Dec 2012: Petition PE1458 Petitioner Peter Cherbi (PC) submitted his”Register of Interests in Judges” Petition to the Scottish government
PC had previously asked the Scottish Court Service & Judiciary of Scotland to provide details of a register of interests in members of the judiciary in Scotland. Both indicated there was no register of interests in members of the judiciary in Scotland, and there were no plans to create one. Similarly, there was no register of hospitality for members of the judiciary.
This concerned PC greatly and he called on the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill or amend existing legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests. The purpose of the measure being to increase the transparency of the judiciary and ensure public confidence in judicial actions & decisions.
In support of his petition PC provided details of the New Zealand Register of Pecuniary Interests of Judges Bill, which he believed could be used as a model for similar legislation in Scotland stating: “I believe the same aims of the New Zealand legislation, are compatible with the public interest in Scotland and to promote the due administration of justice by providing the public with greater transparency within the judicial system. Details here: http://www.legislation.govt.nz/bill/member/2010/0240/latest/DLM3355002.html
The full bill stated:
“It is a time-honoured principle of Western democracy that public servants of every kind must be beyond reproach, and suspicion thereof. Public confidence in the standard of behaviour and conduct observed by leading servants of the people is a cornerstone of social harmony and political stability. A threshold of confidence to that end should ideally be enshrined in constitutional and legislative form. Little scope should be available for individual discretion or subjective perception.
The principle of transparency in this respect pertains in particular to issues of financial (pecuniary) interest. Nothing undermines public confidence in a nation’s institutions and procedures more than suspicion that a public servant may have, and especially proof that one has, suffered a conflict of interest arising from a pecuniary interest in a particular dealing in which he or she was professionally involved.
The correct balance in this respect appears to have been achieved over the years–the public interest in such annual statements is significant without appearing prurient, and few complaints have been voiced by those on whom the obligations are placed. There seems to be a general acceptance that such exercises are in the public interest and are neither unduly onerous nor revealing.
No such practice, however, has been observed in the case of the judiciary. Recent developments within New Zealand’s judicial conduct processes suggest that application of the same practice observed by the other two branches of government might assist in the protection of the judiciary in future.
Being obliged under law to declare pecuniary interests that might be relevant to the conduct of a future case in which one is involved would relieve a judge from a repetitive weight of responsibility to make discretionary judgements about his or her personal affairs as each case arises. Having declared one’s pecuniary interests once, in a generic manner independent of any particular trial, a judge may freely proceed in the knowledge that, if he or she is appointed to adjudicate, public confidence for participation has already been met. Yet care is to be exercised to ensure that the final decision is left to the individual judge whether to accept a case. There should be no intention of external interference into the self-regulation of the judiciary by the judiciary.
This is the reasoning behind this draft legislation–the Register of Pecuniary Interests of Judges Bill. The purpose of the Bill, as stated, is to promote the due administration of justice by requiring judges to make returns of pecuniary interests to provide greater transparency within the judicial system, and to avoid any conflict of interest in the judicial role.” (The Herald)
Feb 2013: Register of Interests in Judges Petition – Lord President rejects Register of Interests proposal
Lord Gill claimed in his letter of 5 February 2013 to the PPC, “The introduction of such a register could also have unintended consequences. Consideration requires to be given to judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticized or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary.”
“In consideration of points raised earlier by Lord Gill against a Register of Interests in the Judiciary. Contrary to Lord Gill’s point of view, there is no evidence to suggest the publication of Registers of Interest and Hospitality by other bodies within the justice system have adversely affected any operations, nor has the publication of such information in the media appeared to have caused any problems, harassment, privacy issues or undue harm to those others in the justice system who are covered by Register of Interests. Rather, the publication of such Registers of Interest has created a level of transparency and accountability in other parts of the justice system which currently does not exist within the judiciary. (The Herald)
April 2014: Conflicts of interest for judges are revealed
Judges and sheriffs are having to make public why they stand down from cases because of conflicts of interests. People can now see online how the interests of sheriffs and judges have impacted on cases through the Judicial Office for Scotland (JOS) which has recently introduced a register of recusals, which shows cases where judges or sheriffs have absented themselves. There have been four cases over the past month where sheriffs have recused themselves, including one where a sheriff was known to a witness and another where one had previously represented a client. However, despite pressure from campaigners there is no sign yet of a judicial register of interests. But a Holyrood committee is considering proposals that would require judges and sheriffs to publish their outside interests, including details of their finances.
