Thursday, 29 September 2016

COMPLAINT ABOUT LADY RAE'S BREACHES OF JUDICIAL CODE


Mr Eddie Cairns

72 Hillhouse Street

GLASGOW G21 4HP

Tel 07501 346 490

7 September 2016

 

 

 

Judicial Office for Scotland

Strategy & Governance

Court of Session

1A Parliament Square

EDINBURGH EH1 1RQ

 

 

Dear Sir or Madam,

JUDICIAL CONDUCT COMPLAINT – LADY RAE

I want to raise a formal complaint about unethical conduct by Lady Rae in respect of her outright rejection of my proposed writ against Mr Iain Scott.

Lady Rae appears to have failed to act in accordance with the principles of impartiality, integrity, propriety and competence and diligence.

The Scottish Judiciary has an honourable tradition in the attainment of high standards of judicial conduct. Maintaining such standards is essential if the community is to have confidence in its judiciary.

 

In the section of the published report on Judicial Ethics that addresses the principle of impartiality the following statements are made,reproduced here in italics for convenience:

 

‘Where there exists some reason, apart from pecuniary interest,

why a judge should not handle a case on its objective merits, or

may reasonably appear to be unable to do so, he or she should

recuse himself or herself. Thus, for example, a meaningful

acquaintance with a litigant, or a person known to be a significant

witness in the case might constitute such an objection. Other

examples of such reasons are set out in the judgment of the court in

Locabail (U.K.) Ltd v Bayfield Properties Ltd (C.A.) [2000] Q.B. 451 at

Statement Of Principles of Judicial Ethics for the Scottish Judiciary

April 2010 23 page 480. Further, recusal would be necessary where a well informed

and fair-minded observer would consider that there was

a real possibility of bias: Porter v Magill [2002] 2 A.C. 357.

Consideration of the operation of that principle is to be found in

Helow v Secretary of State for the Home Department 2008 SC (HL) 1.’

 

In the section that addresses the principle of integrity the report states ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.

 

In the section that addresses the principle of propriety the report statesthe judge should avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality.’

 

In the section that addresses the principle of competence and diligence the report states:

 

Since the public have certain legitimate expectations as to the

decision making of the court, it is important that these should be

met. Written decisions should be formulated in such a way as to

render them comprehensible to the public, so far as that is

consistent with the handling of what may be very complex legal

and factual issues. Judges should carefully consider whether they

have a sound basis for making critical observations in their

judgments.....’

 

As detailed below, Lady Rae appears to have violated all these principles.

 

Lady Rae failed to avoid an appearance of bias. Actual bias does not have to be alleged or proven to render a judge insufficiently impartial.

The Court is aware of the fact that Lord Woolman’s personal conduct is currently under consideration in the context of an earlier version of the proposed writ and this was under consideration at the time Lady Rae expressed her support for his performance.

Consequently, Lady Rae’s decision appears to be tainted by her reliance upon Lord Woolman’s decision in these circumstances.  

This would appear to an independent observer to have interfered with Lady Rae’s impartiality. She could reasonably be regarded as having been influenced adversely towards me by Lord Woolman for the reasons submitted in my complaint against him and since he will have been aware of my formal complaint about his personal conduct at the time Lady Rae made her decision which would add a further appearance of bias against me.

Thereafter Lady Rae failed to address the arguments and evidence presented in the proposed writ and failed to provide convincing reasons for her decision that would enable the public to comprehend it.

The reasons given by the Court for Lady Rae’s decision are reproduced below in bold type and my comments follow:

‘Her Ladyships (sic) reasons for refusal are: there is effectively no difference between this writ and that which was refused because the averments do not disclose any remarks which would be classed as defamatory. I refuse leave to proceed.’

How did Lady Rae know which parts of the amended writ had been included in the earlier version? Again, a reasonable suspicion arises in the circumstances that Lady Rae may have consulted with Lord Woolman on the matter and may have been negatively influenced by him against me.

