Scottish Police lose right to question suspects without solicitor present as UK Supreme Court rules on Cadder v HMA, conviction violated ECHR

UK Supreme Court throws out Scots Police right to question suspects without a lawyer. SCOTTISH POLICE have now lost the ability to question suspects without their solicitor being present, after the UK’s Supreme Court in London finally issued its ruling today on the Appeal case of Cadder (Appellant) v Her Majesty's Advocate (Respondent) (Scotland), throwing out the practice in Scotland of being able to question suspects without a solicitor in attendance as being a violation of Human Rights laws.

The background to the case : The Appellant was detained by the police on suspicion of serious assault and cautioned, in line with the statute, that he did not have to answer any question, beyond giving his name, address, date and place of birth and nationality. He was told that he was entitled to have a solicitor informed of his detention but he did not exercise that right. He was interviewed without a lawyer being present. During interview, the Appellant made a number of admissions. At trial the Crown led evidence of the police interview with the Appellant and relied on the admissions. The Appellant was convicted.

Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 allow a police constable to detain a person whom he has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment. Detention may last for up to six hours. During detention, the police may put questions to the detainee, although the detainee is under no obligation to answer them and is to be informed at the outset of the detention that he is under no such obligation. The detainee is entitled to have a solicitor informed of his detention. However, in terms of the statute, the detainee has no right of access to a solicitor. The question is whether that is a breach of the right to a fair trial, recognised in Article 6(1) and 6(3)(c) of the European Convention of Human Rights (“the ECHR”).

In Salduz v Turkey (2008) 49 EHRR 421 the Grand Chamber of the European Court of Human Rights unanimously held that there had been a violation of Articles 6(1) and 6(3)(c) ECHR because Salduz had not had the benefit of legal advice when he was in police custody. In Her Majesty’s Advocate v McLean [2009] HCJAC 97, the High Court of Justiciary (sitting with seven judges) held that, notwithstanding the decision in Salduz, it was not a violation of Articles 6(1) & 6(3)(c) ECHR for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor. This was because the guarantees otherwise available in the Scottish legal system (and, in particular, the requirement that there be corroborated evidence in order to convict) were sufficient to provide for a fair trial. In the present case, relying on the decision in McLean, the appeal court refused the Appellant leave to appeal against his conviction. In effect, therefore, the present case is an appeal against the decision in McLean.

Lord Hope, in his statement to the court was critical of the fact no one until now had though the arrangements for questioning suspects without solicitors in attendance in Scotland was wrong. He said : “It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure. Ever since the statutory power to question a suspect prior to charge was introduced by sections 1 to 3 of the Criminal Justice (Scotland) Act 1980, the system of criminal justice in Scotland has proceeded on the basis that admissions made by a detainee without access to legal advice during his detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption. Many more are ongoing or awaiting trial - figures were provided to the court which indicate there are about 76,000 such cases - or are being held in the system pending the hearing of an appeal although not all of them may be affected by the decision in this case. There is no doubt that a ruling that the assumption was erroneous will have profound consequences. But there is no room, in the situation which confronts this court, for a decision that favours the status quo simply on grounds of expediency. The issue is one of law, as the court appreciated in McLean. It must be faced up to, whatever the consequences.“

The Judgment stated : The Supreme Court unanimously grants leave to appeal and then goes on to allow the appeal. The ECHR requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed, unless in the particular circumstances of the case there are compelling reasons to restrict that right. The Supreme Court remits the case to the High Court of Justiciary for further procedure. Lord Hope (Deputy President) delivers the leading judgment, with which Lord Mance agrees. Lord Rodger delivers a separate judgment, agreeing with Lord Hope but adding observations of his own. Lord Walker, Lord Brown, Lord Kerr and Sir John Dyson SCJ agree with the reasons given by both Lord Hope and Lord Rodger.

The judges also said their ruling was not entirely retrospective, and left the Scottish Criminal Cases Review Commission to determine if closed cases may be referred back to the High Court : This decision does not permit closed cases to be re-opened. Although a judicial decision has retrospective effect, it does not affect cases which have been finally determined (namely, where an accused was convicted and did not appeal within the relevant time limits, or did appeal and the appeal has been finally disposed of). The decision will, however, affect cases which have not yet gone to trial, where the trial is still in progress or where an appeal has been brought in time and is not yet concluded. The Scottish Criminal Cases Review Commission, if it is asked to do so, will have to determine whether it is in the public interest for cases which have already been finally determined to be referred to the High Court, which will in turn have to decide how to deal with such cases, if a reference is made.

The full judgement can be downloaded here : Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf)

Scotland’s Justice Secretary Kenny MacAskill issued a statement on the Supreme Court’s ruling, saying emergency legislation would immediately follow. Mr MacAskill gave the usual praises for Scotland’s ‘proud, distinctive’ justice system, despite the burgeoning catalogue of unjust convictions, allegations of miscarriages of justice & a Victorian civil justice system unfit for use even in a nursery. (Shouldn’t that be proud & distinctive as in who it wrongfully convicts, victimises or refuses to grant access to justice to ? – Ed)

Scottish Government statement follows :

Swift action to change Scots law

26/10/2010

The UK Supreme Court has today decided that one aspect of criminal procedure in Scotland is incompatible with the European Convention on Human Rights.

The judgement - which does not permit closed cases to be reopened and as such will not be retrospective - will prompt swift action from the Scottish Government that has been planned for months.

Responding to the decision of the Supreme Court in relation to the Cadder case, Justice Secretary Kenny MacAskill said: "I note today's decision by the Supreme Court. It is a decision we did not seek but it is one to which we must respond.

"The decision overturns decades of criminal procedure in Scotland, a proud, distinctive, justice system, developed over centuries, and predicated on fairness with many rigorous protections for accused persons. It is rightly admired by other jurisdictions. This issue is about legal advice at one step in the investigatory process.

