A Diary of Injustice in Scotland - by Peter Cherbi

Lord Woolman granted Scotland’s first Civil Law McKenzie Friend request  FORTY YEARS after McKenzie Friends were first introduced to UK courts as a result of the 1970 McKenzie v McKenzie decision which set a legal precedent for court users in England & Wales to request and receive the invaluable assistance of a McKenzie Friend, Scotland’s Court of Session has finally, albeit grudgingly fallen into line with the rest of the country and many international jurisdictions by granting what many say is the first successful request for a McKenzie Friend to appear in Scotland's civil courts.

The unexpected turn of events in the Court of Session last Tuesday, 17th November 2009 saw the sitting judge, Lord Woolman allow the attendance of Scotland’s first ever McKenzie Friend in a long running civil damages action which named Motherwell College, North Lanarkshire Council & Edinburgh Law firm Simpson & Marwick as defenders. The case, a medical injury claim recently heard 'potentially explosive allegations' against the College from the witness box.

A spokeswoman for the Scottish Courts Service confirmed the first use of a McKenzie Friend in Scotland, issuing the following brief statement : "I confirm [the party litigant] was allowed to be assisted in the manner associated with the term “McKenzie Friend”.  [The litigant's] supporter was advised by the Court as to the nature of his role and is seated behind [the litigant] in court in the place where an instructing agent (solicitor) would sit.”

The Scottish Courts Service was further asked to confirm this was the first successful use of a McKenzie Friend in a civil damages action in Scotland. However, the SCS said they did not keep such statistics or data, and therefore could not confirm one way or another.

A senior official of one of Scotland’s consumer organisations welcomed Lord Woolman’s decision to allow the use of a McKenzie Friend. He said : “The rights of party litigants in Scotland’s civil courts have been greatly enhanced by Lord Woolman’s decision allowing what we understand to be the first ever use of a McKenzie Friend in a Scottish court. We hope this will be the first of many successful applications to the Scottish courts for the use of McKenzie Friends in cases were consumers have found it difficult or too costly to obtain the services of a solicitor to represent their legal interests.”

However, Lord Woolman’s decision in requiring the McKenzie Friend to ‘sit behind’ the party litigant came in for criticism, due to the fact that in England & Wales, and most international jurisdictions were McKenzie Friends are allowed, the party litigant requesting the advice & assistance of a McKenzie Friend usually find their McKenzie Friend sits beside them, rather than behind them.

A senior barrister from England said today : “I have often attended hearings where McKenzie Friends have assisted party litigants, seated next to them. I have not attended a hearing where an English court has insisted or required that a McKenzie Friend must sit behind their party litigant. Such a seating arrangement would be counterproductive to the litigant who would be put in a position of having to constantly turn around, seeking advice on what to say or asking to see notes taken by the McKenzie Friend. I would think the judge’s patience would fray a little at such a constant head turning prospect, and therefore on that basis I would have to say your Scottish judge got it wrong on who sits where.”

A former party litigant whose experiences were recently reported in a Consumer report on Scotland’s Civil Courts today said : “I found the entire system stacked against me in court and it will come as no surprise I lost. If I had been able to use a McKenzie Friend I might have won my case, or at least come to a settlement but the judge in my case said I could not have a McKenzie Friend. The lawyers laughed at me when I was forced to drop my case and to this day I feel very bitter about it.”

He continued : “Where a Scotsman living in England or Wales, can enter an English court with a right to have a McKenzie Friend by his side to help him in his hour of need, yet a Scotsman living in Scotland asking for the help of a McKenzie Friend will still have to face the discretion of individual courts who may seat his McKenzie Friend miles away to the rear .. is not fair. This lack of fairness has to be put right.”

