Sunday, May 31, 2009

Law & Order : £1m cost to taxpayer of suspended Police Officers

Reports by the Sunday Herald newspaper reveal that £1million of taxpayers money is being spent on keeping Police officers suspended for various reasons, including criminal charges.

Additionally, reports in the newspaper reveal that two Police officers have been on suspension for four years !

The Sunday Herald reports :

Police under fire as two suspended officers spend four years on full pay

New figures reveal £1m cost to taxpayer in wages for disciplined officers
By Paul Hutcheon, Investigations Editor

SCOTLAND'S POLICE forces are under pressure to reform their disciplinary systems after it emerged that two officers have been suspended on full pay for nearly four years each. Thirty-two officers across Scotland are currently suspended, at a cost to the taxpayer of around £1 million pounds.

They face allegations relating to drug offences, excessive force and "corrupt practices". The figures were handed to the Sunday Herald following a freedom of information (FOI) request to the country's eight police forces.

Each force was asked for the number of suspended officers, the total wage bill racked up during their disciplinary investigation, how long each officer had been off work and the offences they were accused of.

Six officers are currently suspended on full pay in the Grampian force. Four have been off for less than a year. However, another officer has been suspended for two-and-a-half years, while a colleague has been suspended for nearly four years. The total wage bill, according to the organisation, is at least £282,926.

Eleven officers in Strathclyde Police, Scotland's largest force, are suspended on full pay. Four have been away from the front line for less than a year, six for over one year, while an unnamed officer has been off for three years and nine months. Neither Grampian nor Strathclyde would confirm why their officers had been suspended.

In the Lothian and Borders force six officers are currently suspended - the longest being for 15 months. All six are suspected of committing criminal acts, four of whom have been reported to the procurator-fiscal. The wage bill for the six during the disciplinary procedure comes to £165,906.

In Tayside, two officers are suspended on full pay following allegations of drug offences, a breach of data protection and alleged corrupt practices. The force declined to put a figure on the wage bill on the grounds it was "personal data".

Fife Constabulary, however, said that the total cost to the taxpayer of suspending three of its officers was £120,188.95. The force confirmed that each of the three was facing "criminal and or misconduct investigations".

A senior police source, while defending an officer's right to receive full pay while on suspension, said it was "ridiculous" for a case to drag on for four years.

Tory MSP Bill Aitken said: "It is clearly in the best interests of both the individual officers and the taxpayer that these matters are disposed of as quickly as possible. Where the allegations do not concern alleged criminality, these suspensions should be dealt with in days, rather than weeks."

Raymond Pratt, the deputy general secretary of the Scottish Police Federation, said: "Whether an officer is suspended is a matter purely for the deputy chief constable. We believe it should be used in only the most serious cases and for the shortest possible period of time. We cannot comment on particular cases but we are concerned about the adverse effects of lengthy periods of suspension on officers and their families."

Superintendent Iain McGrory, the head of professional standards at Grampian Police, said: "In line with employment law, we cannot comment on individual cases, especially so when criminal proceedings are still active.

"But the decision to suspend a member of the force is given very careful consideration and clearly it is not in anyone's interest for that suspension to last any longer than necessary."

Chief Superintendent John Pollock, at Strathclyde Police, said: "The force is fully committed to ensuring a proper balance between the need to protect the public, protecting individual officers and to provide value for money and sustain confidence in policing.

"Having reviewed our approach to suspension, we have reduced the number of officers currently suspended."

Saturday, May 30, 2009

Law & Order : Justice Secretary MacAskill personally approved leave for escaped murderer

Scotland’s hapless Justice Secretary Kenny MacAskill is in deep trouble again, this time he personally approved leave for a convicted murderer, who promptly went on the run. (When will Kenny go on the run ? – Ed)

The Scotsman reports :

MacAskill approved leave for murderer who went on run

Published Date: 30 May 2009
By David Maddox, Scottish Political Correspondent

JUSTICE secretary Kenny MacAskill personally signed the order allowing a convicted murderer to go on temporary leave before he absconded, it has emerged.

The revelation has heaped yet more pressure on the beleaguered minister as he fights to save his job.

He was forced to deny rumours he had already quit yesterday after it emerged he had decided not to attend today's Homecoming Scottish Cup final at Hampden.

It has also emerged that the absconder, John Brown, had already had his licence revoked once before because he had failed to meet his conditions by not turning up for appointments with the police.

The issue has blown up because of anger over another escape by a dangerous criminal, Brian Martin, a week before.

Mr MacAskill was forced to admit that Martin – known as the Hawk – who was serving time for armed robbery, should never have been put into an open prison.

To add to the justice secretary's woes, more questions have been asked about why he did not inform MSPs of Brown's escape, even though the issue of absconders was raised in First Minister's Questions on Thursday.

The Scottish Government said this was because it was up to Tayside Police to issue a statement on the escape.

However, both government officials and Tayside Police have admitted no discussion took place over what could be said, even though ministers were expecting the issue to be raised in the parliament.

Labour and the Tories called on Mr MacAskill to step down, with Labour starting a petition demanding he be sacked.

Labour justice spokesman Richard Baker said: "Mr MacAskill keeps on with his monologue about operational responsibility, but he personally signed off a murderer's release and yet takes no responsibility.

"He is guilty of gross political cowardice."

However, opposition parties have been criticised by the Prison Officers Association and Dr Andrew McLellan, the Chief Inspector of Prisons, for playing politics on the issue.

They warned that the row could undermine the use of open prisons.

Privately, Scottish Government insiders admit it has been "a very difficult time", fuelling speculation that the minister may go.

But a spokesman said: "There is no reason for him to go. Absconds have dropped dramatically under Kenny MacAskill to one-fifth the level they were under Labour and one-eighth under the Tories."

Salmond faces probe over failure to tell MSPs of hunt for convict

ALEX Salmond, the First Minister, looks set to be investigated following claims that he misled parliament.

Iain Gray, the Scottish Labour leader, has reported Mr Salmond to a special committee after he failed to tell MSPs on Thursday about an abscondence from Castle Huntly.

Mr Salmond answered questions on the recently recaptured absconder Brian Martin but, while praising his government's record, he failed to mention that convicted murderer John Burt Brown had escaped the night before.

Mr Gray said this means the First Minister broke the ministerial code by withholding information and misinforming parliament.

The referral was described as "cheap party-political point-scoring" by a Scottish Government source.

Former Presiding Officers Sir David Steel and George Reid will now consider the issue and decide whether they believe the code was breached.

Review of solicitor advocates to go ahead after criticisms from judiciary

The Scottish Government is to carry out a review of the conduct of solicitor advocates, after criticisms from senior members of the judiciary. No surprises for guessing that any review will be masterminded by the Law Society of Scotland (as usual ! – Ed)

The Scotsman reports :

Review to put work of solicitor advocates under the spotlight

Published Date: 30 May 2009
By Christopher Mackie

THE Scottish Government has announced it is to carry out a review after one of Scotland's most senior judges criticised the conduct of solicitor advocates appearing in courts.

During a recent murder appeal, Lord Gill expressed concern that some solicitor advocates appeared to be taking on work outwith their competency.

