Government Rural Affairs civil servant accused in animal abuse case in the Scottish Borders

A Scottish rural affairs civil servant is being brought to court under the Animal Health & Welfare (Scotland) Act 2006 after being accused of starving farm animals to death.

The civil servant appears to be claiming his human rights were breached because investigators did not obtain proper search warrants to enter his premises and discover the nature of the problem ...

The incident occurred in the Scottish Borders, seemingly a haven of such cases ...

The Herald reports :

Civil servant in court over 50 dead lambs

ROBERT FAIRBURN February 29 2008

A Scottish rural affairs civil servant has been accused of starving to death more than 50 lambs on his farm.

Andrew Struthers, 48, is one of the first people to be brought to court under the Animal Health and Welfare (Scotland) Act 2006 which his own government department drew up.

However, he is claiming his human rights were breached when animal welfare investigators raided his fields in January 27, claiming they did not obtain search warrants.

After a lengthy legal debate, a sheriff is now considering whether their evidence is admissible for a trial against Mr Struthers of Kettleshill Farm, West Linton, Peeblesshire.

He is accused of two charges of causing unnecessary suffering by failing to supply food for the lambs, and failing to dispose of their carcasses between October 2006 and January 2007.

Peebles Sheriff Court was told how Chief Inspector Paul Anderson and Inspector Ross Wilkie of the Scottish Society for the Prevention of Cruelty to Animals (SSPCA) observed six fields near Struthers's home for a couple of days before entering Deanfoot Farm.

Defence lawyer Chris Dickson told the court: "On these days they hadn't taken any immediate action or taken steps to contact Mr Struthers. All they did was make arrangements for a search the following day.

"If they were of the view that animals were in distress they would have acted much quicker."

It is alleged that the officers discovered the remains of 52 lambs scattered around the six fields at Deanfoot Farm.

A further three had to be destroyed by the divisional veterinary officer.

But during their visit to the farm they also gathered evidence.

Mr Dickson added: "The investigating officers took 64 photographs and they also took three lamb carcasses for diagnostics. Their first actions were to take photographs of ring feeders and it wasn't until later in their search that they came across animals in distress."

Almost the entire prosecution case against Mr Struthers relies on the evidence gathered by the SSPCA officers. Despite a failure to gain warrants, the Crown argues the officers were within their rights.

Procurator-fiscal depute Alasdair Fay said: "We are talking about new legislation here and its interpretation by agencies working beneath it. The officers became aware of sheep carcasses and they were of the opinion that the situation was becoming worse.

"Faced with animals which were already dead and other animals suffering, as well as Mr Struthers not being available, it would be excusable if the statute wasn't followed - but I believe the statute was followed."

Sheriff John Horsburgh will decide if the evidence collected by the SSPCA at Deanfoot Farm will be admissible. The debate was adjourned until March 19 for his decision.

Mr Struthers worked as an officer in the agricultural and land services division for the Scottish Environment and Rural Affairs Department (SERAD) which drew up the new legislation that he is now being prosecuted under.

A Scottish Government spokeswoman declined to comment on the case.

Scots Judge halts murder trial as new jury demanded

One of the more unusual moves in the Scottish Courts system recently saw Lord Hardie halting a murder trial in dramatic fashion ...

The Evening Times reports :

Shock as Lyons trial is halted

THE trial of two men accused of shooting a man dead and injuring two others in a Glasgow garage was dramatically halted today.

When jurors took their places at the High Court in Glasgow for the third day of evidence they were told by judge Lord Hardie a problem had arisen.

He said: "A matter has been brought to my attention this morning which will necessitate my deserting the trial for the time being and to start afresh tomorrow.

"I can't go into details about the situation other than to say it is nothing to do with the two accused."

Lord Hardie then deserted the trial temporarily to allow a fresh trial to start tomorrow when new jurors will be picked.

On trial are James McDonald, 34, and Raymond Anderson, 46.

They deny murdering Michael Lyons, 21, by repeatedly shooting him at his uncle's garage, Applerow Motors in Balmore Road, Lambhill, Glasgow, on December 6, 2006.

McDonald and Anderson also deny attempting to murder Pickett and his friend, Steven Lyons, 26, during the same incident.

They also face a number of firearm charges, including two which allege that between November 2004 and January 11, 2007, they reset and illegally possessed three machine guns, a bipod, telescopic sight, quantities of ammunition and a number of flares, all of which had been stolen

The Daily Record also reports :

Garage Murder Trial Abandoned

Feb 27 2008

THE trial of two men accused of murder and attempted murder was abandoned today.

Lord Hardie did not specify why he was stopping the trial at the High Court in Glasgow in its third day but said it was nothing to do with the two accused.

James McDonald, 34, and Raymond Anderson, 46, were charged with murdering Michael Lyons, 21, which they denied.

They also denied attempting to murder Steven Lyons, 27 and Robert Pickett, 42.

Judge Lord Hardie today said he was deserting the trial temporarily - using the legal term "pro loco et tempore".

He discharged the jury and said that the trial would start afresh tomorrow with a new jury.

He said: "A matter has come to my attention.

"I cannot go into detail as to what the situation is other than it is nothing to do with the two accused."

The murder and attempted murder were alleged to have happened at Applerow Motors on Balmore Road in Glasgow on December 6, 2006.

McDonald and Anderson also faced further charges which they denied, including a number of firearms charges.

These included that between November 24, 2004 and January 11, 2007, they allegedly reset three machine guns, a bipod, a telescopic site, quantities of ammunition and a number of flares, which had been stolen, and illegally possessed three machine guns.

Both had lodged special defence of incrimination.

Abuse victims allowed to sue after Court of Session time bar ruling

A recent ruling in the Court of Session by Lord McEwan on the status of time bar with regard to sexual abuse cases, could help many more victims bring civil actions for child abuse.

Perhaps the court could apply this ruling to a few more issues, and do away with time bar on many appalling cases ...

The Herald reports :

Victims are given chance to sue over abuse

DAVID LEASK February 26 2008

A Scottish judge has lifted a time bar in a landmark case that could help unblock thousands of potential civil actions for childhood abuse.

Lord McEwan, in a Court of Session decision, has allowed a 43-year-old Glasgow man to sue the city's council over sexual abuse he claims to have endured at the hands of a carer in a children's home.

The move, understood to be one of the first of its kind in Scottish legal history, comes after Law Lords earlier this year struck down a time bar preventing a victim of rapist Iorworth Hoare from suing him after he won £7m on the National Lottery.

Council lawyers deny the allegations made by the alleged Glasgow victim but also said they believed his claims were time-barred.

Lord McEwan said his case should go to a full hearing. The judge said that, although the alleged abuse dated from the 1970s, the man began to suffer psychological effects only decades later and was therefore still entitled to claim.

Lord McEwan said: "Whatever is said about the abuse, it is clear that no claim is being made for the assaults which, given his age at the time, are serious enough.

"The only issue is the psychiatric damaged suffered from about June 2001."

The judge cited the House of Lords decision in the Hoare case. "It is, of course, based on slightly different legislation but appears to encourage more cases being allowed to proceed under the discretionary provisions," he said.

The Glasgow man's lawyer, Cameron Fyfe, is a litigator at Ross Harper who represents nearly 1000 victims of childhood abuse. Mr Fyfe said: "This is very important for us because it is the first time we have succeeded in arguing that the time bar should not apply in historic abuse cases."

Mr Fyfe's client said he was abused in the 1970s at the now-shut Eversley home in Pollokshields, Glasgow. His alleged abuser is thought to have left the country. The alleged victim claims he was beaten for lying when he reported the abuse. Several members of Eversley staff have been investigated for alleged sex offences against children. One, John Marshall, was jailed for life in 2006 for sexually abusing 16 children.

The alleged victim said he had blocked out memories of his abuse for two decades. He was not a victim of John Marshall. A married father of five, he is claiming £25,000 after developing what his doctors say is post-traumatic stress disorder when allegations about Eversley surfaced in 2001.

Yesterday he said: "All I want is to see this man in court. I want to know how people can do things that are as twisted as that."

A Glasgow City Council spokesman said: "We are appealing against this decision and it would be inappropriate to comment."

and in another case, a woman at the centre of one of Scotlands most famous child abuse cases has won legal aid to sue, reports the Scotsman :

Woman wins legal aid to sue over child abuse scandal

By TANYA THOMPSON

A WOMAN at the centre of Scotland's most notorious child sex-abuse scandal has won her battle for legal aid to sue Orkney Islands Council for £100,000.

The landmark case will shine a spotlight on the Orkney scandal in the 1990s, when 17 children were snatched in dawn raids from their South Ronaldsay homes and taken into local- authority care.

