Thursday, 29 September 2016

COMPLAINT ABOUT LORD BRAILSFORD'S BREACHES OF JUDICIAL CODE


Mr Eddie Cairns

72 Hillhouse Street

GLASGOW G21 4HP

Tel 07501 346 490

28 September 2016                 

 

 

 

Judicial Office for Scotland

Strategy & Governance

Court of Session

1A Parliament Square

EDINBURGH EH1 1RQ

 

                                              

Dear Sir or Madam,

JUDICIAL CONDUCT COMPLAINT – LORD BRAILSFORD

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

Lord Brailsford 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 states the 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, Lord Brailsford appears to have violated all these principles.

 

Firstly, Lord Brailsford ought to have recused himself from considering my proposed writ against Mr Iain Scott in order to avoid an appearance of bias against me. It is public knowledge that Lord Brailsford was employed by the Crown Office and Procurator Fiscal Service and a reasonable suspicion could arise in the mind of an independent observer that Lord Brailsford may well have been aware of my allegations of misconduct and criminality against one or more of his former colleagues, including Ms Elish Angiolini, Mr Colin Boyd, Ms Catherine Dyer, Ms Michelle Macleod, Ms Shona Barrie, Mr John Dunn, Mr John Logue, Mr Peter Collings, Mr Scott Pattison, Ms Lesley Thomson and Mr David Harvie.

A further real possibility of bias arises with regard to a previous formal complaint of unethical conduct that I submitted against Lord Brailsford.

That complaint is reproduced below in order to show that a well informed and fair-minded observer would consider that there was a further real possibility of bias against me by Lord Brailsford in these circumstances:

 

 

72 Hillhouse Street

GLASGOW G21 4HP

Tel 07501 346 490

21 December 2012                 

 

 

 

Judicial Office for Scotland

Strategy & Governance

Court of Session

1A Parliament Square

EDINBURGH EH1 1RQ

 

                                              

Dear Sir or Madam,

JUDICIAL CONDUCT COMPLAINT – LORD BRAILSFORD

I want to raise a formal complaint about unethical conduct by Lord Brailsford as indicated in his interlocutor dated 17 December 2012 in respect of my proposed writ against Lena Wilson dated 2 December 2012.

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

In the section of Lord Hamilton’s report on Judicial Ethics that addresses

the principle of impartiality Lord Hamilton includes the following:

 

‘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 Lord Hamilton 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 Lord Hamilton states ‘the 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 Lord Hamilton 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, Lord Brailsford appears to have violated all these principles.

 

Firstly, Lord Brailsford ought to have recused himself from considering my proposed writ against Lena Wilson on the grounds that it implied allegations of misconduct and criminality against a former employer of Lord Brailsford, namely the Crown Office.

Lord Brailsford failed to avoid an appearance of bias. 

Thereafter Lord Brailsford failed to address the arguments and evidence presented and failed to provide convincing reasons for his decision that would enable the public to comprehend it.

The reasons given by Lord Brailsford for his decision are reproduced below in bold type and my comments are added in normal type:

 

‘I see nothing defamatory in the allegations referred to in the writ.’

Lord Brailsford was supposed to be assessing whether or not a prima facie case was disclosed. He was not meant to be judging the case itself.

Deciding whether or not the statements were defamatory would be a matter for the court to decide during normal proceedings.

In any event Lord Brailsford has given no indication that he has applied the correct test nor does he appear to have acted rationally in stating that he sees nothing defamatory in the allegations referred to in the writ.

Clearly, the alleged defamatory statements include the stated consequences of my conduct for my employment, which were that my position became untenable and my contract terminated.

Stating that I had acted in a way that caused my dismissal would undoubtedly lower me in the estimation of right-thinking members of society generally.

Consequently, Lord Brailsford has omitted to provide any valid reason for holding that there is no prima facie ground for such proceedings.

His failure to address the arguments and evidence presented, his failure to apply the correct test and his failure to provide reasons for his decision that are valid in law render Lord Brailsford’s conduct fundamentally unlawful and in breach of ethical standards.

 

‘I am not prepared to grant permission to proceed.’

Lord Brailsford has provided no reason for this decision that is valid in law.

Contrary to Lord Brailsford decision there were indeed prima facie grounds for the proposed proceedings.  

This was a proposed action for defamation based upon the defender’s statements about the pursuer that were published in September 2010 along with a photograph of the pursuer.

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)’

And on page 9 the following is stated:

’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 Lord Brailsford had regard to this significant test or indeed to any of the basic points outlined above. He has addressed none of the important issues that were included in the proposed writ. His assertion that there is no prima facie ground for such proceedings is entirely unsupported, does not accord with the facts, and is simply false.

The Pleas in Law presented in the proposed writ summarised its legal validity in the following terms, reproduced here in italics for convenience:

 

PLEAS-IN-LAW FOR THE PURSUER

 

1. The pursuer, having been defamed by the defender, is entitled to solatium.

 

2. The defender, having communicated the damaging words about the pursuer either knowing that the words were false or recklessly not caring whether or not the words were false, acted maliciously.