The Lord Justice Clerk's call was echoed by the Law Society of Scotland, and it sent a request to justice secretary Kenny MacAskill to instigate an independent check of the entire system of rights of audience in Scotland's higher courts.

Speaking at the Law Society AGM on Thursday, its outgoing president, Richard Henderson announced that the government had agreed to the request.

Alayne Swanson, the president of the Society of Solicitor Advocates, said: "The Society of Solicitor Advocates and the Law Society have supported the idea of a review from the outset. We are confident the review will examine robustly the professional practices of all those who appear before the higher courts."

A Scottish Government spokesman confirmed that the review would take place and added: "Officials will now discuss the details of the review with stakeholders and an announcement will be made when the remit has been agreed."

Scottish Parliament MSPs 'as crooked Westminster' claimed expenses for funeral wreaths

Despite recent claims of transparency at Scotland’s Parliament over MSPs expenses, revelations are emerging that our politicians have their noses as firmly in the expenses trough as MPs at Westminster.

Despite getting about 70k a year, it seems the cost of a wreath must also be claimed for, as well as second homes, mortgages etc … all of which we were told did not happen at innocent Holyrood ..

The Scotsman reports :

15 MSPs forced to pay back cash for wreaths

Published Date: 30 May 2009
By DAVID MADDOX

FIFTEEN members of the Scottish Parliament have been shamed into repaying expenses they claimed for Remembrance Day wreaths.

The MSPs – from the SNP, Labour and Liberal Democrats – reclaimed money that was paid to Poppyscotland and the Lady Haig Poppy Factory for the wreaths. Both charities raise funds for veterans.

It came as their actions were last night described as "immoral" and "dishonourable", although it was pointed out by officials that they fell within parliament's rules. MPs have been banned from claiming the cost of Remembrance Day wreaths since 2004.

The row has shifted the expenses focus on to Holyrood, which has been regarded largely as "clean" in comparison with Westminster, where MPs have been under siege over their claims. And last night, the scandal forced another MP to quit, with former Labour minister Elliot Morely announcing he would not seek re-election after claiming £16,800 in taxpayer-funded allowances for interest on a mortgage already paid off.

Mark Wallace, from the Taxpayers' Alliance, said he was astounded MSPs would even consider claiming back money given to a veterans' charity. "It is disgraceful that so many MSPs have claimed Remembrance Day wreaths on expenses and that it is allowed under Scottish Parliament rules," he said.

"No honourable human being would even think it as morally acceptable to do so." He demanded that Holyrood change its rules to stop such claims.

Lothians Tory MSP Gavin Brown said: "Remembrance Day wreaths are a tribute to people who put their lives on the line and the idea of claiming back the cost does not sit easily with that. I think a rule change would be appropriate."

The expenses emerged in the claims made for October to December last year, which were published online this week. While the Scottish Parliament describes itself as being transparent, the wreaths were hidden under "running costs".

When the claims first came to light yesterday, there was reluctance among some MSPs to return the money.

Lothians SNP MSP Angela Constance, who claimed £17.80, immediately offered to return the cash, but her colleagues were not as quick to respond. The initial SNP response said: "Members lay wreaths in their official capacity on behalf of the Scottish Parliament. As the parliament supports Poppyscotland, the cost can be met from parliament resources, and it is for each elected member to determine if they wish to reclaim the cost."

But within an hour, the party leadership had intervened and all its MSPs were told to pay the money to the charities, Poppyscotland and Lady Haig Poppy Factory, which sold the wreaths. The two charities are the only ones that MSPs are allowed to claim back money for.

A spokeswoman said: "SNP MSPs will either be reimbursing the money or making donations equal to the cost of the wreaths to Poppyscotland."

The SNP MSPs who claimed were Ms Constance, Alasdair Allan (£21.30), Roseanna Cunningham (£63.90), Michael Matheson (£63.90), Stuart McMillan (£42.60), Gil Paterson (£17.80) and John Wilson (£35.60).

Labour MSPs decided to pay their money back to the parliament, but not before a spokesman insisted they had been right to reclaim the money as representatives of the parliament. Helen Eadie claimed the most, at £170.42, to cover wreaths for different villages in her Dunfermline East constituency. Rhona Brankin claimed £42.60, Trish Godman £113.22 and Cathy Jamieson £42.60.

A party spokesman said: "MSPs lay wreaths on behalf of the Scottish Parliament. The money for the wreaths goes to Poppyscotland that funds care for veterans. Some MSPs have many remembrance ceremonies in their constituency and it has been traditional for the local parliamentarian to send a wreath for them.

"These funds have been claimed legitimately, but Labour members have decided to pay the money back to avoid any embarrassment to Poppyscotland."

Ms Brankin said: "While I have acted in accordance with Scottish Parliament rules, the last thing I would want to do is cause offence to the Scottish Poppy Appeal, the Royal British Legion or my constituents."

The Lib Dems also promised to repay money claimed by Robert Brown (£20.30), former leadership contender Ross Finnie (£118.13), Jamie Stone (£42) and Jim Tolson (£63.90). A spokesman said: "The MSPs in question attended these important ceremonies in their official capacities but will, nonetheless, repay the amount claimed."

No Conservative or Green MSPs claimed back money for wreaths. However, shadow Scottish secretary David Mundell had been criticised for putting in claims for wreaths before the Westminster ban. Another Conservative, former shadow defence secretary James Gray, also came under fire after he tried to lodge a claim and complained he was "£60 out of pocket" after buying three wreaths to lay at war memorials in his constituency.

The wreaths at the centre of the scandal came mostly from the Lady Haig Poppy Factory, named after the wife of Earl Haig, the commander-in-chief of British forces during the First World War.

The factory makes special wreaths for MSPs with a purple centre to mark them out as being from the Scottish Parliament.

Former army officer Stuart Crawford, who served as a lieutenant-colonel in the Royal Tank Regiment, was also highly critical of the claims, although he said he could see why MSPs might believe they could claim the money back.

He said: "Although MSPs are not the highest-paid people in the land, they get a healthy salary – at least twice the average household income – and a wreath once a year on Remembrance Day should not be beyond their means."

Morely to step down after 'traumatic' mortgage claim row

FORMER Labour minister Elliot Morley is to quit as an MP, after claiming £16,800 in taxpayer-funded allowances for interest on a mortgage he had paid off.

He announced his decision not to fight his Scunthorpe seat at the next general election after a meeting with party activists in his constituency last night.

The move came as Tory leader David Cameron said any MPs who committed a crime by claiming taxpayer-funded cash for non-existent mortgages should "face the full force of the law".

Mr Cameron said Scotland Yard, which is considering whether to launch criminal inquiries into potentially fraudulent claims, should examine them "without fear of favour".

He added: "If people have broken the law in claiming expenses, like mortgage payments for mortgages that don't exist, should they be subject to the full force of the law? Yes of course they should."

Announcing his decision to stand down last night, Mr Morely said: "It is with regret that I have informed the general committee of the Scunthorpe Constituency Labour Party and the party general secretary that I do not wish to contest this seat at the next election.

"The last two weeks have been traumatic for me and I have to think of my family and my health, both of which have suffered."

