Saturday, February 26, 2011

Law Society resignations : Scottish Legal Aid Board Chief accused of interfering with Law Society to gag committee in legal aid money debate

THE entire membership of the Law Society of Scotland’s powerful Access to Justice Committee is reported in today’s Herald newspaper to have followed its Convener, the Govan Law Centre’s Mike Dailly, and resigned in a mass protest over allegations of undemocratic behaviour at the Law Society of Scotland, the body which represents all of Scotland’s 10,500 solicitors.

The Chief Executive of the Scottish Legal Aid Board, Lindsay Montgomery also now stands accused of leaning on the Law Society to silence Mr Dailly's criticisms of SLAB and how it is funded.

The Law Society’s President Jamie Millar denied all the allegations made by Mr Dailly in a rambling response, reported HERE

Mr Millar’s statement claims a number of Council members had expressed concern over the work of Mr Dailly’s Access to Justice Committee, a reference which appears to refer to a story reported in October 2010, where Mr Dailly’s Committee suggested the Scottish Legal Aid Board & the Scottish Legal Complaints Commission should be merged in the name of saving money. The idea was widely attacked at the time by SLAB, the SLCC & the Law Society as neither wanted to be merged with the other (not again ! – Ed).

Independent law publication “The Firm” has published the full text of Mr Dailly’s resignation letter to the current Law Society President, Jamie Millar. In the letter, Mr Dailly pulls no punches in his criticisms of the way the Law Society operates, telling the President he has no confidence in him or the Law Society’s Council, who appear to have been determined to axe the Access to Justice Committee after discussions had allegedly taken place between the Scottish Legal Aid Board & the Law Society to reign in Mr Dailly’s Committee.

The Herald reports the latest developments :

Lawyers in revolt at alleged ‘gagging’ attempt

David Leask Investigations Reporter

26 Feb 2011

SCOTLAND’S legal profession was plunged into chaos last night after an entire committee of the Law Society of Scotland quit, claiming a senior civil servant attempted to gag them.

The society’s Access to Justice Committee stood down in a mass protest late yesterday after its convener, prominent solicitor Mike Dailly, accused the chief executive of the Scottish Legal Aid Board (Slab), Lyndsay Montgomery, of leaning on the society to have him silenced.

The committee has led criticism of Mr Montgomery and Slab as Scotland’s lawyers squabble over who should take the brunt of millions of pounds in cuts to the legal aid budget.

Mr Dailly, in a resignation letter, said Slab had asked the society to have the committee “reined in and controlled”.

This was immediately denied by both Slab and the society. The mass resignations come less than a week after another high-profile Glasgow solicitor, John McGovern, like Mr Dailly, resigned from the society’s ruling council.

Both are members of the Glasgow Bar Association which, as The Herald revealed a week ago, is exploring legal ways to break up with the Edinburgh-based society, which both regulates and represents solicitors.

The Access to Justice Committee last year called for Slab to be scrapped. This, Mr Dailly yesterday claimed, prompted a furious response from Mr Montgomery, who phoned him to say solicitors were “useless and unable to count”. In the letter to Jamie Millar, the Law Society’s president, Mr Dailly said: “It was an intolerant and quite inappropriate call from a senior Scottish public servant.”

The solicitor, who heads the not-for-profit Govan Law Centre, believes the Law Society took sides with Slab and Mr Montgomery, and not its own committee. He said the society responded to the criticism by imposing a “gagging order” on him and his committee.

Mr Dailly claimed Mr Millar said council members were concerned about the committee’s attacks on the legal aid board. Mr Dailly added in the letter: “I find it deeply troubling that the Council of the Law Society of Scotland is incapable of standing up for free speech and open public debate on matters of importance to the Scottish public and the Scottish legal profession. Particularly, as this is a primary statutory function of the society.”

A spokeswoman for The Law Society last night confirmed that “a number of council members had expressed concern over the work of the committee”. Their main worry, she said, was that Mr Dailly had failed to answer to the ruling council for three successive monthly council meetings. They requested that he appear before a meeting next month. She said: “We are sorry that Mike has now chosen to resign from council, rather than allowing council members to discuss these matters with him directly”

Paul McBride QC, a member of Slab’s board, last night rubbished Mr Dailly’s claims that Mr Montgomery or anybody else from the legal aid quango was behind the gagging order. He said Mr Dailly was trying to “make a martyr of himself”.

A spokesman for Slab said: “We are disappointed that Mr Dailly has chosen to make misleading and personally offensive remarks.” He said the board had acted appropriately and there had been no undue influence on the Law Society.”

Friday, February 25, 2011

Drumsheugh Dictatorship : Law Society President launches attack over Council resignation, amazingly claims Society values free speech !

The latest salvo in the resignations over at the Law Society of Scotland comes this time, from the Society’s current President, Jamie Millar, who has issued a long & rambling statement in response to the resignation of the Govan Law Centre’s Mike Dailly from the Society’s ruling Council & Access to Justice Committee.

Mr Millar’s statement claims a number of Council members had expressed concern over the work of Mr Dailly’s Access to Justice Committee, a reference which appears to refer to a story reported in October 2010, where Mr Dailly’s Committee suggested the Scottish Legal Aid Board & the Scottish Legal Complaints Commission should be merged in the name of saving money. The idea was widely attacked at the time by SLAB, the SLCC & the Law Society as neither wanted to be merged with the other (not again ! – Ed).

The Law Society President also makes some claims about allowing & valuing free speech, claims which seem to contradict its own policies on media comment, which we reported on during late November 2010, HERE.

Mr Millar wryly ends his response saying the process will be started to appoint a new convener of the Access to Justice Committee (Wasn't this the position which was penciled in for a certain retiring msp who recently got into trouble for making certain remarks ? -Ed)

The Law Society of Scotland’s media release is reprinted below :

Resignation from Council

Jamie Millar, President of the Law Society of Scotland, said: "A number of Council members had expressed concern over the work of the Access to Justice Committee and the fact that Mike Dailly as its Convenor had not been present at any of the last three Council meetings to report on the committee's work. Our Council is the democratically elected ruling body of the Law Society of Scotland. All our committees report to Council and it was a matter of real concern that the work of such an important committee had gone unreported to Council since November.”

"That is why Council agreed to place the Access to Justice Committee on the agenda for its next meeting in March so these matters could be discussed with Mike Dailly present. I am sorry that Mike has now chosen to resign from Council, rather than allowing Council members to discuss these matters with him directly.“

"The Law Society of Scotland both allows and values free speech. However, it also important for those elected to the Council of the Society to work together as a team and for issues to be brought to Council for discussion. For example, it is also wrong for work to be presented as Society policy when it has never in fact been considered or approved by our elected Council. That is why Council overwhelmingly approved the media protocol last November, which was basic common sense and was passed to ensure that Council members and committee convenors worked together on public statements, especially where there was a crossover of work.”

"Mike also talks about the proposed constitution which he claims would exclude the rights of members to influence Society policy. The reality is that the new constitution actually delivers the changes which the vast majority of our members told us they wanted. As someone who talks frequently about the importance of listening to members, I am surprised that Mike would now advocate overturning the clearly expressed views of our members in this area.”

"Indeed his arguments about ending the Society's role of representing and regulating the solicitor profession are equally out of step with the views of our members. Just last year, 78% of members voting in a referendum voted in favour of the Society maintaining its dual role. I do not understand why Mike believes we should now go against the overwhelming and democratically expressed views of our members. We are a membership organisation and we need to respect the views that our members express.”