Lord Gill recommended McKenzie Friends be introduced in his Civil Courts Review. In the recent Civil Courts Review, conducted by Scotland’s Lord Justice Clerk, Lord Brian Gill recommended that McKenzie Friends should be introduced in Scotland, not only being allowed to sit beside a litigant but also to be granted a right of audience in some circumstances, to speak for litigants. However, Lord Gill’s detailed recommendations on the introduction & application of McKenzie Friends  in Scotland’s courts conflicts severely with claims made by the Lord President to Holyrood’s Petitions Committee, where Lord Hamilton claimed that such assistance as provided by McKenzie Friends had always existed in Scotland, when in fact, no recorded use of McKenzie Friends in Scottish Civil Courts has taken place until now, this now confirmed by the Scottish Courts Service itself.

You can read my earlier articles on Lord Gill’s recommendations for the introduction of McKenzie Friends in Scotland, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

You can read my earlier reports on the battle to bring McKenzie Friends to Scotland here : McKenzie Friends for Scotland - A battle worthy of a McKenzie Friend

As legal experts in Scotland continue to assess the impact of Lord Woolman's ruling on McKenzie Friends, and the precedent the decision has now established, the race is now on to set rules and guidance for the Scottish Courts on the general application & acceptance of McKenzie Friends to provide unrepresented party litigants with advice & assistance during court appearances.

A legal insider pointed out today that in England & Wales, as soon as a litigant makes a request to have a McKenzie Friend assist their litigation, the English courts must consider that request on a Human Rights basis, as contained in the Lord President of the Family Division’s guidance to the English Courts, which clearly states :

•  When considering any request for the assistance of a McKenzie Friend, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant  reasonable opportunity to develop the argument in favour of the request.

•  The litigant in person should not be required to justify his desire to have a McKenzie Friend ; in the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend.

•  A favourable decision by the court, allowing the assistance of a McKenzie Friend, should be regarded as final and not as something which another party can ask the court to revisit later, save on the ground of misconduct by the McKenzie Friend or on the ground that the MF’s continuing presence will  impede the efficient administration of justice.

What a McKenzie Friend May Do :

•  Provide moral support for the litigant
•  Take notes
•  Help with case papers
•  Quietly give advice on : points of law or procedure ; issues that the litigant may wish to raise in court & questions the litigant may wish to ask witnesses.

What a McKenzie Friend May Not Do :

•  A McKenzie Friend has no right to act on behalf of a litigant in person. It is the right of the litigant who wishes to do so to have the assistance of a McKenzie Friend.  
•  A McKenzie Friend is not entitled to address the court, nor examine any witnesses. A McKenzie Friend who does so becomes an advocate and requires the grant of a right of audience. 
•  A McKenzie Friend may not act as the agent of the litigant in relation to the proceedings nor manage the litigant’s case outside court, for example, by signing court documents.

The full guidance from the Lord President of the Family Division on the use of McKenzie Friends in England & Wales can be downloaded here : President's Guidance: McKenzie Friends

One of the most important issues with regard to the use of McKenzie Friends in England & Wales, is that when a litigant makes a request for a McKenzie Friend, the request is considered with regard to Article 6 of Human Rights legislation. Currently, this is not the case in Scotland, and as yet, no guidance has been released from the Lord President’s office addressing these issues.

This Human Right of a McKenzie Friend to the unrepresented people across our country must not be separated by the hills of the Scottish Borders, simply on the basis the Scottish legal establishment, and the legal profession feel they will lose control over the courts and perhaps more importantly to them, control over access to justice and law firms profits.

Given the confused and contradictory claims by the Lord President, Lord Hamilton and the Scottish Government in its responses to the McKenzie Friend petition, and Lord Woolman’s following to the letter of Lord Hamilton’s ‘sit behind & far away’ policy, a right and entitlement to a McKenzie Friend in Scottish Law is long overdue and can no longer be allowed to remain 'in the the gift' of the Court.