The former environment minister is suspended from the Parliamentary Labour Party pending a sleaze watchdog investigation and a possible police inquiry.

Earlier yesterday, another MP embroiled in the scandal, veteran Conservative Bill Cash – who rented a flat from his daughter using taxpayers' funds – said he would repay the £15,000 if there had been a "transgression", but asked for time for his claims to be scrutinised.

However, his hopes of drawing a line under the affair were scuppered by Mr Cameron, who said the MP faced "serious questions" and needed to co-operate with inquiries.

Mr Cash, a Staffordshire MP, designated a flat owned by his daughter Laetitia, an aspiring Tory MP, as his second home for expenses in 2004 and 2005 – though he owned a home closer to Westminster.

Meanwhile, other Scots MPs also had their expenses scrutinised yesterday.

David Mundell, the only Tory MP in Scotland, paid back £75 for a food and drinks bill for staff. The Shadow Scottish secretary said he had audited his own expemses and decided to repay the funds before being asked.

Brian Donohoe, the Labour MP for Central Ayrshire, was allowed to claim £2,575 for a three-piece suite for his second home although it was £75 over the limit.

Tom Harris, the Labour MP for Glasgow Cathcart, had his claims of £90 for a cot and £50 for a steriliser rejected.

The revelations came as Commons leader Harriet Harman warned that Labour MPs who have done wrong "have got to pay the price for that".

However, Lord Mandelson, the Business Secretary, condemned the "hasty" judgement of MPs.

The MPs who have announced they are standing down will not do so until the general election, which could be a year away.

This is because anyone who quits parliament mid-term would get much less than a maximum £129,532, depending on length of service.

Nick Clegg, the Liberal Democrat leader, yesterday called for end to the "golden goodbyes".

"I can see no reason why an MP who is sacked or decides to stand down should be rewarded with a big, tax-free, lump sum payment," he said.

• Pensions minister Rosie Winterton claimed £4,690 for soundproofing a bedroom wall and redecoration of the bedroom, bathroom, living room, kitchen and staircase of her London home in February 2007, it emerged last night

Friday, May 29, 2009

Revolt over costs of solicitors contributions to Law Society fizzles out for now

The much talked about revolt by members of Scotland’s hapless legal profession who are ‘fed up’ paying £665 a year to fund the huge salaries of wasters staff at the Law Society of Scotland, fizzled out as expected.

The Council of the Law Society raised a motion as they always do, took over the issue, and won the vote. (Checkmate ! – Ed)

The Scotsman reports :

The cost of being certified solicitor survives 'cut' call

Published Date: 29 May 2009
By Christopher Mackie

A REBELLION over the cost of practising as a solicitor in Scotland was headed off last night, as the Law Society won a crucial vote at its AGM in Edinburgh.

The motion, put down by Glasgow solicitor David Flint – to reduce the cost of the solicitor's practising certificate from £665 to £400 – was defeated after an amendment tabled by the society won overwhelmingly by 1,150 votes to 480.

That amendment called on the legal profession to allow the society time to bring forward cost-reduction proposals for membership at a special meeting in September after a review of its operations is carried out.

The society's chief executive, Lorna Jack, has already promised that the professional body will bring forward proposals for a "material reduction" in the cost of the certificate at that meeting.

Commenting after the vote was taken, Mr Fllint, who is a partner in MacRoberts, said: "Despite the fact that the mot- ion was not successful, I am heartened by the fact that a significant number of the profession voted in favour of it and that the society has recognised and committed to a material reduction in the practising certificate for next year."

The vote caps a turbulent two weeks for the Law Society over membership costs, after it was accused by Mr Flint and others of being a bureaucracy that wasted the money of its members.

Tuesday, May 26, 2009

Law Society of Scotland accused of wasting solicitors contributions

Big fall outs at the Law Society of Scotland as the membership begin to grumble over paying £665 a year to fund high salaried staff at the Law Society who do little for the profession. (It’s a bit like a protection racket – Ed)

The Scotsman reports :

Law Society is 'wasting money of its members', critics claim

Published Date: 26 May 2009
By Christopher Mackie

A ROW over the cost of practising as a solicitor has intensified after the Law Society of Scotland was accused of wasting its members' money.

In a letter circulated throughout the profession, David Flint, a partner in MacRoberts, claimed the Society operated as though it had "an open cheque book" funded by the subscriptions paid to it by Scottish solicitors.

Mr Flint has already tabled a motion at the forthcoming Law Society AGM demanding that the cost of the lawyers' practising certificate be cut from £665 to £400, in the face of the harsh economic climate. The motion was accompanied by a letter to all Scots lawyers asking for support and criticising the Society. It accused the organisation of being a growing bureaucracy that failed to adequately represent the interests of members.

Following a campaign by the Society to rebut the claims, Mr Flint has circulated a second letter, detailing specific areas of waste and urging lawyers to vote for his proposal at the AGM.

In the latest document, Mr Flint said the Society had "demonstrated a singular inability to operate within any reasonable budgetary constraints: they have an open cheque book from the members and they operate accordingly."

Mr Flint questioned the increased cost of the chief executive's office, a figure that includes the salary of Lorna Jack, who took the helm in January. The latest draft accounts show that this increased by £90,000 to £326,000 in 2008.

He also highlighted the £98,000 spent on an abortive attempt to relocate the Society's offices in Edinburgh, abandoned in light of a reduction in property values.

Mr Flint also asked whether solicitors paying £665 for the certificate should benefit from the large surplus the Society holds. The 2008 accounts show cash reserves of £1.229 million.

Mr Flint told The Scotsman: "My concern is members' money is being spent on the administration, rather than on services to members. If you have a surplus being run on a members organisation the surplus belongs to the members and it should be used for their benefit."

The Society said the decision to retain cash was approved by a vote of its members and said the increase in the cost of the chief executive office was misleading as the cost was artificially low in 2007 because of unfilled vacancies. It defended its decision to cancel the relocation of its offices, and described the incurred costs as "reasonable" for a transaction of that size.

The Law Society intends to reduce the cost of the practising certificate, but only after a review is complete. Ms Jack said: "

There is a commitment to making a material reduction at this year's SGM in September and we would hope that the profession is prepared to allow the full planning process to be completed and make its decision then."

Sunday, May 24, 2009

Law & Order : Scots couple await ruling on extradition to US

Scots couple Brian and Kerry-Ann Howes will hear on Tuesday the result of their appeal against extradition to the USA on charges of supplying two chemicals used in the production of crystal meth, Scots Justice Secretary Kenny MacAskill has already signed their extradition warrant.

The Sunday Herald reports :

Judgement day for couple who face US jail for selling chemicals online

By Sarah Swain

ON SATURDAY they were set to enjoy a trip to Edinburgh Zoo before gathering today for a traditional Sunday lunch - a normal weekend, but the Howes family knows it could be the last one they ever have together.

Brian and Kerry-Ann Howes are facing extradition to America and the possibility of a long jail sentence on charges of supplying two chemicals used in the production of crystal meth.

It is alleged they used their internet-based company to supply chemicals to illegal drugs labs in the US.