It was alleged the children, aged between eight and 15, had been the victims of ritual abuse, and that there was a paedophile ring operating on the island.

The case is being brought by May Willsher, 25, who was eight when social workers removed her from the family home in November 1990. She claims her childhood was destroyed when she was needlessly put in care.

A sheriff later ruled the social workers' evidence was seriously flawed and the children were returned to their homes.

Ms Willsher, who now lives in England, said she had been the victim of a witch hunt by overzealous social workers who were determined to break up her family. She claims she was sexually abused while in foster care, and is seeking damages from Orkney and Shetland social work department.

"We kept telling them that we had not been abused, but they wouldn't listen," she said. "A massive injustice has been done to my family and they have to rectify that. I'm so pleased that we have got legal aid and I'm looking forward to having my day in court."

Sheriff David Kelbie, who threw out the original case, said the children had been subjected to cross-examinations designed to make them admit to being abused.

The scandal resulted in a judicial inquiry by Lord Clyde, who criticised social workers, police and childcare agencies.

Ms Willsher insists no family abuse took place and remains deeply critical of the interview techniques used. She says she was under intense pressure from social workers to give them the "evidence" they wanted.

Cameron Fyfe, her solicitor, said she had suffered severe emotional damage as a result of the six years she spent in care.

"This is an opportunity for all the facts to come out," Mr Fyfe said. "Ms Willsh
er will give evidence about the way social workers handled the case."

Orkney Islands Council declined to comment on the case yesterday.

Last month, Ms Willsher urged MSPs to ditch a law that places a three-year "time-bar" on damages claims involving young victims. Legal experts are now expecting the "time-bar" rule to be swept aside following a recent House of Lords judgment.

Under Scots law, personal- injuries claims can be lodged only within three years of the incident occurring. When the victims are children, claims must be made within three years of their 16th birthday.

But the hopes of abuse victims were revived by a law lords' ruling last month involving the "Lotto rapist" Iorworth Hoare. The House of Lords ruled that a woman whose life was ruined following an attempted rape by Hoare now has the right to pursue a damages claim against him, despite the time limit.

Scottish Parliament Standards Commissioner wants public denied right to make complaints against politicians

One thing you would never imagine hearing might be an Ombudsman or some regulatory body demanding that people not be allowed to make complaints against a service they are using .... but Jim Dyer, the Standards Commissioner for the Scottish Parliament is demanding just that.

Little wonder then that standards at the Scottish Parliament are so low ?

However, if you have a scandal or a complaint against an MSP revealing dirty dealings, then better to take it to the press than take it to Mr Dyer ... or you might manage both and make a fool out of his office too if he writes a glowing report on a bent politician exposed later in the media ....

The Scotsman reports :

Public 'should keep complaints about MSPs' service for elections'

MEMBERS of the public should not be able to complain about their MSPs if they are dissatisfied with the service they receive, Holyrood's standards watchdog claimed yesterday, writes Hamish Macdonell.

Jim Dyer, the Scottish Parliament's Standards Commissioner, said voters could get rid of MSPs at election time if they did not like them, but should not be able to table formal complaints just because they did not agree with the way an MSP dealt with a problem.

Dr Dyer said some people had unrealistic expectations about what their MSP could achieve for them and, because of Holyrood's list system, they could go to one of several other MSPs if they were dissatisfied with the service of an individual.

He said: "Anybody who has dealt with complaints in any kind of public service knows there is always a small group of people who have an unreal sense of injustice about something. They have a very great difficulty in stepping back from it.

"They might range from people saying, 'I wrote to my MSP a month ago and I haven't had a reply', to people saying, 'My MSP has dealt with this for four years and now they are saying there is nothing more I can do about it'."

Dr Dyer stressed that he felt it should be a matter of principle that the service provided by an MSP should not be judged by a standards commissioner or even the Presiding Officer, who handles such complaints.

He said: "The appropriate place is at the ballot box and possibly, because of
the list system used in the parliament, by party leaders."

Earlier, when he addressed Holyrood's standards committee, Dr Dyer said: "I'm not saying MSPs shouldn't be accessible and shouldn't conscientiously represent their constituents. "They are answerable to the electorate and I think the standards system should be reserved for issues of propriety and conduct, issues of transparency over financial interests and that sort of thing."

However, Graham Blount, of the Scottish Churches Parliamentary Office, told the committee : " I don't think you can say (to a constituent who has a complaint about an MSP] that the next time there is an election then you know what you can do. There should be an avenue for complaint."

The standards committee will produce a report on the complaints procedure against MSPs. A decision on the way forward will then be made by parliament.

Law Society hoax stirs up trouble between London & Westminster on anti terror legislation

Michael Clancy over at the Law Society has nothing better to do these days than cause media fights between Scotland & the res of the UK ... primarily because the Law Society have taken the huff over regulatory and legal services market reforms which are being proposed by the OFT and other organisations from south of the border ...

So, new mission of the Law Society is to take the opportunity to stir up trouble on any issue now just to get its wicked way. Oh how peaceful it would be if we were rid of them ...

The Scotsman reports :

New anti-terror laws 'a threat to independence of Scots legal system'

By Gerri Peev

THE independence of Scotland's legal system is under threat from proposed new anti-terrorism laws, it was claimed yesterday.

A clause in the latest counter-terrorism bill would give authorities the right to prosecute terror suspects in any part of the UK, regardless of where the offence was committed.

It could undermine the principles of the 300-year-old Treaty of Union, which enshrines Scotland's judicial independence, and encroach on the jurisdiction of the office of Lord Advocate, whose role is to decide on prosecutions in Scotland, experts warned.

Clause 27 of the Counter Terrorism Bill allows "proceedings for the offence may be taken at any place in the UK." If passed unamended, this clause, which does not have the legal consent of devolved administrations, will have constitutional ramifications.

Michael Clancy, director of law reform for the Law Society of Scotland, said: "This could undermine the primacy of the office of the Lord Advocate and the position of the High Court."

In the Commons last night, Alistair Carmichael, a LibDem MP, asked Jacqui Smith, the Home Secretary, for assurances that an agreement would be reached with the Lord Advocate first.

Ms Smith said in the case of linked attacks, such as the Glasgow and London bombings, these should be prosecuted in one place. The suspects in the attack on Glasgow Airport are to be tried in London.

This was authorised by the Lord Advocate, Elish Angiolini.

Police Chief continues to refuse inquiry to Wick Harbour death

A family's plight to find out what happened to their son who died at Wick Harbour over ten years ago, is still being hampered by Northern Constabulary's Chief Constable Ian Latimer, who is refusing to ask another Police Force to come in and investigate why Northern Constabulary failed in the investigation into the death of Kevin McLeod.

Surely the family deserve a proper inquiry and investigation into the death of their son - what man would stand against such a thing, and why has it so far been more of a priority to protect the interests of those who failed in the investigation rather than establish the truth of the incident ?

More to come on this story later in the week ...

The Sunday Mail reports :

Police Chief Blocks Probe Into Bungled Investigation

Feb 24 2008 By Marion Scott

A POLICE chief forced to apologise over a bungled death probe is refusing to ask another force to reopen the case.

The police complaints watchdog ordered Northern Constabulary Chief Constable Ian Latimer to say sorry in person to the parents of Kevin McLeod, 24, who drowned in Wick harbour 11 years ago.

Kevin suffered massive internal injuries and his family believe he was viciously beaten then dumped in the water.

But Latimer has refused calls to let another force investigate the murder claim.

In a letter to the family last week he wrote: "I see no opportunity or reasoning to support a more wide-ranging review."

But Kevin's uncle Allan McLeod said yesterday: "We are absolutely outraged at the arrogance of this man.

"If he has nothing to hide he'd welcome an outside force investigating the case. We won't rest until we get justice for Kevin."

Lawyers demand critics be silenced, vent bitterness against reforms

Having a chip on the shoulder is one thing, but having a chip on the shoulder the size of ice shelf is something else, as Donald Reid vents his frustration over critics of reforms to the legal profession.

Its good to have opinions of course, although Mr Reid ends his piece with a plea that victims of the legal profession itself should not be allowed to have any input into the debate on reforms to the legal profession itself.

Go tell the same to rape and abuse victims Mr Reid - ban them from having any say in reforms to the law too ...

The Scotsman reports :

Lawyers … and other reptiles

By Donald Reid

IDLING on The Scotsman website, I found some feedback on my last piece. I'm so flattered. It's all hate mail.

One correspondent, however, inadvertently gave me a good bit of advice, namely to read Jess Brallier's (now out-of-print) book, Lawyers and Other Reptiles. It's wonderful. I have always loved lawyer jokes and quotes, and this book is full of them. All I can say is the title is a bit hard on reptiles. What have they done to be cast as bedfellows with the lowest form of living scum?