"Today's judgement in the Supreme Court has gone against the unanimous decision last October by seven Scottish High Court judges at the Scottish Appeal Court that determined that an aspect of Scottish criminal procedure does not comply with the European Convention on Human Rights.

"We are concerned that the current devolution arrangements have created an anomaly that seems to put Scottish law at a disadvantage in comparison to elsewhere in the EU. I want to see steps taken to address this anomaly. But we cannot ignore the Supreme Court's decision.

"And while it necessitates changes to Scotland's justice system, these are changes that have been anticipated and planned for. For over a year, the Scottish Government, Crown Office, Scottish Legal Aid Board (SLAB), ACPOS and the Scottish Court Service have been preparing contingency plans to deal with all possible eventualities arising from this case. The Lord Advocate - in anticipation of an adverse judgement - issued interim guidance earlier this year.

"With Parliament's support we will be making swift legislative changes to protect the victims of crime and safeguard communities. The main changes will mean introducing a right of access to legal advice before being questioned, extending the period during which a person may be detained under section 14 of the Criminal Procedure (Scotland) Act 1995, powers to adjust legal aid eligibility rules and measures to ensure certainty and finality in concluded cases.

"We will be introducing this emergency legislation to Parliament on Tuesday - and with the support of the other political parties we can complete the parliamentary scrutiny and debate process during the course of Wednesday. We anticipate the Bill receiving Royal Assent by Friday.

"In addition to these necessary legislative changes, I am today announcing that Lord Carloway, a senior High Court judge, will lead a review of Scottish criminal law and practice in the aftermath of the Cadder decision. I have asked Lord Carloway to make swift progress with his review and report to me within months - certainly in time to allow legislation to be considered for the 2011-12 Parliamentary session.

"Our distinctive justice system is one which protects accused persons. However human rights also extend to victims and to all of the people of Scotland, and the Scottish Government and justice partners will continue to fight to ensure that the rights of the victims and indeed wider society remain at the forefront of the Scottish justice system."

Lord Advocate Elish Angiolini also issued a statement, saying : "The Supreme Court's judgment in Cadder v HMA is a significant ruling for Scots law.

"Until today, the Scottish legislation regarding access to a solicitor prior to and during police detention was held to be compliant with the European Convention on Human Rights. Indeed Scotland's highest criminal Court of Appeal looked at this very issue in the case of McLean less than a year ago. In that case seven judges held unanimously at that time that Scots law and practice was compatible with the Convention requirements.

"Prosecutors work within the law made by Parliament and as interpreted and stated by the courts. Today's ruling in Cadder changes understanding of the law as set out in McLean, and so we will immediately adapt our working practices to this new legal landscape.

"I note that the Court has stated that its decision does not apply to cases that have been finally determined. This very significantly limits the number of cases potentially affected by this judgment.

"In preparation for the possibility of this change, we have been working with the police and the Scottish Government to minimise the risk to live cases. We have of course taken precautionary measures: in early 2009 I issued guidance to prosecutors, instructing them only to use admissions made by suspects who had not had legal advice before interview in a police station where this was considered essential for the Crown case. Earlier this year, following the hearing before the Supreme Court, I issued Guidelines to the police requiring them to provide access to a solicitor prior to and during interview.

"Unlike any other jurisdiction in Europe, Scots law requires two sources of evidence to support each essential fact in a prosecution. This rule of 'corroboration' presents a further challenge to prosecution in Scotland, which does not apply in this wholesale manner in other jurisdictions.

"The balance of rights for accused in Scotland will now need to be carefully considered. It must be ensured that the Convention rights of victims to have 'effective criminal sanctions in place' are maintained where their human rights are flouted by the criminal actions of another.

"In light of this, I welcome the announcement by the Cabinet Secretary for Justice of Lord Carloway's review of the laws of criminal procedure and evidence in Scotland following the Supreme Court's decision. I consider such a review important to ensure, as the Supreme Court itself recognises at paragraph 97 of its opinion 'that any revised scheme is properly balanced and makes for a workable criminal justice system'.

"The Crown Office and Procurator Fiscal Service will continue to work with the police and with the Scottish Government to protect the integrity of pending prosecutions."

Leader of Scotland’s Catholics Cardinal O’Brien to sign Holyrood e-petition calling for inquiry on Lockerbie bomber conviction

Cardinal Keith O’Brien, leader of Roman Catholic Church in Scotland. THE leader of Scotland’s Roman Catholic Church, Cardinal Keith O’Brien is to add his name to an ‘e-petition’ launched at the Scottish Parliament calling for an independent inquiry to be set up by Holyrood into the 2001 conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988. The e-petition, raised by: Dr Jim Swire, Professor Robert Black QC, Mr Robert Forrester, Father Patrick Keegans and Mr Iain McKie on behalf of Justice for Megrahi on 08 October 2010 calls on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.

The closure date is 28^th October and signatures are not limited to those resident in Scotland, nor indeed the UK: anyone anywhere can sign.

To sign your name to the e-petition, visit the Scottish Parliament's e-petitions website at the following link : http://epetitions.scottish.parliament.uk/view_petition.asp?PetitionID=417 or if you prefer, Text '417' and your name to 07537 400395 to add your e-signature.

The Scottish Catholic Media Office issued the following Press Release on Cardinal O'Brien's announcement :

Cardinal to sign Lockerbie petition

25 October 2010

Cardinal Keith O’Brien will add his name to an online petition calling for an Independent inquiry to be set up by the Scottish Parliament into the 2001 conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988. The petition which closes on 28 October 2010 will be submitted to the Parliament for consideration.