They were arrested by Central Scotland Police on behalf of the US Drug Enforcement Agency in January 2007 after their home and business, Lab Chemicals International in Grangemouth, were raided.

The Howes say they sold chemicals - used for making fireworks, medicines and sheep dip - which were perfectly legal in Britain and deny they knew they were being used to make drugs.

At Brian's final appeal hearing at Edinburgh High Court on Tuesday he will discover if he will be remanded to be sent to the US for a trial that could mean he never sees his five children - including Cassidy, just three weeks old - again. His wife could follow - despite the fact that the couple have not broken any UK laws.

Brian, 45, said he was feeling "very stressed, disappointed and worried about my children and my wife".

He added: "I have been told it is the final hearing. My QC has told me not to drive my car there. I believe they will make sure I am remanded.'' If Brian loses his appeal, his wife would also be sent to the US after her hearing and their children - Leela, three, Ellie, six, Bethaney, 10, Denny, 11, and Cassidy - could be taken into care before their parents even face a trial.

If the couple, from Bo'ness, West Lothian, are found guilty, they would be sent to the Maricopa County Jail, housed in tents in the Arizona desert, where inmates are forced to work in chain gangs in 40C heat.

Brian said: "We've been through hell just thinking about it. My wife won't survive the trip. I'm devastated for the children. I can't think of a much bigger travesty of justice."

A psychologist has said Kerry-Ann, 31, is likely to commit suicide if imprisoned again. Her husband, who is under a curfew and must report to his local police station twice a day, also says he will have nothing to live for if he loses his appeal.

Angus Skinner, secretary for the Howard League of Penal Reform in Scotland, said they were concerned about the case, which could leave young children's lives in turmoil.

He added: "The couple's business activity is based in the UK and whatever the global availability of their product is, Scotland is nonetheless the base for their business. We would argue there is still a long way to go in this within the jurisdiction of Scotland."

John Scott, a human rights lawyer and chairman of the Howard League of Penal Reform in Scotland, said: "The foreign extradition arrangements in relation to American are entirely unsatisfactory. The UK effectively lowered the standards of what evidence was required reasonable to extradite people. No evidence is required; it is simply a case of America says they want them and they will be sent over.

"Given what happened with the case of the Enron Three being extradited to the US despite lengthy battles, it is reasonably clear what could happen in this case.

"The UK government needs to properly look at the arrangements for extradition It seems that the courts are powerless to be able to do something to stop this."

Friday, May 22, 2009

Law & Order : Justice Secretary MacAskill ‘should resign’ over prisoner escape

The recent escape of violent inmates from Scots jails has prompted calls for Justice Secretary Kenny MacAskill to resign, however as we all know he wont and the political parties at Holyrood are in not much shape to call for his resignation.

The Herald reports :

MacAskill faces call to resign over prison escape

ROBBIE DINWOODIE, Chief Scottish Political Correspondent
May 22 2009

Justice Secretary Kenny MacAskill yesterday faced demands to resign over the escape of a violent inmate from an open prison.

Opposition groups at Holyrood were considering the nuclear option of a no-confidence vote in Mr MacAskill after Brian Martin, 51, absconded on Monday from Castle Huntly open prison in Angus, where he was serving 10 years for firearms offences.

Labour demanded the minister make a statement to Parliament about the escape of a man whom Labour leader Iain Gray said was once the "the most dangerous man in Britain".

Both Labour and the Tories demanded an independent review of open prisons and the Tories were last night considering whether to table a no-confidence motion.

Mr MacAskill wrote to the head of the Scottish Prison Service, Mike Ewart, to ensure "any further lessons from this current case are applied".

Mr MacAskill is already under pressure for defying a parliamentary vote in favour of going ahead with the pilot of a US-style community court in the east end of Glasgow. He faced calls to quit last week from opponents, after he ignored the Holyrood vote and decided against implementing the scheme.

Both Labour and Conservatives said there has been talk of a no-confidence motion, but last night SNP chiefs warned that such a vote would be treated as an attack on the Government as a whole and could force an election.

First Minister Alex Salmond said his administration would "meet each challenge as it comes," but it is known he takes the view that his party would be the beneficiary if Opposition MSPs brought down his minority government. He is understood to believe that Labour in particular are well aware of that.

During First Minister's Questions yesterday, Mr Gray said the escape was the latest sign that the Justice Secretary was "just not up to the job."

Martin, who is known as The Hawk, transferred to Castle Huntly last month from Shotts prison and was sentenced three years ago.

He had convictions for violence and armed robbery, including some while out on licence from a previous 12-year prison term.

Mr Gray said: "When he walked out of the open prison on Monday, Brian Martin was just three years into a 10-year sentence for firing a gun during a fight in a house in Fife.

"His previous offences included a string of armed robberies and threatening police with a sawn-off shotgun.

This is a man once dubbed the most dangerous man in Britain.

"Will the First Minister agree Brian Martin should not have been in an open prison in the first place?"

Mr Salmond said regulations were tightened up by the Justice Secretary after the case of Robert Foye, jailed last year for raping a schoolgirl while on the run from Castle Huntly.

Thursday, May 21, 2009

90 solicitors have criminal records in England & Wales but Scottish statistics on convicted lawyers remain secret

The Law Society of England & Wales has apparently disclosed in a Freedom of Information request to law blogger Peter Cherbi’s Diary of Injustice, there are some 90 solicitors in England & Wales with criminal records.

The Law Society of Scotland however, has unsurprisingly kept silent and has not disclosed the statistics for Scotland.

As Diary of Injustice points out, the Law Society of Scotland's refusal to disclose the statistics for convictions and types of convictions of Scottish solicitors, is possibly due to the fact that while evidence shows many of the convictions in England & Wales relate to the more minor offences, charges & convictions against Scots lawyers are somewhat more shocking, if you care to read on :

Diary of Injustice reports :

Criminal records of lawyers : Scots public kept in dark over convictions while England & Wales get ‘right to know’

lawsoc_eng_walesLaw Society of England & Wales reveals statistics on lawyers with criminal records. The Law Society of Scotland have today been upstaged by their English counterpart, the Law Society of England & Wales, who, responding to a Freedom of Information request, have reported that in the rest of the UK there are some 90 solicitors in practice in England & Wales who currently have criminal records, with an estimated 50 of those solicitors still retaining their practising certificates, entitling them to continue representing the public in legal matters.

Law Society of England & Wales statement on criminal records of solicitors : "The Law Society is not notified, as a matter of course, when a solicitor is charged with an offence but we are notified if a solicitor is convicted. There are currently 92 solicitors who have been convicted of criminal offences."

"50 of the 92 have current practicing certificates and are therefore currently entitled to practice. A random check of some of the 50 indicate that the convictions in those circumstances mostly relate to driving offences."

This is believed to be the first disclosure of such details on UK solicitors, and even though the Law Society of England & Wales are not bound by Freedom of Information laws, they acceded to the FOI request in the interests of assisting journalism and keeping the public informed of matters of potential concern

Law Society of ScotlandLaw Society of Scotland refuse to reveal details of criminal records of solicitors. While members of the public in England & Wales now have such information to hand, to assist in their choice of legal representatives, people in Scotland will not have access to such radical disclosure of solicitors criminal history, after the Law Society refused to publicly disclose any such details of the criminal records of Scottish solicitors.