My favourite quote so far is from the New Yorker: "I told you that you should've got yourself some legal advice before running to a lawyer."

It hints at several of the reasons why such expressed vitriol against our noble profession so proliferates. The first reason is money. Lawyers are expensive. If you "run" to a lawyer, the chances are you'll get a bill, and a hefty one at that. No-one likes bills, and an easy way to externalise this dislike is to blame the biller rather than the billed. In the excitement of their initial consultation, I find it hard to get clients to face the financial reality of their principled crusade, or their precarious venture. I have to tell them that the practice of the law, and the results obtainable, are not necessarily the same as the client's perception of justice.

Yes you should think twice before going to a lawyer. The fact that the money you pay him or her is substantially to cover the overhead he or she has to maintain in order to give you the service you seek is not an easy swallow. After all, you've seen his/her Merc.

But the quote is tellingly ironic as well. How can you get legal advice on whether to get legal advice? The fact is you can't really. Lawyers are no doubt expensive, time-consuming, anxiety-broking vultures (now we're insulting scavenging birds), but they are necessary. You can't avoid them. One of the ironic outcomes of the political drive to treat lawyers like bad children is the enormous length of the engagement letter that solicitors are now required to issue before any work is done. My tongue is not entirely in my cheek when I say that clients should perhaps get a different lawyer to check over the intended lawyer's terms and conditions. But who checks the terms and conditions of the checker?

I think the main reason for books such as Brallier's is this: lawyers don't deserve it, and the lawyer-bashers know this full well. The jokes are only funny because they are jokes. They express the angers and frustrations of litigants and clients precisely because their lawyers have not caused the problems, but rather have earned a living out of them. I can understand the epithet "parasite" but it can be used, with greater or lesser justification, upon all sectors of service industry. Yes, there are some very serious cases of bent, greedy and self-serving lawyers. But if these were the norm, rather than demonstrably the tiny minority, the whole joke culture would collapse. After all, no-one makes jokes or collects pithy sayings about perverts or genocidal maniacs, bankers or any other persons held to be truly reprehensible. Do they?

These critics will say that they are the victims of bad lawyers whose actions have damaged or ruined them beyond any joking. Perhaps they are right; certainly they are humourless; but they are a minority. They allege corruption at the very core of the profession and its governing body, which is surely beyond credibility. Is it right to allow them such influence in current demands for reform? There may be a few rotten apples. But the tree is still healthy.

I'm not joking.

Law should serve society - why doesn't it with all these lawyers ?

For those of you who wish to believe the law serves society, here is a piece from the Scotsman.

For most, the reality is that the law serves itself, and not the society it is written to serve ...

The Scotsman reports :

Public law must serve our society

Public law must serve our society

By GERRY MOYNIHAN QC

SCOTLAND has a vibrant public law, which is undergoing rapid change through a number of influences unique to our country – change to which practitioners can contribute if they recognise the full scope for innovation that these influences present.

The first stimulus was the introduction of the procedure of Judicial Review, but that was a case of the tail wagging the dog – a change in procedure influencing the development of substantive law.

Nonetheless, it has opened the courts to participation in the principled development of public law that arrived with the New Labour agenda of constitutional reform in the shape of the Scotland Act 1998, the Human Rights Act 1998 and the Freedom of Information (Scotland) Act 2002. Their interaction has given potential for a peculiarly Scots dimension to public law.

The essence of the constitutional change effected by the Scotland Act is that it brings more of a legal content to the control of legislative and executive power in Scotland.

Subject to the exception of EU Law, English law remains grounded in the principle of parliamentary (that is, Westminster) sovereignty. Scotland is different because the Scottish Parliament is not sovereign and it is expressly provided by the Scotland Act that an Act of the Scottish Parliament "is not law so far as any provision of the Act is outside the legislative competence of the parliament", which embraces any incompatibility with the European Convention on Human Rights (ECHR).

Courts can accordingly go beyond the political act of issuing an advisory opinion that legislation is incompatible with the convention (which is all that English courts can do relative to Westminster legislation), right up to the ultimate legal remedy of quashing legislation enacted by the Scottish Parliament.

In Scotland, this fundamental shift from the supremacy of legislation goes further and affects even the implementation of Westminster legislation. The Scottish Government does not have the power to infringe human rights, irrespective of whether the infringement is based on Holyrood or Westminster legislation.

These arrangements are not, however, undemocratic, because the rule of law does not mean rule by lawyers. In the litigation concerning the validity of the ban on fox-hunting, the courts did not ask whether the ban was a good or a bad idea.

Rather, the courts scrutinised whether, in enacting the ban, the Scottish Parliament took proper account of the human rights involved and struck a fair balance between the rights of the individuals who participate in hunting and the interests of the community. To date the ban has been upheld by the courts on the view that a fair balance was struck by the democratically elected legislature whose task it is to resolve controversial questions.

The need for a fair balance between the rights of the individual and the needs of the community runs through the ECHR and now lies at the heart of Scots public law.

There has been a suspicion in some quarters that Scottish judges went too far in deciding that a person charged with a criminal offence should be automatically acquitted in the event of an unreasonable delay in being brought to trial. That result seemed to give undue precedence to the rights of accused persons over the rights of victims of crime and the general public, who under the convention are entitled to the protection of an effective criminal justice system.

That imbalance has now been corrected by the Privy Council, which recently decided that an unreasonable delay does not necessarily require an acquittal.

The objective of an efficient public law is that public authorities should be regulated in their conduct of public affairs. Freedom of information makes a valuable contribution to the attainment of this objective because unless there is openness in decision-making it is all but impossible to scrutinise whether any public body has proper reasons for the decisions taken.

Freedom of information gives the public access to background papers shedding light on the factors that have in fact been taken into account and the weight attached to them, facilitating challenge to unlawful, arbitrary decisions.

We are at the start of a dynamic process that could lead to a distinctive public law built on a fusion of the new constitutional arrangements for Scotland, human rights and freedom of information.

The task we have is to formulate a constructive public law that is responsive to the key objective of producing a tolerant and broad-minded society which is respectful of the rights of the individual while attending to the needs of society as a whole.

• Gerry Moynihan QC is a member of Axiom Advocates. He gave last week's Third Thursday Lecture on public law.

Immigration law in Scotland gets a telling view

How much do you know about immigration law in Scotland ?

Here's a piece which could expand your insight ...

The Scotsman reports :

An insider's view on immigration law in Scotland

By CLAIRE SMITH

AT THE age of 25, when Damir Duheric had just completed a law degree at Sarajevo University, he took a decision that would change his life.

"There was a simple choice – to take a weapon and fight your friends or to grab your rucksack," Duheric says. "Obviously I took the second option."

Some 16 years later and Duheric has just taken up a post as a senior solicitor at Morton Fraser, in Edinburgh, where he will advise businesses and private clients on how to deal with changes in the immigration law.

Qualified in both Scots Law and the law of England and Wales – as well as in the legal system of the former Yugoslavia – Duheric's personal history gives him a unique insight into the immigration process, both from the point of view of the law and of the experience of the person involved. He may be an example of an immigration success story, but he faced his fair share of struggle, hardship and misunderstanding along the way.

"When I first came I never imagined I could practise law," he says. "When I first came, I couldn't speak a word of English. There were only certain jobs I could do and those jobs were quite limited."

The turning point came on a weekend trip to the Lake District, when Duheric was invited to join a group of young Bosnians. There met David Zucker, then a lawyer and now a judge. Duheric says: "We were having a barbecue and I asked him why all the land was divided up in such a way, with little walls. He said the division of land went back to the feudal system – and I said I understand that, I learned about it when I was studying the development of law at Sarajevo University."

Zucker encouraged the young Bosnian to resume his studies and, after learning English at a further education college in Leeds, he was able to enrol in a part-time postgraduate diploma in law at Leeds Metropolitan University. Although he had resumed his studies, Duheric still found it hard to believe he could end up practising law in the UK.

"Sometimes during that time I had that feeling that I don't know if I will be able to do this," he says. "I didn't know at the time if I was going to stay here or go back. At the time we had been granted political asylum, but the government didn't grant many people refugee status.

"You would be given 'exceptional leave to remain'. At that time you would be given three years and then another three years and then you could apply for settlement. So it's quite a long period to wait and that uncertainty in many ways stopped me taking anything seriously – like practising law here."

But following the 1995 Dayton Agreement – the peace accord which ended the war in Bosnia – Duheric and his fellow Bosnians were granted refugee status and he started to realise the idea of practising law in the UK was possible. After gaining a diploma at York University, he found at job as a trainee solicitor at a firm in Bradford which specialised in immigration issues.