Commenting on his decision to sign the petition, Cardinal O’Brien said; “Earlier this year, I described the murder of 270 innocent people on board Pan Am flight 103 over the town of Lockerbie on 21 December 1988 as an act of unbelievable horror and gratuitous barbarity. Many legal consequences flowed from that act culminating in the conviction of a Libyan citizen, Abdelbaset Ali Mohmed al-Megrahi for the bombing. From the moment that verdict was announced, voices have been raised in protest. Over the years the clamour has grown amongst, lawyers, politicians, academics and growing numbers of ordinary citizens that the verdict amounted to a miscarriage of justice.”

Cardinal O’Brien added; “I do not claim to have examined all the evidence in this case, far from it, but I do claim to be increasingly concerned about the reputation of the Scottish Justice system. I have defended publicly the system of justice in this country and have done so because it enjoys my support and confidence. Global accusations of wrongful conviction made against our system must be dealt with. Left unheeded they will weaken the administration of justice in Scotland by casting doubts on its probity and ability. I believe the best way to remedy this is for the Scottish Parliament to launch an Independent inquiry into the 2001 conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103. Regardless of the outcome I believe Scotland’s Justice System would be strengthened by such a process. Either a conviction will be upheld and the process vindicated or it will be struck down, demonstrating to the world that Scotland has the wisdom and compassion needed to rectify its mistakes. In either event I will willingly accept the outcome.”

Doughnuts, principles and no £6m surplus : Law Society’s backroom plot to take over Legal Aid Board attacked by top QC Paul McBride

Last week, Law Society’s Access to Justice Committee Convener Mike Dailly suggested Law Society should take over Legal Aid Board & SLCC. A BACKROOM PLOT by the Law Society of Scotland to take over the Scottish Legal Aid Board and the Scottish Legal Complaints Commission, exposed late last week by Scottish Law Reporter has featured in today’s Scottish newspapers, with top QC Paul McBride, himself a board member of SLAB, coming out strongly criticising the idea lawyers should be able to award themselves legal aid and regulate it, all under the guise of saving money for taxpayers.

Mr McBride likened the Law Society’s Access to Justice Committee’s suggestion as akin ‘to putting Homer Simpson in charge of a doughnut factory’.

Even worse news was to follow for Mr Dailly on the subject of the SLCC’s massive surplus, allegedly £6 million pounds according to statements issued by the Law Society’s Access to Justice Committee, which now turns out to be false, with the SLCC claiming they have a current surplus of around £1.5 million or less.

Report from the Daily Record follows :

It's like putting Homer Simpson in charge of a doughnut factory; Lawyer slams legal aid plan.

Byline: John Ferguson

A TOP lawyer has blasted proposals to put solicitors in charge of their own legal aid payments as "like putting Homer Simpson in charge of a doughnut factory".

Paul McBride QC spoke out after an influential committee suggested scrapping the Scottish Legal Aid Board (SLAB) to save money.

The Law Society of Scotland's access to justice committee want to shut down the SLAB and hand over their role to a new "one-stop shop" body funded and managed by lawyers.

But McBride, a SLAB member, slammed the proposed changes as "preposterous". He said: "SLAB exist to enable access to justice and to make sure legal aid delivers the maximum value for the taxpayer.

"The board serve a vital role and save the public an enormous amount every year. The idea of putting lawyers in charge of administering money to themselves is preposterous and unworkable. "This is like putting Homer Simpson in charge of a doughnut factory."

The access to justice committee's plan would transfer the responsibility for administering legal aid to a new body created out of the Initiative Committee chairman Mike Dailly claimed the changes could save pounds 40million. Dailly, of Govan Law Centre in Glasgow, said: "We can either sit back and wait for front·line legal services for vulnerable people to be cut or we can seize the initiative.

"We are confident a new one-stop shop that handled all legal complaints and payments could save the taxpayer up to pounds 40million over the next five years."

But the SLAB hit back, saying they save the public "tens of millions" a year by limiting unnecessary and excessive payments to lawyers and cracking down on fraud.

A spokesman said: "It is unlikely the proposals would lead to significant savings and may risk higher costs to the taxpayer."

In an update to this report, Mr Dailly has now complained to the Press Complaints Commission about the Daily Record’s story, reprinted above.

Mr Dailly’s complaint to the PCC, reported by The JournalOnline – the Law Society of Scotland’s own in-house law magazine, states : “Mr Dailly's main complaint is that contrary to what was stated in the article, and a supporting editorial, "the Access to Justice Committee has never suggested that solicitors be 'in charge of their own legal aid payments', nor that they should 'manage' the proposed new one-stop body, nor that they should ‘administer money to themselves’. Instead, we pointed to the obvious scope for making savings in terms of administration and overhead costs, with a view to ensuring vulnerable members of the Scottish public did not lose out in front-line services with the forthcoming expected severe public sector cuts".

“He adds that had the paper contacted him before printing the articles, he could have advised that Mr McBride "was misrepresenting our committee’s position and providing a false factual basis for his attack"; and also provided evidence of the Board's administration costs.”

“In addition to Mr McBride's connection with the Scottish Legal Aid Board, it is also pointed out that he provides regular legal advice to the Daily Record in checking the paper for potential defamatory content, and has a potential conflict of interest as adviser to the Conservative Party on legal affairs, given that the Conservative Party is in Government and implementing cuts to public funding.”

However, legal insiders have indicated to Scottish Law Reporter the Law Society remains of the view it should take over SLAB’s duties and those of the Scottish Legal Complaints Commission, with secret discussions ongoing … so it would appear we at SLR, and the Daily Record are on the scent of the missing doughnuts ...