Ian Donnelly - Lawyer begs for sex with mum & girl of 11 - Daily RecordCriminal convictions of Scots lawyers relate to very serious offences and many with criminal records still practise law. A senior Law Society insider today spoke of his concern that revealing the types of criminal charges and criminal convictions of lawyers in Scotland may well put people in fear of choosing a lawyer, given that while in England & Wales, many of the convictions seem to relate to driving, or minor offences, criminal convictions in Scotland range from very grave criminal offences of rape, child abuse, assault, fraud, embezzlement, drugs running, and even accessory to murder, rather than being limited to driving offences and the mode mundane.

He said : "There wont be many within the Scots legal profession or the Law Society of Scotland who will feel inclined to follow the lead of our English cousins in disclosing statistics on criminal records, simply because the seriousness of some of the criminal convictions of solicitors in Scotland would probably make people run a mile from many a legal firm."

"There is an even greater problem in that the numbers of solicitors who are actually charged with a criminal offence is, to be expected, much higher than the figures showing the number of resulting convictions."

He went on : “I personally know of several solicitors currently practising who have been charged with very serious offences, one of rape, one of internet grooming of children, several charges relating to significant financial frauds, not only against clients, but also involving financial institutions, and several younger solicitors in Edinburgh who have recently been charged with drug abuse and possession of cocaine.”

He ended the interview by concluding : “If clients were entitled to this kind of information, the affected law firms would suffer financially from loss of business, but you do raise an intriguing point in that if I were a member of the public I might want to know if my solicitor had a criminal record and what he or she had been charged with or what offences they were convicted for."

Law Chief held with rent boy - Sunday Mail 3 May 2009 eRent boys are a popular theme in criminal charges of leading Scots lawyers. I am all too aware of the seriousness of criminal activity and convictions of solicitors in Scotland, where in recent years we have seen a raft of solicitors hit the headlines such as Angela Baillie, who transported drugs into prison and was herself sent to jail, a Glasgow solicitor who was charged with gun running, also sent to jail, countless solicitors who have been charged with fraud, against clients & banks, some of whom seem to escape with lenient sentences, solicitors who have committed perjury in open court, and of course, the ever popular list of criminal charges relating to offences of a sexual nature, where some of the Scots legal profession's most senior members have been caught with boy prostitutes in shopping centre toilets and other equally sordid cases of rape & abuse - all a far cry from a few ‘driving offences’.

An angry client who was confronted with the fact their advocate has faced charges of serious sex offences today said : "This is an outrage we are not entitled to this kind of information in Scotland. Personally I am horrified at the revelations of what is going on inside the Scottish legal profession, and I think there has to be an immediate change in the law that all clients of solicitors know exactly who they are dealing with."

EXCLUSIVE Lawyer sued for 1millionJohn G O’Donnell has 21 negligence claims but no criminal charges, and is still practising – Your lawyer might have a similar record but no one will know until it is too late. I, of course, fully support the public's right to know whether or not their legal representatives have a criminal record, and also support the idea of full regulatory disclosure by all solicitors to clients, so that people can make up their minds whether the person or legal firm trusted with their legal affairs, is fit and honest enough to carry out the work entrusted to them.

It surely must be the right of clients to check out their solicitors first to see just how honest they are and how they have dealt with regulatory issues arising from perhaps, complaints from other clients. Also clients must of course be able to find out the conduct & negligence record of solicitors, which would in anyone’s mind certainly impact on their choice of legal representation.

I have written about full regulatory disclosure in an earlier article here : Disclosing the regulatory history of lawyers in Scotland to help give choice to the consumer and a more recent article here : Regulatory disclosure to solicitors clients 'a must' as legal ombudsman's report fails to name & shame rogue lawyers

SLCC squareSLCC currently hold no information on criminal charges or records of Scots lawyers. In view of the English Law Society's break from secrecy on the issue of criminal records of those in the legal profession, I asked the Scottish Legal Complaints Commission what they were doing about the issue north of the border, given the public interest would most definitely be served by clients being able to obtain both regulatory disclosure and also disclosure of criminal records or convictions of their solicitor.

I asked Jane Irvine, the SLCC Chair, whether the SLCC have any information regarding solicitors or advocates who are members of the Law Society of Scotland or Faculty of Advocates have criminal records, or are currently subject to criminal investigations or investigations from the Legal Aid Board or any other Government Department.

The Commission admitted it had no such information, despite a brief perusal of the newspapers showing plenty lawyers in the headlines for just about any criminal offence imaginable, and some which are too sordid to imagine.

Given the SLCC is now the sole gateway for complaints against the legal profession, one would think there surely exists a necessary role in collating such statistics relating to criminal activity within Scotland's 10,000 solicitors, given that such information may well be relevant not only to complaints investigations but also inquiries from members of the public who suspect or simply wish to enquire as to the honesty of their solicitors & legal firm.

Cash laundering link to law chief stabbing - Scotland on Sunday 29 January 2006Criminals from within Scotland’s legal profession staged a mafia hit on Law Society Chief in 2006. There amazingly seems to be no obligation on the part of solicitors or advocates to inform the Scottish Legal Complaints Commission, or the Law Society of Scotland that they are the subject of criminal investigations, or criminal charges or convictions. The only way the Law Society gets to know if a solicitor has been found guilty of a criminal offence, is from the Crown Office, and according to sources questioned on this issue today, the Law Society of Scotland does not always want to be told one of their solicitor members has been found guilty of criminal offences … unless the media asks first.

I asked the Scottish Legal Complaints Commission if they thought there should be such an obligation on the part of solicitors & those in the legal services market to report to them that they are facing or are the subject of criminal investigations, or criminal charges,or indeed have been convicted of a criminal offence.

The Commission responded by saying "We deal with complaints under our Act - Legal Profession and Legal Aid (Scotland) Act 2007. Under our legislation there is no obligation on the part of solicitors or advocates to report to the SLCC that they are facing or are the subject of criminal investigations or criminal charges."

Jane IrvineSLCC Chairman Jane Irvine. While the Commission's Chair, Jane Irvine recently supported the idea that the Law Society of Scotland should be brought within the scope of Freedom of Information legislation, which I reported on here : Legal Complaints Chief supports ‘consumer advantages’ of removing Law Society’s Freedom of Info immunity, there does seem to be a more pressing need for the public to be able to access all kinds of information relating to their legal representatives, to assist making a decision on who will represent their legal interests which often involve the most important parts of their lives, from buying a house, to making a will, to the defence of criminal charges or handling civil litigation of all types.

Simply, wouldn't you want to know if your lawyer has a criminal record ? or a negligence record ? or a poor complaints record ?

European Court of Human Rights ruling : Yusuf Salduz v. Turkey

As we reported earlier, a recent ruling by the European Court of Human Rights in a Turkish case, has ruled confessions by criminals or suspects without access to legal representation are illegal.