When working as a bilingual case worker at a reception centre in North Berwick, he met his Scottish wife, Catriona. In 2002, the family decided to move north and Duheric came to work at the Scottish Refugee Council in Glasgow and began the process of converting his qualification so as to be able to practise in Scotland.

His new appointment at Morton Fraser shows just how far Duheric has come since he arrived in the UK with a rucksack and barely a word of English. For the law firm – which has offices in Edinburgh, Glasgow and London – the appointment of an immigration specialist comes as new laws are introduced, which will mean new responsibilities for businesses and institutions wishing to employ staff from outside the European Union. From Friday, a new points-based system, based on the Australian immigration system, will be gradually introduced, in what has been described as the biggest immigration shake-up for 40 years.

Under the new rules, employers who wish to employ workers from outside the European Economic Area will have to become licensed sponsors. Employers will have to prove that a job has been advertised and cannot be filled locally and will have to keep detailed records showing how a person fulfils the criteria laid down by the Border and Immigration Agency. Prospective migrants who have been issued a sponsorship certificate will then apply for a visa at a UK government office in their own country.

Duheric says: "For many employers this will mean they have to introduce a whole set of new procedures. There is a much greater onus on employers. Employers will have to go through all these new procedures and either have to train someone or employ someone to do that for them."

The new system also introduces new criteria for highly skilled migrants and investors. Entrepreneurs will have to prove they have a minimum of £200,000 with which to establish a UK business, while investors will have to prove they have a minimum of £1 million that they intend to invest in this country. Highly skilled workers will have to show they have a minimum number of points, based on language skills, qualifications and experience.

A new UK-wide post-study category will replace Jack McConnell's Fresh Talent Initiative, which aimed to encourage highly qualified students to stay and work in Scotland.

The new systems are being introduced in stages, but from 29 February, businesses that employ illegal workers from overseas will face maximum penalties of £10,000 for each illegal worker found.

Duheric anticipates a lot of businesses will find it difficult to deal with all the changes – which is one of the reasons Morton Fraser has recruited him.

Although most of his work will be dealing with immigration from the employer's side, his own experiences give Duheric a constant awareness of the human implications of immigration and employment law.

"I will always do my best to help people," he says. "Because of my own experience I am in a position that I understand when people come who are suffering in all this. I know exactly what that means and how it feels."

Police complaints commission in tatters as lawyers resign - same to happen in Scotland ?

One way to ensure certain defeat for any moves to independent regulation is to stuff an organisation full of lawyers and legal staff, then get them to resign en masse .. and here we have that very policy being put into practice with the Independent Police Complaints Commission in England ....

Some may now wonder if the same may happen to the new Scottish Legal Complaints Commission, which Justice Minister Kenny MacAskill has also stuffed with legal staff and lawyers .. ensuring a MacAskill recipe for disaster once more.

The Guardian reports :

Crisis at police watchdog as lawyers resign

More than 100 quit over claims of delay and poor decisions by IPCC

* Nick Davies
* The Guardian,
* Monday February 25 2008

The Independent Police Complaints Commission (IPCC) faces a crisis of confidence after a network of more than a hundred lawyers who specialise in handling police complaints resigned from its advisory body.

In a letter to Nick Hardwick, the IPCC's chairman, the lawyers' leaders expressed "increasing dismay and disillusionment" at what they described as "the consistently poor quality of decision-making at all levels of the IPCC". They said the IPCC's response to their earlier attempts to deal with problems had been "pitifully poor".

The resignation is a blow to the commission's morale and reputation especially as it was welcomed by criminal lawyers when it was set up in April 2004. After 40 years of slow progress, the organisation was seen as providing a robust and independent system for dealing with complaints against police officers.

But an investigation by the Guardian has found evidence of a cluster of administrative problems. These include:

· A failure to provide effective oversight for the work of the police investigators who still handle most complaints;

· a pattern of favouritism towards the police with some complaints being rejected in spite of apparently powerful evidence in their support;

· cases of indifference and rudeness towards complainants;

· extreme delays, with some complaints remaining unresolved after years of inaction and confusion;

· key decisions being taken by casework managers who have no legal qualifications, little relevant experience and minimal training;

· investigators and senior commissioners failing to work effectively with the result that some decisions have had to be overturned with the threat of court action.

Problems with investigators include one case in which an investigator was caught sending "raunchy emails" to a teenage girl whose family had been the victim of a crime he was looking into. In another case a family whose son had died in custody were taken aback when a female investigator walked out early from a meeting to get a facial.

In one sample case among dozens reviewed by the Guardian, Christine Hurst, whose son was stabbed to death in spring 2000, has been waiting for nearly eight years for a resolution of her complaint that police failed to protect him even though they knew his killer had made repeated threats. Police were warned on the night of his death that the killer was waiting outside his house with a knife.

Hurst said: "Despite fighting all these years, I haven't really got anywhere. The sheer fact that they can do this - and if they are doing it to me, they are doing it to other people as well. It is appalling."

The Police Action Lawyers Group, (PALG) which represents specialist lawyers on the IPCC's advisory board, has tried repeatedly to warn the commission about its problems. In October 2005, for example, they presented Hardwick with a dossier warning that, with few exceptions, "mediocrity appears to flourish unchecked, unmarked and, in many instances, unacknowledged".

In a subsequent email to Hardwick 18 months later, one lawyer said "attitudes appear to have deteriorated, reflected in recent examples which serve only to bring discredit and shame upon the IPCC".

The October 2005 dossier summarised 12 sample IPCC decisions and reported: "Sadly, in many of the cases we have dealt with over the 18 months since April 2004, we have been very disappointed by the poor quality of such decisions and, worse, the apparent lack of impartiality reflected in the reasoning given for such decisions.

"One common feature that seems to emerge is that primary decision-making functions are apparently being devolved to inexperienced and poorly trained junior staff lacking the qualifications and experience necessary for this important work and without the benefit of adequate or effective quality assurance procedures. More generally, the performance of those responsible for supervising, managing or conducting investigations has given cause for serious concern ..."

The joint resignation letter, signed on behalf of all of the lawyers last month by two PALG members, acknowledged "islands of good practice" but says their attempts to raise their concerns through the IPCC's advisory board were repeatedly frustrated: "Follow-up on agreed action points has been pitifully poor ... At times, the situation has been almost farcical: key decisions on our agenda items have not been minuted and, when eventually minuted, have not been actioned, even after we have chased progress."

Hardwick says this is unfair and that PALG failed to respond to his attempts to review the working of the advisory board. Speaking to the Guardian, he rejected PALG's grounds for resigning from the advisory board. He said IPCC evidence had held up in front of juries and coroners, and only a handful of decisions had been reversed after lawyers threatened to have them judicially reviewed.

Tax law reforms should be inclusive of all in the debate

Not just bringing in the professions earlier on tax law reforms would benefit changes in the law .. wider consultation with many might help ease problems along the way ...

The Scotsman reports :

Government should engage earlier with professions on tax law reforms

By JAMES AITKEN

WHILE it is and always will be a government's prerogative to make changes to the law, I feel it is time we look again at how we amend our tax legislation.

My interest in this issue stems from my experience in dealing with a number of changes and proposed changes to the tax regime in the last few years. This includes the introduction of stamp duty land tax (SDLT) in 2003, the inheritance tax trust changes of 2006, the proposed planning-gain supplement and the recent changes to the capital gains tax (CGT) regime. The various problems with each of these changes have been well documented.

That said, we need to learn from what happened. This is also not just an issue for HM Revenue and Customs (HMRC) or HM Treasury but just as importantly for organisations such as the Law Society of Scotland.

One issue is the period between the legislation being agreed and it coming into force.

I wonder if legislation should only come into force when the underlying government administration is ready, in the same way that much of our legislation requires a regulatory impact assessment. Any delay between enactment and implementation could also be used to further publicise the changes and allow the government, the civil service, individuals and business to prepare. When SDLT was introduced in 2003 we did not even have enough forms.

The second issue is a "first things first" point. Before we even get to the stage of launching a formal consultation, the government should take some time to ascertain whether the issue it proposes to consult on is in fact a real issue. This would be akin to a pre-consultation consultation and could be done outwith the public gaze.

The third issue relates to the length of time a consultation lasts. My preference is for a fairly short period of consultation that has clear deadlines. I also see no reason why consultations should be done in a number of stages. That said, cutting short a consultation such as the SDLT'shas been a disaster. Five years on we are still dealing with particular Scottish issues that were not dealt with in 2003 primarily because the consultation was abruptly halted.