Dailly's Law : Law Society ‘takeover plot’ for SLCC & Legal Aid Board backfires over leak of law complaints quango’s alleged £6 million surplus

Govan Law Centre’s Mike Dailly suggests Law Society should take over Legal Aid Board & SLCC. A BACKROOM PLOT by the Law Society of Scotland to assume control of the Scottish Legal Aid Board & the Scottish Legal Complaints Commission has somewhat backfired after key financial information alleging the costly law complaints quango is holding a whopping £6 million pound surplus was provided to a newspaper by the Law Society of Scotland's Access to justice committee, headed by Mike Dailly, boss of the Glasgow based Govan Law Centre.

The audacious campaign by the Law Society of Scotland to take over the Scottish Legal Aid Board and the Scottish Legal Complaints Commission on the pretext of saving money was mounted early this week, insiders say on the back of the expected publicity surrounding the Coalition Government's announcement yesterday of 'quango bonfire' savings. Legal insiders claim the Law Society hoped their campaign to take control of the way legal aid is distributed in Scotland as well as the 'independent' handling of complaints by the SLCC would succeed, given their highlighting of the costs of running the Scottish Legal Aid Board and massive surpluses held by the Scottish Legal Complaints Commission, costs which of course, could be saved if the Law Society ran SLAB & the SLCC.

The Law Society’s Access to Justice Committee (sounds like a quango itself – Ed) released a raft of information to justify its grab for control of SLAB & the SLCC, simultaneously in “The Firm” magazine & the “JournalOnline” late last week.

The “JournalOnline” version stated : “The committee, convened by Mike Dailly of Govan Law Centre, believes there is "self-evident scope to make major savings" by, in effect, breaking up the Scottish Legal Aid Board (SLAB) and sharing out its functions.

At present, it costs £12.7m per annum in administrative costs (excluding pension fund liability) for SLAB to manage the legal aid budget of around £156m. The committee believes there is scope for savings of up to £40m over the next five years. Measures it is currently examining include:

* administrative savings by merging the Scottish Legal Complaints Commission (which is paid for by a levy on Scottish solicitors, with a current surplus of £6m) with slimmed-down functions of SLAB, including responsibility for regulating and administering payments from the fund, strategic planning, monitoring and intervening to ensure sufficient provision for access to justice across Scotland;
* shared and lower overheads by locating the new "Scottish Legal Services Commission" in modern premises with lower maintenance costs, preferably outside Edinburgh, for example, West Lothian or Lanarkshire;
* delegation to solicitors to undertake full client income verification tests to implement the current means testing of legal aid, act as "service gatekeepers" like GPs, and collect client contributions to the fund, with a concomitant reduction in bureaucracy on firms; all subject to tough, independent, compliance checks through Audit Scotland.

Mr Dailly was reported as saying : "We can either sit back and wait for frontline legal services for vulnerable people to be cut, or we can seize the initiative and identify innovative solutions. We’ll be producing detailed re-modelling, but are confident a new ‘one-stop-shop’ which handled all legal complaints, payments, and strategic planning could save the taxpayer up to £40m over the next five years, with further savings over the longer term. Such savings would avoid the need to cut access to vital front line legal services for the Scottish public. The Access to Justice Committee believes a radical process of reorganisation and simplification should form part of an early Access to Justice or Legal Aid Bill after the Scottish parliamentary elections in May 2011."

Curiously the two versions, although reporting the same events & comments of the same “Access to Justice Committee” headed by Dailly and quoting the Committee’s Convener directly, differed significantly in respect of accusations contained in the “JournalOnline” version that the Scottish Legal Complaints Commission was holding a massive £6 million pounds in surplus while the version in “The Firm” left out the SLCC’s apparently leaked financial data.

What's £6 million pounds between friends ? Answer : Just a drop in the ocean as Law Society Committee claims savings can be made at Legal Aid regulator & discredited complaints quango.

However, earlier this week, the ‘story’ found its way into the Herald newspaper, the day after Mr Dailly wrote on his webblog at “The Firm”, also alleging the SLCC were holding a £6 million pound surplus. The Herald was apparently provided with a release by the Law Society/Mr Dailly continuing the allegations the SLCC was holding the £6 million surplus although no such media release currently exists on the Law Society of Scotland’s website (clearly they didnt want it appearing in other newspapers – Ed)

The next day however, a letter of correction appeared in the Herald sent in by Mr Dailly curtly stating “I Write to correct the figure we provided as the surplus held by the Scottish Legal Complaints Commission, or SLCC (“Law Society committee to seek abolition of legal aid quango”, The Herald, 12 October). In our news release we gave a figure of £6m. However, the latest accounts of the SLCC, for the year ended June 30, 2009, showed a net annual surplus of £1.56m. We do not know what the annual surplus for the year ended June 30, 2010 will be until those accounts are published, and therefore, we await confirmation of the net total surplus, and net assets, held by the SLCC.”

A tale of two surpluses : SLCC’s £6 million pound surplus blogged by Dailly, reported in The Herald, & corrected the next day by letter.

Today an insider alleged “someone talked” at the Scottish Legal Complaints Commission, citing information regarding the SLCC’s current finances is not currently in the public domain, as the SLCC is yet to release its annual accounts & reports, due in the next few weeks sometime before or during December 2010. The insider went onto say “a significant amount of inside information was coming out of the SLCC”, however this comes as no surprise, given the quango’s links back to Drumsheugh Gardens.

Some might wonder why a law complaints quango, which costs over £200K a month to run, which is dishing out expenses to its board members almost on a duck-house basis, is apparently handling little in the way of complaints and is apparently battling with its own remit against consumer groups, may be holding such a large surplus equivalent to a lotto win if Mr Dailly’s information proves to be correct.

The Scottish Legal Aid Board said it would not comment on the story, however the Scottish Legal Complaints Commission issued a statement on the proposal from the Law Society's Access to Justice Committee suggesting a merger of the SLCC and the Scottish Legal Aid Board.

