said wholesale deregulation along these lines was inappropriate for Scotland's smaller legal services market.

MacAskill, who practised as a solicitor for 20 years, made clear his preference for a softly-softly approach to reform. He told the parliament: "We will not preside over any diminution in the quality and integrity of the Scottish legal profession The badge of Scottish solicitor or advocate has always carried an assurance of professionalism, which I am determined to maintain."

"Alongside the church and the education system, the legal profession has formed one of the fundamental pillars of Scottish identity It is perhaps not going too far to say that, were it not for the strength and independence of the Scottish legal profession, we would not be having today's debate.

MacAskill added: "The legal profession is a key part of our institutional framework Lawyers help people at times of crisis and bereavement, they protect the rights of the vulnerable, and they support business and economic growth Therefore, I will defend the legal profession against those who malign and misrepresent it."

There are few solicitors I would wish to see complete a tax return ...

However, the MSP Paul Martin advised the government that it should not only be listening to the views of the legal profession. He urged it to also work closely with consumer organisations.

The debate, held on November 15 but previously unreported, was partly a response to the upholding by the Office of Fair Trading of a super-complaint from the consumer group Which? on restrictions on business structures and direct access in the Scottish legal profession. It was also related to a consultation on alternative business structures being overseen by the Law Society of Scotland.

MacAskill said: "We are considering carefully everything that the OFT has said. We agree that change needs to happen, but I have no intention of adopting a model that is unsuited to our needs as a country. Our geography, demography and topography are different from those of England."

In a nod to the larger corporate firms in Scotland, who are universally deeply concerned that the Scottish Government looks as if it might constrain their growth through a failure to implement Clementi-style reforms, MacAskill said: "Senior and respected figures in the profession are already identifying how reforms might create new opportunities. At this stage I do not intend to limit their thinking, but I will set out the tests that I will apply to determine whether the proposals that come forward meet Scotland's needs."

"New business structures may be helpful - for example, if they allow a firm to offer a wider range of services. However, there are dangers in moving in a single step to a wholly open market, and we should not allow new entrants from outside the profession unless access and quality can be maintained."

Fergus Ewing, the minister for community safety, was particularly disparaging about the virtues of multi-disciplinary partnerships (MDPs). He said: "The argument for having a one-stop shop has illusory attractions. There are few solicitors I would wish to see complete a tax return, and few chartered accountants I would wish to see conduct litigation. I do not think that I am maligning either profession when I make that general, sweeping observation."

However Christopher Harvie, an academic and author who is now an SNP MSP, warned against petty protectionism. "We should not have a defensive attitude - we should find out what we can learn from, for example, the notariat system in Europe as a means of simplifying domestic law.

The Tory MSP John Lamont also warned that the Scottish legal profession needs to become much more open in allowing solicitors who qualified elsewhere to practise here. "Unless our legal profession can be accessed by the most able lawyers from throughout Scotland and around the world, we will not fulfil our ambition to enable our legal profession to compete on the international stage."

Pauline McNeill said that politicians must retain control over how the legal profession is regulated. "An independent regulatory framework that lies within our democratic control and not just market control will mean that we can balance the interests of firms and businesses with those of the consumer and of standards.

She also said she did not want to see the parliament being rushed into making decisions about the legal profession's future, saying: "We should proceed at our own pace."

McNeill added: "Social justice issues and widening access for consumers should be at the heart of the debate. Forcing Scotland to go down the same road as England for its own sake is not the best approach. All the OFT recommendations are beginning to sound like proposals for a completely free market. Having considered the matter, I am almost certain that that is the wrong approach to take."

Thursday, November 29, 2007

Roy Martin castigates legal services reform on access to justice - preserve monopoly instead.

While the Faculty of Advocates enjoys the swift exit of it's Dean Roy Martin, after some three years, the Law Society of Scotland is still burdened with a near 20 year regime which has brought the profession into general disrepute ...

Roy Martin QC, who has resigned as Dean of the Faculty of Advocates, gives a view of the profession from his point of view, but rounds on those who wish to open up the legal services market and break his colleagues monopoly over court representation ...

The Scotsman reports :

Dean says stables have made the Faculty stronger

JENNIFER VEITCH

AS THOSE who leave elected office so often find, the trappings of power can soon fall away. While a replacement has not yet been found for Roy Martin, QC, as dean of the Faculty of Advocates, his resignation saw him swiftly "evicted" from the plush book-lined office that goes with the post.

Sitting in a brightly lit but anonymous meeting room, it is rather tempting to wonder if these stark surroundings are a suitable setting for a conversation about his outlook for the future of the Scottish bar.

Martin says those who predicted the demise of the Bar following the "devolution" of most of its stables were premature in their doom-mongering. The move to allow advocates to reorganise themselves according to preference has strengthened the Faculty, not undermined it, he insists. Martin says his successor, set to be named on Wednesday 28 November, will have "unfinished business" to attend to, and that the fight to preserve an independent bar goes on.

Whether the new dean turns out to be the current vice-dean Valerie Stacey, QC - who would be the first female dean if elected - or top-earning advocate Richard Keen, QC, she or he will be faced with problems that Martin believes not only threaten to undermine the independence of the profession, but the very existence of the Bar itself.

Following the Which? super-complaint, the Office of Fair Trading (OFT) indicated it would like to see a review of the restrictions that prevent advocates entering into partnerships, either with each other or with solicitors. The outcome of the wider debate over the future shape of legal services in Scotland will also be crucial for the Faculty. Martin is concerned the consumer lobby and the OFT have failed to recognise legal services are not just "consumer" services and that advocates and solicitors play a wider role in providing access to justice.

"The OFT is now engaged in what in effect are two investigations into the Faculty of Advocates, concentrating on the manner in which advocates practise and particularly on our rule against partnership," he says. "It is clear the Faculty has significant work to do in trying to resist the abolition of the rule which I believe would be likely to lead to end of an independent individual referral bar."

While it is often argued the current rules - for example, the restriction that prevents "mixed doubles" teams of advocates and solicitor advocates - are anti-competitive, Martin argues opening up the market could actually reduce competition.

"I have difficulty understanding why the manner in which the Faculty of Advocates organises itself is of such concern to the OFT," he says. "The Faculty consists of around 500 individual advocates, each of whom competes against all of the others and each of whom is available to every client in Scotland. Creation of partnerships would inevitably give rise to larger and more powerful practising units, and give rise to the likelihood of greater conflict of interest."

But does Martin accept the profession could have done more to head off such challenges? "It is always reported or implied that we haven't been responsive enough," he says. "I would certainly accept that over the years that the legal profession has been seen as somewhat slow to respond to change. I don't necessarily accept the wholesale changes to the legal profession that are now being advocated are in the interests of consumers because a critical element of the provision of legal services is access to justice.

"Members of the legal profession are not simply providing consumer services, but are representing parties in the courts in a situation where they have duties to the court and the public interest, as well as duties to the client who is the consumer."

The public may also be unaware of the implications of the profession being brought under greater control of the Scottish Government, he adds, and the Faculty remains concerned about the impact of the Scottish Legal Complaints Commission, which is due start work next year.

"The passing of the Legal Profession and Legal Aid (Scotland) Act brought about the start-up of the Scottish Legal Complaints Commission, which is supposedly independent from the Scottish Government," he says. "The Faculty, in contrast with the Law Society, opposed the legislation because of anxieties that such independence would not be preserved. As yet, we await the formal appointment of any of the commissioners to the SLCC but, in the meantime, the body is in effect being established under the direct control of the Scottish Government, and in a way that tends to support my anxiety that the SLCC will not be as independent as may have been intended."

But it is not only external pressures that have been behind significant changes. The Faculty's decision to allow stables to devolve from its clerking and administrative services company, Faculty Services Ltd, followed growing dissatisfaction among its own members. Martin, whose own stable, Murray, was among the first to devolve, says the move has been well-received and predicts more stables will follow suit.

"The reorganisation of the stables and allowing members who practice to organise themselves in ways that are more suited to their aspirations is something I am pleased occurred when I was Dean," he adds.