The fourth issue is whether legislation should automatically be reviewed after a certain period. In many cases, it is only after the changes are actually in force that problems come to light. Again, SDLT is a good example. This though would only work if parliamentary time was to be put aside specifically.

The fifth issue relates to the devolved settlement. The UK is now a much mo
re complicated place for legislation. There are competing bodies and it is no secret that they do not always work in harmony. The proposed planning-gain supplement was a good example of this point. This was as much a Scottish matter – as it dealt with housing and planning – as a UK taxation matter.

My sixth and final issue is the fact the UK has more than one legal system. HMRC and HM Treasury need to ascertain whether there are any particular Scottish issues at a much earlier stage. Organisations such as the Law Society are only too willing to get involved and give advice, preferably at an early stage as possible, ideally before the consultation process begins.

Early engagement is in fact the key to almost all of the issues raised. We can do better.

• James Aitken is a senior associate at HBJ Gateley Wareing and sits on the Law Society of Scotland's tax law committee.

Property buying through Scots legal firms seen as risky as lawyer investigated over housing firm collapse

Buying a property through a lawyer has never been more dangerous as both private & corporate clients across the UK have found out.

Recently it was confirmed that a £4million pound land purchase deal in Scotland, which was to have been made by an English company through one of Edinburgh's well known legal firms had gone bad, seemingly because the English client had failed to come up with the money in time, despite both parties agreeing the transaction and letters from the solicitors both confirming the deal had gone through.

It was later revealed however, the real reason the deal had fell through was because a second client of the English client's legal firm had been offered the same land deal with the proviso that one of the senior partners of the same legal firm become part of the development company which would oversee the building of commercial & residential property at that location.

The second client - a shell company which had been formed by 3 solicitors, together with a small construction company with links to several legal firms, was successful and bought the property for less than the original agreed deal between the English company and the Scottish client, and the senior partner of the second client's legal firm did indeed get his place on the development company as he wanted, while the seller got rather less than the asking price.

A complaint was of course lodged with the Law Society of Scotland, who apparently did nothing as the two firms of solicitors involved in the transaction, as well as the 3 solicitors who formed the shell company which succeeded in purchasing the land, are all 'well thought of' within the legal profession, one claiming to have direct links to his nibs, that well known politician who still thinks he is a lawyer ...

In today's Sunday Mail, a case of another property scam is also exposed, where a solicitor is being investigated by the Law Society after buyers lost money on homes which were never built ...

Little wonder business in the legal profession is getting weaker, and don't expect too much from the Law Society now .. we hear they are binning investigations and complaints as quickly as possible before the new Scottish Legal Complaints Commission takes effect - although since that is staffed with the same Law Society staff who are currently binning all the investigations and complaints, we here at Scottish Law Reporter wonder who clients will turn to when the new complaints venue fails like the old ...

The Sunday Mail Reports :

Solicitor Probed Over Home Scam

Feb 24 2008 Exclusive by Norman Silvester

A SOLICITOR is being investigated after buyers lost thousands of pounds on dream homes that were never built.

Tony Murphy faces a Law Society probe over his role in the collapse last month of Glen Isla Homes, which cost 29 people up to £300,000 in lost deposits.

Bentley-driving builder Stephen Connelly raked in the money - plus £185,000 of taxpayers' cash - before he flogged the site in Wishaw, Lanarkshire, for £700,000 and his company went under.

Connelly's lawyer Murphy, of Hamilton, will be asked why he charged £50,000 in fees to the firm before it went to the wall.

The Law Society will also probe his role in the transfer of £230,000 from Glen Isla to another of Connelly's firms, 1st Access Rentals.

Liquidator Wyllie and Bisset are trying to get creditors' money back.

They found that Murphy, who lives in a £400,000 house with wife Janice, had a Glen Isla credit card and signed cheques - even though he is not listed as a director.

The Law Society said: "A number of reports are being investigated."

Fiscals Letter reveals Crown Office refusal to prosecute lawyer who committed 'crime'

If one was ever wondering why lawyers are hardly prosecuted by the Crown Office - that could be because the Crown Office is full of lawyers itself ...

Here is a letter from the Crown Office showing the difficulties of prosecuting a lawyer. in this case identified as a Hugh Thomas Murray.

The Fiscal seems to indicate a crime took place in what must be a rather surprising choice of words ... and then refuse to do anything.

Crown Office - lawyer committed a 'serious crime' but no further action to be taken

"A decision has been taken by the Crown Office to take no further proceedings in this case : this decision was not taken lightly as we realise the seriousness of this crime"

Odd comments from the Crown Office, who usually profess to prosecute everything & everyone under the sun ...

There are quite a few more letters like this one about to hit the headlines as sources from the Scottish Government decide to bail out on the legal profession's attempts to thwart prosecution of solicitors in Scotland ... phew, we are relieved to hear Kenny hasn't killed off all the moles in his office ...

Edinburgh tagged as 'crooked lawyers centre' in Europe as business customers stay away from Scots legal profession

Nothing like having another tag added to our great city - this time not one of the better ones as Edinburgh becomes known as the "crooked lawyer" centre of Europe.

As many firms now try to avoid doing business with Scottish legal firms over infamously poor service, corrupt practice and huge bills, many wonder when the legal services market reforms will be implemented ...

Space in the Moray Firth to clean up the Capital ?

The Scotsman reports :

Legal bigwigs moving in on city

By MICHAEL BLACKLEY

A BOOM in legal firms moving to the Capital has seen the city establish itself as one of Europe's top centres for lawyers.

A series of high-profile moves in 2007 means that 24 per cent of all office relocations involved the legal sector – a higher ratio than any other European city.

Just under four per cent of all major legal offices opened in Europe in the first three quarters of last year were in Edinburgh.

Although the Capital still lies well behind the "big five" legal centres on the continent, it attracted more firms than two of the top cities – Amsterdam and Frankfurt.

The latest comparison of Edinburgh in a global context by real estate consultants Cushman & Wakefield comes as separate new data has revealed the number of office deals in the city rose by 26 per cent in 2007 compared with the year before.

Cameron Stott, director for Jones Lang LaSalle in Edinburgh, said the city had long had a strong legal sector.

Increased business from London for some of the city's biggest firms had seen them look to move into bigger head offices, Mr Stott said.

He added: "The legal sector in Scotland has been going through quite a significant expansion. Law firms are increasingly becoming more commercially aware, getting more work across the UK and looking to expand."

The financial services sector continues to be the dominant one in Edinburgh, but not many firms in the sector have been leasing space in the past 12 months.

Instead, companies such as Royal Bank of Scotland, Standard Life and Scottish Widows have bought and developed their own buildings.

It has resulted in the legal and professional sectors being dominant in snapping up space.

The biggest leases signed by legal firms in 2007 saw Shepherd & Wedderburn rent 57,000 square feet of space at Exchange Place, while Maclay, Murray and Spens rented 48,000 sq ft in the top floors of the new Quartermile commercial development.

Other major deals saw Biggart Baillie move to Lochrin Square, and Brodies signed a deal for Clydesdale Bank Plaza.

Chris Cuthbert, of Cushman & Wakefield, said: "Legal firms tend to be a bit more image conscious and want to give their clients the right impression.

"The top law firms want to be in the best possible space and keep up with the competition. It's a bit of 'keep up with the Joneses'."

The legal sector is still buoyant despite the wider economic slowdown. Mr Cuthbert said: "Solicitors have dominated the larger end of the market, showing that even when there is a dip in the economy, legal practices tend to be more resilient than most."

Lawyer jailed after fleecing disabled client in 'Iain Catto' style fraud

In shades of Iain Catto, the senior Scottish Conservative and lawyer who was jailed for stealing money from his disabled client, Thomas McGoldrick, a crooked lawyer who stole £1.25million he had won for a client paralysed in a crash. has also been jailed after a similar scam.

Strangely enough, a fairly well known Edinburgh solicitor is facing similar charges over doing another "Iain Catto" and also robbing a disabled client of a significant amount of money .. but so far the Law Society has refused to do anything about it.

Some in the profession must feel its open season on disabled clients - time to sort out the thieves among us ?

The Daily Mail reports :

Lawyer jailed after using disabled client's £1.25m payout to fund 'obscene' spending spree

Lawyer jailed after using disabled client's £1.25m payout to fund 'obscene' spending spree
By JAMES TOZER Last updated at 21:54pm on 22nd February 2008

Thomas McGoldrick: The court heard he squandered the stolen £1.25m on a life of 'obscene extravagance'

A crooked solicitor stole £1.25million in compensation he had won for a client paralysed in a crash.

Thomas McGoldrick, 59, was facing jail last night for blowing most of the payout on "obscene extravagance".