In any event since the averred defamatory statements have to be taken as a whole and in context Lady Rae’s reference to an earlier version of the proposed writ was entirely irrelevant. The complete proposed writ presented to Lady Rae ought to have been considered in its totality without reference to a different writ and a decision on that different writ. Lady Rae’s assertion that there is effectively no difference between this writ and that which was refused because the averments do not disclose any remarks which would be classed as defamatory appears to be prima facie false.

The added averments are reproduced below in italics for convenience:

‘Mr Gordon Brown, Enterprise Ayrshire’s director of business development, said it was aware of Mr Cairns’s allegations and rejected them totally. He said the European funds were handled absolutely correctly in legal and accounting ethical terms.’ 

These remarks and the other averred remarks in the writ would indeed be classed as defamatory prima facie according to the law of Scotland on defamation because they attack my professional competence and integrity and thereby would tend to lower me in the estimation of right-thinking members of society generally.  

In the light of the averred multitude of disparaging statements by the defender attacking my professional competence and integrity in the context of my objection to financial irregularities in a public authority Lady Rae’s view that these statements would not be classed as defamatory appears to be incorrect prima facie.

If Lady Rae has rejected my proposed writ for a more obscure or more technical reason than what appears to be the position at first sight then that would not be in accordance with the terms of Section 1 of the Vexatious Actions (Scotland) Act 1898.

On the face of it any fair minded member of the public would regard the defender’s statements about me prima facie as tending to lower me in the estimation of right-thinking members of society generally, especially in view of my status as a qualified accountant and in the context of alleged financial irregularities in a public authority.

Inexplicably, Lady Rae has held that prima facie the defender’s statement that I had fully exhausted the complaints and review procedures of all the organisations that I had involved, including Scottish Enterprise and the Scottish Public Services Ombudsman, but that I was continuing with my complaint, would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lady Rae has held that prima facie the defender’s statement that I was continuing to raise a complaint beyond all the review processes and that I was placing my former employer Scottish Enterprise in a difficult, indeed, unprecedented position would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lady Rae has held that prima facie the defender’s statement that I was continuing with a complaint that has exhausted even the processes beyond Scottish Enterprise’s complaints procedure would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lady Rae has held that prima facie the defender’s statement that I was asking Scottish Enterprise to re-address questions posed by me that were the subject of the original complaint would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lady Rae has held that prima facie the defender’s statement that there was no substance to any of the allegations made by me regarding the receipt of European funds by Enterprise Ayrshire would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lady Rae has held that prima facie the defender’s statement that there were no grounds for taking any action in response to my allegations of financial irregularities would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lady Rae has held that prima facie the defender’s statement that my former employer said it was aware of my allegations and rejected them totally and that the European funds were handled absolutely correctly in legal and accounting ethical terms would not tend to lower me in the estimation of right-thinking members of society generally.

These are not views with which the general public would readily concur at first sight. Prima facie the defender’s accusations against me that I was continuing with a complaint although I had already fully exhausted the complaints and review procedures of all the organisations that I had involved, including Scottish Enterprise and the Scottish Public Services Ombudsman, that I was placing my former employer Scottish Enterprise in a difficult, indeed, unprecedented position, that I was continuing with a complaint that had exhausted even the processes beyond Scottish Enterprise’s complaints procedure, that I was asking Scottish Enterprise to re-address questions posed by me that were the subject of the original complaint, that there was no substance to any of the allegations made by me regarding the receipt of European funds by Enterprise Ayrshire, that there were no grounds for taking any action in response to my allegations of financial irregularities, that my former employer said it was aware of my allegations and rejected them totally and that the European funds were handled absolutely correctly in legal and accounting ethical terms would undoubtedly tend to lower me in the estimation of right-thinking members of society generally, especially in view of my status as a qualified accountant and in the context of my objection to financial irregularities in a public authority.

Therefore Lady Rae’s decision appears to be irrational and overtly biased against me. Pertinent explanations from Lady Rae in support of her decision that the defender’s statements about me would not be classed as defamatory would seem to be required in order for justice to be seen to be done, because the defender’s statements about me appear to be undoubtedly defamatory prima facie. This is unsatisfactory for an open judicial process.