When the Law Society and WS Society have chief executives to run their organisations, outsiders may be surprised the Faculty continues to be run by elected office bearers. Martin, who was Dean for three years and vice-dean between 2001 and 2004, says such a move has not been given serious consideration, largely because of the advantages of having elected office bearers who remain practising advocates.

"It may seem to be an arduous position, nevertheless the opportunity to do what one can to maintain the interests of the Faculty and the interests of the independent legal profession is one that I was personally very happy to take up," says Martin.

Now he has stepped down, Martin, 57, does not intend to retire. Martin, a Glasgow University-educated solicitor's son, will focus on private practice, specialising in parliamentary, administrative, environmental and land law. The traditional path for former deans is to be elevated to judicial office but, since Martin is a member of the Judicial Appointments Board, that will not be an option just yet.

Justice Secretary MacAskill reveals community sentencing plans

The Justice Secretary, Kenny MacAskill, has revealed a plan to ensure that more community sentences are handed out to offenders ...

The Herald reports :

CRIME: MacAskill unveils community sentences shake-up

Kenny MacAskill today said he hoped a shake-up of community sentences would see more of such punishments handed out to offenders.

The Justice secretary announced the outcome of the Scottish Government's review of community penalties.

He also unveiled the government's action plan, which aims to ensure that such punishments are used to their full potential.

And he said: "My hope is that the proposals outlined in this report will send out a strong signal that community penalties can and should be used in a greater proportion of cases in future."

The changes proposed will see local communities given a say on the type of reparative work done by offenders in their area.

They will also require the work to be done within six months of the sentence being imposed, instead of the present 12 months Ministers also propose that community service orders, supervised attendance orders and community reparation orders will be replaced with a new single community service order, ranging from 20 hours to 300 hours.

And for the first time community service could include an activity other than unpaid work, such as debt awareness training or support to help offenders into employment.

The new community service orders will also be available in all courts - they have not previously been an option in district courts - ensuring they can be used in every case that is appropriate.

The government also proposes to extend Drug Treatment and Testing Orders to a wider ranger of offenders.

In 2005-06 community penalties were the main punishment imposed in 16,500 cases, while prison was the main punishment in 16,000 cases.

But while the level of recorded crime has been largely static over the last ten years, the prison population has risen by 18% over the decade.

Mr MacAskill said: "I am convinced that greater use should be made of community penalties."

He said the review provided "strong evidence" that community sentences could be more effective than short prison sentences.

Currently about three quarters of the community penalties handed out by courts are community service orders, and the justice secretary explained ministers wanted to focus on making these more effective.

Mr MacAskill said: "The recommendations in this report will ensure that our courts have a range of appropriate penalties to deal effectively with all offenders.

"Penalties that punish but offer the chance for offenders to turn their lives around. Penalties which are high quality, effective, immediate, visible, flexible and relevant."

He said the government was proposing a "radical restructuring of reparative sentences with community service at its heart".

He added: "A crucial aspect of changing criminal behaviour is demonstrating that there is a more rewarding alternative to a life of crime. Short prison sentences often fail to deliver on that goal.

"As well as benefiting the local community, effective community penalties can help an offender address underlying problems, improve employment prospects and build a sense of routine and self-esteem.

"This can lead to a future which is free from offending - and that is what we all want.

"A coherent penal policy must encompass a range of appropriate punishments, including prison for serious and dangerous criminals as well as tough community penalties for less serious offenders.

"It's therefore vital that we make the range of community penalties available to the courts as robust as possible to ensure they can be used with confidence in all appropriate cases."

Wednesday, November 28, 2007

Labour Party brings in Lord McCluskey to advise on donations

As the turmoil continues in the Labour party over donation anomalies, it has been revealed that Lord McCluskey has been brought in to give advise on the changes that Labour needs to make in handling donations ...

The Herald reports :

Lord McCluskey to advise on donations

MICHAEL SETTLE

Lord McCluskey, the Scottish peer and former judge, will join Lord Harries, the ex- Bishop of Oxford, in giving advice on the changes Labour needs to make in handling donations, Gordon Brown announced yesterday.

Educated at Holy Cross Academy in Edinburgh and at the city's university, John McCluskey, 78, is one of Scotland's most respected legal figures. He graduated in the early 1950s and shortly thereafter served in the RAF.

In 1955, he was admitted to the Faculty of Advocates, becoming a QC in 1967. In the mid-1970s, the father-of-three became Sheriff Principal of Dumfries and Galloway and in 1976 became Baron McCluskey of Churchhill in Edinburgh.

Also in the mid to late 1970s, the crossbench peer became Scotland's Solicitor General during the time of the Wilson and Callaghan governments. Later, he became the Labour opposition's spokes-man for Scottish legal affairs up to 1984.

His extra-parliamentary positions have included being the chairman of the Scottish Association for Mental Health and chairman of the John Smith Memorial Trust. His recreational activities include swimming and tennis.

Lords McCluskey and Harries will receive a report from Labour's former General Secretary Lord Whitty into all aspects of the secret donor controversy.

Claims in court that Judge made mistake in Fraser trial

The Nat Fraser appeal has heard claims the judge in the trial made a mistake which allegedly made it harder for the Crown to seal a conviction ...

The Herald reports :

Judge made mistake, appeal court hears

KIRSTY URQUHART

The judge in the Nat Fraser trial made a mistake which made it harder for the Crown to seal a conviction, the appeal court heard yesterday.

The Crown argues that even if there was a misdirection to the jury there was no miscarriage of justice in the outcome of the case.

John Beckett QC, for the Crown, said Lord Mackay of Drumadoon had misdirected jurors by telling them they could only find Fraser guilty if they believed he had put his wife Arlene's rings back in her house after she went missing.

"This introduced an extra hurdle that the Crown had to overcome in order to prove its case," said Mr Beckett.

"In my submission, that direction can only be seen as favourable to the appellant."

But he added: "I would not accept that even if we have a misdirection we have a miscarriage of justice". The Court of Criminal Appeal in Edinburgh is hearing the eighth day in Fraser's appeal against his murder conviction.

His defence claims he suffered a miscarriage of justice because the advocate-depute in the trial made the rings the "cornerstone" of his case.

Evidence has since emerged that two police officers may have seen the rings in her house the night she disappeared, which neither the Crown or defence knew at the time.

The appeal continues.

Mental Health Tribunal President missing from post after scathing audit

After scathing criticism of how the Mental Health Tribunal has been run, the President of the Tribunal service has been reported as absenting herself from her post ...

The Herald reports :

Mental health watchdog disappears from her job

ALAN MACDERMID

One of the Scottish Government's most senior mental health watchdogs has disappeared from her job.

Eileen Davie, president of the Mental Health Tribunal service, was said to have "absented herself" from her £130,000-a-year post.

The tribunal service was created two years ago, making decisions on the compulsory care and treatment of people with mental health problems. Based in Hamilton, it now employs about 80 people with annual operating costs of some £8.4m.

Tribunals sit under a convener - a lawyer - with two other members, one of them normally a psychiatrist.

Mrs Davie is a former senior psychiatric social worker who qualified in social work in 1967. In 1983, she left social work to study law at Edinburgh University. She became an advocate in 1989 and specialised in medical negligence and family law.

She was appointed president of the Mental Health Tribunal for Scotland 2004 in advance of the Mental Health (Care and Treatment) (Scotland) Act 2003 coming into force in October 2005.

An audit concluded that appropriate governance is not in place

Her temporary replacement is believed to be Joe Morrow, who according to legal sources had been vice-president until he resigned a fortnight ago after a row with Mrs Davie.

Mrs Davie's absence comes on the heels of a critical report by the Auditor-General on the need for improved governance of the service's administration - a separate arm from the tribunal itself, with its own chief executive.

In his report to the Scottish Parliament last month, the Auditor-General, Robert Black, said the Mental Health Tribunal for Scotland Administration needed to improve to meet good governance standards.

Last year's audit concluded that appropriate governance was not in place for MHTSA and it needed to be developed as a priority.

This year, the overall conclusion was that although MHTSA had made progress in some areas, there remained a need to improve to meet good governance standards.

The framework document setting out the responsibilities and accountabilities of the agency had not been finalised and was still in draft form. The auditor said MHTSA should consider options including permanent recruitment to strengthen its financial management and leadership.