The ruling may have significance for convictions in Scotland obtained as a result of confessions where access to legal representation has been denied. (a few solicitors will be rubbing their hands at that one ! - Ed)

The ruling :

European Court of Human Rights : Yusuf Salduz v. Turkey

CASE OF SALDUZ v. TURKEY

(Application no. 36391/02)

JUDGMENT

STRASBOURG

26 April 2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Salduz v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jociene, judges,
and Mrs S. Dollé, Section Registrar,

Having deliberated in private on 27 March 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

# The case originated in an application (no. 36391/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Yusuf Salduz (“the applicant”), on 8 August 2002.

# The applicant was represented by Ms. T. Aslan, a lawyer practising in Izmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

# On 28 March 2006 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the lack of legal assistance in police custody and the non-communication of the submissions of the Principal Public Prosecutor, to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

# The applicant was born in 1984 and lives in Izmir.

# On 29 May 2001, the applicant was arrested by police officers from the anti-terrorism branch of the Izmir Security Directorate on suspicion of having participated in an illegal demonstration in support of the imprisoned leader of the PKK (the Kurdistan Workers' Party, an illegal organisation). The applicant was also accused of hanging an illegal placard on a bridge in Bornova on 26 April 2001.

# On 30 May 2001 the police officers took a statement from the applicant in which he admitted the charges.

# On 1 June 2001 the applicant was brought before the public prosecutor and then the investigating judge. Before both officials, the applicant denied the content of his police statement, alleging that it had been extracted from him under duress. The same day, the investigating judge remanded the applicant in custody.

# On 11 July 2001 the public prosecutor at the Izmir State Security Court filed an indictment with the same court, accusing the applicant of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and Section 5 of Law no. 3713 (the anti-terrorism law).

# On 5 December 2001 the Izmir State Security Court convicted the applicant as charged and sentenced him to four years and six months' imprisonment. This sentence was then reduced to two and a half years' imprisonment as the applicant had been less than eighteen years of age at the time of the offence.

# When delivering its judgment, the Izmir State Security Court had taken into consideration the statements which the applicant had made to the police, the public prosecutor and the investigating judge, as well as his co-defendants' testimony before the public prosecutor. The court noted that the latter had given evidence that the applicant had organised them to participate in the demonstration. The court further took note of the expert report which suggested that the applicant's handwriting was identical to that on the placard. The court also noted that, according to the arrest report drawn up by the police, the applicant had been among the people who dispersed after the demonstration.

# On 27 March 2002, the Principal Public Prosecutor at the Court of Cassation submitted his written opinion to the 9th Chamber of the Court of Cassation, in which he had argued that the Chamber should uphold the judgment of the Izmir State Security Court.

# On 10 June 2002 the 9th Chamber of the Court of Cassation confirmed that judgment.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION

# The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the submissions of the Principal Public Prosecutor of the Court of Cassation had not been communicated to him, and that he had been denied the assistance of a lawyer while in police custody. Article 6 §§ 1 and 3 (c) of the Convention, in so far as relevant, read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

3. Everyone charged with a criminal offence has the following minimum rights...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

A. Admissibility

# The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Non-communication of the public prosecutor's written opinions submitted to the Court of Cassation

# The Government submitted that the written opinion of the Principal Public Prosecutor was not binding on the Court of Cassation, as it was free to decide on appeals regardless of the Prosecutor's opinion. They further maintained that the applicant's representative had had the right to consult the case file and examine the documents. Finally, the Government pointed out that on account of the recent amendment of 27 March 2003 Article 316 of the Code of Criminal Procedure now provides that the written opinion of the Principal Public Prosecutor of the Court of Cassation must be sent to the parties.

# The applicant maintained his allegations.

# The Court notes that it has already examined the same grievance in the case of Göç v. Turkey and found a violation of Article 6 § 1 of the Convention ([GC], no. 36590/97, § 14, ECHR 2002-V). In that judgment, the Court held that, having regard to the nature of the principal public prosecutor's submissions and to the fact that the applicant had not been given an opportunity to make written observations in reply, there had been an infringement of the applicant's right to adversarial proceedings (loc. cit. § 55).

# The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned case.

# Accordingly, there has been a violation of Article 6 § 1 of the Convention.

2. Lack of legal assistance during police custody

# The Government maintained that the restriction imposed on the applicant concerning access to a lawyer while in police custody had not infringed his rights of defence. They submitted that, according to the Court's case-law, the assessment of whether a trial was fair should be made in the light of the entire case. In this connection, they contended that the applicant had been assisted by a lawyer before both the Izmir State Security Court and the Court of Cassation.

# The applicant maintained his allegations.

# The Court reiterates that Article 6 § 3 (c) may be relevant at the stage of the preliminary investigation in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports of Judgments and Decisions 1996 I, § 62). Although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001 X).

# In the present case, the Court notes that the applicant was represented both at the trial before the Izmir State Security Court and on appeal by his lawyer. Moreover, the statement he made to the police during his pre-trial detention was not the sole basis for his conviction, and he had had the opportunity of challenging the prosecution's allegations under conditions which did not place him at a substantial disadvantage vis-à-vis his opponent. Before deciding the case, the Izmir State Security Court considered the factors surrounding the applicant's arrest and the expert report which confirmed that the applicant's handwriting had been identical to that on the illegal placard. The court also took note of witnesses' statements before the public prosecutor to the effect that the applicant had invited them to join the demonstration. The court then convicted the applicant on the basis of the facts and evidence before it as a whole (see Yurtsever v. Turkey (dec.), no. 42086/02, 1 August 2006, and Uçma and Uçma v. Turkey (dec.), no. 15071/03, 3 October 2006).

# In these circumstances, the Court considers that, in the instant case, the fairness of the applicant's trial was not prejudiced on account of the fact that he did not have access to a lawyer during the period in police custody.

Accordingly, there has been no violation of Article 6 § 3 (c) of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

# Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

# The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.

# The Government contended that the amounts claimed were excessive and unacceptable.

# The Court finds that the applicant has failed to substantiate that he incurred any pecuniary damage as a result of the breach of his Convention rights. It therefore disallows this aspect of the claim. Moreover, it considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.

B. Costs and expenses

# The applicant also claimed EUR 3,500 for the costs and expenses incurred before the domestic courts and the Court.

# The Government submitted that the applicant had failed to substantiate his claim.

# Making its own estimate based on the information available, the Court considers it reasonable to award the sum of EUR 1,000 under this head.

C. Default interest

# The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

# Declares, unanimously, the application admissible;

# Holds unanimously that there has been a violation of Article 6 § 1 of the Convention on account of the non-communication of the public prosecutor's written opinion;

# Holds by 5 votes to 2 that there has been no violation of Article 6 § 3(c) of the Convention on account of the lack of legal assistance while the applicant was in police custody;

# Holds unanimously that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant;

# Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into new Turkish liras at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

# Dismisses, unanimously, the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 26 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé F. Tulkens Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Judges Tulkens and Mularoni is annexed to this judgment.

F.T.
S.D.


JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS AND MULARONI

We regret that we cannot agree with the majority that there has been, in this case, no violation of Article 6 § 3 (c) of the Convention, for the following reasons:

# As the majority correctly points out at paragraph 22 of the present judgment, our Court has been very clear in reiterating, over many years, that Article 6 applies even at the stage of the preliminary investigation into an offence by the police, and that its paragraph 3 (c) may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements (Imbrioscia v. Switzerland, judgment of 24 November 1993, § 36). As the Court emphasised in that judgment, the manner in which this provision is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case (§ 38).