"I am of course sorry that Mike has chosen to resign from Council. I want to thank him for his service over the last nine months, both on Council and as the Convenor of the Access to Justice Committee. Indeed, the Society's work in terms of maintaining proper public access to the justice system has never been more important, particularly in the context of significant cuts to public spending. That is why we will be starting a process of appointing a new convenor for the Access to Justice Committee to ensure this work continues."

Govan Law : Dailly resigns from Law Society, accuses President of killing free speech, says tiny elite run undemocratic Scots legal profession

Mike DaillyGovan Law Centre’s Mike Dailly resigns from Law Society. THE Law Society of Scotland has been accused of acting against Free Speech, Democracy & the Scottish Public Interest by well known Glasgow lawyer Mike Dailly, who is reported to have resigned his position on the Law Society of Scotland’s Council and his Convenership of the Society’s powerful Access to Justice Committee, after disagreements emerged between the Law Society’s Council and Mr Dailly’s Committee over suggestions to merge the Scottish Legal Aid Board (SLAB) with the Scottish Legal Complaints Commission (SLCC).

The friction between the Law Society’s Council, SLAB & the Access to Justice Committee which has led to Mike Dailly’s resignation appear to be linked to a story reported in October 2010, where Mr Dailly’s Committee suggested the Scottish Legal Aid Board & the Scottish Legal Complaints Commission should be merged in the name of saving money. The idea was widely attacked at the time by SLAB, the SLCC & the Law Society as neither wanted to be merged with the other (SLAB & the SLCC afraid of losing their big staff budgets, expenses claims etc – Ed)

Independent law publication “The Firm” has published the full text of Mr Dailly’s resignation letter to the current Law Society President, Jamie Millar. In the letter, Mr Dailly pulls no punches in his criticisms of the way the Law Society operates, telling the President he has no confidence in him or the Law Society’s Council, who appear to have been determined to axe the Access to Justice Committee after discussions had allegedly taken place between the Scottish Legal Aid Board & the Law Society to reign in Mr Dailly’s Committee.

Mr Dailly’s resignation letter is reprinted below, detailing a number of serious allegations against the Law Society of Scotland & the Scottish Legal Aid Board, many of which appear typical of the way both organisations have operated over the years in what can be described as a most undemocratic manner, to put it midly (also dont forget the SLCC, although they are more incompetent than undemocratic ! - Ed).

Mike Dailly's Resignation : The Letter, in full (Reprinted from The Firm’s website)

This is the text of the letter sent by the Law Society's Access to Justice Committee Convener Mike Dailly to President Jamie Millar this afternoon.

It is reproduced here in full in the interests of transparency and promoting debate amongst solicitor members about the operation of the Law Society

Dear Jamie

Resignation from Council of the Law Society of Scotland and the Convenership of the Access to Justice Committee: Free speech, Democracy & the Scottish Public Interest

I write further to your telephone call this morning whereby you advised that ‘many members of Council had expressed concern about the activities’ of the Access to Justice Committee (AJC) and how ‘this needed to be brought to a head’.

When I asked what ‘activities’ caused concern you confirmed the AJC’s work in relation to Scottish legal aid, the leak of the Scottish Legal Aid Board’s secret response to the AJC’s Discussion Paper, and comments I have made as AJC Convener on legal aid.

You concluded the conversation by saying you ‘could not work with me’ and that the position of the AJC would be determined at the next meeting of Council, after the AGM on Friday 25 March 2011. I am grateful for the courtesy of your call.

I find it deeply troubling that the Council of the Law Society of Scotland (LSS) is incapable of standing up for free speech and open public debate on matters of importance to the Scottish public and the Scottish legal profession. Particulary, as this is a primary statutory function of the LSS.

At last year’s AGM, the CEO of the LSS, Lorna Jack, was full of praise for my appointment as convener of the AJC – the previous AJC having been defunct and invisible for 18 months or so - and indeed our AJC was highly praised for its work highlighting the adverse impact of the welfare benefit and public funding cuts in Scotland, and the need to protect access to justice in order to alleviate the worst injustices from these cuts.

Yet, later last year when the AJC suggested how savings could be made in the administration of Scottish legal aid – to protect front line public services in Scotland - and started a public debate on how things might be done better in the administration of legal aid for the benefit of the Scottish public, the AJC was undermined and attacked by you, Council and the CEO of the Scottish Legal Aid Board (SLAB), Lindsay Montgomery.

I expressly advised you of the lengthy telephone call Mr Montgomery, made to me following our suggestion that things might be done differently with legal aid. It was an intolerant and quite inappropriate call from a senior Scottish public servant.

I explained how he had nothing but contempt for Scottish solicitors, suggesting they were useless and unable to count. I sought the support and backing of you and Council to tackle this unacceptable hegemony in the interest of the Scottish public.

Your response and that of Council was to introduce a ‘gagging order’ to prevent the AJC from expressing any public view without the permission of you and your media manager, Kevin Lang. Indeed members of the LSS’s Legal Aid Negotiation Team expressly stated that SLAB had asked for the AJC had to be reined in and controlled.

Despite the LSS media gagging order, the AJC continued to develop its ideas and recently published a Discussion Paper on legal aid. SLAB sought to prevent this Discussion Paper from being published by the LSS, by attacking the paper with a very long written response which it insisted must not be made public.

Neither I nor the AJC had any difficulty with SLAB challenging our paper and ideas – for that is the essence of a public debate. Yet, we can have no public debate because SLAB operates privately and Council would rather challenge my right, and the right of my colleagues on the AJC, to express a view in public.

I regret to advise I have no confidence in you or Council. At a time when the hunger for democracy and free speech has spread across North Africa and the Middle East like a fire, I am ashamed to say, you and most members of Council (the majority of whom are unelected) would prefer to kill free speech and extinguish the fire of democratic accountability and freedom.

Next month Council will seek the adoption of its proposed new constitution. This would further exclude the right of its members to influence the policy of the LSS, and would permit a tiny elite to do as they see fit in the name of 10,500 Scottish solicitors. Many Scottish solicitors will object to this on democratic principles, and I will stand by them.

My experience on Council of the LSS has taught me two things:

· the people of Scotland deserve an independent statutory regulator of legal services and;
·
the Scottish legal profession deserve the right to choose who represents them.

I herewith tender my resignation as a member of Council of the LSS, and as Convener of the Access to Justice Committee of the LSS. Said resignations are of immediate effect.

Yours sincerely
Mike Dailly
Principal Solicitor
Govan Law Centre

Wednesday, February 23, 2011

Lockerbie bombing of Pan Am Flight 103 in 1988 ‘was personally ordered by Colonel Gaddafi’ claims Libya’s former Justice Minister

Libya’s Ex-Justice Minister claims Gaddafi ordered bombing of Pan Am Flight 103 over Lockerbie, Scotland. ALLEGATIONS made by Libya’s former Justice Minister Mustafa Abdel-Jalil that Libyan Dictator Colonel Muammar Gaddafi personally ordered the terrorist bombing of Pan Am Flight 103 which exploded over Lockerbie Scotland in December 1988 killing 270 people, have been reported this evening in Swedish newspaper Expressen. Their report and interview with Mustafa Abdel-Jalil is available translated into English HERE and the story is also reported by The Washington Times with quotes, HERE

The former Justice Minister told the newspaper he ‘had proof’ the bombing was personally ordered by Colonel Gaddafi, it is reported he did not describe the evidence. The former Minister in Gaddafi’s Government claimed to Expressen that Gaddafi gave the order to bomb the plane to Abdelbaset al-Megrahi, the only man convicted of the attack.