Throughout the financial year 2006/07 and as at August 2007, there was no formal board in place to direct and control the agency.

No independent non-executive directors had been appointed to the agency, and no audit committee to provide assurance on risk management, governance and internal control was in place.

Mrs Davie was at her home in Livingston last night but unwilling to make comment.

A member of her family said: "She is not at liberty to comment."

Tuesday, November 27, 2007

Impartiality in question as Holyrood Presiding Officer mired in conflict of interest allegations

Appointing Alex Fergussin MSP, a Conservative Presiding Officer to the Scottish Parliament, when it now looks like the Conservatives did a deal with the SNP on propping up their government on certain parts of legislation, while arranging deals on others, raises questions of how honest the political process in Scotland really is under the 'new' regime ....

Since the Presiding Officer himself is facing allegations of lack of impartiality & conflict of interest, how can he be expected to deal fairly with issues in the Parliament chamber, which seem to be being handled rather favorably for the current SNP Government, than has been the case in the past ...

The Sunday Herald reports :

Presiding officer faces accusations of bias after paying Tories £3500 for ‘services’

HOLYROOD'S PRESIDING officer is facing accusations of political bias after it emerged he was handing out taxpayers' money to the Tories and allowing former party colleagues to use his office.

Alex Fergusson, whose role chairing the Scottish parliament requires strict political neutrality, arranged for £3500 of his publicly funded allowances to be paid into a Conservative cash fund.

He has also left himself open to further charges of impartiality by: Allowing a senior Conservative politician to use his constituency office and sharing part of it with a Tory MSP; Employing a party councillor to help run the same office; Holding surgeries at the local Tory association; Having pictures of himself with Conservatives politicians on his website; Featuring in joint press releases with the shadow secretary of state for Scotland, David Mundell.

The presiding officer (PO) is the most senior MSP at Holyrood, as he chairs all parliamentary debates as well as other key bodies. As a result, the post-holder is expected to suspend party political activity for as long as he serves in the role.

Fergusson, who was elected as the Conservative MSP for Galloway and Upper Nithsdale earlier this year, said he would "reluctantly suspend" his party allegiance after being voted PO in May.

But Fergusson, who is paid £92,000 a year and claims around £40,000 in allowances, has directed £3500 of his publicly funded expenses into the Tories' Policy and Research Unit (PRU) for "services".

A Holyrood spokesman said the cash was for "administrative and research support" in carrying out constituency casework.

The spokesman refused to comment on why these duties had to be carried out by the Conservatives, but did confirm that the two previous presiding officers, David Steel and George Reid, did not divert cash to their former parties.

Fergusson allows a local Tory MSP to use part of his constituency office for £130 per month, while also allowing Conservative MP Mundell to work there.

Mundell said: "Yes, I do work there. It's a sort of outpost for my constituency. It's handy to have the ability to pop into that office. The office is politically neutral, and as a member of the Westminster parliament I am politically neutral."

In addition, local Tory councillor Gillian Dykes runs Fergusson's constituency office. The MSP's website also states he holds surgeries at 2 St Andrew Square in Castle Douglas, which is home to the local Tory association.

The same website, far from being a party politics-free zone, also contains photographs of Fergusson with fellow Conservative politicians. Among the photographs of Fergusson with members of the public are pictures of him with Mundell, MEP Struan Stevenson, councillor John Dougan, and John Scott MSP.

Mundell's website also contains two joint press releases with Fergusson that were issued in the past four weeks.

Lothians MSP Margo MacDonald said Fergusson's actions left him open to accusations of political bias: "Whether he is impartial, he can't appear to be impartial with these close working links with the Tories.

"There is a code of conduct for ministers, so maybe somebody needs to draw up a code of conduct for people who sit in the chair. With Alex keeping such close working ties with the Tories, that may have devalued the symbolism of giving up party membership to do the job."

Another MSP said: "It's a bit rich for him to sit there and tell MSPs what they can and can't do, while at the same time giving £3500 of public money to the Tories."

A parliament spokesman said: "Fergusson is a constituency MSP with a duty to his constituents. He is entitled to the necessary administrative and research support required in carrying out constituency case work.

"Part of this is obtaining services from the pooling arrangement with his colleagues. He pays a reduced contribution which reflects the impartial office of PO which he holds, and the fact that he receives no political briefing from the party's research unit.

"The PO contributes the reduced amount of £3500 per annum to the party group pool, which reflects the limited service he receives. Other members of that pool pay £7000pa."

"Fergusson discussed and agreed this approach with senior parliamentary officials on his election as presiding officer."

Monday, November 26, 2007

Scottish Consumer Council : Civil justice system needs review & improvement.

Civil justice in Scotland is a mess, and has been for decades.

With restrictions on access to justice, and areas of civil law limited in reform by professional interests, the Scottish Consumer Council has again, called for improvements & reforms to be made.

The Scotsman reports :

Consumer Council's ideas for civil justice

MARTYN EVANS

THE civil justice system is a vital public service that underpins our daily lives. We all need proportionate ways to have our grievances and disputes settled. Consumers and citizens deserve to have effective access to justice and to be able to enforce their rights. As a consumer rights organisation, the Scottish Consumer Council (CSS) has a significant interest in civil justice and fair commercial practices.

Despite the importance of civil justice to both consumers and society as a whole, it had not had the political and policy attention it deserved. Then, in 2004, the SCC established a Civil Justice Advisory Group representing key stakeholder interests, chaired by Lord Coulsfield, to try to obtain a consensus on the need for a civil justice review. The final report, The Case for a Review of Civil Justice, was published in November 2005.

The Scottish Executive responded very positively with Modern Laws for Modern Scotland, an eloquently written manifesto for change based on the findings of the SCC Advisory Group. The then justice minister asked Lord Gill to review the court related issues identified by the group's report.

We have high hopes for the Gill review and are looking forward to the publication of a consultation paper from Lord Gill setting out his first thoughts about reform.

While the review has been established specifically to look at the civil courts, we believe it must do so within the context of the wider civil justice system. The review must be underpinned by the central principle set out in the report of the Civil Justice Advisory Group: the courts should be viewed as a last, rather than a first resort.

If people are to exercise their legal rights, they need to know what those rights are, and how the legal system works. We would like to see an integrated strategy for public legal education in Scotland, building on work done in England and Wales, Canada and elsewhere.

It is important that adequate and appropriate advice services are available to diagnose the problem, deal with it or refer it on to the most appropriate dispute resolution service.

People tend to associate the courts with criminal matters. While it is likely this is partly due to the portrayal of the courts in the media, the lack of any physical separation between the two in our courts can only serve to reinforce this. We would like to see a modern system of civil justice plan for this separation.

Court processes and procedures are complex and often very difficult for non-lawyers, even well educated and articulate individuals, to follow. At the very least, there is a need for a comprehensive overhaul of all court procedures, to make them easier to use and simpler to understand.

I am astonished at the commitment of those on the influential rules councils to draft complex procedures as well as continue their day jobs, but a modern system of civil justice can surely invest the resources to allow the drafting to be undertaken more quickly and with less onerous demands on a few committed people.

While simplified forms would greatly improve access to justice, and while we very much welcome the forthcoming increase in the jurisdiction limits, much more radical reform is required. We would like to see a new system where certain types of claim are dealt with in a separate and less formal forum, preferably out-with the courts. Some thought might also be given to modernising dress codes for lawyers and judges in civil proceedings, as this can be intimidating and is unnecessary.

I would commend the recent report from the English Civil Justice Council on paying for legal representation. It clearly sets out a wide range of options and discusses their merits. It is well worth a read for anyone who has any interest in improving access to justice.

While the debate about reform of the civil courts has focused on providing mechanisms for individual redress, we believe there should be much greater emphasis on collective forms of redress.

The legal system in Scotland, unlike that in England and Wales, the United States and other jurisdictions, does not provide for a procedure for class actions. Why not?

Finally, a key issue identified by the Civil Justice Advisory Group is that of enforcement, particularly for individual pursuers involved in cases against commercial organisations.

We think the review should look into the possibility of a role for the state in assisting such individuals to enforce their decree.