The money was supposed to fund a lifetime of care for 45-year-old Keith Anderson who had lost the use of his arms and legs.

But McGoldrick, who was massively in debt, used it to continue enjoying the high life with his millionaire neighbours.

The cash went on holidays to Portugal and Barbados and prep school fees for his two children.

McGoldrick also spent £15,000 on a new kitchen and drove a Mercedes and a Jaguar with personalised number plates.

By the time the lawyer was caught, only £224 of Mr Anderson's original £1.8million compensation award was left.

The victim, who had no idea his account was being emptied, was left so short of cash that he had to return a bike he had bought for his six-year-old daughter.

Yesterday a jury convicted Belfast-born McGoldrick on 59 counts of fraud.

He was remanded in custody to await what the judge said would be "a significant term of imprisonment".

Judge Roger Thomas, QC, told McGoldrick he had been convicted "on what is, quite frankly, overwhelming evidence of a very serious offence".

Home: McGoldrick's £800,000 property has been sold off

David Friesner, prosecuting, said McGoldrick had been leading an "obscenely extravagant" lifestyle and was a "dishonest, bent, dishonourable solicitor".

Mr Anderson crashed his company van in 1996 when he was working as a contract cleaner in Mitcham, South London.

He lost control of the vehicle late at night on a road flooded because drains had not been cleared.

He suffered a broken vertebra which left him paralysed from the neck down and in hospital for 18 months.

His wife contacted a local office of the firm run by McGoldrick for legal advice and in 2002 they sued the local council for negligence.

They won a £1.8million award largely because of the state of the road.

McGoldrick, who had loan and credit card debts of £1.4million, personally took over the case at his other office, in Altrincham, Greater Manchester.

Scene: Keith Anderson was left paralysed and needing compensation after he broke his neck in this 1996 crash

The first £500,000 of the payout went on fees and adapting a house for Mr Anderson.

McGoldrick advised his client to let him invest the rest in property to fund the £76,000-a-year annual care bill.

But over two years he plundered the property account to try to keep his massive debts under control.

The solicitor was also feeling the pressure from regular audits carried out by the Law Society.

Accountants spotted a series of irregularities in his financial dealings and alerted police.

They broke the grim news to Mr Anderson.

He told McGoldrick's trial at Minshull Street Crown Court in Manchester: "It was really shocking, I just couldn't believe it.

"I didn't let my family know until days after.

"I just couldn't think how like this could happen. Your solicitor is someone you have trust in.

"He gave me advice on everything. How could he do something like this to me?"

Mr Anderson's lost money has been returned through the Law Society's compensation scheme.

McGoldrick fled to the U.S. before he could be questioned by police, saying he needed to "clear his head".

Arrested on his return, he produced a letter in which Mr Anderson apparently offered to split his award 50-50. It was a crude fabrication.

Yesterday, he was convicted of 53 counts of false accounting, two counts of obtaining a pecuniary advantage by deception, one count of forgery and three counts of money laundering.

McGoldrick, who is married to Cheryl, who was a part-time secretary at his firm, has been declared bankrupt.

His £800,000 house in the village of Mobberley, near Knutsford in Cheshire, was put up for sale.

Top lawyer suggests clients should use lie detector software on their legal representatives

An email in our inbox this week unbelievably suggests, from a lawyer, that clients should start recording their meetings with legal representatives and scan them with the same lie detecting software used by some local authorities.

We found the idea so interesting we went out onto the streets of Glasgow for a few minutes and put the question "Do you think you should have or be able to have a recording of meetings with your solicitor ?

In a sample interview of ten people, all of them agreed they would benefit from having a recording of any meetings with lawyers.

One person who admitted they had problems with their lawyer over a land transaction said "Yes definitely, if I had the good sense to record the few meetings I had with my solicitor I would not have been facing the problems I have with him now and that useless La Society"

So, not much in the way of web references to members of the public who wish to record their meetings with lawyers - but you can see in the following how local authorities record and analyze the content of interviews with benefits claimants.

Given the Councils apparent success, you may like to try this for yourselves and see how truthful your legal representatives really are ... or even politicians for that !

You may find difficulty in getting hold of some of this "voice risk analysis" software, but a quick scan of google will turn up this : Nemesysco ex sense pro voice risk analysis software .. and no doubt resourceful members of the public will find their way to versions to test out ...

Lawyers will have to become well practiced liars if they are to get over that one !

The Herald reports :

Council in lie detector bid to catch benefit cheats

BRIAN DONNELLY February 18 2008

One-third of benefit claims checked by Edinburgh City Council are to be investigated further for potential fraud, as part of a pilot scheme using lie-detector technology.

Although awaiting a full report, the council said around 25 calls over the first two months of the scheme which started in October were considered suspect after being put through voice risk analysis software operated by specially trained staff.

The introduction of the lie detector by the Department of Work and Pensions came ahead of the council's own campaign reinforcing the message that benefit cheats will not be tolerated and that the public has a role in helping to catch those who illegally claim taxpayers' money.

One Edinburgh resident was recently sentenced to 150 hours community service for claiming benefit of more than £11,000 over five years while she was employed.

Yesterday results for earlier lie-detector tests, which began last April in England, showed council tax payers saved £336,711.

Harrow Council, in north-west London, joined the project. It said 998 people were assessed in Harrow using the technology during a seven-month period and 119 (12%) were identified as "high risk".

Of those, 43 (4.3% of the total assessed) were found to have been paid incorrect benefit.

Voice risk analysis has been used in the insurance industry for more than five years and works by detecting changes in people's voice patterns such as hesitation or avoiding direct questions.

Patterns are calibrated at the start of the conversation by asking basic personal details such as name, address and date of birth. The system then flags up any discrepancies from this base stress level.

A spokesman for Edinburgh City Council said: "The vast majority of people who receive benefits are genuinely entitled to them. However, there is a minority who are intent on stealing money from those who need it most."

Risk Management Authority legal quango under threat after revelations of not fulfilling remit

A quango which is supposed to monitor and assess the most dangerous criminals in Scotland (not lawyers, is it ?) and revealed to be on the slightly expensive side, and, notoriously full of stooges from the legal world, hits the headlines for a lack of work ... are we surprised ?

The Herald reports :

Under threat: the £1.5m quango that monitors just five criminals

LUCY ADAMS, Chief Reporter February 20 2008

The body set up to monitor and assess the most dangerous criminals in Scotland has dealt with only one-third of its intended target of hardened offenders.

The Risk Management Authority (RMA), created less than four years ago and with an annual budget of some £1.5m from the Scottish Government, is one of the organisations under review as part of Alex Salmond's cull of quangos, The Herald can reveal.

It was set up in September 2004 after the recommendations of a 1999 committee chaired by Lord MacLean, the former High Court judge.

The committee was commissioned by the UK Government to consider the provisions available to deal with the most serious offenders who pose a continuing risk to the public.

It recommended creating the RMA to oversee best practice on risk assessment and the introduction of Orders for Lifelong Restriction (OLR), new measures to be imposed on those posing the greatest risk of violent reoffending.

The orders began in June 2006 and Lord MacLean envisaged they would be dealing with 10 orders a year with, potentially, an additional 40 referrals.

We want to build on, not disregard, the ethos and skills of the RMA

However, in the first 18 months just five orders have been granted.

An additional six criminals are still being assessed to see whether the order would be appropriate.

The authority has also been responsible for accrediting the assessors responsible for who should be subjected to the orders. To date, four assessors have been fully accredited.

The RMA also commissions and collates research on what kinds of interventions, assessments and programmes work and which are most likely to change violent behaviour.

The authority recently announced it has accredited a new package for assessing the risks posed by certain sex offenders. Scotland has some 3245 registered sex offenders.

Professor Roisin Hall, chief executive of the body and former head of psychology for the Scottish Prison Service, said she hopes the review by the government will be an opportunity to consolidate its work.

"We are working with the Scottish Government on a three to four-month review which will take into account all the key stakeholders," she said.

"We have been told by the Scottish Government that this is not because they don't like what we do, but that they want to copy the skills and ethos we have developed."

Last month, the First Minister set out plans to abolish or merge 52 bodies - reducing the number of national public organisations in Scotland to 121 within the lifetime of this parliament - the lowest number since before devolution. The review of the RMA will begin in March.

A Scottish Government spokesman said: "We believe the time is now right to review the role of the RMA, but our top priority is public safety.

"We want to build on, not disregard, the ethos and skills of the RMA, while delivering a more integrated approach.

"We will consult with all bodies and interests concerned to provide more streamlined arrangements for joint working in this important area of public concern."