The SLCC’s release stated : “The Scottish Legal Complaints Commission described the suggestion of a merger as "curious" and added: "Both organisations have two very defined and different roles in helping the public to access justice and both organisations are funded in very different ways. It is not clear from the article how well these respective roles are understood."

It should be noted the SLCC have not challenged, confirmed nor denied the figure of £6 million pounds revealed in the press by Mr Dailly’s Access to Justice Committee …

Sheriff charged with drink driving, suspended by Lord President, quits post ahead of court appearance.

SHERIFF ROBERT ANTHONY, who was appointed in 2007 after the consequential vacancy arising on the Shrieval bench following the appointment in early 2007 year of Sheriff Hugh Matthews QC to the Court of Session, has quit his job after being suspended by the Lord President, Lord Hamilton when it was revealed Sheriff Anthony had been charged with drink-driving offences (DUI) while driving on the M8 near Harthill. Sheriff Anthony earned around £123,200.

First Minister Alex Salmond nominated Mr Anthony, 45, for appointment on the basis of a report by the independent Judicial Appointments Board. Sheriff Anthony had a commission enabling him to serve where required throughout Scotland's 49 sheriff courts. He sat mostly mostly in the sheriffdom of Glasgow and Strathkelvin.

Admitted as a solicitor in 1984 and to the Faculty of Advocates in 1988, Mr Anthony took silk in 2002. He served as an Advocate Depute, and latterly as a senior Advocate Depute, from 2001 until 2004. In July 2005 Mr Anthony was appointed as a part-time sheriff. He was appointed a Commissioner of the Scottish Criminal Cases Review Commission in March 2007.

The resignation of Sheriff Anthony parallels the case of the former (now deceased) Sheriff Mark Sischy, who similarly resigned from his position as a Sheriff in disgrace after being caught drink-driving, and amazingly returned to the Scottish judicial system as a £74,000-a-year chairman of employment tribunals. Scottish Law Reporter recently reported on events surrounding highly questionable tribunal decisions taken during the late Mr Sischy’s term as the tribunal’s chairman HERE where former St Andrews University lecturer Dr Declan Quigley raised allegations & complaints to Scotland’s Lord President, Lord Hamilton, of ‘buried evidence’ and named Court of Session judge Lady Smith in the complaint, more details of which can be found HERE

News report from “The Sun” follows :

Booze Charge Sheriff Quits

By THOMAS SMITH

Published: 15 Oct 2010
A SHERIFF quit yesterday after appearing in court on a drink-driving charge.

Robert B Anthony, who sits at Glasgow Sheriff Court, resigned from his position after he was suspended by law chiefs. The 48-year-old, from Broxburn, West Lothian, had appeared at Linlithgow Sheriff Court on Wednesday and will appear again next Friday at Livingston Sheriff Court.

Last night a spokesman for the Judicial Office for Scotland said he was "immediately suspended" last month after being charged, pending the outcome of the case. The spokesman added: "Sheriff Anthony has resigned with immediate effect." The sheriff has raised his profile in his five years since being appointed to the bench.

Six months ago, he spared crime boss Eddie Lyons jail for mortgage fraud. The Lyons clan have been involved in a bloody feud with the rival Daniel gang in the north of Glasgow. Sheriff Anthony's claims that Eddie Lyons has "never caused any trouble to society" drew sniggers in court. The notorious gang lord had never been convicted before. He was cleared of attempted murder in 2001 and escaped charges again three years later after police seized £63,000 in alleged drug money from his home.

Fining Lyons, 52, just 300 hours' community service for £259,000 mortgage fraud, Sheriff Anthony told him: "As far as I'm concerned, you are a first offender and a man of mature years who has never caused any trouble to society."

In February this year, Sheriff Anthony jailed two thugs who filmed themselves attacking a stranger then posted the footage on YouTube. Caging the pair for two years, he told them: "This violent and unprovoked attack amounted to nothing more than bullying of a vulnerable member of society."

Last night a spokesman for Lothian and Borders Police said: "We can confirm that a male was charged with drink driving on September 30." He was charged under section five of the Road Traffic Act 1988.

Sheriff Anthony was unavailable for comment last night.

Record 15 year wait for justice approaches for lecturer in Court of Session showdown with former Motherwell college ‘Bully Boss’ principal

A staggering 15 year wait for Justice by a music lecturer against Motherwell College may see its disgraced former Principal appear in court. FIFTEEN YEARS later in what is Scotland’s longest running civil damages action involving Motherwell College, the disgraced former Principal & CEO of Motherwell College Richard Millham, dubbed the “Bully Boss” by the media due to a string of allegations of bullying involving college lecturers, may be back in the dock soon, this time in Scotland’s Court of Session in a civil damages action claim against Motherwell College, brought by Mr Martin Wilson, a former Music Lecturer at the College.

“Bully Boss” Richard Millham who was alleged in media reports ‘to have targeted Mr Wilson in a strong climate of fear’, was forced to resign after widespread press coverage of the many Employment Tribunal decisions lost by the College under his stewardship - some estimates put the cost of these at a staggering £300,000 pounds of taxpayers money.

One of several staff members who fought back against the bullying culture at Motherwell College was the Music Lecturer Martin Wilson, who has braved the Court of Session as a party litigant in a 15 year attempt to gain justice in his civil damages claim against Motherwell College, who are represented by Simpson & Marwick, who famously argued against the Damages (Asbestos) Bill at the Scottish Parliament, claiming to MSPs asbestos related illnesses were actually good for victims who suffered from ‘pleural plaques’, a condition that forms as a result of exposure to asbestos

From 1995-1998 Motherwell College opposed Mr Wilson's claim for Unfair Dismissal while on long term sickness leave and lost, to a unanimous decision. Undeterred Motherwell College appealed the decision, and lost again. This was the first of several high profile Employment Tribunal cases lost by the Board of Management of Motherwell College, often to unanimous decisions against it.