Secret legal advice issued by the Office of the Solicitor to the Scottish Executive ordered Ministers to keep lawyers exempt from Freedom of Information. BLACKED OUT DOCUMENTS containing secret legal advice issued by taxpayer funded Scottish Government lawyers show that Scottish Ministers WERE ORDERED by the legal profession to allow the Law Society of Scotland to keep its much coveted yet little-talked-about exemption from Freedom of Information legislation. The censored advice, issued by lawyers working for the Office of the Solicitor to the Scottish Executive, who are themselves, fully paid up members of the Law Society of Scotland has led to a policy by the present Scottish Government since it was elected in May 2007 to mislead members of the public, consumer groups, law reformers and FOI campaigners on the question of making Scotland’s legal profession accountable under Freedom of Information legislation.

Secret legal advice ordering continued immunity for Law Society only disclosed after FOI Commissioner Kevin Dunion began investigation. The so-far secret documents relating to the Scottish Government’s attempts to keep quiet about their involvement with the Law Society/FOI issue, have only now been grudgingly released by the Scottish Government in an attempt to persuade Scottish Information Commissioner Kevin Dunion from ordering the full disclosure of the legal advice, which has led to a policy of misleading the public for several years on the question of making the regulator of Scotland’s legal profession comply with Freedom of Information laws.

Secret papers disclosed during FOI investigation show Scottish Government ‘is afraid’ of Law Society of Scotland’s legal challenge against Freedom of Information compliance.

The move to keep the Law Society of Scotland free from scrutiny under Freedom of Information legislation will avoid any possibility that clients, the media and the general public could use FOI laws to find out key details of regulatory procedures at the Law Society itself, which are famed for allowing crooked lawyers to continue working no matter what they do to clients, discover actual records of complaints histories of Scottish solicitors, the criminal records of solicitors and staff working in the legal services sector, and also allow clients access to their own personal files held by solicitors, which are often ‘held to ransom’ by solicitors demanding payment before being handed over, in a vastly edited format.

While Scots are forced into the dark chasm of FOI exempt dealings with the Law Society of Scotland, the Law Society of England & Wales while also not FOI compliant, have an open policy of replying to Freedom of Information requests from the public, as I reported earlier, here : Criminal records of lawyers : Scots public kept in dark over convictions while England & Wales get ‘right to know’

Emails between Civil Servants show Scottish Government fear Law Society action against Freedom of Information Scrutiny. A legal insider said last night : "I understand the Law Society warned the current SNP Scottish Executive and the previous administration that it would legally challenge any attempt by Scottish Ministers using Section 5 of the FOI(S) Act to bring them into compliance. The documents now released seem to confirm this.”. He went on : "The civil servants talking about how the Law Society would challenge against any such move, using 'legal privilege' and 'client confidentiality' is very much spot on in terms of what tactics the Law Society would use to prevent itself being made compliant with FOI legislation although I also understand from colleagues that an option of Judicial Review would have been used by the Law Society, should the then Scottish Executive or present Scottish 'Government' have proceeded to bring the Law Society within the scope of FOI."

One Scottish Government civil servant wrote in an email between legal departments : “I am aware that the LSS (Law Society of Scotland) is not subject to the FoI Act and I suppose that any attempt to bring them into line with the spirit of FoI would be resisted on the grounds of legal privilege/client confidentiality.”.

However letters sent out on the authorisation of the Justice Secretary, Kenny MacAskill to FOI campaigners claimed “No decision have yet been taken as a result of [a consultation on Freedom of Information in Scotland'] and Ministers are currently considering the requirement for any action on the issues considered, including coverage of the [FOI] Act” clearly portraying a deliberate policy by the Scottish Government to mislead the public with regard to FOI issues & the legal profession in Scotland.