Members of the judiciary, unlike other senior public servants, do not need to give any details of their external sources of income. Yesterday, it emerged that a sheriff had presided over a court hearing involving Tesco at the same time as he held shares in the multinational supermarket giant. The Sunday Herald reported yesterday that Sheriff Principal Dunlop, QC, did not absent himself because having shares in a company that is party to a court action does not require a member of the judiciary to step down from a case. Members of the judiciary, unlike other senior public servants, currently do not need to give any details of their external sources of income. (The National)
Apr 2014: shareholdings of the top judge opposed to register of interests
A top judge and staunch opponent of a register of interests in the judiciary has shareholdings in several investment funds. Lord Gill, who has been critical of plans to require judges to publish their financial interests, made the declaration in his capacity as a board member of a court’s quango. It can also be revealed that his predecessor as Lord President, Lord Hamilton, declared shares in dozens of companies when he was in post.
In a written submission to the Scottish Parliament’s public petitions committee, Lord Gill argued that a register of interests for judges and sheriffs was unnecessary, adding that their privacy could be impacted by “aggressive media or hostile individuals”. He wrote: “The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the judiciary.”
The Lord President declined Parliament’s invitation to elaborate on his argument in person, a snub he was within his rights to deliver as judges cannot be compelled by law to give oral evidence to Holyrood. The Lord President instead agreed to a private unofficial meeting with two MSPs.
However, despite his hostility to a register, Lord Gill was required as a Scottish Court Service (SCS) board member to declare shareholdings and membership of outside bodies. Other board members included Lord Justice Clerk Lord Carloway, Sheriff Principal Dunlop, Lord Bannatyne and sheriffs Iona McDonald and Grant McCulloch.
Lord Gill, then the de facto leader of Scotland’s judges, declared shares in Henderson UK Growth Fund, Newton International Growth Fund, Aviva Investors UK Equity Fund, Terrace Hill Group and Vestry Court Ltd.
Sheriff McDonald declared shares in seven companies: pharmaceutical giant GlaxoSmithKline, banks HBOS and Barclays, Royal Dutch Shell, Standard Life, Unilever and Equiniti.
Lord Hamilton, a previous Lord President, registered shares in 33 firms in 2011. These included Barclays, BSkyB, BP, Centrica, Nestle SA, Rio Tinto, Statoil, ASA, National Grid, HSBC bank and Edinburgh Dragon Trust.
The declarations raised the assertion, if Lord Gill and other senior colleagues were compelled to register financial interests as SCS board members, that all judges and sheriffs should be requiered to do the same.
However, in a letter to the Committee, Lord Gill said: “the SCS entries are an entirely different matter. The requirement of those judicial office holders who are members of the SCS to register their interests arises in the context of their membership of a public body”. The disclosure of their interests arises from their work as board members, which may involve the placing of contracts and employment questions. It is not related to their holding judicial office.” (The Herald)
Jan 2015: The legal watchdog who quit after supporting a register of interest for judges has been backed by the woman who replaced her.
Moi Ali was appointed as the country’s first judicial complaints reviewer in 2011 but resigned last year claiming she had no power and got no co–operation from law chiefs. She was also criticised by Scotland’s top judge, Lord Gill, over her support for a register of interest for judges.
But her successor Gillian Thompson has also given her backing for a register. In a letter to the committee, she wrote: “We live in an age in which transparency about interests and activities of those in the public eye is regarded as good practice. There is a perception that anything less is the result of attempts to hide things. In the case of judges, it is clear that court users and the public more widely seek reassurances of fairness and impartiality.”
Lord Gill has repeatedly dismissed calls for a register of interests. But PC said: “Two judicial complaints reviewers in a row have supported a register while Lord Gill suspiciously clings to secrecy and refuses to accept transparency must be applied equally to judges as it is to everyone else in public life.”
Holyrood’s petitions committee are considering a submission by legal campaigner PC for a judicial register of interests which could details gifts, hospitality and links to outside bodies such as law firms. (The Herald)
May 2015 Sturgeon supports Lord Gill in rejecting calls for a register of financial interests
Sturgeon rejected calls for a register of judges’ financial interests, saying the current rules were “sufficient” and the proposal for a register, put forward by campaigner PC, was unnecessary. Adding: “The Scottish Parliament’s public petitions committee is currently looking into whether judges as well as sheriffs and justices of the peace should be required to register their external financial interests in the way other senior public figures are, including MPs, MSPs, board member of public bodies and councillors”. But openly declared her support to Lord Gill, in a letter to the convener of the committee writing: “The Scottish Government considers that such a register of judicial interests is not necessary and that the existing safeguards – the Judicial Oath, the Statement of Principles of Judicial Ethics and the system for complaints against the judiciary – are sufficient to protect individuals from judicial bias. The position of the judiciary is different from that of MSPs and others who hold public office. The judiciary cannot publicly defend themselves”.