Undeterred, the Board of Management of Motherwell College has continued to spend thousands of pounds more of taxpayers money for the last 13 years opposing Mr Wilson's Personal Injury claim, the longest running civil case of its kind, the new Principal Mr Hugh Logan losing appeals before the FOI Commissioner and the Pensions Ombudsman along the way.

Mr Wilson has still not received his correct ill-health pension entitlement some 15 years after he was injured, all of which adds further substance to Lord Gill's recent criticisms of the Scottish Civil Justice system as 'failing society' and often involving 'scandalous delays'.

In an age of fairness and public sector cuts it is difficult to imagine how Motherwell College's obstinacy can be justified. However it might have something to do with the important precedent the case will establish if successful and the attitude of the College's disgraced insurer Travelers Insurance Co Ltd, who have also been fined hundreds of millions of dollars in connection with workers claims for asbestos injuries, one of many subpoenas alleging it had acted "maliciously" using "fraud, deceit and outright lies," designing and orchestrating their claims settlement practices to "intentionally delay," and raising defences that they knew would never succeed in order to settle claims for less money.

Holyrood Committee hears testimony Crown Office specialist deaths unit should be able to investigate retrospective cases of suspicious deaths

The Scottish Parliament today heard evidence from Fife-based Law reform campaigner Tom Minogue the Crown Office should be able to investigate historic cases of suspicious deaths. After hearing detailed accounts of cases of concern, the Petitions Committee agreed to write to the Scottish Government and the Crown Office and Procurator Fiscal Service seeking responses to points raised in Petition 1332 and during the discussion.

Mr Minogue in his oral presentation to the Petitions Committee cited another famous Scottish case of death in suspicious circumstances—that of Dundee man Billy Harris—as evidence that the petitioner (Mrs Borgesson)'s concerns were not fanciful or unique but were part of a concerning pattern of cases that may have predicated the actions of the Lord Advocate in setting up the new investigative team.

Fife-based Law reform campaigner Tom Minogue speaks at Scottish Parliament on merits of new specialist deaths team having a remit to investigate historical cases of suspicious deaths.

PE1332 Petition by Guje Borgesson, calling on the Scottish Parliament to urge the Scottish Government to ensure that the new specialist deaths unit being created by the Crown Office and Procurator Fiscal Service is able to investigate retrospective and current cases of suspicious deaths, including after a Fatal Accident Inquiry has taken place, where the bereaved can reasonably demonstrate that the circumstances of the death were suspicious and that there is a robust and open mechanism, involving the families, for an independent review of such suspicious deaths.

The official report from the Scottish Parliament on the hearing follows :

Suspicious Deaths (Investigation) (PE1332)

The Convener: This afternoon we will consider six new petitions, taking evidence on the first two. PE1332 from Guje Börjesson calls on the Scottish Parliament to urge the Scottish Government to ensure, first, that the Crown Office and Procurator Fiscal Service's new specialist deaths unit is able to investigate retrospective and current cases of suspicious death, including after a fatal accident inquiry has taken place, if the bereaved can reasonably demonstrate that the circumstances of the death were suspicious and, secondly, that there is a robust and open mechanism, which involves the families, for an independent review of such suspicious deaths.

Mrs Börjesson was due to make an oral statement to the committee but unfortunately she is unable to attend because of ill health. Instead, Tom Minogue will speak to the petition. Mr Minogue, I welcome you to the meeting and invite you to make an opening statement of no more than three minutes, after which members will have the opportunity to ask questions.

Tom Minogue: Guje Börjesson submitted this petition because she does not accept that her daughter Annie died accidentally or committed suicide. Instead, she believes that Annie might have been the victim of foul play because there was no evidence that she was contemplating or had committed suicide; in fact, the evidence suggests that just before her death she was threatened by an unidentified man. Although Mrs Börjesson cannot demand that the authorities solve the mystery of her daughter's death, she has every right to expect them to try and is convinced that they have not. Of course, if she lived in Scotland, she could raise her concerns with her elected representative just as the Harris family from Dundee did with John McAllion, a previous convener of the committee, who championed their cause because he, too, doubted the authorities' conclusion that the Harris's son, who was found dead with serious head injuries, had died by accident.

Indeed, when I read John McAllion's speech in Parliament about the case, I was struck by the similarities between the Harris and Börjesson cases. Strathclyde Police called both deaths accidental. Both cases had no corroborating evidence to indicate accident or suicide. In fact, the opposite is true—both victims had unexplained injuries and other anomalies. Both bereaved families were refused fatal accident inquiries; had their loved ones' bodies returned in shocking and distressing states; and spent fruitless years trying to prise information from the authorities before enlisting the help of investigative journalists. Both cases attracted widespread media attention. The Harris case, for example, spawned a television documentary and the Börjesson case is to be the subject of a similar film. Last but not least, both cases attracted an outpouring of public concern that ended in Parliament, the Harris case at Westminster and the Börjesson case, with a petition of more than 3,000 supporting signatures from 57 different countries, here at Holyrood.

Since Annie's death, Guje Börjesson has travelled to Scotland at least once a year and has acted as a sort of Swedish Miss Marple. She has tried to glean information from the authorities and to speak to people who knew her daughter in the hope that that can shed light on her death. That is a sad indictment of our country's reputation, and it must be detrimental to Mrs Börjesson's health, safety and sanity. Both cases—and the other two cases to which the petitioner has referred—endorse Elish Angiolini's call for a Crown counsel-led team of highly trained specialists to investigate complex deaths. Elish Angiolini has said that that "will provide reassurance to the nearest relatives and the public that the circumstances of a death have been fully and timeously investigated."

The petition is evidence that such public confidence is currently lacking.

I stress that those are my observations on the Börjesson case and that I was asked to comment on the petition at the last minute.