While the allegations are not proven at time of publication, and suffer from inevitable questions over their authenticity as Libya falls into a state of widespread protest & near civil war against the forty year Gaddafi regime, some Scottish politicians have already made comment, describing the claims as “disturbing but believable”. A further report on today’s developments can be found on Professor Robert Black’s Lockerbie Case website, HERE

BBC News reports the story as follows :

Colonel Gaddafi 'ordered Lockerbie bombing

Libya's former justice minister has told a Swedish newspaper that Colonel Gaddafi personally ordered the Lockerbie bombing.

Mustafa Abdel-Jalil told Expressen he had proof the Libyan leader was behind the bombing of Pan AM flight 103, which killed 270 people in 1988.

Following the disclosure the Crown Office said it would "pursue such lines of inquiry that become available".

Abdelbaset al-Megrahi was jailed in 2001 for the attack. However, the Libyan was released on compassionate grounds in August 2009 by the Scottish government after being diagnosed with prostate cancer.

Dumfries and Galloway Police are reportedly monitoring events in Libya in the hope of new leads in the case.

Expressen quoted Mustafa Abdel-Jalil as telling their correspondent in Libya: "I have proof that Gaddafi gave the order about Lockerbie". However, he did not describe the evidence.

Abdel-Jalil stepped down as justice minister in protest of the violence used during against anti-government demonstrations. He told Expressen that Gaddafi gave the order to bomb the plane to Abdelbaset al-Megrahi, the only man convicted of the attack.

He said: "To hide it, he [Gaddafi] did everything in his power to get al-Megrahi back from Scotland."

Expressen spokeswoman Alexandra Forslund said its reporter, Kassem Hamade, interviewed the ex-justice minister at "a local parliament in a large city in Libya". However, the spokeswoman said she did not want to name the city because of security concerns.

Expressen taped the interview, which was conducted in Arabic and translated into Swedish, Ms Forslund said.

Colonel Gaddafi accepted Libya's responsibility for the Lockerbie bombing and paid compensation to the victims' families in 2003. However, he has never admitted personally giving the order for the attack.

Scottish Conservative Deputy Leader, Murdo Fraser MSP said, given recent events, many would find the claim "disturbing but believable".

He added: "If true, it makes all the more questionable the role of the last Labour government's drive to do all it could to send al-Megrahi back to Tripoli."

Tuesday, February 22, 2011

Transcript of Holyrood Justice Committee Boss Aitken’s comments on rape victim : “She must have been dragged about half a mile then Hahahaha”

BilL Aitken MSPScots Tory Bill Aitken MSP laughed victim ‘must have been dragged half a mile’, reveals newspaper’s transcript. BILL AITKEN MSP, the Scottish Conservative’s shadow Community Safety Minister and now former Convener of the Scottish Parliament’s Justice Committee, having been forced to resign after a motion was lodged at Holyrood calling for him to quit, is reported in a transcript of an interview with the Sunday Herald Newspaper to have laughed that the victim “must have been dragged about half a mile” on top of insinuating the rape victim was a prostitute.

The Herald newspaper published today what it calls the full transcript of the interview, after it appeared Mr Aitken, who was forced to resign his position as Convener of Holyrood’s sole Justice Committee, appeared to put the blame on the Sunday Herald journalist for his own political troubles after his comments over the rape case were reported by the Sunday Herald last weekend.

Challenged by the newspaper over what he said in the interview, Mr Aitken then proceeded to deny he had even made the comments until he was shown a transcript of the interview. The Sunday Herald further reported the Scottish Conservative’s current boss, Annabel Goldie, refused to condemn her Tory Party colleague for his remarks, and then apparently “turned and walked away.”

Report from The Herald follows :

Full transcript of Bill Aitken's interview

22 Feb 2011

Last night Bill Aitken MSP resigned as convenor of Holyrood's Justice Committee following his comments to the Sunday Herald about the victim of an alleged gang rape.

In his resignation statement, he said: "By asking a journalist by way of background during his inquiry to me, about the circumstances of a particular case I left myself open to misrepresentation."

For the record, this is a transcript of Aitken's conversation with this newspaper.

Sunday Herald: Hello Mr Aitken, Matthew Holehouse here at the Sunday Herald

Bill Aitken: Yes how you doing?

Sunday Herald: I'm alright thank you, how are you?

Bill Aitken: Oh, fine.

Sunday Herald: Wondering if I could chat to you about the-- have you seen the Evening Times today?

Bill Aitken: Nope!

Sunday Herald: The police are looking for another Glasgow City Centre rape gang. I think from our counting it is the four or possibly fifth sexual assault in the city centre

Bill Aitken: Alleged

Sunday Herald: Alleged sexual assault since Christmas. Police are saying it's fairly - you know it was a brazen attack, it was shocking by the...

Bill Aitken: This one does seem to be a nasty one. Where had the women been, to that Savoy disco was it ?

Sunday Herald: Can you say that again ?

Bill Aitken: Where had the woman been to the suave club?

Sunday Herald: I'm not sure if we know that yet, unless you've read more than i have.

Bill Aitken: Well the address is indicative.

Sunday Herald: It was the Walkabout area. Renfield Street way.

Bill Aitken: Renfrew Street was it not.

Sunday Herald: Renfrew Lane off Renfield street yes.

Bill Aitken: Aye exactly.

Sunday Herald: We're interested in the pattern really. That, sort of, testing this idea that are we are returning to something we thought might have stamped out, which was very brazen attacks in the city centre, lane rapes. What do you think?

Bill Aitken: Well, I really think we need to know a bit more about these. You know, they are not always as they seem to be, put it that way.

Sunday Herald: How do you mean?

Bill Aitken: Errr. Well. If I was a woman up a lane.

Sunday Herald: Right. She was dragged off the street.

Bill Aitken: From Renfrew Street?

Sunday Herald: Yeah this is the thing.

Bill Aitken: Huh.

Sunday Herald: She was dragged off Renfield Street into the lane

Bill Aitken: No she wasn't in Renfield Sreet, she was in Renfrew Sreet, was she not.

Sunday Herald: Errrm. Right... I mean, what I understood she was raped in Renfrew Lane, but she was dragged off Renfield street. I might be wrong.

Bill Aitken: She must have been dragged about half a mile then. Ha ha ha ha.

Sunday Herald: Ok. Either way. I mean there's an element of dragging, which mirrors you know

Bill Aitken: No hold on. I'm not taking the (INDISTINCT) If this woman was dragged halfway through the town then it just couldn't possibly happen. So has nobody asked her what she was doing in Renfrew Lane?

Sunday Herald: Right. What do you think she was doing?

Bill Aitken: Well, I think, errr, somebody should be asking her what she was doing in Renfrew Lane. Did she go there with somebody?

Sunday Herald: Right. What I'm getting at is are you not concerned that there have been four, five alleged gang rapes? In the city centre? In the space of two months

Bill Aitken: Well what is particularly noteworthy in this case is it's three Asian people right they are looking for. Now, Renfrew Lane is known as a place where things happen, put it that way.

Sunday Herald: What sort of things?

Bill Aitken: Well its an area where quite a lot of the hookers take their clients. Now that may not have happened in this case Errrm. But you know. What was happening? Errr... Certainly we cannot have a situation where women are getting dragged off the streets and up lanes and raped. Erm, but you know... Are the police saying its the same outfit?

Sunday Herald: No this is the thing, they are saying this and three or four attacks we are looking at since Christmas are completely unrelated. One was Asian, one was middle eastern and there was a white group. And yet they appear to be such... There was a woman who was literally dragged off Buchanan Street into a lane. Sorry, carry on where were you?