Kenny MacAskill - Public don't need to be consulted on legal reforms

Dictatorship is alive & well in the Justice Department of the Scottish Government under the administrations of Justice Secretary Kenny MacAskill.

While the SNP manage to listen to the public on just about everything else, the Justice Secretary who has been left to do as he pleases without consulting anyone, chooses the path of supporting the legal profession once again, or is he ?

Seldom have we had such a destructive-to-both-sides Justice Minister in Scotland.

The Scotsman reports :

Jennifer Veitch - Do not forget the individuals' needs

IN SETTING up an expert group to "improve" Scotland's legal services, Justice Secretary Kenny MacAskill has managed to tick off a few boxes on recent promises made to the profession.

He is underlining his message that he is indeed willing to listen to the profession, and that he wants lawyers to come up with solutions to the alternative business structure conundrum.

And, by including business experts such as Robert Crawford and Russell Griggs in the working group, he is also making it clear that he sees legal services as a market that is important to the Scottish economy.

Indeed, the group's remit is narrower than its headline aim of improving legal services in the round – rather its role is to "consider what can be done to make the structures and systems of the Scottish legal system more business friendly."

This raises some intriguing points. For example, where will this sit with the Law Society's recently completed consultation on alternative business structures?

The group won't be able to consider any settled policy from the solicitors' regulator until the society has finished trawling through the 90 responses it received and then had its own blueprint approved at its AGM in May.

And anyway, can this short-life working group, which is set to meet only a handful of times over the next six few months, actually come up with any practical suggestions?

Surprisingly, the answer might be yes. The group has been asked to consider how businesses can be encouraged to choose Scotland as the seat of their business and legal activities, look to Scottish lawyers for their advice, and look to Scotland as the jurisdiction of choice for dispute resolution.

One of the group's members, Richard Keen QC, who recently took over as dean of the Faculty of Advocates, has already made suggestions to the Scottish Government that he believes could make Scotland a more attractive jurisdiction for commercial disputes.

While Scots law is not exactly the lingua franca of commercial contracts, Scotland could steal a march on England, argues Keen, by transforming itself into a centre of expertise for dispute resolution and commercial litigation.

That will mean providing more than legal expertise or expert advocacy, and focusing on the commercial realities that influence where a business decides to litigate or mediate – such as the cost.

"We have to offer something that, perhaps, an immediate competitive jurisdiction such as England can't provide," says Keen. "We do provide cost benefits, but that is not enough.

"One area that I would like to see the Government address is the recovery of legal costs. At present, if you litigate in Scotland in the commercial court, you are likely to recover, in the event of your success, approximately half, or slightly more, of the cost you've incurred.

"By comparison, in the commercial court in London you are likely to recover something in the order of 70 or 75 per cent of the cost you've incurred."

This is a clear disincentive to raising an action in a Scottish court, says Keen, who wants a system that would allow recovery of close to 100 per cent of the costs.

"That would immediately give us a cost benefit for those who want to pursue commercial litigation, and will generally be able to pursue it in London or Edinburgh by choice," he argues. "It's the sort of idea that we have to develop if we are going to become an effective and successful centre for the provision of legal services."

This kind of solution seems eminently practical, and could make the market more attractive to businesses. No doubt the other experts will have their own bright ideas.

But there remains the crucial caveat that goes to the heart of the debate about business structures and business-friendly legal services: legal services aren't just about business.

Whatever potentially attractive solutions are put forward, they can't be considered in a vacuum. So which experts is Kenny MacAskill asking for solutions to protecting access to justice?

Outsourcing lawyers claim to create efficient business, neglect to mention gigantic legal bills for corporate customers

Well, using a legal service is never cheap in a monopoly so one shouldn't complain. The answer of course is to open up the legal services market,and definitely not rely on lawyers to outsource your ideas and staff ... for you many never know what you are getting in some cases - as record numbers of corporate spies trade info back to base ...

The Scotsman reports - but we wouldn't call JV for any fresh ideas ... :

Who are you going to call for fresh ideas?

By JENNIFER VEITCH

IT IS the sort of business buzzword that has a tendency to get trade union reps hot under the collar. But, according to Dundas & Wilson, "outsourcing" is not a euphemism for cutting jobs or switching to cheaper foreign call centres.

The lawyers behind some of Scotland's biggest outsourcing deals say they have helped clients to create more efficient businesses – and that contracting out to external service providers can even be good for the staff involved.

Building on work with clients such as RBS, National Australia Group and Standard Life, D&W has just launched a dedicated outsourcing team of 40 lawyers. Co-ordinated by partner Laurence Ward, the team will aim to cover all aspects of outsourcing, with 13 partners pooling expertise on issues such as competition, employment, financial services, IT, telecoms, pensions and tax.

Ward, whose background is in corporate law and IT/IP, has been working on outsourcing deals since clients began to look at hiving off their back-office functions such as computer helpdesks in the early 1990s. While the concept and practice have been around for a long time, Ward says for many clients, outsourcing remains a "sensitive" term because of employees' fears about losing jobs to offshore providers. Yet sometimes moving to another company can make sense, he says.

"Often it does work better, because jobs are going from a back-office function to somebody else's front-office function," he explains. "If you are an IT professional, for example, working for a law firm or a bank, you are in a back office. But if you go and work for IBM or Accenture, that's what they do and there's more opportunities for you, so it's not always a bad thing."

If the early days of outsourcing involved transferring staff, often in the face of bitter opposition from unions, the focus is now on renegotiating deals and switching suppliers, says Wendy Colquhoun, one of the team's partners who specialises in financial services: "You can only, in its pure sense, outsource once, the first time you put the activity out. What we are now seeing is a lot of these first-generation deals, from when outsourcing first started becoming fashionable, coming to an end and being renegotiated and moving on to the second-generation deal. There aren't people moving again from your original operation, so there are fewer people-consequences now, and it's more about strategic sourcing and various service arrangements."

Ward says the team has built considerable experience from working with the financial services sector, advising Standard Life, RBS, Artemis, Martin Currie and Scottish Friendly on the outsourcing of regulated back-office functions.

"We were focusing initially on the financial services sector, which is where our core commercial business has been for many years," he says. "At that time, it was the early days and they were outsourcing back-office functions such as helpdesks. As the market for this has developed, the evidence is that not all outsourcing is successful – far from it. But, generally speaking, it has been, and it has developed from back-office functions to business functions.

"We're not just looking at a helpdesk or IT support but doing what the business does, selling products or business functions. Almost anything can be outsourced – there is nothing that isn't up for consideration."

The amount of work surrounding outsourcing in the public sector has been one of the motivating factors for D&W to create a dedicated team. The firm has advised councils including Glasgow and Stirling on outsourcing, including facilities and shared services management. It's not all about saving money, says Ward: "People tend to think that outsourcing is about reducing costs, but the public sector are doing it to get efficiencies and to fund things that they might not otherwise be able to do."

As a general rule, clients from both private and public sectors have similar reasons for outsourcing, he adds: "One is they don't have the resource to do it themselves so, for affordable cost, they can piggyback on the investment other people have made and buy a service. Some of the things they need, they don't need all the time, but they need that expertise occasionally."

Cost and efficiency do not tend to be the sticking points during negotiations, he says. Clients are more concerned about risk-management issues and where the buck will stop if something goes wrong.

"When you are negotiating these deals, it is surprising how risk is the thing people focus on most, because the customer is trying to lay off risk on somebody else and manage risk better," says Ward. "The supplier isn't wanting to take an awful lot of risk. So a lot of the negotiation is about, where does the risk ultimately lie in providing this function?"

It is areas like this that underline the importance of getting the right advice and right deal at the outset, he says: "It pays to have experienced advisers who know how to structure and negotiate to minimise legal risks and get a deal which is capable of standing the test of time. If a business is ill-prepared going into an outsourcing contract or on its renegotiation, the exercise can become massively inefficient and time-consuming and difficult to exit."

Outsourcing deals also place heavy demands on legal firms, and as one of Scotland's "big four", D&W is one of the few north of the Border that can cope with them, says Ward.

"They are very complex transactions, and one of the reasons why we have pulled all this together is you need so many different skills to do it well. I have just been looking at one transaction and we had 60 lawyers working on it at one time or another."

Ward says, though, that if D&W wants to compete with the London-based firms specialising in outsourcing, they will need to grow further: "There are firms in England who have 150 lawyers, with 40 partners doing that. If you want access to the type of work they are getting, you have to have that number. But people are very surprised at the credentials we've got.

"They really match whatever anyone is doing, other than major multinational outsourcings that really only the very biggest firms would do."

Retired sheriff takes humorous swipe at regulation as judiciary fights reforms

Nothing like a spot of sour grapes to keep the day afloat for some ...