• Martyn Evans is director of the Scottish Consumer Council. He will speak at today's civil justice conference in Edinburgh.

Edinburgh Stamp Office - a mystery to many ?

A mystery to us or not ... the Edinburgh Stamp Office is still needed ...

The Scotsman reports :

Stamp Office flitting with Registers opens door for new one-stop shop

JIM DOW

THE workings of the Edinburgh Stamp Office are a mystery to many. At a time when offices that deal with stamps - post offices - are being closed up and down the country, should we really care if the Edinburgh Stamp Office shuts its doors?

The answer has to be yes: the Edinburgh Stamp Office is an integral part of the paperwork of commercial transactions.

More than that, if the office disappeared down south to Birmingham, as part of what the HM Revenue and Customs (HMRC) calls improving customer service, then it would be a snub at devolution and a major disappointment for Scottish lawyers.

HMRC has already stated it plans to centralise most of its work in Birmingham, providing a faster, more efficient service. By February, the work of the stamp offices in Belfast, Newcastle and Bristol will have been transferred to the Midlands. But, says HMRC, "for reasons of Scottish law", it will be retaining an office in Edinburgh.

That, says James Aitken, a senior associate with HBJ Gateley Wareing, with a sigh of relief, is only the first step. After years of campaigning as an individual and as a member of the Tax Committee of the Law Society of Scotland, he has been told by HMRC that the plan is for the Registers of Scotland and the Edinburgh Stamp Office to housed be under the one roof.

The Stamp Office is based at Sighthill and the Registers has a number of offices, the main one being in Queen Street, Edinburgh. The Stamp Office will make the move - probably about ten people will be involved and no date has yet been fixed.

At the moment, if a lawyer wants a same-day settlement, then it has to be lodged with the Registers, with somebody - usually a legal firm's trainee - being dispatched to the Stamp Office at Sighthill, with the relevant documents to complete the same-day registration.

This all takes time and money but, these days, the bulk of the work can be done online, and many commercial lawyers would claim that having both services under the one roof will not really make much difference.

But, says Aitken, what is important is that this move is at a time when there is more centralisation down south, and having in Edinburgh a devolved body, the Registers of Scotland, and a UK reserved body, HMRC, in the same building is a victory, with the closure of the Edinburgh office having been a possibility.

He says: "The Stamp Office sharing premises with the Registers is a practical and sensible move, but we have much further to go.

"There is what I call the Rolls-Royce option. That would be a Scottish one-stop shop for a number of legal, taxation and registration services.

"There would also be a number of sub-offices, possibly based in local authority headquarters, throughout Scotland. Just as London is not the UK, Edinburgh is not Scotland.

"My argument for this idea is mainly the way the government, of whichever type, provides services. We should look at each service and see if it can be better delivered.

"One way of improving Scotland's economic performance is to make it as easy as possible for business to be conducted. That is why the sharing of premises is just a small step - the service provided by HMRC in Scotland needs to be improved."

Aitken's campaign will continue. He says it is currently taking 13 weeks to provide a VAT registration number - that inhibits industrial growth and has to be improved.

Other areas that he sees a one-stop shop dealing with include: a register of wills; the creation of a standardised property enquiry certificate for all residential transactions, with a 24-hour service; support for local authorities negotiating with developers; tax issues relating to Scottish charities; and landlord registration.

He adds: "There is so much to be done. A one-stop shop will mean cost savings, a greater use of technology, a sharing of information, the same opening hours, joined-up thinking and one contact point.

"HMRC understand less about Scotland than it did eight years ago - talk to them and they admit they don't know anything about Scotland.

"This promised move of Scottish and UK civil servants into the same building is the first of its kind and for lawyers it means we can now be as efficient as our colleagues in the south."

The modern Registers of Scotland was formed in 1948, when it was separated from the Keeper of the Records of Scotland.

Judges tips for Scottish Legal Awards

If you want some tips for the Scottish Legal Awards ... the judges have revealed some of their inclines ...

The Scotsman reports :

Judges give their tips to help make your Scottish Legal Awards entry stand out

PETER RANSCOMBE

THE deadline for the 2008 Scottish Legal Awards is looming - firms and individuals have until Wednesday to submit their entries and be in with a chance of winning the top prizes.

Today, the judges have revealed their top tips to help you make your entry sparkle.

The awards, sponsored by Bank of Scotland Corporate and with The Scotsman as media partner, will be presented next February at a gala lunch in the Glasgow Hilton.

Entertainment at the awards ceremony will be provided by Alan Hansen, the pundit and former Liverpool defender, who earned 26 Scotland caps.

Rebecca Davies, director of the Scottish Legal Awards, says: "It's not too late to put an entry together, bearing in mind that there is no better way to reward your colleagues, impress your clients and outclass the competition all in one fell swoop. The Scottish Legal Awards are worth every bit of effort and you could be part of a winning team, giving your colleagues a major achievement and professional high that will last the whole year."

Submissions will be judged by a panel of experts from across the legal profession and from further afield. The judges will be chaired for the sixth year in a row by Margo MacDonald, the independent list MSP for Edinburgh and the Lothians.

She will be joined by new judges, including: 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, acting dean of the Faculty of Advocates.

Their expertise will add to that accumulated by the judges who are returning to this year's panel: advocate John Campbell QC; Dr Andrew Cubie, consultant at Fyfe Ireland and chairman of the Committee of University Chairman of the UK; Tom Wood, Edinburgh City Council's special advisor on alcohol and drugs ; David Lee, assistant editor of The Scotsman and editor of its Law & Legal Affairs pages; Donald Kerr, head of corporate banking East of Scotland at Bank of Scotland Corporate; John Ferguson, director of development at the Scottish Council for Voluntary Organisations; and Andrew Sturgess, senior partner at PricewaterhouseCoopers and chairman of Institute of Directors, Scotland.

The judges' top tips include:

• Clarity: check your entry fulfils the criteria and guidelines;

• Review: have your entry reviewed by trusted colleagues for feedback;

• Write sharp: don't use ten words if three will do;

• Colour: pictures and graphs add dimension and get to the point;

• Support: ask clients and colleagues to submit testimonials;

• Statistics: the power of numbers will make your case add up;

• Innovate: got a wild idea that could impress the judges? Make sure that you include it - it might just help you stand out from the crowd.

The awards categories range from those for individuals - such as the partner of the year and the paralegal of the year - through to prizes for teams, including the support team of the year and the corporate team of the year.

Other prizes will go to whole firms, including the high-growth firm of the year award and the top prize of all, the firm of the year award.

A lifetime achievement award will also be presented.

• For full details about the Scottish Legal Awards, call KD Media on 0131-624 9840 or visit http://www.thescottishlegalawards.com/

Sunday, November 25, 2007

SNP & Conservatives team up in unholy alliance at Holyrood

It's no secret the Conservatives are propping up the minority SNP Scottish Government on a variety of legislation, even seeking deals to go slow or kill off areas of interest which would do harm to Tory members interests, professional & otherwise ...

Scotland voted SNP but got the Conservatives ...

Scotland on Sunday reports :

Labour frozen out as SNP buries hatchet with Conservatives to end 20-year taboo

EDDIE BARNES POLITICAL EDITOR

THE SNP is to pave the way for a historic coalition pact with the Conservatives by scrapping a 20-year old ban barring it from working with the party.

In a move which will be seen as a totemic shift in Scottish politics, the Nationalists will agree this week to allow their elected members to enter government with the party of Margaret Thatcher.

The move is designed primarily to allow SNP councillors to go into coalition with the Tories in several of Scotland's 32 local authorities - potentially freezing out Labour in several councils. But senior party figures last night said it would also apply in practice to negotiations at Holyrood, paving the way for a possible SNP-Tory alliance.

The warming of relations between the SNP and the Conservatives will be further sealed in two weeks' time when First Minister Alex Salmond and Tory leader David Cameron meet for the first time to discuss how they may share power if Cameron wins the next general election.

SNP sources admit they have already effectively entered an informal coalition pact with the Tories at Holyrood, under which they expect the Conservatives to support their budget in return for a series of concessions on tax cuts, police numbers and drugs policy.