Scottish Ministers will fight to prevent public knowing why lawyers are exempt from FOI legislation. While the legal advice apparently ordering Scottish Ministers to allow the Law Society of Scotland to keep its exemption from FOI legislation was made during the previous administration, the current SNP controlled Scottish Government have now forcibly warned Scotland's FOI Commissioner, Kevin Dunion, that they will fight to keep the public from knowing that Ministers have in effect been bullied by the Law Society of Scotland into keeping the Scots legal profession free of public scrutiny which would come with FOI compliance.

Law Society of Scotland & Faculty of Advocates remain secret, unaccountable to FOI scrutiny. The Law Society of Scotland is one of two key regulators charged with overseeing Scotland's legal profession, the other being the Faculty of Advocates who also enjoy complete immunity from Freedom of Information legislation, making the two regulators of Scotland's legal profession a dangerous unaccountable duo of self regulators who are subject to no oversight other than a passing glance from the beleaguered, scandal hit Scottish Legal Complaints Commission, who have spent the last year rubber stamping investigations into crooked lawyers carried out by the Law Society & the Faculty.

SLCC Chair, Jane Irvine supports making the Law Society compliant with FOI legislation. Ironically, while the Law Society of Scotland & Faculty of Advocates are both exempt from Freedom of Information, and have threatened the Government to ensure their exemptions remain, the former Scottish Legal Services Ombudsman, Jane Irvine, who was appointed Chair of the Scottish Legal Complaints Commission, actually supports making the Law Society of Scotland comply with Freedom of Information laws, confirming this in a previous article I reported here : Legal Complaints Chief supports ‘consumer advantages’ of removing Law Society’s Freedom of Info immunity

Iraq War : SNP MPs badgered for Cabinet Minutes release on war ‘legal advice’ but now SNP Scottish Ministers will use public money to protect Law Society from FOI & fight release of Scottish Govt’s lawyers advice. This fight by the Scottish Government to keep information from the public which involves elements of the Scottish legal profession bullying the Government into submission over FOI protection for the public is in stark contrast to the SNP's position over the FOI battle for release of Cabinet meeting minutes from the Westminster Government in relation to the Iraq war, where, in a similar situation of legal advice against FOI release UK Government lawyers based in Westminster also argued  it would be against the public interest to release the Cabinet Minutes.

The now famous but still secret Cabinet Minutes containing references to the legal advice given to the Government on the legal basis of the war in Iraq, were ordered for release by England's FOI Tribunal which backed the original decision by the Information Commissioner for England & Wales, Richard Thomas, ordering the release of the Westminster Cabinet Minutes. However, Scotland has no FOI Tribunal, therefore the FOI Commissioner, and even applicants to the FOI Commissioner’s office must rely on going to the Court of Session in Edinburgh to force the release of information that Scottish Ministers may resist disclosing to the bitter end.

A senior official with one of Scotland’s consumer organisations branded the Scottish Government’s stance over the legal advice as “a grave mistake” and condemned the lack of attention to a clear public interest in making Scotland’s legal profession’s senior regulator comply with Freedom of Information legislation.

He said : "“The current arrangement consumers face with the regulation of legal services in Scotland, where the Law Society of Scotland & Faculty of Advocates are exempt from FOI legislation, yet the Scottish Legal Complaints Commission is FOI compliant, is not in the public interest.”

He continued : “The public interest would undoubtedly be served if the Law Society of Scotland and the Faculty were made to comply with Freedom of Information, but such a move will require action from the Scottish Government. It appears this will never take place, according to the documents which have now been disclosed, and even worse, it appears the Scottish Government have been deliberately misleading public enquiries on this issue for several years.”

Former Law Society Chief Douglas Mill threatened legal challenge against complaints reforming legislation LPLA Act which created the SLCC. This is of course not the first time the Scottish Government have been threatened with legal action by the Law Society of Scotland, where in 2006, during the Scottish Parliament’s consideration of the Legal Profession & Legal Aid Bill, which went onto create the Scottish Legal Complaints Commission, the then Law Society Chief Executive, Douglas Mill, threatened a legal challenge against the then Scottish Executive and the Scottish Parliament, claiming that lawyers had a human right to regulate complaints against their colleagues. I reported on that earlier threat of a legal challenge by the Law Society, here : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill

A Scottish Government insider commented on his colleague’s frantic discussions over the Law Society & FOI compliance, saying : “The problem here is the many dark secrets of the legal profession will end up being revealed under FOI if they are made to comply with it.”