The text of Lady Rae’s interlocutor is reproduced in its entirety below in bold type and my comments follow:

‘The Lord Ordinary, having considered the proposed Initial Writ and not being satisfied that the proceedings are not vexatious and that there is a prima facie ground for such proceedings, refuses leave to Mr Edward Cairns, 72 Hillhouse Street, Glasgow, G21 4HP to institute the proceedings in terms of Section 1 of the Vexatious Actions (Scotland) Act 1898.’

Conspicuous by its absence is any accompanying Note:

As averred in the proposed writ, reproduced here in italics for convenience:

‘The pursuer is a qualified accountant therefore the defender’s defamatory statements in the context of alleged financial irregularities were particularly insulting and damaging. The words portrayed the pursuer as a dishonest and unreasonable person, an incompetent accountant, a false accuser and someone who had breached professional standards.’

‘The defender’s defamatory statements about the pursuer resulted in Mr Bob Doris MSP deciding to take no further action on behalf of the pursuer. Clearly the defender’s words had lowered the pursuer in the estimation of Mr Doris.’

‘The defender’s defamatory statements about the pursuer resulted in Scottish Enterprise disregarding the pursuer’s rights as a former employee, whistleblower and complainant. Clearly the defender’s words had lowered the pursuer in the estimation of Scottish Enterprise.’

‘It was simply false for the defender to pretend that the pursuer had exhausted the complaints and review procedures of Scottish Enterprise and the Scottish Public Services Ombudsman, that Scottish Enterprise National had taken the pursuer’s allegations seriously and had investigated them thoroughly on the day that they were made, that there was no substance to any of the allegations made regarding the receipt of European funds by Enterprise Ayrshire and that their enquiries were complete and there were no grounds for taking any action.’

Lady Rae addressed none of the important adverse consequences for me that were averred in the proposed writ as detailed in the above extract.

In the absence of convincing explanations Lady Rae’s decision appears to be perverse and one that would tend to bring the court into disrepute.

Lady Rae appears at least to have unfairly and unlawfully applied a more stringent test to this proposed action than what was legally required by the vexatious actions order. She appears not to have decided the matter on a prima facie basis at all but rather to have applied standards more appropriate for a later stage in procedure, for example a debate or a proof hearing.

In any event Lady Rae has not stated which test she did apply and in what respects every averred defamatory statement failed to meet the requirements of that test.

Lady Rae’s failures render her personal conduct fundamentally unlawful and in breach of ethical standards.

Contrary to Lady Rae’s completely unreasoned decision there were indeed prima facie grounds for the proposed proceedings.

According to Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), at page 9, the paramount test for defamation is:

’Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?’

‘(Sim v Stretch [1936] 2 All ER 1237 at 1240. This test has been accepted as representing the law of Scotland in Steele v Scottish Daily Record and Sunday Mail 1970 SLT 53 and in Thomson v News Group Newspapers 1992 GWD 14-925.)’

‘The significance of this test cannot be overstated.’

There is no indication that Lady Rae applied this test. Even if she did she has not stated why every averred defamatory statement failed the test.

Lady Rae’s approach appears to be fundamentally unlawful and overtly biased against me.Therefore a reasonable suspicion of impropriety could arise in the mind of an independent observer.

In particular, Lady Rae’s lack of a reasoned judgment does not respect my fundamental rights under the European Convention on Human Rights, Article 6, as established in the Human Rights Act 1998.

As stated above, the judge should avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality’ and ‘Judges should carefully consider whether they have a sound basis for making critical observations in their judgments.....’

 

Lady Rae’s reasons for rejection of the proposed writ are entirely lacking in specification.

Such apparently improper conduct violates Judicial Ethics and would tend to undermine public confidence in the administration of justice.

Lady Rae has provided no sound basis for making the critical observations in her interlocutor in respect of not being satisfied that the proceedings were not vexatious and that prima facie there was no ground for the proposed proceedings.

Consequently, a reasonable suspicion could arise in the mind of an independent observer that Lady Rae was determined to exclude me from the court by whatever means regardless of the valid grounds for the proposed proceedings.