Bill Aitken: Right. Well, you always know there's a lot more to these city centre rapes than meet the eye of course. But this does sound concerning. So what I will be saying ermm [begins dictation pace] there is a disturbing pattern and while the offences may not be related it is absolutely essential that unaccompanied women take the greatest care when walking in these areas. I have little doubt that the police will eventually get a result but it is a disturbing situation none the less. Okay?

Sunday Herald: That's really helpful. Thank you.

Bill Aitken: Right! Ok?

Sunday Herald: No that's great. Appreciate it.

Bill Aitken: Is there anything else you're wanting? Want me to toughen it up?

Sunday Herald: You were mentioning the fact it's an asian gang but I'm not really sure if it's relevent. Doesn't seem to be a pattern going that way. What do you think?

Bill Aitken: If youse got an asians, then you've said you've got middle eastern. If they're asians is that the same outfit? How do you tell a middle eastern from an asian?

Sunday Herald: Well police are saying not.

Bill Aitken: Well they'll know what they're talking about.

Sunday Herald: Great, Right, thanks for your help Bill. Bye.

Bill Aitken: Cheers then bye

Scottish Conservative's Holyrood Justice Committee boss Bill Aitken resigns over prostitute rape comments after furore reaches Parliament

BilL Aitken MSPScots Tory Bill Aitken MSP comments over prostitutes & rape have led to his resignation as Convener of Holyrood’s Justice Committee. BILL AITKEN MSP, the Scottish Conservative’s shadow Community Safety Minister and Convener of the Scottish Parliament’s Justice Committee has resigned his position after a furore over comments he made last week regarding a rape case in Glasgow, where he suggested the victim may have been a prostitute. Mr Aitken was left with no alternative other than to resign his Justice Committee position after MSP Patrick Harvie of the Green Party lodged a motion calling for him to quit.

Scotland’s Green Party issued a Press Release giving notice they intended to lodge a Holyrood motion calling for Aitken's resignation, severely criticising Justice Committee Convenor Bill Aitken for comments he made about rape in a recent interview, and calling for his resignation.

Patrick Harvie MSP said: "Bill Aitken's comments are way beyond the standards any party in Parliament should find acceptable from any MSP, but they make it entirely unacceptable for him to continue in post as Convenor of the Justice Committee. No-one who thinks we should blame rape victims should ever be allowed to hold that role in this country.”

Mr Harvie continued : "If he does not resign, the Tory leadership should force his hand. If they do not, Parliament must act to remove him, and act quickly. The alternative would a serious loss of confidence in Parliament as an institution, and the Justice Committee in particular."

The draft motion in the name of Patrick Harvie was intended to read as follows: Unacceptable comments by the Convenor of Justice Committee - That the Parliament condemns the attitude shown by Bill Aitken MSP on the subject of rape during a recent interview with the Sunday Herald newspaper; considers that Mr Aitken’s comments during this interview betray a disregard for the seriousness of rape, and imply support for the view that a victim can be held responsible for this most vicious crime; believes that this view, though disturbingly widespread, is rooted in misogyny and ignorance; considers these comments to be incompatible with the role of Justice Committee Convenor; believes that the Parliament’s credibility to deal proactively with issues of sexual violence would be undermined if the proximity of dissolution resulted in failure to hold Mr Aitken to account for these odious and shocking comments; and calls for Mr Aitken’s immediate resignation.

Mr Aitken inevitably resigned his position before the motion was heard.

Mr Aitken’s comments over the rape case which occurred in the centre of Glasgow, were reported in the Sunday Herald newspaper last weekend HERE and our report on the controversy can be read HERE

Peter Cherbi’s “Diary of Injustice in Scotland” law blog also covers the story of Mr Aitken’s resignation HERE and rather shockingly reveals Mr Aitken was potentially in line for a post on a Law Society of Scotland Committee upon his retirement from the Scottish Parliament.

Report from The Herald follows :

Aitken steps down over rape remarks

Brian currie political editor

22 Feb 2011

THE Scottish Parliament’s long-serving Justice Committee convener, Bill Aitken, has quit the role after suggesting a rape victim in Glasgow may have been a prostitute.

Glasgow’s only Tory MSP has been at the centre of growing pressure from women’s groups and other politicians to quit since he made the comments last week, although he claimed his views had been misrepresented.

Mr Aitken, who announced some months ago he would not be standing again for Holyrood, said: “However unfairly, an impression has been created that I hold certain views about rape. So, for the record, let me repeat – rape, in every case and for every victim is an abhorrent, vile violation. Every case and every victim must be treated equally.

“The circumstances of any case are only pertinent to the lines of inquiry that the police would follow.”

Mr Aitken, the Tory spokesman on community safety, sparked outrage after telling our sister paper the Sunday Herald last week that the attack in a city-centre lane had taken place in a location “where a lot of hookers take their clients”.

He expressed remorse for any hurt he had caused to rape victims and their families and referred to a recent speech he made at Holyrood in which he said “no-one would take a more serious view of violence against any woman than I would”.

He added: “That was my view then. It is my view today and it will always be my view.”

Mr Aitken’s resignation came as Green MSP Patrick Harvie tabled a Holyrood motion, backed by Labour deputy leader Johann Lamont, calling for him to leave. Despite Mr Aitken’s apology, Mr Harvie said his statement was “graceless, and suggests he still does not understand the offence he has caused”.

He added: “This kind of attitude is unacceptable wherever it comes from, and is fortunately dying out, but it has been particularly shocking to hear it from the convenor of the Justice Committee.”

Ms Lamont said the resignation was a public acknowledgement that the comments were unacceptable and Mr Aitken had “done the right thing”.

“This was a horrific crime and he should never have suggested that the victim was in some way to blame for what happened.”

A protest outside Holyrood today to coincide with a meeting of the Justice Committee was called off after the announcement. An NUS Scotland spokesman said it “welcomed” Mr Aitken’s resignation.

Stewart Maxwell, an SNP member of the Justice Committee, said it was the right decision after “disappointing and out of character comments”.

Mr Maxwell said Mr Aitken had served the Justice Committee well as convener over the last four years and it was an unfortunate end to his time at Holyrood

LibDem justice spokesman Robert Brown said: “It’s highly unfortunate that Bill Aitken’s distinguished political career should end in this way as a result of badly chosen and ill-advised comments.

“However, it is important that no rape victim feels in any way that their rights would not be fully and totally upheld and defended by the Parliament and parliamentarians.”

Sandy Brindley, national co-ordinator of Rape Crisis Scotland, said: “I do think it is inappropriate for somebody with responsibility for formulating our laws to hold such views on rape.”

Conservative Party leader Annabel Goldie said: “Bill Aitken is a man of principle and honour. He was not prepared to let any issue compromise the work of the Justice Committee and he has shown his respect both for the committee and the party.”

Sunday, February 20, 2011

Glasgow Bar Association ‘considers’ court challenge to Law Society's authority over legal aid row, remains happy with self regulation powers

Law Society of ScotlandLaw Society of Scotland is unloved by GBA over legal aid money row, however the Society's complaints fixing powers are still acceptable. THE Glasgow Bar Association, the representative group of many solicitors & law firms on the west coast of Scotland is reported to be “actively considering a court challenge” against the Solicitors (Scotland) Act 1980, which requires every solicitor in Scotland be a member of the legal profession’s regulator & governing body, the Law Society of Scotland (yawn, GBA to malky the Law Society over money worries ? not again ! – Ed)

Friday 18 February 2011’s Herald newspaper featured an exclusive report on the latest arguments between the GBA & the Law Society of Scotland over cuts in legal aid fees for cases that go before stipendiary magistrates. Solicitors who are members of the GBA feel the Law Society did not campaign enough against the cuts, which solicitors and legal observers feel may interfere with individuals’ access to justice, where levels of legal aid may make it unprofitable or unworkable for solicitors to properly represent their clients.