The Convener: We are grateful to you for stepping in.

Tom Minogue: I will answer any questions that I am able to answer.

Anne McLaughlin (Glasgow) (SNP): I used to work for Aileen Campbell MSP and I have met Guje Börjesson a couple of times. It was clear that she has suffered greatly since her daughter's death.

I want to pick up on something in the petition. Guje Börjesson says:

"Questions with relevance to the investigation ... posed to ... Strathclyde Police, by MSP Aileen Campbell have not been replied to."

Aileen Campbell and I had a three-and-a-half-hour meeting with senior police officers in which every detail of the case was gone into, and the answers were passed on. I cannot say any more than that. Perhaps something has happened since then and further questions have arisen, but we were certainly satisfied that all the questions had been answered. That said, the circumstances were particularly difficult, as Mrs Börjesson lives in Sweden and her daughter died here. She thought that the case had not been fully investigated. It must be incredibly difficult to come to terms with what happened to her daughter.

How much further should we take things? Is there a danger that, if there is a fatal accident inquiry, it will still be thought that more has to be explored? What would happen if it was thought in a further review that nothing more had to be explored? I am using the case as an example because it has gone on for years, and many MSPs, police officers and journalists have looked into it. Is there a danger that we will simply keep on reviewing?

Tom Minogue: There is that danger, of course, but Guje Börjesson has not got past the first hurdle of having a fatal accident inquiry. If the Lord Advocate, Mrs Angiolini, sees the need for a Crown counsel-led team of highly trained specialists to investigate such complex deaths, there is something in that idea. The Lord Advocate must also realise that the public do not have confidence that investigations are always done timeously and thoroughly. That is simply common sense. We have respect for the ordinary bobby on the beat, who has a difficult job, but the ordinary bobby on the beat is only an ordinary person with pressures of work. Perhaps they cannot identify things that a specialist team might be able to identify.

I drew the comparison with the Billy Harris case, which was taken up by a well-respected past convener of this committee, because in looking at the Börjesson case as an observer I get the impression that some people think that we are just talking about a grief-stricken, middle-aged mother who cannot see any wrong in her daughter or believe that she would have taken her own life. I do not think that that is the case; Guje Börjesson is an intelligent and resourceful woman and she will go on until she is satisfied that attempts, at least, are being made to find out what happened to her daughter. Right from the word go, she has not had that; she has come up against officialdom in Scotland. That is why I brought John McAllion into it—Mrs Börjesson can be dismissed easily as an emotive mother, but John McAllion found exactly the same thing, and worse, with the same police force in relation to one of his constituents. He was not related to Billy Harris. He was a dispassionate observer, but he came across exactly the same thing. I recommend that you read John McAllion's speech, which is in Hansard; he made it on 16 March 1993. He saw the grief that had been caused to a family.

It is not fanciful to say that some of what Mrs Börjesson says is true. We know for a fact that she had to have a sit-down protest in Kilmarnock police station—if you have dealt with her, you will probably know that that is the case—to find out information about her daughter. It reflects badly on us as a nation that a foreigner who comes to this country when she has lost her daughter, who adopted this country, is treated in this manner. Mrs Börjesson speaks very highly, as you will probably also know, of the help, warmth and assistance she has received from ordinary people in this country, but she does not have much good to say about her experience of coming up against officialdom. I have made the judgment that she is not a neurotic mother who sees conspiracies and suchlike about her poor daughter; I think that she is a reasonable, intelligent woman. You asked, to get right back to your question, how long can the process go on? Examining it once would be a start, in this case.

Anne McLaughlin: I do not want to focus on Guje Börjesson as an individual. I understand that she did not get a fatal accident inquiry but, on the wider issue, there are people who will never accept, you know, and they will want another investigation and another investigation. I am asking you how many investigations it takes. I am not saying that I necessarily disagree with what you are saying; I am asking whether there is a danger that we keep on reviewing and reviewing.

Tom Minogue: One review would be a start in this case.

Anne McLaughlin: In this case—but in the wider context?

Tom Minogue: In the wider context, you should continue until you get to the truth. Of course there will be disingenuous people who, having been convicted of a crime, will want it re-examined and re-examined not because they did not commit the crime but because they might want to make capital out of that. The specialist team that Elish Angiolini envisages would surely have the wit and wisdom to sort the wheat from the chaff.

In Mrs Börjesson's case it is undeniable that she is not the chaff; she is the real McCoy. Her daughter's body was brought home to Sweden, with her waist-length hair hacked off, in a poor condition, but it was not as bad as in the case of the Harris family, whose son's body lay for 42 days at room temperature in the custody of Strathclyde Police and was then sent home in a disinfected body bag and the parents could not even look at it—they could not even see their son. That is why I brought John McAllion into it, to show you that this woman's grief and her experiences are not fanciful.

The Convener: Are there any other questions, before we decide what to do? As there are none, can I have suggestions about how we proceed with the petition?

Bill Butler: As is obvious, this is a disturbing case. In view of Mr Minogue's response to my colleague, Anne McLaughlin, what I am about to suggest may or may not give closure. Who can tell? At the bare minimum we should write to the Scottish Government and the Crown Office and Procurator Fiscal Service to ask a number of questions. First, what is their response to the petition? We should get that on the record. Secondly, will the new specialist deaths unit, as referred to in the petition, be able to investigate cases of suspicious deaths? If not, why not? Perhaps we could ask the Government when it will respond to the recommendations that Lord Cullen made in the report of his review of fatal accident inquiry legislation. I think that those are reasonable first steps to take on the petition.

The Convener: Do members agree with Bill Butler?

Tom Minogue: May I say something that relates to what Bill Butler said? I think that if we ask any group that self-regulates whether it has made a mistake and whether it has done enough, it will generally say that it has done everything. I think that Elish Angiolini sees that, too. A specialist unit would not necessarily have been involved in the original investigation and could look at the case differently. In the case that we are talking about, the people who have already said that they have done enough will say again, "Yes, we have done enough. We have looked at the case in all ways."