“If you find out through FOI your lawyer is a habitual crook and has rolled hundreds of clients, you are not going to use them or their firm for anything. I believe it is the desire of the Law Society and the profession to protect their secrets which we are seeing as the Government’s driving force of maintaining an indefinite exemption rather than groundless arguments of client confidentiality."

Clearly, the public interest would be served by making the Law Society of Scotland & Faculty of Advocates compliant with Freedom of Information legislation and continuing the present secrecy which allows both of these powerful regulators to remain outside the law and outside the reach of public scrutiny & accountability is only helping those within the profession who are exploiting such weaknesses for their own benefit against the public and all users of legal services in Scotland.

Politicians & consumer groups feel SLCC is having a laugh at Scots public. THE SCOTTISH LEGAL COMPLAINTS COMMISSION, which is due to publish its first annual report in December, has been roundly condemned by politicians, consumer groups, and members of the public forced to approach it over complaints against 'crooked lawyers' as being an expensive, incompetent & anti-consumer quango which is focussed more on salaries & expenses than its once promised task of cleaning up mounting complaints of corruption in Scotland's legal profession.

SLCC Chief Executive Eileen Masterman at 70K a year was named in a survey as one of the highest paid quango Chiefs in Scotland. While board members of the SLCC have raked in a staggering £135,000 plus in expenses claims over the past year, and its Chair, Jane Irvine nets £308 plus, a day, along with Chief Executive Eileen Masterman who gets a whopping £1350 per week, the complaints body has shown itself over the past year to be a very poor regulator of complaints against ‘crooked lawyers’, leaving many clients finding their complaints have been ‘whitewashed’ in a way reminiscent of the Law Society of Scotland’s Client Relations Office investigations, which are well known to have let thousands of crooked lawyers off the hook from even the most serious of complaints.

MSPs have been asked to assist consumers caught out by anti-client SLCC. While the SLCC has focussed on huge salaries and expenses claims, little by way of complaints victories for consumers have been achieved by the cash hungry quango. The public’s dealings with the SLCC have now reached such a low point that MSPs across Scotland have been called in by many constituents to help complainers get the SLCC to give them a fair hearing that Justice Secretary Kenny MacAskill had promised would be routine with the failing SLCC, once styled as a 'new broom' but which has now lost its bristles, and it seems, the will to address public complaints against the legal profession.

This morning, an MSP spoke of being called in by a constituent to ask the Scottish Legal Complaints Commission why it had continually failed to address serious issues in a complaint made against a rogue solicitor and his law firm which now includes a complaint against the Law Society itself.

The MSP said : "A constituent who has become embroiled in a dispute with the Scottish Legal Complaints Commission and the Law Society of Scotland over a complaint made against a solicitor, asked me to write into the SLCC seeking to untangle the mess they had made of my constituent’s problem. The responses I have received so far from the SLCC demonstrate nothing has been learned from the failures of the Law Society’s complaints system.”

“Each time I received a response to my enquiry, they would seek to complicate the issue further to the point that matters became very unclear as to what was happening with my constituent’s complaint and what they intended to do about it. I was left with the distinct impression I was dealing with an organisation that has a very bad attitude towards the public. Clearly the SLCC has become unfit for purpose.”

A member of the public who has been waiting several months for his complaint to be investigated by the SLCC said today : "I have been writing letters back & forth for months to people at the Scottish Legal Complaints Commission and I feel they are just doing all this on purpose to lose me in a paper chase. I think the legal profession are just having a laugh at us consumers by using the SLCC to launder complaints made against crooked lawyers. I have lost all trust in the SLCC. They should be replaced with something that can help people with complaints not hinder them and there should be no lawyers on whatever replaces it in the future.”