Most importantly, her decision that the averments are not defamatory would appear to any independent observer of average intelligence to be simply wrong and to have failed to have any regard to my right to reputation under Scots law.

All these failures were also incompatible with the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.

Section 6 of the Human Rights Act 1998 provides, to the extent relevant:

‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

‘(6) ’An act’ includes a failure to act....’

Article 6 of the European Convention on Human Rights provides, to the extent relevant:

‘1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 323:

‘5.80  In general, the European Convention on Human Rights, Article 6 obliges courts to give reasons for their judgment. (Hadjianastassiou v Greece (1992) A 252-A, para 33) The giving of reasons is generally implicit in the concept of a fair trial since reasons inform the parties of the basis of the decision and enable them to exercise any right of appeal available to them, and also enable the public to understand the rationale for judicial decisions.......’

‘The right to a reasoned judgment imposes on domestic courts a duty, in principle, to examine and address the arguments and evidence put forward by the parties to a case. (Quadrelli v Italy (11 January 2000), para 34), (Ruiz Torija v Spain (1994) A 303-A, para 19) ..........’

‘The reasons given must be valid in law. (De Moor v Belgium (1994) A 292-A, paras 54-55)’  

According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 106:

‘The fact that the Convention imposes positive as well as negative obligations is reflected in the terms of the Human Rights Act 1998. (Section 6(6))’

At page 253 the following points are relevant:

Fair administration of justice’

‘Procedural propriety and the prohibition of the retroactive imposition of criminal liability lie at the heart of any legal system grounded in the rule of law. The European Convention on Human Rights, Articles 6 and 7 codify those crucial principles of the fair administration of justice which form the bedrock of European legal tradition.......’

‘The central importance of Article 6 is reflected in the volume and scope of applications claiming violation of its guarantees. This provision has been employed by applicants to challenge aspects of criminal, civil and administrative procedures of European legal systems, and the European Court of Human Rights has been at pains to protect the fundamental notion of the effective delivery of fair justice.........’ 

As stated above, in the section of the published report on Judicial Ethics that addresses the principle of integrity the report states, ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.

 

Consequently for all the reasons presented herein Lady Rae’s decision appears to be unlawful, irrational, incomprehensible, unexplained and biased rendering it unethical and unacceptable.

In a wider context Lady Rae’s failure to have any regard for my right to reputation in the face of the defender’s many false and damaging statements about me as a financial expert and whistleblower in a public authority is not in the public interest nor is it in the interests of justice.

According to Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), at page 1:

‘The law of Scotland has always placed high regard on a person’s right to reputation. Stair, listing the important interests that are protected by the law, puts ‘fame, reputation, and honour’ third to ‘life, members and health’ and ‘liberty’.

‘(Institutions of the Law of Scotland, 1,4,4)’

‘If character, honour and reputation is unjustly attacked the law provides remedies through the actions for defamation, verbal injury, and even negligence.’

On page 8 the following is stated:

‘Defamation is, literally, the taking away of one’s fame and to be actionable the pursuer must establish that the statement or communication is injurious in the sense of being capable of harming the pursuer’s public character, honour or reputation.’

‘(Green’s Encyclopaedia of Scots Law, vol 5, 1102)’

Any repetition of a defamatory statement is actionable. The defender has fallen foul of the “repetition rule”, i.e. that a person who repeats a libel is equally responsible with his author.

According to Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), at page 74:

‘An individual is liable for his or her own delicts, committed either personally or through the medium of another. To instruct one’s employee to defame another is to commit the wrong oneself (though the employee will be personally liable too). If more than one person joins in the defamation each is personally liable for the whole loss to the pursuer, for, notwithstanding that the defamation is committed by more than one person, liability is individual and not joint and several.’

In the light of the available evidence Lady Rae has effectively denied justice to me regardless of the law of Scotland on defamation by pretending, without giving reasons to enable the public to understand the rationale for her decision, that prima facie the proposed action for defamation would be vexatious and that there is no ground for it.

Yours faithfully,

                                Eddie Cairns.

No comments: