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Sunday Herald - - FRONT PAGE -

BY PAUL HUTCHEON

SCOT­LAND’S top judge has said he will strengthen the rules on ju­di­cial ethics amid con­cerns over the sys­tem for declar­ing con­flicts of in­ter­est. Lord Car­loway has agreed that pub­lish­ing details of when judges and sher­iffs have de­clined to “re­cuse” them­selves [stand down] from cases may pro­vide “ad­di­tional trans­parency”.

How­ever, he has stopped short of sup­port­ing a full reg­is­ter of in­ter­est on the grounds that crim­i­nals could use the in­for­ma­tion to tar­get judges and sher­iffs.

Holy­rood’s Pub­lic Pe­ti­tions Com­mit­tee has for four years been con­sid­er­ing whether ju­di­cial of­fice-hold­ers should be com­pelled to pub­lish details of their out­side in­ter­ests.

Un­der the plan, judges would be re­quired to de­clare details of share­hold­ings, di­rec­tor­ships and mem­ber­ship of bod­ies.

The pre­vi­ous Lord Pres­i­dent, Lord Gill, was against the pro­pos­als as he feared judges’ pri­vacy could be com­pro­mised by “ag­gres­sive me­dia or hos­tile in­di­vid­u­als in­clud­ing dis­sat­is­fied lit­i­gants”.

He also ini­tially re­fused to give oral ev­i­dence in front of MSPs – cit­ing a le­gal ex­emp­tion – be­fore even­tu­ally ap­pear­ing af­ter he left of­fice.

How­ever, on Gill’s watch, the Ju­di­cial Of­fice for Scot­land (JOFS) in­tro­duced a reg­is­ter of re­cusals which re­veals when judges and sher­iffs came off a case due to a po­ten­tial con­flict of in­ter­est.

Since 2014, there have been over 70 in­stances de­clared on the JOFS web­site, but cam­paign­ers be­lieve the dis­clo­sure re­quire­ments do not go far enough and want a manda­tory reg­is­ter of in­ter­est.

In a let­ter to the Pub­lic Pe­ti­tions Com­mit­tee, Car­loway has sig­nalled he will beef up the reg­is­ter: “I would have no dif­fi­culty with the propo­si­tion that the reg­is­ter of re­cusals could be ex­tended to cover in­stances when a judge has re­cused him­self, and when he has de­clined to do so. The ad­di­tional bur­den, which will fall upon the clerks of court, should not be great, and I agree that this may pro­vide ad­di­tional trans­parency.”

Car­loway has also agreed to pro­vide oral ev­i­dence to MSPs, if they still feel it is nec­es­sary, but he stepped up his crit­i­cism of a reg­is­ter of in­ter­est.

He wrote: “All se­na­tors and all sher­iffs ex­er­cise a civil and crim­i­nal ju­ris­dic­tion. I am con­cerned that, at a time when on­line fraud is be­com­ing in­creas­ingly so­phis­ti­cated, a dis­sat­is­fied lit­i­gant, or a con­victed per­son, may choose to re­tal­i­ate by these means. A reg­is­ter of ju­di­cial in­ter­ests may pro­vide a start­ing point for that.”

Car­loway added: “One pos­si­ble in­hibitory ef­fect on the ad­min­is­tra­tion of justice is that judges may start to de­cline po­si­tions on im­por­tant pub­lic bod­ies such as these, if that re­quires the dis­clo­sure of fi­nan­cial in­ter­ests. In the same way, a reg­is­ter of ju­di­cial in­ter­ests may have a dam­ag­ing ef­fect on ju­di­cial re­cruit­ment.”

Peter Cherbi, the cam­paigner who in­tro­duced the pe­ti­tion to Holy­rood, said: “I wel­come Lord Car­loway’s agree­ment to my ear­lier sug­ges­tions to MSPs to in­clude fur­ther details on re­cusals and whether a judge re­cuses them­selves or not.”

How­ever, he added: “A reg­is­ter of in­ter­est for Scot­land’s judges would be a sig­nif­i­cant step for­ward in help­ing court users and le­gal teams en­sure fair hear­ings of cases in our justice sys­tem. Lord Car­loway could take the next step and au­tho­rise the cre­ation of such a reg­is­ter.”

Tory MSP Jack­son Car­law said: “It seems that the ju­di­ciary may now be ready to re­spond to the calls made for some time and come into line with other el­e­ments of pub­lic life when it comes to declar­ing in­ter­ests. It’s a move that’s been re­sisted for too long, and peo­ple are grow­ing im­pa­tient about the on­go­ing pre­var­i­ca­tion. We want Scot­land to be as trans­par­ent a place as pos­si­ble and, while progress has been made in ar­eas like pol­i­tics, it’s es­sen­tial that is matched else­where.”

A spokesper­son for the Ju­di­cial Of­fice for Scot­land said: “The Lord Pres­i­dent in­tends to amend the reg­is­ter of re­cusals to in­clude details of cases where a judge has de­clined to re­cuse, and this change will be im­ple­mented as soon as the nec­es­sary guid­ance is drafted and is­sued.”

Lord Car­loway has agreed that pub­lish­ing details of when judges and sher­iffs have de­clined to ‘re­cuse’ them­selves from cases may pro­vide ‘ad­di­tional trans­parency’

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