The Herald’s report came hot on the heels of reports on certain online legal websites earlier this week, such as “The Firm”, who, as we reported on Thursday, claimed a former GBA President, John McGovern had accused the Law Society of Scotland of having a “fundamentally dishonest at its core – something many inside & outside the legal profession may well agree with, given the accumulation of evidence over the years the Law Society fails to represent either the profession or clients best interests.

However, in The Herald’s coverage, no such claim was reported to have been made by Mr McGovern against the Law Society, and the newspaper further reported a bar association source said: “We have no problem with the Law Society’s regulatory role – we just don’t think it should represent us as well.” (Ah, so its really a case of the GBA having their cake and being able to eat it too – Ed)

The GBA may want to consider a cheaper & more effective alternative to a-surely-to-fail court action against the Law Society, by throwing in their lot with a petition, Petition PE1388, filed at the Scottish Parliament asking for the repeal of the Solicitors (Scotland) Act 1980, an issue which has been reported by one of our very own law journalists, Peter Cherbi, on his “Diary of Injustice in Scotland” law blog : HERE

Report from the Herald follows :

Exclusive: Law Society faces legal challenge to its authority

David Leask Investigations Reporter

18 Feb 2011

REBEL lawyers are plotting to end the grip that the governing body for all Scottish solicitors has on their profession.

The Glasgow Bar Association (GBA), which describes itself as the voice of the legal profession in the west of the country, is actively considering a court challenge to laws that require every solicitor in Scotland to be a member of the Edinburgh-based Law Society of Scotland.

GBA members have been at loggerheads with the society and its leadership for months and will focus on whether they are being denied the “human right” to choose who represents them in negotiations.

The current rules, which insist the society both represents and regulates all lawyers in Scotland, have been enshrined in Scots Law since 1980.

The latest bone of contention is over cuts in legal aid fees for cases that go before stipendiary magistrates.

Glasgow is the only place in Scotland with such magistrates – so city solicitors felt the cuts, imposed by the Scottish Government, unfairly targeted them.

Last week senior Glasgow solicitors came to the conclusions that the cuts to “stip mags” – as the Glasgow judges are called – had been suggested by Law Society negotiators during talks. That sparked fury.

A bar association source said: “We have no problem with the Law Society’s regulatory role – we just don’t think it should represent us as well.”

David O’Hagan, a former president of the GBA, said: “The credibility of the Law Society as a representative body is now at rock bottom for many Glasgow solicitors.

“The GBA are now actively looking at a legal challenge to end compulsory membership of the society and with a view to setting up their own independent representative body for its members.”

Yesterday it emerged that a senior Glasgow lawyer, John McGovern, another former GBA president, had stood down from the Law Society’s Council, a “parliament” of 52 Scottish lawyers. Mr McGovern is understood to have been deeply unhappy with the society’s role in negotiating legal aid fees.

Mr O’Hagan has kept his seat on the council.

The society’s chief executive, Lorna Jack, yesterday stressed most of the body’s members were happy with its unusual dual rule as both regulator and representative. She cited a referendum carried out last year that brought a 73% majority in favour of the status quo.

She said: “The majority of solicitors in Scotland recognised that they benefit from keeping the dual roles of regulation and representation together.

“The very essence of what it is to be a profession is bound by its ethics and principles as well as any common knowledge and skills.”

Ms Jack also defended the society’s negotiating stances with the Scottish Government. Ministers, who have been trying to slash the legal aid budget, initially came up with a plan to do so by expanding the tiny band of public defenders who work in Scottish courts.

That horrified many private lawyers, who have had their own war of words with the Public Defence Solicitors’ Office or PDSO, as revealed in The Herald. It also upset the Law Society, which came up with its own set of alternative cuts, including a drop in “stip mags” fees.

Ms Jack explained: “On the cuts to the criminal legal aid budget, the proposals put forward by the Scottish Government on a large expansion of the PDSO were seen as unacceptable by the society and the profession. The society asked for a wide range of scenarios to be costed as an alternative way of saving £4.5 million, which would have been achieved by expanding the PDSO.

“This included cuts to the core fees in summary legal aid cases and stipendiary court fees and greater use of the existing PDSO offices.

“The position on the cuts was discussed and backed by the Council of the Law Society last month.

“The council asked that further representations be made to the Scottish Government on the stipendiary fee, which was done. The Scottish Government has since agreed to improve on their original proposal the amount paid to solicitors on this.”

Thursday, February 17, 2011

Law Society of Scotland has ‘a fundamental dishonesty at its core’ claims ex-Glasgow Bar Chief John McGovern as resignation rocks Society's Council

Law Society of ScotlandThe Law Society of Scotland stand accused of being dishonest to the core. THE Law Society of Scotland has been accused of being “fundamentally dishonest at its core” by the former President of the Glasgow Bar Association & Law Society Council Member, John McGovern who, according to the independent law publication “The Firm” is reported to have resigned from the Law Society’s Council earlier this week after a string of disagreements with the Law Society on everything from alternative business structures to the Society’s role over representation of solicitors & complaints handling.

The Firm’s website reported on the 16th February 2011 that “John McGovern, the former President of the Glasgow Bar Association and Law Society Council member for Glasgow and Strathkelvin resigned from the Law Society Council last night, claiming the Society has "a fundamental dishonesty at its core". He has resigned with immediate effect.”

“McGovern, who was elected to Council in May last year, has been critical of the Society's policy on ABS, and has campaigned against the dual functions of representation and regulation being vested in the Society, amongst other issues.”

Late tonight, the Law Society of Scotland’s website still displayed Mr McGovern’s membership of the Law Society of Scotland's Access to Justice Committee (a Committee which itself is no stranger to controversy, currently under the convenership of the Govan Law Centre’s Mike Dailly).

However, no media statement has yet been issued by Law Society officials confirming the events of Mr McGovern’s departure, nor has the Society made any response to Mr McGovern's most serious, if absolutely true allegations that the Law Society are dishonest to the core (I knew the Law Society were dishonest years ago ! – Ed)

Tuesday, February 15, 2011

Cops claim Tory Justice Committee boss infers Hookers deserve it : Scottish Conservative’s Bill Aitken asks paper “Was rape victim a prostitute ?"

BilL Aitken MSPProstitutes deserve to be raped ? Scots Tory Bill Aitken MSP denies making comments over prostitutes & rape. BILL AITKEN MSP, the Scottish Conservative’s shadow Community Safety Minister and Convener of the Scottish Parliament’s Justice Committee is reported to have suggested a rape victim in Glasgow “may have been a prostitute” in an interview with the Sunday Herald newspaper. The widely perceived inference from Mr Aitken’s comments as a Scottish Conservative MSP, an inference further echoed by Strathclyde Police Defectives quoted in the newspaper’s report, is that prostitutes may put themselves in a position where they deserve to be raped.

Challenged by the newspaper over what he said, Mr Aitken then proceeded to deny he had even made the comments until he was shown a transcript of the interview. (Nice to know the Convener of the Scottish Parliament’s Justice Committee is an honest guy then – Ed)

The Sunday Herald further reported the Scottish Conservative’s current boss, Annabel Goldie, refused to condemn he Tory Party colleague for his remarks, and then apparently “turned and walked away.”

Mr Aitken, whose term as Holyrood’s Justice Committee Convener has seen the least active period of legislative reform for the justice system in Scotland since the Scottish Parliament was re-established in 1997, is no stranger to controversy across a wide range of issues, where to quote one example Mr Aitken praised shamed members of Scotland’s legal profession in the Parliament’s debating chamber.