The SNP voted in the ban on co-operation during the Thatcher government, declaring that they could never enter any deals with the party of that visited the poll tax on Scotland. It has remained ever since, preventing any form of official pact between the parties.

The change to official SNP policy will be voted on at the party's National Council meeting next week, after being proposed by the party's Association of National Councillors.

SNP councillor Dave Berry said: "This will bring the party's policies into line with the reality of the 21st century. The party's councillors have talked and we want to put it to the party that they be allowed to form coalitions as they see fit."

Senior party figures last night said it would, in effect, also allow the SNP to enter into a formal deal with the Tories at Holyrood if they chose.

An SNP MSP described the Tory brand as having now been "detoxified".

In the short term, the move could lead to several changes in government in councils where the SNP has frozen itself out of power because of its refusal to work with the Tories. They include Dundee, South Ayrshire, West Lothian, Falkirk and Perth and Kinross which could all be run by Tory-SNP administrations once the ban is removed.

The SNP leader on Falkirk Council, David Alexander, said: "This ban was brought in when Margaret Thatcher and John Major were causing havoc to Scotland. But things have changed. Now you could argue that Labour are further to the right than the Tories. We should acknowledge that."

A spokesman for the SNP said: "This policy was devised when council elections were under first-past-the-post, so this motion draws attention to the reality of the new system of single transferable vote. The SNP has the most councillors in Scotland and it is natural to want to form as many administrations across the length and breadth of Scotland as well."

As to whether the change would herald a new SNP-Tory alliance, he added: "We are happy with the SNP minority government. It has been successful and we have no plans to that change."

A spokesman for the Scottish Conservatives said: "It is for the SNP to decide on these issues. At the Scottish Parliament level, we were the party that argued for a minority government and issue-by-issue politics. The position is unchanged regardless of any move by the SNP.

"The voting records show that we have voted exactly the same number of times with Labour as with the SNP.

"The only permanent marriage in the Scottish Parliament is that between Labour and the Liberal Democrats."

Nairn Banker murder hunt scaled down after three years

Three years after the murder of Nairn banker Alistair Wilson, it has been reported the Police are planning to scale down the investigation, after no success.

Scotland on Sunday reports :

Hunt for killer of Nairn banker scaled down

NICHOLAS CHRISTIAN

DETECTIVES hunting the killer of banker Alistair Wilson are planning to scale down the inquiry three years after the murder.

A dedicated team of officers have worked on the case at a cost of more than £1.5m but they are now to be told to investigate other crimes.

The search has taken officers to Germany and the Czech Republic in an effort to find clues from the distinctive 1920s German handgun and its Czech-made ammunition. However, they have so far failed to clear up the crime.

Detective Chief Inspector Peter MacPhee has admitted that all he now had was "hope" of finding the father-of-two's killer.

Alistair Wilson was shot dead on his doorstep in Crescent Road, Nairn, near Inverness, on November 28, 2004, after his wife Veronica Wilson answered the door to a stranger. The man asked for Alistair Wilson and when he came to the door he was shot several times.

MacPhee said: "Unless something significant comes up the inquiry team will move on to other things.

"However, the case will never close. We have a lot of the picture but there are still vital pieces missing and one can help lead us to a conclusion."

Northern Constabulary expect to conclude a massive DNA sampling exercise in the New Year.

MacPhee added: "Three years on, we are in the realms of hope rather than expectation of solving this crime. There are still seven officers working on the case from a peak of 60."

MacPhee has been in regular contact with Wilson's widow, who is not a suspect. She has refused to comment but MacPhee said: "Veronica shares our frustration that her husband's killer has not been caught and remains hopeful he will be brought to justice."

A DNA sample was taken from a cigarette end lying near the scene on Crescent Road. Police have recorded 1,300 names and more than 1,000 people have been tested.

Around 250 have still to provide samples and under 50 have refused. MacPhee said: "The group who have declined are not being treated as suspects but we will have to eliminate them. However, we do not know if the DNA sample belongs to the killer."

Crucial CCTV cameras were not working on the night of the killing and although the murder weapon was found 10 days later, extensive forensic tests have produced nothing.

The bullets used to kill the 30-year-old are of an unusual type and calibre and were rare in the UK even before the 1997 handgun ban in the wake of the Dunblane massacre.

The 6.35mm cartridges were made by Czech firm Sellier & Bellot and were fired from an unusual 1920s German Haenel-Suhl Schmeisser handgun found in a drain near the murder scene.

Sex offenders will be named & shamed on web

...as the title reads .. and let's have some more naming & shaming of criminals from all walks of life too !

Scotland on Sunday reports :

Sex criminals named and shamed

EDDIE BARNES POLITICAL EDITOR

SEX offenders who go on the run in Scotland will be named and shamed on the internet in a bid to stop them striking again.

Scottish police have from today been given permission to publish photographs and details of missing sex offenders on a dedicated web page which can be accessed by the public.

Legal chiefs north of the Border have long resisted the move for fear of prejudicing trials and vigilante justice. But they have backed down amid growing concern that communities are needlessly exposed to risk from on-the-run sex criminals.

The move will apply to people on the sex offenders' register who breach the terms of registration, typically by leaving their known address without telling police. To have their photograph put on the website, they will also have to be judged a danger to the public.

The system has operated south of the Border for more than a year and is being implemented in Scotland after ministers and the Crown Office reached an agreement.

In England, the use of online photographs has resulted in nine offenders - on the run for a total of 20 years - being caught and returned to jail.

Earlier this year, sex offender William Graham, 33, absconded from Hartwoodhill hospital, Lanarkshire. Although he has since been caught, the new system would allow for his photograph and details to be made immediately available online. Dozens of offenders disappear every year in Scotland and until today the law has usually protected their identities.

Justice Secretary Kenny MacAskill said: "We are sending a clear message to every sex offender in the land, if they are given the right to be released they must take responsibility for their own actions. If they fail to comply, then they can expect the response to be swift, tough and increasingly visible."

Lord Advocate Elish Angiolini added: "Decisions to release photographs about sex offenders can never be taken lightly and this can only be done when it is clear that there is an over-riding public safety requirement."

The Child Exploitation and Online Protection Centre, which has run the dedicated website for a year, claims to have registered 72.6 million hits.

Chief Executive Jim Gamble said: "Offenders often use technology to target their victims. Well, we use technology to now target them and it works."

Assistant Chief Constable of Tayside Iain MacLeod added: "The Scottish Police Service has worked for an extensive period with the Scottish Government to arrange to have the potential to have photographs published."

Man who received drugs in prison from solicitor Angela Baillie also jailed

In the latest twist of events relating to the arrest, conviction, imprisonment & early release of solicitor Angela Baillie aka "Ally McDeal", who smuggled drugs into Barlinnie Prison for her client, the client himself has been jailed for accepting the drugs.

Madness to risk a legal career for committing a crime - but with standards so low in the Scots legal profession just now, its an increasing habit ...

BBC News reports :

Man jailed for lawyer drug deal

A man who collected drugs from his lawyer while on remand in Glasgow's Barlinnie Prison has been jailed for three years and nine months.

Peter McConnville, 29, admitted accepting a cigarette packet stuffed with heroin and diazepam from solicitor Angela Baillie in October 2005.

She was jailed for 32 months last year after admitting supplying the drugs.

Glasgow Sheriff Court heard that police knew about the deal and searched McConnville after he met with Baillie.

The 29-year-old was on remand at the time charged with shooting a Glasgow barman. He was subsequently cleared.

The court heard that McConnville and his lawyer had a consultation planned for 23 October 2005 at Barlinnie.

Cigarette packet

Alasdair Youngson, prosecuting, said police had learned that a drugs handover would take place during this visit.

McConnville, of the city's Knightswood, was searched prior to the meeting found to have nothing on him.

The pair met for 30 minutes before McConnville was again searched.

Fiscal Mr Youngson told the court: "He was told to remove his clothing and, as he removed his denims, a cigarette packet fell to the floor."

The packet was later examined and found to have been opened then taped shut.

Angela Baillie was jailed for 32 months for supplying the drugs

It contained 158 diazepam pills valued at £150. There was also a small bag inside holding £1,480 worth of heroin.

McConnville had been due to attend a High Court hearing in connection with this case last August.