PC commented: “I am surprised Nicola Sturgeon supports a judicial ban on transparency just because judges have been asked to declare their substantial interests. We are always told, if you have got nothing to hide, you have nothing to fear. What are the judges hiding, and what do they fear? There cannot be one set of rules for judges and another for everyone else. A register of interests will enhance public trust in the justice system, not detract from it”. (Scottish Legal News)
May 2019: Scotland’s judges may soon have to register their interests after the Scottish Parliament’s Justice Committee defied the Scottish government and judges on the issue of transparency.
Seven years after he raised a petition on the issue, journalist and legal issues campaigner PC admitted last night he was surprised that Holyrood’s Justice Committee were going to keep his petition “live” and take the matter up with Scotland’s most senior judge, the Lord President, Lord Carloway.
He commented further: “I am happy to hear that the Justice Committee are taking this petition forward and the supporting comments from MSPs today who clearly understand the value of bringing a register of interests to Scotland’s courts. Thanks to media coverage, the issue has remained in the public eye and interest for seven years, and public debate has led to people asking why judges should exempt themselves from transparency and accountability – which are the core principles of any justice system. The benchmark evidence from Scotland’s first judicial complaints reviewer, Moi Ali, contributed in great measure to how the Public Petitions Committee took the work forward, with MSPs backing the petition in a major debate in Parliament, and through the seven years of work by the Public Petitions Committee. Perhaps it is now time for our judiciary to reflect on why they have resisted calls for transparency for seven long years. Where the Lord President and Scottish Government have failed to act, I look forward to the Justice Committee moving forward on this issue, and creating legislation for a publicly available register of judges’ interests, with proper rules and full, independent scrutiny in a manner which is equivalent to the register of interests which many other public servants, including our elected representatives and Scottish ministers, must sign up to.”
Jun 2021: Scotland: The Scottish government has confirmed judges will be forced to register their financial interests.
The present system provides that judges must declare relevant interests in a case before them, but they are not required to register such interests before a trial, which is entirely contrary to the practice in other jurisdictions. In a statement to the press, Justice Secretary Keith Brown said: “The SNP manifesto contained a commitment to create a register of interests in members of the judiciary to improve transparency and trust in the justice system. Now the new government is in place, we will start looking at ways this register can be introduced.” (Scottish Legal News)
3 Aug 2021: After ten years of near fruitless Holyrood committee discussions, probes, meetings and lobbying by legal vested interests, the Scottish government has agreed to the creation of a Judicial Register of judges’ interests in all members of Scotland’s judiciary. The long delayed legislation was approved by the Scottish Parliament’s Justice Committee – after a failed last-minute Tory attempt to shut the petition down. Led by then MSP Justice Committee Convener – Adam Tomkins of the Scottish Conservatives
The register will provide information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside the legal profession, membership of organizations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.
10 Sep 2021: The Rangers Administration malicious prosecution case illustrates why Scotland’s Prosecutors & Judiciary must be required to register, declare & publish all their interests and all details of their recusals from court hearings
As the justice system awaits proposed reforms including the creation of a Register of Judges’ Interests it should not be forgotten how entangled Scotland’s judiciary were in the organised, motivated & malicious prosecution of Rangers Administrators, by the Crown Office and Procurator Fiscal Service (COPFS) and Police Scotland.
In February of this year, Scotland’s top law officer Lord Advocate James Wolffe QC gave a statement at the Scottish Parliament in which he conceded the prosecution of two of Rangers administrators was a malicious prosecution. He went on to publicly apologise to the two men who were wrongly prosecuted during a fraud investigation carried out by the Crown Office and Police Scotland, in relation to the sale of Rangers Football Club.
David Whitehouse and Paul Clark settled out of court with the Crown Office and were awarded £10.5m each in damages. Legal costs are thought to total more than £3m with the final cost to the public purse is projected to be around £100m.
Lord Advocate James Wolffe released a qualified apology for the malicious prosecution but denied anyone had acted with malice, prompting accusations that he was “brushing an appalling state of affairs under the carpet”.
Summary: The foregoing provides a short summary of events that occurred between 2012-2021.
I greatly admire Peter Cherbi who never gave up and finally triumphed over many obstacles he was confronted with by an establishment elite determined to protect and preserve privacy procedures and related systems they had evolved over many years.
Much more information pertaining to the subject and many other tales from the courts can be found at (https://petercherbi.wordpress.com)