In the John Murray v. the United Kingdom judgment of 8 February 1996, the Court observed: “national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing” (§ 63).

In the Brennan v. the United Kingdom judgment of 16 October 2001, which is based on the same principles, the Court said that “[t]he manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case” (§ 45). It observed: “although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing” (ibid).

# We can reasonably infer from the above-mentioned case-law the following elements:

Firstly, it is now clear from the Court's case-law concerning Article 6 § 3 (c) that the assistance of a lawyer already at the initial stages of police interrogation is the rule and the lack of assistance is the exception.

Secondly, both in the John Murray and Brennan judgments, the Court made it equally clear that, if there is a restriction on the right to the assistance of a lawyer already at the initial stages of the proceedings, there must be a “good cause” (des raisons valables) for such a restriction.

Thirdly, we observe that in the Murray case the Court found a violation of Article 6 § 3 (c) of the Convention and refused to accept the respondent Government's submission that no problem arose under this Article since the inferences drawn during the first 48 hours of police detention were not the only evidence against the applicant (§ 60, third sub-paragraph).

Fourthly, although in the Brennan case the Court did not find a violation of Article 6 § 3 (c) of the Convention as far as the deferral of access to the applicant's solicitor was concerned, the reason was that the applicant had made no incriminating admissions during the 24-hour deferral period, when he was denied access to a solicitor.

# Against this background, in the present case, we cannot accept that the exception has become the rule and that the argument put forward by the Government and rejected by the Court in the Murray case is now the ordinary justification for dismissing complaints under Article 6 § 3 (c) concerning deferral of access to lawyer, i.e. that “the statement the applicant made to the police during his pre-trial detention was not the sole basis for his conviction” (paragraph 23 above). As to the argument that the applicant had had the opportunity to challenge the prosecution's allegations under conditions which did not place him at a disadvantage vis-à-vis his opponent, it does not seem to us to be grounded on any factual evidence in the file.

Furthermore, no examination of the specific circumstances of the case was made, although incriminating admissions made during police custody were part of the evidence used for the conviction. As to this last aspect, we would observe that the applicant was a minor suspected of having participated in an illegal demonstration in support of the imprisoned leader of the PKK, and accused of hanging an illegal placard on a bridge. He was facing a very serious penalty and was eventually sentenced to four years and six months' imprisonment, which was then reduced to two and a half years' imprisonment on account of the fact that he was a minor at the time of the offence. In addition to that, before the public prosecutor and the investigating judge, the applicant denied the content of his police statement, alleging that it had been extracted under duress (paragraph 7 above).

Moreover, the majority does not examine at all the specific circumstances of the case, as the Court did for example in the Kolu v. Turkey judgment of 2 August 2005, in which it held that there had been a violation of Article 6 § 3 (c) of the Convention on the ground that “depriving the applicant of legal assistance while he was being questioned – whatever the justification might be – caused an infringement of his right to due process which could not be made good subsequently” (§ 62).

Finally, the Government have not advanced any “good cause” (des raisons valables) for the restriction at issue. The only “good cause” was probably that the legislation in force at the material time in the respondent State concerning such crimes did not provide for access to a lawyer during police custody.

# On a more general level, we would also observe that in the last few years a number of State Parties to the Convention, including the respondent, have changed the relevant legislation concerning access to a lawyer during police custody. Some of them expressly invoked the Court's case-law as the main reason for such a change. In this respect, we should not send out the wrong message by saying that the mere fact that a statement made to the police during pre-trial detention is not the sole basis for an applicant's conviction retrospectively justifies any restrictions on access to a lawyer during police custody, which is simply not true.

# Last but not least, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) has frequently recommended that the right of access to a lawyer be guaranteed from the very outset of custody (see as a recent reference CPT/Inf/E (2002) 1 – Rev. 2006, page 12, § 41). The CPT has stressed that, in its experience, the period immediately following deprivation of liberty is when the risk of intimidation and physical ill-treatment is greatest. Consequently, the possibility for persons taken into police custody to have access to a lawyer during that period is a fundamental safeguard against ill-treatment. It is difficult for us to accept that our Court, while being more and more careful about any situation that could possibly be problematic under Article 3 of the Convention, is at the same time moving backward as to the protection afforded under Article 6 § 3 (c) of the Convention.

# The aim of the Convention is to protect rights that are not theoretical or illusory but practical and effective. That rule is true also of the right to legal assistance. As we all know, the crucial moments in criminal proceedings come right at the beginning, with the first stages of police intervention, which may determine the outcome of the proceedings definitively and irremediably.

That is the main reason why the right to legal assistance as soon as possible and throughout criminal proceedings is set forth as a guaranteed fundamental right in the proposal of 28 April 2004 for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, with the aim of setting common minimum standards.

Wednesday, May 20, 2009

19 years later ‘rights of audience’ sections of 1990 Law Reform legislation become Act of Sederunt in Scotland

We all know the Scots justice system is somewhat slow, but nineteen years is a long time to wait on the implementation of acts of law designed to widen rights of audience in the Scottish Courts.

Yes, some 19 years later, the famous Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 have become an Act of Sederunt, only it seems because the Justice Secretary and Lord President were running out of excuses to hold back on the approval of rights of audience applications by people from outside the legal establishment.

This all somewhat conflicts with the terms of a leaked letter from Justice Secretary Kenny MacAskill to Cabinet Secretary for Finance John Swinney, dated 25 July 2007 .. where the impression was given that applications were progressing to approval … and now some two years on from that, applicants still have to deal with a barrage of obstructions from both the Government and the Scots legal establishment.

Announcement of Sections 25-29 becoming law (19 years later) :

Act of Sederunt (Sheriff Court Rules Amendment) (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) 2009 No. 164

Scottish Statutory Instruments

2009 No. 164

SHERIFF COURT

Act of Sederunt (Sheriff Court Rules Amendment) (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) 2009

Made

24th April 2009

Coming into force

20th May 2009

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971(1) and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:

Citation, commencement and interpretation

1.—(1) This Act of Sederunt—

(a) may be cited as the Act of Sederunt (Sheriff Court Rules Amendment) (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) 2009; and

(b) comes into force on 20th May 2009.

(2) This Act of Sederunt is to be inserted in the Books of Sederunt.

(3) In this Act of Sederunt—

“the Ordinary Cause Rules” means the First Schedule to the Sheriff Courts (Scotland) Act 1907(2);

“the Summary Application Rules” means the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999(3);

“the Summary Cause Rules” means the Summary Cause Rules in Schedule 1 to the Act of Sederunt (Summary Cause Rules) 2002(4);

“the Small Claim Rules” means the Small Claim Rules in Schedule 1 to the Act of Sederunt (Small Claim Rules) 2002(5).

Amendment of rules in consequence of sections 25 to 29 of the 1990 Act

2. In rule 1.2 (interpretation) of the Ordinary Cause Rules, at the end there is added—

“(6) In these Rules, references to a solicitor include a reference to a member of a body which has made a successful application under section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990(6) but only to the extent that the member is exercising rights acquired by virtue of section 27 of that Act.”.