He failed to show and it is believed he fled to Spain before finally being caught by police and returned to Scotland.

McConnville's lawyer said he had got involved with the drug deal due to "threats" made upon him by a "feared" prisoner in Barlinnie.

Des Finnieston, defending, said: "He succumbed to the pressures put on him - this was a real concern.

"An agreement was reached between him and the other party (Baillie) and arrangements were made to bring drugs into the jail."

Sheriff Martin Jones QC told McConnville that custody was the only appropriate sentence for such offences.

Saturday, November 24, 2007

New criminal judges proposed for Scottish courts to remedy delays

The courts have never been busier, and with not enough judges to cope, a new lawyer of criminal judges is being proposed to alleviate the problems

The Herald reports :

New layer of judges proposed under shake-up of Scottish system

ALAN MACDERMID

A series of suggestions for a shake-up of the Scottish courts system - which could include a new layer of criminal judges, like circuit judges in England and Wales - were published yesterday.

The report follows concern that appeal cases in the Court of Session are being held up because of the growth in criminal cases heard by the same judges in the high court.

A reallocation of civil litigation to the sheriff courts, leaving the Court of Session free to deal with appeals and cases involving important points of law, is also a possibility considered by the Scottish Civil Courts Review, set up in February.

Under the chairmanship of the Lord Justice Clerk, Lord Gill, it has produced a wide-ranging consultation paper setting out the principal issues that have already been raised with the review, and the options for reform.

It deals with access to justice, the cost and funding of litigation as well as the structure of the civil courts and the procedures adopted by the courts.

The report points out in recent years that the number of sitting days devoted to civil business in the Court of Session has remained static, while the number of days allocated to criminal business has risen by 45% in 11 years - with the number of High Court trials up from 259 in 2004-05 to 455 in 2006-07.

"The average jury trial now takes longer to complete," it says. "In addition, there is a greater incidence of lengthy cases, driven in part by wider prosecution of white collar and organised crime, a trend which seems set to increase."

It adds: "The opinion has been expressed that many of the cases now being indicted at High Court level could be dealt with by sheriff courts.

"Examples have been given of occasions when the pressure of criminal business has meant there have been no judges available to deal with civil cases which have been set down to be heard on a particular day.

"Even among serious cases that are appropriate for prosecution in the High Court, there are many cases which raise no particular problems of fact or law."

Temporary judges recruited from the ranks of the sheriffs and senior bar dealt with the work of the High Court competently and on the whole satisfactorily, the study found.

Instead of continually increasing the number of High Court judges to meet the increasing workload of that court, a preferable solution might be to create mid-level judges, corresponding to circuit judges in England and Wales who routinely try serious crimes.

High Court judges could then deal only with trials of special importance, whether by reason of their facts or the complexity of the legal questions that they raised, and in this way be available for a greater amount of civil work and for some of the work of the appeal court.

Also among the points raised were whether there should be a greater degree of specialisation within the civil courts, while the Court of Session and the sheriff court should retain their existing jurisdictions.

The need for self-help services for people who do not have a lawyer was suggested and the report asked whether there should be a unitary all-Scotland sheriff court instead of the existing sheriffdoms.

It was also asked whether the use of mediation or other methods of dispute resolution should be extended. The deadline for responses is March 31.

MSPs scoop £1.1m payoffs in "resettlement" grants after quitting Parliament

Members of the Scottish Parliament never had it so good, even when they are no longer in the Scottish Parliament !

The Edinburgh News reports :

£1.1m pay-off bill for ex-MSPs

IAN SWANSON SCOTTISH POLITICAL EDITOR

POLITICIANS who quit or lost their seats at this year's Holyrood elections have received more than £1.1 million in pay offs from the taxpayer.

The "resettlement" grants, which had to be found from Scottish Parliament contingency funds, are intended to help ease former MSPs back into everyday life.

Each of the 42 members who stood down or were defeated in May were entitled to £26,545 - half their final annual salary - under the golden handshake deal. The resettlement grants are based on a similar arrangement for retiring or defeated MPs at Westminster, where the payments are described as for "adjusting to non-parliamentary life".

But critics today questioned the size of the pay-outs. Graham Birse, deputy chief executive of Edinburgh Chamber of Commerce, said: "Democracy is an expensive business sometimes, but the alternatives are far more unpleasant.

"However, the packages available to MSPs are much more attractive than those available in the private sector."

He said politicians who put their careers on hold to go into parliament were entitled to some recompense when they returned to the mainstream.

But he said large sums were being paid out to politicians, some of whom had not served for very long. "The packages available here are extremely generous in relation to the amount of time they have served," he said.

Former independent MSP Brian Monteith, who stood down at the election, acknowledged voters might not be impressed with the pay-out to politicians.

But he said: "Many people probably think politicians are not worth being paid at all.

"Full-time politicians should expect to receive similar remuneration to top business people, given the onerous hours and the serious responsibilities on their shoulders - and that goes for a severance package too."

Colin Fox, who lost his seat as a Scottish Socialist MSP for Lothians, said the £26,000 resettlement grant could be seen like a redundancy payment but was more than the average wage for a year.

He said: "The four SSP former MSPs gave half our resettlement to the party in line with taking half the wages while we were there."

Former MSPs can also claim up to £20,233 each in "winding up" allowance to cover the cost of closing their offices and paying off staff.

Fraser appeal hears Policewoman witness was 'mistaken' over evidence

A Policewoman was "mistaken" over evidence, rather than being a deliberate liar, according to suggestions made in the Nat Fraser appeal currently underway.

The Scotsman reports :

PC witness 'mistaken' over rings evidence in Nat Fraser appeal

JOHN ROBERTSON LAW CORRESPONDENT

A CRUCIAL new witness in the Nat Fraser murder appeal was not deliberately lying but was mistaken in her evidence, it was suggested yesterday.

The witness, a policewoman, had waited eight years before providing information which Fraser, 48, is hoping will help establish that he suffered a miscarriage of justice in being convicted of instigating the murder of his estranged wife, Arlene, almost a decade ago.

However, the prosecution submitted to the Court of Criminal Appeal that PC Julie Clark may hold a "genuine but erroneous" belief that she saw rings in Mrs Fraser's home in New Elgin, Moray, on the night she was reported missing in April 1998.

The engagement, wedding and eternity rings featured prominently at Fraser's trial in 2003. The Crown contended that they had vanished with Mrs Fraser but then appeared in the bathroom of the house several days later when Fraser visited his children. The allegation was that he had had access to the body.

PC Clark gave a statement last year that she had seen rings in the bathroom while at the house during the initial missing person inquiry.

Yesterday, John Beckett, QC, for the Crown, pointed out to the appeal judges that PC Clark appeared not to have made any note of her "sighting". He said she had been responsible for completing a form relating to a police search of the house, and it had recorded that the bathroom had been searched for eight minutes and nothing had been recovered.

"That was an opportunity for PC Clark to have said, 'Hang on, there were rings there, I saw them last night'. There is an absence of any such observation," said Mr Beckett.

He recalled that after six months, in October 1998, the inquiry into Mrs Fraser's disappearance had been relaunched and a briefing was held. PC Clark had attended.

"She was vocal at the briefing, but she had no recollection of [the rings] when the point was brought up. It makes no sense that there is a memory of them in 2006 but no recollection of them in October 1998.

"A possible explanation is that she did not, in fact, see the items in that place at that time, and recounted an erroneous recollection years later. There is nothing to suggest she was deliberately lying. This could be an honest mistake... a genuinely held belief."

While PC Clark made no statement about seeing the rings until last year, a former colleague, Neil Lynch, now retired, had given a pre-trial statement in 2002. He mentioned seeing rings, but the information was never followed up or revealed to the prosecutor at the trial, nor was it disclosed to the defence.

Mr Beckett told the appeal court that, as with PC Clark, there was no reason to believe Mr Lynch had lied.

"If the court assumes the evidence of Lynch to be entirely correct, in my submission we have travelled no distance to establishing the innocence of the appellant. My overarching submission is that there is no miscarriage of justice on any analysis," he added.

The hearing will resume next week.