The Scottish Legal Complaints Commission was asked for information on how many MSPs had contacted it over problems faced by constituents who had encountered difficulties with the law complaints body. However, the SLCC refused to hand over any information or documents on this subject, and tersely said that requests for such information would now be charged for.

Quango secrecy to maximum as SLCC website reveals lack of board meeting minutes and accurate information on its actual performance. While the SLCC was being secretive about its own difficulties and the lack of trust it suffers from public & politicians alike, the quango’s own website amazingly reveals today that up to today, 23 November 2009, it has failed to post any board minutes since July 2009, begging the question what has the Commission actually been doing all this time, while its members have been raking in huge expenses claims & salaries while complaints and the public have become its last priority. An insider commented on the lack of minutes information, claiming that due to poor media coverage which had revealed the SLCC to be unfit for purpose, the commission had now taken the decision not to release much information on its internal workings to the public, for fear that the details of its daily operation and board meetings would continue to portray it to be a pro-legal profession body, rather than an impartial regulator of consumer complaints against poor legal services.

SLCC’s July 09 report into Master Policy claims revealed client suicides but quango did nothing. A spokeswoman for a consumer organisation today rounded on the SLCC and agreed the quango needed to be reformed. She said : “While the Scottish Legal Complaints Commission may argue this has been their first year of operation, they have without doubt made a huge mess of handling complaints and attending to their duties.” She continued : “Probably the worst example I can think of from the SLCC’s first year would be their Master Policy investigation, which revealed so much, yet has still to see any action or reform of the horrendous claims process which clients are forced to use when claiming negligence or damages against their solicitors. I think that failure on its own, demonstrates the SLCC is too weak, too unwilling, and too close to the legal profession to be of any use to consumers as the impartial, independent regulator it claims itself to be.”

"We need to move on from this mistake and create a fully independent regulator that is able to do the job the SLCC was supposed to do, but cannot do due to overwhelming influence and control from the legal profession itself."

You can read my earlier reports on how the Scottish Legal Complaints Commission handled their investigation into the Law Society of Scotland’s Master Insurance Policy, here : 'Ground-breaking' investigation into Law Society's Master Policy insurance reveals realities of corrupt claims process against crooked lawyers and here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

Well, I can only agree with the sentiments expressed by others, that the Scottish Legal Complaints Commission is most certainly, unfit for purpose, and should be replaced with a fully independent body which operates under external oversight, and is free of influence & control from the legal profession, to ensure that consumers are fully protected from the many rogue elements of Scotland’s very poor, untrustworthy, legal profession.

Scottish legal website threatened by Lord Advocate over abuse story claims. Earlier this week, in what may very well be a turning point in a Grampian Police investigation into reports of the alleged existence of a ‘paedophile gang’ in the Aberdeen area which is claimed to have abused several victims including a down’s syndrome girl, the well known Scottish legal magazine website “The Firm” was ordered by the Crown Office to take down two reports it published into the case.

The Firm – Reports were taken down after ‘legal threats’ from the Crown Office

Scottish Law Reporter carried the story of what happened at “The Firm” here : ‘The Firm’ censored, now apologise over Lord Advocate 'allegations' in Hollie Greig abuse scandal as Police investigate Aberdeen Paedophile ring along with their initial report on very disturbing allegations made by the victim, Hollie Greig and her mother Anne, to Grampian Police, which is covered, here : Down’s syndrome victim identifies Sheriff & Police in Aberdeen Paedophile ring as Grampian Police investigate claims of historical abuse

The Firm’s coverage, I cannot report .. but the verbatim reports as published, and now withdrawn apparently after intervention from the Crown Office itself, can be found online with a quick google search, or HERE. The ‘apology’ the Firm published, almost sounding like it was written under duress, is here : Lord Advocate “not involved, no connection, unaware” in decision not to prosecute paedophile ring 10 years ago 

It is of course, in the public interest that any allegations of such a serious nature are fully investigated, and if found to be substantiated, anyone identified must feel the full weight of the law, and the considerable media attention which normally accompanies such scandals. However, is the public interest served by threatening the media into a silence of blacked out pages ? I think not.