While Mr Aitken debates the whys & wherefores of whether prostitutes deserve to be raped or not, then going onto deny he even made the remarks until being shown the evidence, his convener-ship of the Justice Committee may well be best remembered for its greasing through of the mangled Legal Services Bill after hundreds of amendments were ordered by the Law Society of Scotland.

Report from the Sunday Herald follows :

Fury as Tory MSP asks: was rape victim a prostitute?

Exclusive By Matthew Holehouse
13 Feb 2011

A leading Scottish Conservative MSP is under attack for suggesting the latest victim of rape in Glasgow may have been a prostitute.

Bill Aitken, shadow minister for community safety, apologised to the woman after making the comments in an interview with the Sunday Herald.

Aitken has been a District Court Judge, Justice of the Peace and is a Deputy Lord Lieutenant of Glasgow. He is also convenor of the Scottish Parliament’s justice committee – which helps formulates rape laws.

Police officers and women’s organisations reacted with outrage to his claims.

Detectives from Strathclyde Police are still hunting for three men of Middle Eastern appearance who dragged the 38-year-old woman off Renfield Street in the city centre and raped her in a lane as she headed home after a night out with friends just after midnight on Thursday. It is the fourth city-centre sex attack since Christmas. Police believe different gangs are responsible.

Asked to comment on the series of so-called “lane rapes”, Aitken said: “I really think we need to know a bit more about these. They are not always as they seem to be, put it that way.”

He disputed the location of the attack, and said: “If this woman was dragged halfway through the town then it just couldn’t possibly happen. So has nobody asked her what she was doing in Renfrew Lane?

“Somebody should be asking her what she was doing in Renfrew Lane. Did she go there with somebody? ... Now, Renfrew Lane is known as a place where things happen, put it that way.”

Asked to clarify, he said: “It’s an area where a lot of the hookers take their clients. Now that may not have happened in this case. But you know ... what was happening? There’s always a lot more to these city-centre rapes than meets the eye.”

Sandy Brindley, national co-ordinator of Rape Crisis Scotland, said Aitken’s comments were “an extraordinary response to an awful crime” which created “a culture where women are scared to come forward and report a rape”.

“We are shocked,” she said. “His attitude is completely out of step with what the law says and what we should be thinking as a society. For far too long there’s been the attitude if you are involved in prostitution you cannot be a victim of rape. Women who are raped need support, not a climate that’s asking blaming questions about what they were doing.”

Aitken also said a lot of rape allegations are falsely made by drunk women – but had no research to back this up: “The police say there’s a lot of drunken carry-ons that result in rape allegations which are subsequently dropped, put it that way,” he said.

He added: “I think there might be fear, if they are worried that somebody talks …and the word gets back to the boyfriend.”

When challenged on his comments by the Sunday Herald, Aitken denied making them until he read a transcript of the conversation. Asked whether there is a difference between the rape of women who work as prostitutes and those who don’t, he said: “Well, the prostitute has possibly put herself in a position of some vulnerability.”

Detectives in Glasgow were“incredulous”. One senior source said: “Is he saying she deserved it? It’s mind-boggling. How will that poor girl feel?”

Yesterday, Annabel Goldie, the leader of the Scottish Conservatives, refused to condemn Aitken, but said she was “horrified” by the sex attack.

“Rape is an abhorrent crime for women, regardless of who the woman is,” she said.

Asked whether she would condemn Aitken, she said: “I’ve no further comment.” Asked whether she “stands by” Aitken, she turned and walked away.

SNP MSP Christina McElvie said: “These reported remarks go beyond the pale.”

Aitken’s comments came as police warned unaccompanied women about walking by night in Glasgow city centre and detectives appealed for witnesses to the “brazen” attack. Police have mounted extra patrols this weekend.

A fortnight ago two men dragged an woman aged 18 into a lane and raped her. In January a woman aged 35 was indecently assaulted and a 21-year old was attacked.

Aitken later issued a statement saying: “I did not intend to imply that the circumstances of any victim in any assault in any way lessens the horror or severity of the crime. I would have deep regret if that was portrayed as the case and apologise unreservedly to her, her family and friends for any such misconception.

“Rape, in every case, is an abhorrent violation and must always be prosecuted with the full vigour of the law.”

Thursday, February 10, 2011

Report published by Holyrood Committee says justice system may be prejudiced against Catholics, confirms higher numbers in Scots jails

Little mentioned report for MSPs confirms Scottish Justice system is anti-catholic A REPORT commissioned & subsequently published by the Scottish Parliament's Petitions Committee in response to a public petition, has endorsed the view of the Catholic Church that Scotland’s justice system is still prejudiced against Catholics. Petition PE1073, by Mr Tom Minogue, calls for the Scottish Parliament to investigate and establish the reasons for the apparently disproportionate number of Catholics in Scottish prisons. Written submissions for Petition PE1073 can be found HERE

The research, undertaken by Dr Susan Wiltshire of Glasgow University for the Petitions Committee, can be viewed online or downloaded from Scottish Law Reporter, here : Offender Demographics and Sentencing Patterns in Scotland and the UK: Research commissioned by the Public Petitions Committee in consideration of PE1073 (203KB pdf)

Dr Wiltshire’s report confirmed there are a disproportionate number of Catholics in Scottish jails, concluding : “There is certainly no available research on sentencers’ attitudes to sentencing faith groups in Scotland, however, the statistics do confirm that there are a disproportionate number of Catholics in Scottish jails, which is especially pronounced in the west of Scotland, and further that this disproportionality is evident in long term sentence length.”

Here follows a report from the Mail on Sunday newspaper, Feb 06 2011

Church claims justice system is too harsh on Catholics

THE Catholic Church is demanding action from Scottish ministers after an academic endorsed its long-held view that followers still endure prejudice in Scotland.

A report commissioned by an influential Scottish parliament committee suggested there could be prejudice within the justice system - which may account for the disproportionate number of Catholics serving jail terms.

The research paper was written by Dr Susan Wiltshire of Glasgow University for Holyrood's public petitions committee.

The report's findings will be discussed by MSPs after May's Holyrood election.

Dr Wiltshire, an expert in criminal justice, was commissioned to produce the report after a petition submitted four years ago by Tom Minogue. The retired engineer from Dunfermline, Fife, was concerned about the disproportionate number of Catholics in Scottish jails. At that time, Catholics made up 13 per cent of the Scots population and 26 per cent of prisoners.

Some committee members have pointed out that Catholics tend to be over-represented in deprived areas with high crime rates. Data from the 2001 Census showed that Catholics were the largest religious group in Scotland's poorest neighbourhoods, with 19 per cent living in the 10 per cent most deprived areas, compared with 8 per cent of Church of Scotland members.

Dr Wiltshire said in her report: "The question should shift from asking why Catholics are disproportionately represented in Scottish jails to why so many Catholics continue to live in areas of deprivation in Scotland."

She added: "Discriminatory and prejudiced attitudes continue to feature in Scots society. It might be expected that such attitudes could manifest in the criminal justice system, accounting in part for disproportionality."

Catholic Church spokesman Peter Kearney said the problem was rooted in past Irish immigration.

He pointed out that Irish migrants who went to the US in the 1840s and 1850s achieved occupational and economic parity in 1901.

But he added: "In Scotland, Irish immigrants achieved parity in 2001. It took another 100 years in this small country, where some, including most politicians, have insisted for years that we don't have a problem."

Last December, only three months after the Pope visited Scotland, Cardinal Keith O'Brien, head of the country's Catholics, warned that sectarianism was still limiting religious expression here.