3. In rule 1.2 (interpretation) of the Summary Application Rules, at the end there is added—

“(4) In this Act of Sederunt, references to a solicitor include a reference to a member of a body which has made a successful application under section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 but only to the extent that the member is exercising rights acquired by virtue of section 27 of that Act.”.

4.—(1) The Summary Cause Rules are amended in accordance with paragraphs (2) and (3).

(2) In rule 1.1 (citation, interpretation and application), after paragraph (4) there is inserted—

“(4A) In these Rules, references to a solicitor include a reference to a member of a body which has made a successful application under section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 but only to the extent that the member is exercising rights acquired by virtue of section 27 of that Act.”.

(3) In rule 23.3 (expenses), in paragraph (1) for “statutory table of fees of solicitors appropriate to the action” there is substituted “applicable statutory table of fees”.

5.—(1) The Small Claim Rules are amended in accordance with paragraphs (2) and (3).

(2) In rule 1.1 (citation, interpretation and application), after paragraph (4) there is inserted—

“(4A) In these Rules, references to a solicitor include a reference to a member of a body which has made a successful application under section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 but only to the extent that the member is exercising rights acquired by virtue of section 27 of that Act.”.

(3) In rule 21.6 (expenses), in paragraph (2) for “statutory table of fees of solicitors appropriate to a summary cause” there is substituted “applicable statutory table of fees”.

A. C. HAMILTON

Lord President I.P.D.

Edinburgh

24th April 2009

Explanatory Note

(This note is not part of the Act of Sederunt)

By sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, any professional or other body may, for the purpose of enabling any of their members who is a natural person to acquire rights to conduct litigation or rights of audience, make an application for that purpose to the Lord President of the Court of Session and the Scottish Ministers. Such an application must include a draft scheme, which the Lord President and the Scottish Ministers may approve. Section 27(1) of the 1990 Act provides that where such an application has been granted any member of the body concerned who is qualified under the scheme and who appears to the body to be a fit and proper person has the rights to conduct litigation or rights of audience to which that qualification entitles him or her. This Act of Sederunt amends the principal sets of sheriff court rules so as to ensure that they properly accommodate the possibility of such a person conducting litigation or exercising a right of audience in the sheriff court.

Sections 25 to 29 of the 1990 Act were brought into force in March 2007.

(1)

1971 c. 58; section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), Schedule 2, paragraph 12, the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4), the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2), the Adults with Incapacity (Scotland) Act 2000 (asp 4), schedule 5, paragraph 13 and the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), section 43, and was extended by the Child Support Act 1991 (c. 48), sections 39(2) and 49, the Vulnerable Witnesses (Scotland) Act 2004 (asp 3), section 14(2) and the Bankruptcy and Diligence (Scotland) Act 2007 (asp 3), section 33. Back [1]

(2)

1907 c. 51. Schedule 1 was substituted by S.I. 1993/1956 and amended by S.I. 1996/2167 and 2445 and S.S.I. 2000/239 and 408, 2001/8 and 144, 2002/7, 128 and 560, 2003/25 and 26, 2004/197 and 350, 2005/20, 189, 638 and 648, 2006/198, 207, 293, 410 and 509, 2007/6, 339, 440 and 463 and 2008/121, 223 and 365 and 2009/107. Back [2]

(3)

S.I. 1999/929, amended by S.S.I. 2000/18 and 387, 2001/142, 2002/7, 129, 130, 146 and 563, 2003/26, 27, 98, 261, 319, 346 and 556, 2004/197, 222, 334 and 455, 2005/61, 473, 504 and 648, 2006/198, 410, 437 and 509, 2007/6, 233, 339, 440 and 463 and 2008/9, 41, 111, 223, 335 and 365 and 2009/107 and 109. Back [3]

(4)

S.S.I. 2002/132, amended by S.S.I. 2003/26, 2004/197, 2005/648, 2006/509, 2007/6, 339, 440 and 463 and 2008/121, 223 and 365 and 2009/107. Back [4]

(5)

S.S.I. 2002/133, amended by S.S.I. 2003/26, 2004/197, 2005/648, 2006/509, 2007/6, 339, 440 and 2008/121, 223 and 365 and 2009/107. Back [5]

(6)

1990 c. 40. Back [6]

Consumer Focus Scotland welcomes approval of Association of Commercial Attorneys to represent litigants in civil court

Consumer Focus Scotland has welcomed the long awaited approval of the Association of Commercial Attorneys application under the terms of Section 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, for rights of audience in the Scottish Courts.

Despite the cheer, and much needed addition of the Association of Commercial Attorneys to the access to justice debate, their practising certificate remains heavily restricted to construction law only .. at the insistence of legal establishment insiders, apparently worried their grip over Scotland’s monopolistic legal services market is slipping. (and about time too – Ed)

Consumer Focus Scotland’s Press Release :

New voice to be heard in Scotland’s courts

Consumer watchdog says group’s new right of audience helps open up Scottish courts

A significant step in opening up Scotland’s court system to competition will be taken today with the granting of rights of audience in certain cases in the sheriff courts to a new group of legal specialists who are neither solicitors nor advocates.

Scotland’s foremost consumer watchdog, Consumer Focus Scotland, is welcoming the decision to give the Association of Commercial Attorneys the right to bring cases to the civil courts.

Principal Policy Advocate with Consumer Focus Scotland, Sarah O’Neill, says people who need to turn to the courts will benefit if they’re able to be represented by professionals who are right for their particular case:

“The costs of legal advice and representation should never be a barrier to access to justice. Consumers who become involved in legal disputes need to have access to affordable and accessible legal services. By allowing new professional groups to represent their clients in the courts we are introducing greater competition, and if specialists can take cases to court themselves, rather than having to instruct a solicitor or advocate, clients benefit from a more efficient and less costly route to justice.”

The Association of Commercial Attorneys had its application for rights of audience in construction and building law cases under sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 accepted by the Lord President last month. From today the group will be the first to be allowed to break the monopoly of solicitors, advocates and, more recently solicitor-advocates.

Sarah O’Neill says it has been a long time coming:

“While not supporting any particular application, we have long argued that opening up the legal services market to greater competition meant greater choice and a reduction in the cost of legal representation. The legislation which was meant to open up this market lay on a shelf for sixteen years before the measure was finally incorporated into the Legal Profession and Legal Aid (Scotland) Act in 2006.

“Our hope is that the granting of Rights of Audience to the Association of Commercial Attorneys from today will encourage others to follow.”

Background

The Association of Commercial Attorneys was granted Rights of audience in relation to construction and building law cases under the Act of Sederunt (Fees of Members of the Association of Commercial Attorneys in the Sheriff Court) 2009, which comes into force today (20th May 2009).

Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 were commenced in March 2007. They set out arrangements by which rights to conduct litigation and rights of audience can be granted in Scotland to members of a professional or other body i.e. to bodies whose members are not necessarily legally qualified. Those wishing to be granted such rights have to apply to the Lord President of the Court of Session and Scottish Ministers.).