Hollie is without doubt, due to no fault of her own, a vulnerable human being, and it is the duty of us all to care for those who are in such circumstances. If that care has failed, we have all failed, and those in office who are charged with protecting us from such failures, have failed the most.

Hollie is, as we have all tragically seen with headline after headline. not alone in being let down by a system designed to protect children & vulnerable adults from serious abuse, but one very serious consistency which always seems to come out of any inquiry into a case, be it abuse, or even a death from abuse such as the horrendous Baby P case in England … many of those who were responsible by job & position for protecting against such crimes, tend to escape any penalty for their administrative failures …

With regard to these failures, I think we all need to be reminded of the infamous, and equally horrendous “Miss X” abuse scandal from the Scottish Borders, where a vulnerable woman with learning disabilities was systematically raped & abused for years, until the media intervened, followed by Christine Grahame MSP, which eventually led to prosecutions & guilty verdicts on those who committed the crimes against Miss X.

However, the efforts to cover up Scottish Borders Council’s lack of action in the Miss X abuse scandal, were quite stunning at the time, with the same threats made from certain quarters to those who were publicising the case, and tales of reports & files being removed, in what many construed as a concerted effort to hide the truth. Eventually, ‘improvements’ were made to social care in the Scottish Borders, but, apart from the successful prosecutions, little in the way of heads rolled in official positions, for Miss X’s years of abuse, suffered just a few hundred yards away from the Council’s own headquarters in St Boswells.

Sources of media & reports from the Miss X investigation, along with statements to the Scottish Parliament by Scottish Government Ministers can be viewed here : Inquiry Reports & Media (Miss X Abuse Scandal Scottish Borders)

Inquiry Reports & Media (Miss X Abuse Scandal Scottish Borders) :

Aberdeen’s Press & Journal newspaper report that Grampian Police have re-interviewed Hollie & her mother, and are now investigating the case. Let us hope that along with a Police investigation, comes the necessary full inquiry to establish the facts of the case, why some feel that silence & censorship is applicable, rather than serving the interests of justice, and why it may very well be that as a nation we are still failing to protecting those among us who need our protection.

In some cases, notes of proceedings in Scottish courts 'are worthless'. Litigants who use Scotland's courts for civil proceedings have today been advised to take along witnesses or their own note takers, after revelations emerged in several long running damages actions of a pattern of serious omissions in the official notes of court proceedings which have in some instances, heavily compromised litigants legal positions and ruined clients trust in their own legal representation who were found to be less than competent during court proceedings.

Despite the fact Scotland's courts have had recording equipment fitted several years ago, notes from cases heard in Scottish Courts including the Court of Session, which have involved challenges against professions such as medical negligence claims against Health trusts, negligence claims against the legal & financial professions and even challenges against public bodies including Government department, have revealed that rarely do the full judgements or even court interlocutors contain a fully accurate account of the events which actually took place in court in front of litigants, leaving many court users bemused or facing severe difficulties in their cases or legal positions.

Unsurprisingly,  these omissions in court documents & judgements seem to have a habit of occurring particularly where issues involve failures of litigants legal counsel, or in one example quoted to me, where a judge had heavily criticised a litigant’s legal team for not entering medical evidence into pleadings, which the litigant had only found to have been not produced after he had himself written to the Scottish Courts Service enquiring what papers his legal counsel had actually filed.