Prosecution's case hung on Arlene's missing jewellery

THE appeal has centred on a crucial plank of the prosecution's case against Nat Fraser at his murder trial in 2003.

Fraser had an unbreakable alibi for the morning of 28 April, 1998, when his estranged wife, Arlene, 33, vanished after waving off her two children to school from the family home in New Elgin, Moray.

The allegation was that he had arranged her death and then disposed of the body by burning it and scattering the remains.

The evidence was that Mrs Fraser's family had searched but had not found her engagement, wedding and eternity rings. They turned up several days later, when Fraser was at the house visiting his children.

According to the Crown, the re-appearance of the rings showed Fraser had had access to the body and this was said to be the cornerstone of the case.

Fraser was convicted of instigating his wife's murder - paying a hit-man to strangle her - and was ordered to serve at least 25 years of a life term.

Last year, he was freed on bail pending an appeal after it emerged that a policeman had given a pre-trial statement of seeing rings in the house on the night Mrs Fraser was reported missing. The statement had been left on the desk of the procurator-fiscal in Elgin, who claimed never to have seen it, and there was no follow-up on the information about the rings, nor was it disclosed to the defence. An inquiry was set up and a second officer then stated that she, too, had seen rings in the house.

Peter Gray, QC, for Fraser, told the appeal court he was not suggesting there had been a cover-up, but "an extraordinary degree of incompetence".

John Beckett, QC, for the Crown, apologised to the court for "a deeply regrettable state of affairs" and said action might be taken against individuals after the appeal had been concluded.

However, he maintained that, even without the rings evidence, there had been a powerful and compelling circumstantial case against Fraser, and that the accused had not suffered any miscarriage of justice in being convicted of the murder.

Submissions in the appeal are expected to end next week.

Friday, November 23, 2007

Legal Aid in Scotland heads for the rocks as lawyers worry for jobs

Justice Secretary Kenny MacAskill recently gave a 1.8m rise in criminal legal aid .. but more is required, particularly rises in civil legal aid, to bridge the gap and maintain access to justice for all.

Could this be another building disappointment & failure for the SNP ?

Small town and single practitioners are being hit by a lack of legal aid, causing worry among them .. but it seems the Law Society of Scotland have left the small time solicitors out of their grand plans to stuff the coffers of the rich law firms with criminal legal aid ...

All the fault of the Law Society again folks - isn't it time we changed those who run the profession's governing body and give the membership a say this time ?

The Scotsman reports :

Job fear for hundreds as legal aid system heads for meltdown

MICHAEL HOWIE

HUNDREDS of criminal-law firms in Scotland face financial ruin due to a massive shake-up in the way solicitors are paid and crimes are prosecuted, it was claimed last night.

The Scotsman can reveal the country's leading court solicitors believe radical proposals to overhaul legal-aid fees will drive the profession to breaking point.

They claim the changes will force thousands of solicitors and support staff out of their jobs.

Lawyers also warn the squeeze will lead to more miscarriages of justice as they will be forced to spend less time preparing individual cases.

The Scottish Government proposals, announced last month and due to be introduced in the spring, have dismayed the legal establishment. One lawyer suggested the profession is now "in the death throes".

The Scottish Legal Aid Board believes the overhaul will result in some law firms losing as much as a quarter of their income - a scenario that solicitors say will drive hundreds out of business.

Small city-based firms operated by a single lawyer will be worst-hit and stand to lose between 20 and 26 per cent of their revenue.

Many bigger firms, whose business comes from representing people accused of crimes in court, are also facing hard times as a result of the moves.

However, a relatively small number of lawyers are expected to benefit financially.

Despite the warnings, opposition politicians last night welcomed the move to cut Scotland's £150 million annual legal-aid bill. A complex raft of proposed changes to legal-aid fees - the biggest in over a decade - are intended to reflect a drive to speed up the justice system.

Ministers are seeking quicker guilty pleas and the resolution of thousands of "low-level" cases, such as vandalism and breach of the peace, through fiscal fines and fixed-penalty notices, rather than ending up in court.

But solicitors claim the reforms will have a devastating impact, causing a "brain drain" that will seriously damage the quality and standing of Scotland's legal profession.

Lawyers working in district and sheriff courts say that fees they are paid for most cases will drop from £500 to £300.

John Scott, whose Edinburgh-based firm faces losing £63,000 a year as a result of the changes, said: "These proposals, if they are followed through, will put thousands of lawyers and legal staff out of work. Fewer lawyers will have to carry out more work and that is likely to result in more miscarriages of justice."

He said access to justice will also be affected by further proposed changes to the system, which he said will require thousands of people accused of crimes, including assault and housebreaking, to pay for their own legal representation.

Officials estimate the changes will slash approximately 7 per cent - or £4.5 million - from the bill for legal aid in district and sheriff-court cases.

But Mr Scott, president of the Edinburgh Bar Association - which represents more than 100 solicitors - said: "We have hit crisis point. These cuts will not just get rid of the flesh. They will strike at the bone. I cannot think of anything more damaging, short of scrapping the legal-aid system altogether.

"This will reduce the profession to a level beneath which it cannot properly operate. It will mean thousands of people will not be able to afford to be defended."

Another solicitor, Patrick McCann, who runs his own firm in Limekilns, Fife, said the criminal legal profession was "in the death throes".

He added: "I think privately instructed criminal defence will be finished in five years."

Oliver Adair, convener of the Law Society of Scotland's legal-aid solicitors committee, said: "The society is aware of the dissatisfaction among criminal legal-aid practitioners about the proposed reforms. We believe they will not work - for practitioners or the public - as they will restrict access to justice."

But Bill Aitken, the Tory justice spokesman, said: "Lawyers need to remember we are dealing with taxpayers' money. This is not a gravy train."

Paul Martin, for Scottish Labour, added: "We need value for money, but we also need a high-quality service."

A Scottish Government spokesman said: "This is a genuine consultation - we will consider carefully what the profession and others say before finalising our proposals. The system will be more efficient and we will ensure that there is confidence in the system for all users, and value for money."

He said only about 0.5 per cent of accused people would be disqualified from getting legal aid.

'If this goes through I'll have to shut'

DARK clouds are hovering above Andrew Gilbertson's office in Dalkeith main street.

"If these changes go through, I'll have to shut up shop. There's no doubt about it," says the experienced court solicitor. "I'm the only defence agent in town. But they won't be able to find me here much longer, by the looks of things."

The government's proposed changes, he says, will slash the amount he is paid for representing the bulk of his clients from £500 to £300.

"My income will fall by 40 per cent. That's completely unsustainable. The office will have to close and I'll have to make my two part-time secretaries redundant."

Last year, his firm was paid £155,000 from the legal-aid board. But he says his outlays, including a mortgage for the office and staff salaries, leave him "constantly in overdraft".

"I'll try to keep going from home, with just a mobile and a laptop," added Mr Gilbertson.

Q & A: WHAT'S PLANNED AND WHAT IT MEANS

What is legal aid?

Public money provided for people accused of crime, or those who seek recourse in the civil courts, to cover their legal costs. More than £150 million was spent on legal aid last year.

What are the proposed legal-aid reforms?

Cases that are quickly concluded with a guilty plea will attract a higher fee for solicitors of either £200 for district-court cases or £300 for more serious sheriff-court cases. The current fee is £70. Lawyers also receive £500 for a case that starts with a not- guilty plea, but does not go trial. These are expected to dry up, resulting in a net loss of income.

What will the changes mean for lawyers?

Some are expected to gain, but the vast majority will lose out. In the worst-case scenario, lawyers who work on their own will lose 26 per cent of their income. They warn that thousands of jobs, including solicitors and staff, will be shed.

Should we believe these claims?

It is unlikely that thousands of jobs will go, although many lawyers are now seriously worried about the future.

Why does this matter to the public?

Lawyers say they will have less time to spend on individual cases, raising the possibility that miscarriages of justice will occur. There will also be a "brain drain", they warn, with talented young lawyers moving into more lucrative jobs.

What other changes are proposed?

The government wants to change the eligibility rules for legal aid, so those with savings of as little as just over £1,500 will have to pay for a lawyer. Currently, the threshold is £6,879. Lawyers say thousands of people will be affected.