Bill Butler: You make a fair point. There is always a danger of that happening. However, I think that my suggested approach—if the committee agrees to take it—is correct, in that we will get responses and then do what we are paid to do, which is exercise our judgment and see what we think of the responses. Sometimes, when people say they did everything they could the way they say it leads to further questions. Do you agree?

Tom Minogue: Yes. If you read Hansard you will see that John McAllion mentioned that Strathclyde Police said that, in the year in which Billy Harris died, it had no unsolved murders. The implication is that the police are under pressure not to have murder cases on their hands, so it is sometimes easier to say, as Strathclyde Police said about Billy Harris, "This chap fell backwards five times, striking his head in the same place five times, getting up again each time, even though he was very drunk. It was an accident," rather than, "Someone beat Billy Harris about the head with an object, hitting him five times in the same place." There are pressures on the body that does the original investigation—that is undeniable.

Bill Butler: I hear what you said, but we will have a go nevertheless.

The Convener: Does the committee agree with the proposed approach?

Members indicated agreement.

The Convener: That means that we are opting to continue our consideration of the petition. I thank Mr Minogue for his evidence.

Self regulation of Police complaints in the frame as applications to Police Complaints Commissioner jump 19%

DISATTISFACTION with complaints against Scottish Police Forces for the year ending 31 March 2010 has prompted nearly 1 in 5 of those who made complaints to apply to the Police Complaints Commissioner to review the way the Police handled their complaint, according to figures issued today in the Annual Report of Professor John McNeill, the Police Complaints Commissioner for Scotland.

Download the Annual Report here : PCCS ANNUAL REPORT 0910 (pdf)

Applications from the public asking for their complaint to be reviewed by Professor John McNeill, the Police Complaints Commissioner for Scotland, rose by almost one fifth to 133 for the year ending 31 March 2010. During the same period, he finalised 69 independent reports, known as complaint handling reviews, involving over 300 individual complaints from the public. He found that in two out of three cases, the complaints had been handled reasonably by the police.

Professor McNeill said: “The role of the Police Complaints Commissioner is to consider and review the way police organisations handle complaints from the public. The Annual Report provides an excellent platform to set out, for our stakeholders and other interested parties, the range of work we are undertaking in this area.”

As well as a scrutiny role in relation to how individual complaints are handled, the Commissioner’s role provides assurance to Scottish Ministers that police bodies operating in Scotland have “efficient and effective” police complaint handling procedures in place and that they are subject to continuous improvement and modernisation.

In his foreword to the Annual Report, Professor McNeill considers his role in modernising police complaints handling and calls for a fundamental shift in the way complaints are handled by the police.

Professor McNeill wrote : “One of the major pieces of work for next year will be to the publication of Statutory Guidance to Scotland’s police that will help to create a police complaints system that embraces learning rather than blame.”

Lord Advocate Elish Angiolini to step down ‘at next election’ as suitors circle for Law Chief’s job

Lord Advocate Elish Angiolini to step down. As will come as no surprise to many participants in Scotland’s legal world, after what has been a difficult year for the Crown Office in some respects, today saw an announcement from the Lord Advocate, the Rt Hon Elish Angiolini that she intends ‘stepping down from office at the next Scottish election, due on 5 May 2011. While the Lord Advocate has now confirmed rumours rife in legal circles for some time, many unanswered questions over Crown Office censorship linked to earlier news reports identifying the Lord Advocate & exactly who paid for a private law firm to go after a Scots law magazine remain …

As suitors for the vacant post now take up their campaigns to be the next Lord Advocate, apparently engaging in everything from buttering-up politicians to even hurling one’s unneeded salaries in the direction of various charities, speculation is rife the current Solicitor General for Scotland, Frank Mulholland may be a shoe-in to replace Ms Angiolini …

Scottish Government media release :

Lord Advocate to step down

The Lord Advocate, Rt Hon Elish Angiolini QC has today announced that she will be stepping down from office at the next Scottish election. The Lord Advocate said that it had been an enormous privilege to serve the people of Scotland both as a prosecutor for 27 years and as a Law Officer, to two different Governments, over the last decade.

She wished to recognise the skill and dedication of all those who work in, and support, the justice system in Scotland. In particular, she thanked the team of Crown Counsel and staff of the Crown Office and Procurator Fiscal Service; and all staff in the Scottish Government legal service.

Speaking after a Sexual Offences Conference in Glasgow the Lord Advocate said : "I can think of no more fitting occasion than this Conference to announce that I will stand down from office at the next election, and to thank those who work tirelessly to achieve improvements in the criminal justice system for their dedication and skill. This last decade has been a time of great change for the Scottish prosecution system, during which we have worked together with other agencies across disciplines to build a justice system which better serves victims and witnesses, and deals more effectively with serious crime. I hope we have formed a strong foundation on which we can continue to build in the months and years ahead. I would like to thank all those who work so hard across the Scottish criminal justice system to make this possible."

First Minister Alex Salmond said: "By next year Elish Angiolini will have completed an unprecedented 10 years as a Law Officer, including five years as Lord Advocate. In doing so, she was the first woman to hold the post and the first to be appointed by successive administrations. It has been a pleasure to work with her since 2007, and her term as Lord Advocate has been marked by significant improvements and substantial success in the disposal of justice in Scotland.

"Among her many achievements are reform of the courts system, and a much-needed new approach to tackling sexual crime. Under her leadership, recorded crime has dropped to a 32-year low in Scotland, and citizens fear crime significantly less than they did when she took office.

"She will be a substantial loss to government after next year, but her positive legacy will be long and lasting. I wish her well in her future career."