The Scotsman reports :

Proposed judicial complaints body prompts lighter look at possibilities

By IAN C SIMPSON

Ian C Simpson QC, a retired sheriff, takes a humourous look at what could happen with proposals to reform the complaints procedure against jugdes.

ANNUAL REPORT OF THE JUDICIAL DISAPPOINTMENT BOARD FOR SCOTLAND 2010

CHAIRWOMAN: LADY FRANKIE KNOWEV-HALL

IT HAS been a challenging but stimulating first year for your board, set up to investigate complaints against judges and sheriffs. Our early relocation to Auchenshoogle proved to be a mixed blessing. While Auchenshoogle Castle is a spectacular setting for a workplace environment, the need to install appropriate, fit for purpose, office equipment led to unfortunate tension with Historic Scotland.

Acutely aware of the imperative to fully use our budget by year-end if we wanted the same allocation next year, we went ahead with the changes that were vitally necessary – open-plan space, fluorescent lighting throughout, cables for computers, male and female toilets for staff and the public, disabled facilities, status-appropriate space for board members and senior staff with carpets and furniture to match.

All this seemed more important than retaining inappropriate relics of feudalism, the Great Hall, the hole for pouring boiling oil on intruders, dungeons, and the like. It has, unfortunately, been necessary to set aside a contingency fund to cover the costs involved in our defence as we have been charged with a number of breaches of the planning legislation. We do not comment on this as it is sub judice, and, in the same spirit, we are holding as pending the 67 complaints we have uncovered against the local sheriff, Sheriff McTavish.

The relocation has been only partially successful in bringing employment to this remote area. We have attracted one local employee, and he on condition that he is not required to wear a commissionaire's uniform as he stands at the castle gates.

For the rest of our loyal, re-located employees we are actively addressing the issue of overcharging by local bed and breakfast establishments.

Our publication, A Guide for Girners, has been freely available in every court and we have received 2,609 complaints against judges and sheriffs. The complainers divide by class, gender and age along predictable lines. When number-crunching postcodes, we were surprised to find disproportionate numbers of complaints from the Riddrie area of Glasgow and the Longstone area of Edinburgh. Further consultation with appropriate agencies revealed that a large prison is situated in each location.

One statistic stood out: 2,590 complaints came from those who were case-losers; one came from a case winner.

The lady in question had been awarded a residence order in respect of her five children, described by the local social work department as "hyperactive and irredeemably feral".

The rest of the complaints relate to delays in issuing judgements, but our heavy workload has thus far prevented us from dealing with those.

Most of the complaints could be categorised as "sour grapes". We found some substance in a series of complaints that a High Court judge grinned broadly while sentencing, the longer the sentence, the broader the grin. His Lordship informed us that at moments of stress he suffered from trapped wind and the perceived grin was really a grimace. We dismissed the complaints against him, with a recommendation that he should take a couple of antacid pills before sentencing.

Great challenges lie ahead. Next year we hope to start investigating judges of the past. Lord Braxfield is reputed to have told one accused: "Y'er a very clever chiel, man, but ye wad be nane the waur o' a hanging." A suitable case for us, I feel sure.

Law Society of England & Wales fights to prevent publication of internal code

Problems with lawyers south of the border seem to be mirroring us in Scotland on what can and cannot be revealed to the public ...

The Telegraph reports :

Some rather odd conduct from the Law Society

By Joshua Rozenberg, Legal Editor
Last Updated: 1:49am GMT 14/02/2008

Why is the Law Society so eager to stop details of its own code being included in a practice guide for solicitors, asks Joshua Rozenberg.

Have you heard the one about the two QCs who are suing the Law Society?

Like all lawyers, Andrew Hopper and Gregory Treverton-Jones must have advised countless clients over the years to avoid litigation like the plague.

But, last month, they issued proceedings in the High Court against the solicitors' professional body. What's more, Mr Hopper is a solicitor himself - the first solicitor-advocate outside the City of London to have been so honoured.

Their claim is as interesting as it is unexpected. But what makes it particularly fascinating is the insight it gives us into behind-the-scenes tensions within the legal profession at a time of great change.

Both Mr Hopper and Mr Treverton-Jones are specialists in professional regulation. That means they defend solicitors against complaints about their conduct as lawyers - although Mr Treverton-Jones does other work as well.

The two men signed a contract with a publisher to write a lawyers' handbook, advising solicitors of the detailed rules they must now comply with.

Some of these rules are contained in the new Solicitors' Code of Conduct, which came into force last July.

This code is sold in book form by the Law Society at the price of £29.95, although you can download the latest version from the internet free of charge.

Because the two authors were devoting a chapter of their book to the code, they wanted to reproduce the full text as one of their 21 appendices. So they set about obtaining permission.

Two years ago, the Law Society delegated all its regulatory powers to a new body called the Solicitors Regulation Authority.

This body is frequently described as "independent" by Peter Williamson, the solicitor who chairs it. We shall see shortly how independent it really is.

Since the authority is responsible for the code, it was to this body that the two QCs turned when seeking a licence to reproduce it. Permission was readily forthcoming, first in an email and later in a formal letter.

Writing to the publisher LexisNexis Butterworths last September, a policy executive at the Solicitors Regulation Authority said: "Please accept this letter as authority to reproduce the rules in the Solicitors' Handbook, although as before this is strictly on the basis that the Law Society's copyright in them is acknowledged and that they are not reproduced as a stand-alone publication but merely as part of a larger work."

Then, everything started to go wrong. In November, the authors were told that only extracts of the code could be published. They did not have a licence to reproduce the entire document after all.

That turn-down came not from the Solicitors Regulation Authority but from the Law Society itself. The solicitors' professional body could overrule the regulatory authority because, as a matter of law, the authority is merely a division of the Law Society. So much for independence.

This week, the two QCs told me they were "utterly bemused". As they saw it, the bit of the Law Society that deals with prosecutions remained perfectly happy for solicitors to have a book that would help them defend themselves - while the bit that was meant to defend solicitors' interests was trying to block its publication.

"The Law Society -the representative body supposedly fighting for the interests of solicitors - would be expected to welcome the benefits to practitioners the handbook will provide," the authors said.

"But it is taking the precise opposite position for narrow commercial reasons: it is trying to hinder publication and emasculate the book."

As the QCs explained, it's all a question of money. Des Hudson, the Law Society's chief executive, tells me that the code of conduct is intellectual property which belongs to his members.

"Unwittingly," he says, "an individual employee gave away the rights in error."

Do the QCs or their publishers still have a valid licence to publish the code? Or has any such licence now been lawfully withdrawn by the Law Society? That is what the litigation is about and I am not going to express a view.

But to be fair to the individual in question, it would have been normal practice until recently for the Law Society to license publication of a document such as this without any charge. Now, Mr Hudson tells me, there has been a change of approach.

"We won't give away our rights without getting commercial value for them," he says.

Those who run the Law Society believe its members will welcome a more businesslike policy.

Why the change? In the past, the Law Society has been both trade union and regulator - British Medical Association and General Medical Council - with both roles funded by a single annual fee paid by all practising solicitors.

Now, we are told, the regulatory side has been hived off. The Solicitors Regulation Authority will be funded by the people it regulates. So does that mean the representative side will now have to find its own sources of income?

Not quite. There is no mention of the Solicitors Regulation Authority in the new Legal Services Act. The Law Society remains the day-to-day regulator and will retain the power to charge solicitors a practising fee when the Act takes effect.

But that fee can be used only for "permitted purposes". Those purposes include education and training, maintaining professional standards, supporting law reform and promoting human rights.

But they will almost certainly not include what would be regarded as "trade union" activities. These must be funded from commercial enterprises.

So the Law Society has to become more hard-headed. Should it hire out its reception and conference rooms to solicitors at a discount? Or would the profession as a whole be better off if it rented them to outsiders at a full market rate?

Should it give away the rights to reproduce the Code of Conduct? Or does it make it clear to Mr Hopper and Mr Treverton-Jones that if anyone is going to publish their handbook it will be the Law Society's own publishing arm?

Whatever the answer, you would have thought that a commercial dispute such as this could have been settled before proceedings were issued. Costs are now mounting up at an alarming rate. And the Law Society's decision to pull rank on its subsidiary may be storing up problems for the future.

That is because the new Legal Services Board will be required by statute to ensure that the Law Society's regulatory functions are independent of its representative functions. Countermanding a decision by the authority for commercial reasons - however good they may be - gives out the opposite message.

So how worried is Mr Williamson of the Solicitors Regulation Authority?

"Thank you for the opportunity to comment," he replies, "but on this occasion we have nothing to say"