How many defence lawyers are there in Scotland?

There are about 600 firms, employing thousands of staff, and 1,500 solicitors, registered to carry out criminal legal-aid work.

Why do ministers want to introduce the changes?

To provide better value for money to the taxpayer and make the criminal-justice system more efficient. Officials estimate around £4.5 million will be saved from an annual summary-court legal-aid bill of about £65million

When will the changes be introduced?

The government says it intends to introduce reforms next spring, but insists it will listen to the concerns of lawyers.

Thursday, November 22, 2007

World's End trial collapse sparks awaited review of Scots Law

Justice Secretary Kenny MacAskill and the Crown Office seem to be of the opinion it's the law that needs reforming, rather than the culture of failure at the Crown Office which caused the likes of the World's End trial collapse ...

We have heard it all before ...

The Herald reports :

Review of Scottish law announced after World's End murder trial

A wide-ranging study of possible reforms to Scottish law is to be carried out by experts after the collapse of the World's End murder trial.

The group will look at the law relating to judicial rulings that can bring a case to an end without a jury verdict - as happened in the World's End case.

The study, announced by justice secretary Kenny MacAskill, will also consider rights of appeal against such rulings.

The probeby the Scottish Law Commission will also look at the law on "double jeopardy" which in Scotland stops someone being tried twice for the same crime.

It will also study the law on admissibility of evidence of "bad character" or previous convictions.

And it will study the "Moorov" doctrine - the Scottish legal rule that in some circumstances where a person is accused of several offences, evidence on one offence can be treated as corroboration of another.

Many of these issues were raised in the public uproar which followed the collapse of the World's End trial earlier this year.

The trial of Angus Sinclair folded after the end of the prosecution case when the judge, Lord Clarke, ruled there was no case to answer.

Sinclair had been accused of the murders of teenagers Christine Eadie and Helen Scott 30 years ago.

The subsequent controversy saw a public row over judicial independence between Scotland's top judge, Lord Hamilton, and Lord Advocate Elish Angiolini, who said there had been a strong enough case to convict Sinclair.

The Scottish Law Commission has been asked to report to the Scottish Government on judicial rulings and appeal rights by next summer, on double jeopardy "as early as practicable" in 2009, and the other issues later.

The minister said he hoped to turn the commission's eventual recommendations into law "at an early opportunity".

Mr MacAskill said: "Fairness for both the victim and the accused is at the heart of any good justice system.

"But so too is public confidence.

"Questions around Crown appeal rights, double jeopardy and previous convictions, though not new, were raised again after the trial for the World's End murders in September.

"Good government is about listening to those public and political concerns with a cool head."

The Scottish Government had already made clear it would reflect seriously on the balance between the rights of the accused and the ability of the Crown to prosecute in the public interest, the minister went on.

"That's why I believe we need the expertise of the Scottish Law Commission, with their strong track record of independent analysis and reform of Scots Law, to take on this work."

He continued: "It is no threat to our justice system to reappraise historic principles such as double jeopardy.

"It is to ensure that our law remains fit for purpose in the modern age."

Fiscals may strike in January over inequality in salaries compared to GLSS lawyers

Procurators Fiscal want their pay grades made equivalent to that of lawyers working for the Scottish Government in the GLSS ...

whoops - they may have discovered the significant differences in pay & conditions from Scottish Law Reporter ... so, if there's no raise, the Fiscals intend to go on strike in January ...

The Herald reports :

Prosecutors to vote on strike in January over pay

LUCY ADAMS, Chief Reporter

Scotland's prosecutors are considering taking strike action on January 3, a move which would bring courts to a standstill after the busy festive holidays.

Procurators-fiscal believe the Crown Office has reneged on a promise to look at making their pay grades equal to that of Scottish Government lawyers. Following a unanimous ballot in favour of strike action last February, Crown Office officials agreed to review the pay gradings and take the case to ministers.

However, after months of negotiations, from which the fiscals' representatives were recently excluded, a report has been drafted recommending pay scales should remain unequal.

Fiscals are said to be furious at what they see as a betrayal of the terms of the original agreement this year and their requests for urgent meetings with Elish Angiolini, the Lord Advocate, have been refused.

Yesterday, the First Division Association (FDA), the union which represents the fiscals, gave the Crown Office written notice of their plans to ballot for industrial action.

The ballot will take place next week and is expected to receive more than the required level of support. A full day of strike action will then be prepared for January 3, when the custody courts are usually at their busiest.

"It seems they agreed to this review to get through election time and now they have breached our good faith," said Jim Cauldwell, the Scottish officer for the FDA. "It seems they never had any intention of creating equal pay scales with Scottish Government lawyers."

The move follows an independent report in 2002 which highlighted a pay gap between prosecutors and other lawyers and suggested executive lawyers and fiscals were doing equivalent work. The report commissioned by the Crown Office recommended procurators-fiscal should be paid the same as lawyers of equivalent seniority in the executive. Current figures show an procurators-fiscal depute on a basic grade earns £31,365 compared with £36,203 for an equivalent executive lawyer.

The fiscals' union, which represents more than 80% of Scotland's 400 fiscals, is now recommending that members vote for strike action.

Mention the Law Society of Scotland and solicitors put a bag over their head

As the profession becomes hesitant over the joys of having a dual role self regulator in the Law Society of Scotland, which has failed both solicitors & clients alike, opinions turn to what should come next in a new world of legal service reforms ...

Donald Reid hits the nail on the head for once, and tells us what we know - the Law Society of Scotland needs much more than a facelift & deposing of its 'wanting' leadership ...

The Scotsman reports :

Apathy is forced on our busy solicitors

DONALD REID

MENTION the Law Society of Scotland to an ordinary middle-aged solicitor at the coalface and he will usually make a wry grimace and remark that he doesn't think it does much for him. This is not fair, but it is understandable.

More than any other type of lawyer, it is the ordinary solicitor, practising in the traditional areas of house conveyancing and personal business, who has seen his practice challenged and eroded in recent years by stifling regulation and crippling competition.

He feels betrayed and marginalised and is angry at the Law Society who, he feels, should somehow have protected him against these reverses.

He knows he is not being wholly rational in this reaction but he can't help it.

The latest threat, as he would see it, to his attempts to earn a modest crust, is the spectre of the ABS. This is the alternative business structure, whereby non-lawyer companies might become owners of or shareholders in a legal firm. "Tesco law", as it is colloquially known.

Such a solicitor hears the great and the good and the successful within the profession exclaiming about the marvellous opportunities such innovations will bring to gain new business and "increase market share".

He groans to himself. He is not a businessman. He grew up with the naïve idea that professional service was to be available to clients who consulted him, but not to go after them like a salesman to sell them his "products".

Smooth young managing partners of large firms stridently demand that Scotland must allow ABS as otherwise they will not be able to compete "on a level playing field" with the London firms.

Our ordinary solicitor can't contain his indifference to the plight of the big firms. They used to be the same as him, just bigger. But now they are as irrelevant to his practice as Patagonia - and even more remote. Crucially, though, they have the clout he lacks.

They will get their way. He hears confident talk about healthy competition, and winners and losers. His heart sinks: he knows he's a loser.

He has served his clients for a lifetime. Many of them rely on him implicitly. He is competent, approachable and affordable. But he is a loser.

What will he do about ABS? The answer is, almost certainly, nothing. He reads his Journal, and notes reports of the debate on ABS held at the National Gallery recently. But he is too hard-pressed dealing with his daily work to inform himself to the level he feels necessary to participate in the debate himself.

He notes the warnings given about the risks of "sleepwalking into a minefield", as one participant put it. He has the feeling that ABS will be another bad thing, but he has no space in his week to work out why.

He knows the Law Society deplores the apathy of its members, but whenever he tries to put aside time to compose a letter or attend a meeting, something comes up: his phone rings, or a transactional crisis blows up, or a key employee resigns.

It's all very well for the society to ask for participation and debate and ownership of the future, but is he not paying his rapidly spiralling annual subscription to his professional body so that they will do all these things for him? His apathy is forced upon him.

A management specialist he once consulted told him he should be "proactive", and in control of his circumstances. Strange advice, he reflects, to give a man who can't even control his mouse.