A Courts insider today said : “While every single word could not be written down that is said in a court case,  there is a general reluctance by people working for the Scottish Courts service to note down such embarrassing details as litigants finding out only during a hearing after harsh criticism from the judge that their legal teams had not presented key evidence to their case.”

He continued : “I recall many attempts by a litigant to gain transcripts of a hearing where the judge apparently told the litigant’s QC he was ill prepared and was wasting his clients and the courts time after it came out no papers had been entered into productions. The client protested vigorously in letters to the SCS that his counsel had informed him otherwise, even copying letters from his solicitor that all productions had been sent in. This was however not the case and clearly his legal team had not followed through.”

“Had the hearing been recorded accurately I have no doubt the litigant would be in a stronger position to do something about the omissions of his legal team”

A solicitor working with a consumer organisation admitted there were serious shortcomings in courtroom transcripts in Scotland's courts. He said : "I suspect court users, and even the general public would get quite an eye opener if all court proceedings were accurately transcribed or even audio recorded. It may very well be that many of those who come to court may wonder what their legal representatives have been doing, after going over the recordings a few times after the event.”

He continued : “Scottish Courts do have the facilities to audio record cases, which I would definitely advise court users to request, but I would also advise anyone who may feel they need an independent note of what happened during their court hearing, to take along a friend or someone who can write down what took place in the court, and also if necessary, be a witness at a later date.”

In an example of a case where ‘dodgy note taking’ seems to have omitted key criticisms from the bench of a pursuer’s legal team who were representing a victim of medical negligence, a full list of medical examinations made by independent experts, and key expert witness testimony on the pursuer’s condition and treatment in hospital had not been entered into evidence – this despite the pursuer having a letter from his solicitor giving a full numbered list of productions to the court, which in reality did not exist. 

It appeared in this particular case, the pursuer’s legal team never expected the case to go to proof, and the whole episode only came to light when the sitting judge asked the pursuer’s QC where were the medical reports of his client, leaving the pursuer’s legal team speechless and asking for an adjournment to a later date. Sadly none of this was recorded in the report of the hearing that day, and now the pursuer finds himself without legal representation, after questioning his solicitor why he was told his productions had been entered, when clearly they were not.

Lord Gill recommends digital recordings of all civil court evidence. The extent of problems with court transcripts and recordings, was recently referred to in Chapter 6 of Lord Gill’s Civil Courts Review, where the Lord Justice Clerk stated : “Currently where evidence is recorded in civil cases this is done manually by a shorthand writer. In our view it would be more efficient to record digitally all evidence in civil cases, as happens in criminal cases. The cost of this should be borne by the SCS. The availability of digital recording facilities in all courtrooms would contribute to more flexible usage of accommodation. We understand, however, that to equip a court fully for digital recording could cost up to £15,000. That may be prohibitive in smaller courts. Mobile facilities could be made available in those courts when required. If parties required a transcript of the evidence a charge would be made for this service. In many instances a recording of the evidence would be all that would be required.”

Clearly problems do exist with transcripts of courtroom activity, which as Lord Gill concludes himself, would easily be curtailed by the digital recording of all evidence in civil cases.

Readers can download Lord Gill’s Civil Courts Review at the following links :

Civil Courts Review

The Report of the Scottish Civil Courts Review was launched on Wednesday, 30 September 2009 and is available to download below:

• Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb)
• Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)
• Synopsis (215Kb)

While Lord Gill’s recommendations are being considered .. and lets hope the powers that be don't take the usual eternity to consider them … if you feel you need a witness to your civil court hearing, which I would certainly recommend you do,  take along someone with a pencil & notebook – it may very well save you later on if something goes wrong.

Courtroom notes and your lawyers version of events after the hearing  may sound all well & good, but time & again, the most important references of events which end up determining whether your legal team have acted in your interests or otherwise, are simply not there fin the shorthand writer’s notes for you to refer to later on when difficulties arise. An extra body with a notepad may well be your saviour when needed later on.