A Scottish Government spokesman said: "While we have a range of initiatives to tackle sectarianism,we are also working to support the whole of society and tackle poverty."

Wednesday, February 09, 2011

Review reveals 867 criminal cases cannot proceed to court as Crown Office claim to have ‘significantly reduced’ impact of Cadder v HMA on prosecutions

Scotland’s Crown Office has claimed that precautionary measures taken by the Crown after a review of the impact of the Supreme Court’s ruling in the case of Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf) have “significantly reduced” the impact on prosecutions in Scotland although as the COPFS review reveals, the figures of case failures due to the Cadder ruling are high.

The review of cases since the Cadder judgment has identified that 867 cases either could not proceed or could not continue to proceed as a direct result of Cadder. This is equivalent to 0.3% of all the criminal cases reported to COPFS in a year.

A total of 60 solemn cases – 9 High Court cases and 51 Sheriff and Jury cases – have been discontinued. This includes 5 High Court cases and 6 Sheriff and Jury which have been marked no further action meantime; this means that the cases will be kept under review, and the Crown reserves the right to re-raise proceedings in the future, should further evidence come to light.

Scottish Law Reporter’s coverage of Cadder v HMA can be found HERE

Crown Office Press Release follows :

CROWN REVIEW OF CASES AFTER CADDER V HMA

A review of the impact of the Supreme Court’s ruling in Cadder v HMA has shown that precautionary measures taken by the Crown significantly reduced the impact on prosecutions.

At the time of the ruling in October 2010, COPFS estimated that there were 3471 cases where the issue of the admissibility of evidence from police interviews had been raised by the defence.

COPFS has now completed an analysis of the impact of Cadder in the three months since the judgment. During this time, a total of 867 cases could not proceed or could not continue as a direct result of Cadder. The vast majority of cases affected were summary prosecutions.

Solemn cases – involving the most serious crime – were prioritised as part of the Cadder review. Nine High Court cases and 51 Sheriff and Jury cases have not been able to continue as a result of Cadder. In addition, 3 summary appeals have been conceded by the Crown.

Scott Pattison, Director of Operations, Crown Office, said today that the impact of the judgment was reduced by precautionary measures taken by the Crown.

“The Lord Advocate issued guidance to prosecutors and police well in advance of the Cadder decision, and this meant we were able to adapt and reduce the risk to live cases.

“Since the ruling in October, we have been reviewing the impact of the Supreme Court’s judgment, prioritising the most serious crime. There has been extensive liaison between Procurators Fiscal and the police to thoroughly explore the impact of the Cadder decision on the available evidence and any potential lines of further enquiry.

“Each case was then carefully considered by Crown Counsel before any conclusion was reached that no further evidence was available, and the case required to be discontinued as a result of Cadder.

“In some solemn cases, we have decided to discontinue proceedings meantime - these cases are not closed and will be kept under review, so proceedings may be raised should additional evidence come to light in the future.”

He added: “No decision to discontinue ongoing proceedings has been taken lightly. It is a matter of regret that any case has not been able to continue to proceed as a result of the Cadder ruling, and we recognise the distress that will have caused to some victims and families. Procurators Fiscal liaised with victims to advise them of the decisions to discontinue proceedings.

“We want the public to have confidence that everything possible will be done to safeguard the integrity of prosecutions.”

Background :

On 26 October 2010, the Supreme Court issued its decision in the case of Cadder v HMA, in which it considered the law and practice under section 14 of the Criminal Procedure (Scotland) Act 1995 of police interviewing detained persons in a police station without allowing them access to legal advice. The Court decided that this practice was incompatible with the European Convention on Human Rights. The ruling was not retrospective and did not apply to closed cases, limiting the impact to pending prosecutions and ongoing appeals.

At the time of the Supreme Court’s ruling, the Crown estimated that there were 3471 cases where admissibility of evidence given in police detention without access to legal advice had been raised as an issue. This figure was based on the number of devolution minutes lodged with the Advocate General’s office. The figure will now include: closed cases, cases where the point is no longer relevant as the admission was not essential to the Crown case, or the Crown was able to proceed on the basis of other admissible evidence, or additional strands of evidence, and cases where evidence from police detention is admissible because legal representation was provided in accordance with the Lord Advocate’s guidelines.

Tuesday, February 08, 2011

Lord Advocate Elish Angiolini warns Scots Law is losing legal identity ‘to remain in the past’ under UK’s Supreme Court powers over Human Rights cases

Scotland’s Lord Advocate Elish Angiolini, a well known figure who is no stranger to controversy, has warned Scots Law - as antiquated & Victorian as it is, now faces losing its ‘legal identity’ under the powers of the UK’s Supreme Court to deal with Scots Human Rights cases.

The warnings from the outgoing Lord Advocate who announced late last year she will finish her term as Scotland’s law chief later this spring, come in the wake of the ruling in the case of Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf), where the UK Supreme Court ruled Scottish Police could no longer question a suspect without allowing them access to a lawyer, a right which has been present in England & Wales for many years.

Rather than this being a loss of ‘legal identity’, it appears the Scottish legal establishment are more worried about a loss of control to keep things as they are & always have been (Most of the wigs still living in the 1800’s ? – Ed)

A useful link for those interested in the ramifications of the Cadder v HMA judgement : Cadder v HMA - questions and answers resulting from the judgment - October 2010

BBC News reports :

Lord Advocate Elish Angiolini on legal identity 'loss'

Scotland's top prosecutor has warned of a loss of identity for Scots law under UK Supreme Court powers to make decisions on Scots human rights cases.

Lord Advocate Elish Angiolini suggested the court should only consider newer legislation or decisions with major constitutional consequences.

Her comments came after the Supreme Court's ruling on the Cadder case.

It meant Scottish police could no longer question suspects without allowing them access to a lawyer.

The Lord Advocate made her remarks as she was questioned by MSPs on plans to increase Holyrood's powers under the Scotland Bill, currently going through Westminster.

Last year, the Scottish Parliament rushed through emergency legislation after the Supreme Court upheld an appeal by teenager Peter Cadder, whose assault conviction was based on evidence gained before he spoke to his solicitor.

'Loss of identity'

Previously in Scotland, suspects could be questioned for six hours without a lawyer present, but judges ruled this violated human rights to a fair trial.

Commenting on the human rights convention, Ms Angiolini told the parliament's Scotland Bill Committee: "My slight concern is that, because of the approach of the Supreme Court, there is a real danger that we will not just have harmonisation of our criminal law, procedure and evidence, through that process, but that there will be a complete loss of identity for Scots law unless it is something which is genuinely rarely exercised in the context of something which is of substantial constitutional significance across the United Kingdom or where it is a very new piece of jurisprudence which is clearly ambiguous."

Even though the High Court is the highest court of criminal appeal in Scotland, it was overruled by the Supreme Court on a constitutional issue, because the need to consider European human rights legislation was written into the Scotland Act - the piece of Westminster legislation which established devolution.

Scots Civil Justice Failure : 93 year old Pensioner faces £120,000 legal bill after court battle with Scottish Water, landowners & Council

Access to justice in Scotland’s court doesn't come cheap at the best of times, however in a startling case which may well be the tip of a gigantic iceberg, it has been reported that a ninety three year old pensioner in the Shetland Islands is facing a £120,000 bill after a court battle with Scottish Water, local landowners & the Shetland Island Council.

The Press & Journal report that Patricia Anderson, 93, is now hoping the Supreme Court in London may rule in her favour.

Pensioner loses five-year struggle with Island Council, Scottish Water and landowners

Shetland woman, 93, faces £120,000 bill after court battle

By Ross Davidson Published: 08/02/2011

An elderly woman is facing a £120,000 legal bill after a court battle against Shetland Islands Council and Scottish Water.

Patricia Anderson, 93, will have to pay for the expenses incurred by the two authorities and nearby landowners after her fight to protect her home failed.

Mrs Anderson, who lives at the bottom of a steep hill at Scalloway, fears her home is being destroyed by water from overflowing drains after 21 houses were built nearby.

The cause, nature and extent of the damage to the property has been disputed at legal hearings, but after Mrs Anderson’s last appeal failed she is now left with a £120,500 legal bill – which she claims is more than the value of her property.

Her last hope is Supreme Court judges in London will agree to hear her case. If her case is thrown out again, Mrs Anderson will have to pay the expenses of the council, Scottish Water and the landowners who built the homes above her property.

She has pursued the organ-isations through the courts for five years to find out who should pay for the damage to her home of over 35 years, Sea Chest at East Voe.

A small claims case at Lerwick Sheriff Court in 2006 found that the council was at fault under common law and there was an excess of surface water which could have been avoided by proper drainage.

But the court had no power over the council, forcing her to take the matter to a judicial review at the Court of Session. This was dismissed in 2008, and an appeal against that was rejected last year.

A family spokesman said Mrs Anderson is facing the legal bill because of failings in the Scottish justice system. “If we were in Europe, she would go to a tribunal in her local town, pay a small fee and an experienced tribunal chairman would give her an answer,” he said.

“This is a case where both organisations are blaming each other, but she should not have to go through a lengthy and costly litigation to get answers.”

The council said as proceedings were ongoing there was “little comment” it could make, but it had sent her a letter to tell her “some detailed aspects of her complaint not subject to the legal proceedings could be dealt with, should she identify them to us”. Scottish Water said the authority is “sensitive” to the issue, and it is not actively pursuing the money.

Monday, February 07, 2011

Distraction Politics 'toys with our human rights' : ‘Right-wing’ Policy Exchange urges UK should cut links to European Court of Human Rights

Just in time for the political debate on giving prisoners the vote after a ruling by the European Court, a right wing think tank, the Policy Exchange has urged the UK Government to cut our links with the European Court, doubtless so our justice systems both south & north of the border can muddle on in a Victorian state where the rights of the individual come a solid last to the rights of vested interests, or Government departments & public services.

Further analysis of this political debate, masquerading as a legal debate can be found here : Withdrawal from the European court of human rights is not a legal problem

The actual report from the Policy Exchange can be downloaded HERE (pdf)

Critics would of course point out its not the civil law rulings from the European Court which has reignited the right’s obsession to throw out ECHR compliance in the UK … rather its the criminal law rulings where more often than not, legal aid chasing lawyers hunt out a criminal law client they feel they can make a name for themselves with (quite possibly ! – Ed)

BBC News reports :

UK 'should cut links to European Court of Human Rights'

The government should cut its ties with the "expansionist" European Court of Human Rights, says a report by a right-leaning think tank.

The Policy Exchange report says the recent row over prisoners' voting rights highlights the issue.

The report, written by a former government adviser, Dr Michael Pinto-Duschinsky, says the UK has become "subservient" to the Strasbourg court.

He says it also ignores the traditional British freedom of the press.

The report claims the 47 Strasbourg judges have "virtually no democratic legitimacy" and are poorly qualified compared to Britain's own senior judges.

Lord Hoffman, a former Law Lord, who wrote the foreword to the report, said Strasbourg has "taken upon itself an extraordinary power to micromanage the legal systems of the member states".

The report says the ECHR is a "virtually unaccountable supra-national bureaucracy".

The row over voting rights for prisoners was sparked by a judgment from the ECHR in 2005.

The court upheld an appeal by convicted killer John Hirst, who said Britain had breached the European Convention on Human Rights by disenfranchising him.

The judgement meant the UK government was forced to allow prisoners to vote but has tried to limit it to those who were sentenced to less than four years in jail.

Blair Gibbs, Head of Crime and Justice at Policy Exchange, said: "Votes for prisoners has brought to public attention the growing conflict between judges and the wishes of our own elected parliament.

'Strayed beyond remit'

"On this issue, judges in Strasbourg have strayed well beyond their remit and have casually trampled on the rights of Parliament and the role of MPs to decide these essentially political questions.

"The public favour such cases being decided in the UK, not by foreign judges sitting in a remote court."

Would the sky collapse without Strasbourg - would Britain become a pariah state? Policy Exchange says not.

The main difference is that British citizens would no longer be able to appeal to the Court and the government would not be bound by its decisions.

The European Convention on Human Rights would still be incorporated into UK law, as it is now, and be reflected in decisions of the domestic courts. But the final arbiter for cases relating to human rights would be the UK Supreme Court.

The Court would frequently take account of Strasbourg decisions - but it would not be obliged to follow them.

The think-tank says Britain would not face expulsion from the Council of Europe or the European Union, as some experts have suggested - though any move to sever ties with the Strasbourg court would not be straightforward, involving some tricky legal manoeuvring and political negotiation.

Policy Exchange says the court represents "worthy ideals" but is not "fit for purpose" and requires "substantial reform".

If improvements are not made within two years, says the report, the government should consider withdrawing from its jurisdiction in order to prevent UK citizens lodging appeals in Strasbourg.

Neil O'Brien, director of Policy Exchange, told the BBC that the UK government did have to follow what was decided in Strasbourg, but that it should end this arrangement.

"Although it is not an easy or simple thing to cut our ties with the court, it is possible, and we argue that for a whole series of reasons we should now cut our ties with the court because it is, increasingly by trivialising and over-extending the concept of human rights into areas where it really doesn't belong... it's really undermining support for human rights," he told Radio 4's Today programme.

BBC home affairs correspondent Danny Shaw says the prevailing legal wisdom has been that severing ties with Strasbourg would jeopardise Britain's commitment to human rights laws and its membership of the Council of Europe and the EU.

But the report says there is "strong evidence" from legal experts that this would not be the case.

Lord Hoffman writes: "In the last few years, human rights have become, like health and safety, a byword for foolish decisions by courts and administrators.

"The tendency has been to say that there is nothing to be done. We are stuck with the Convention and the European Court of Human Rights and unless we are willing to cast ourselves as a pariah state and get expelled from the European Union, we must accept the court's jurisdiction.

"But Mr Pinto-Duschinsky shows that the situation is not so hopeless and there are means by which, with sufficient support from other states in the Council of Europe, we can repatriate our law of human rights. It is worth a try," he adds.

Law update

But former Labour foreign minister Denis MacShane said the claim Britain pull out of the ECHR without political consequences was "dangerous nonsense" and "would shame Britain around the world".

He said: "Of course the ECHR annoys people who think that every British judge and jury are perfect and never make mistakes. But justice and respect for law are stronger if citizens feels there is an appeal process.

"Compared to other major world regions - the Americas, Africa, or Asia - the citizens of Europe have in general terms a broader sense of living under rule of law with their human rights upheld.

"When the ECHR was written capital punishment was the norm and homosexuality was a crime. Today we think differently and what the ECHR does is to reflect changes in social and penal thinking and spread new principles and practice more widely."

Writing in the Sun, Lord Carlile, the government's reviewer of anti-terror laws, said that the European Convention on Human Rights was created in 1948, but that it now "no longer functions properly" and needs updating.

He added: "A new convention could mean new and more rights - consumer rights, environmental rights, internet rights.

"More cases would be decided in this country. A new convention would allow greater differences of interpretation according to local attitudes leading to a more realistic view of who can stay here."