 

3. Since the defender acted maliciously, the defender acted without the defence of qualified privilege.

 

4. The sum sued for being a reasonable amount of reparation in respect of solatium for insult and hurt feelings, decree should be granted as craved.

 

Apart from his unsupported, plainly irrational and irrelevant comment about not seeing anything defamatory, Lord Brailsford has addressed none of these important points which were averred in more detail in the draft writ.

Lord Brailsford’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, Lord Brailsford’s reasoning 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, ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.’

 

It is a matter of very grave concern indeed that Lord Brailsford has entirely omitted to mention anything at all about what is clearly at the heart of this case, overwhelming evidence already in the public domain of the operation of a criminal conspiracy to pervert the course of justice involving senior managers in Scottish Enterprise, senior Strathclyde Police officers and senior employees of the Crown Office and Procurator Fiscal Service, Lord Brailsford’s former employer.

There is no limitation to prevent due consideration of what the available evidence discloses in respect of blatant criminality at the heart of this case but any regard for such due consideration is conspicuous by its absence in Lord Brailsford’s Note.

Lord Brailsford would have been in no doubt about the very serious allegations of criminality, including implied allegations of criminality against his former employer which disregarded important evidence and took no action in the case, because the proposed writ plainly stated the following, reproduced here in italics for convenience:

 

COND. 3 ...............The defender’s words indicated that the pursuer had raised concerns about a technical accounting matter when there was in fact nothing wrong and had breached confidentiality.

In fact the pursuer had been concerned about being instructed by his supervisors to overlook in his reconciliation work the omission from the balance sheet of a cash grant from the European Regional Development Fund of £187,069 which had simultaneously been deposited in a high interest bank account.

The defender’s inappropriate description of the matter can reasonably be suspected as designed to cover up its true nature, which in fact gave rise to a reasonable suspicion of the operation of a criminal conspiracy to commit fraud, not a minor accounting technicality at all.  

The pursuer’s email to his supervisors in Enterprise Ayrshire, Mr Gary Tracey and Ms Janie Maxwell, dated 17 August 1993 had recorded his objection to their instruction for the pursuer to omit from the balance sheet funds received from the EC.

The correction to the balance sheet, made within less than a day of the pursuer’s email, was a significant increase in the bank balance and a corresponding decrease in the funding required from taxpayers.

Consequently, there was indeed evidence of wrongdoing.

Before this correction the accounts had been wrong by £187,069.

In fact the pursuer did not make any unauthorised disclosures relating to the above matter to the press and various other third parties before his contract was terminated.

A copy of the pursuer’s email to his supervisors in Enterprise Ayrshire dated 17 August 1993 is produced and referred to for its terms which are held as incorporated herein brevitatis causa.

 

The contents of that email are reproduced below in italics for convenience:

 

For the record, as I said to you both today, I am not comfortable with your instruction to exclude from Enterprise Ayrshire’s balance sheet funds received from the EC.

Your comment that the management accounts do not matter so much, being produced only for internal use, seems to underplay the potentially serious consequences of circulating figures that are incorrect.

I stated to you both that I know this aspect of Scottish Enterprise’s finances is under investigation by the National Audit Office therefore you must accept my concern as genuine.

I have been advised that such omissions from management accounts are in breach of the Institute’s ethical guidelines.  

 

Consequently, Lord Brailsford seems to be content to overlook the criminality at the heart of this case while rejecting, without providing reasons that are valid in law and that would be comprehensible to the general public, my attempt to obtain reparation for damage to my professional and personal reputation. Lord Brailsford’s conduct has been inappropriate in the circumstances and reveals a disturbing lack of proper concern for integrity and justice on his part.

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.....’

 

The proposed action did indeed have a proper legal basis. Lord Brailsford’s reasons for rejection of the proposed writ are entirely lacking in relevancy and specification. 

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

Lord Brailsford has provided no sound basis for making the critical observations in his interlocutor highlighted herein.

He appears not to have applied the correct legal tests for whether or not the proposed writ contained a prima facie case.

Consequently, a reasonable suspicion could arise in the mind of an independent observer that Lord Brailsford was determined to exclude me from the court by whatever means and thereby seems to have acted unfairly, unlawfully and in breach of Judicial Ethics.

All these failures were 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.........’ 

Yours faithfully,

                                   Eddie Cairns.

 

Available evidence confirms that Lord Brailsford has repeatedly failed to avoid an appearance of bias. Actual bias does not have to be alleged or proven to render a judge insufficiently impartial.

Lord Brailsford failed to address the arguments and evidence presented in the proposed writ dated 17 September 2016 and failed to provide convincing reasons for his decision that would enable the public to comprehend it.

The reason given by the Court for Lord Brailsford’s decision is reproduced below in bold type and my comments follow:

‘His Lordships (sic) reasons for refusal are; contained in the attached note.’

Note by Lord Brailsford’

‘I do not think anything of importance has been added to the latest version of the writ. The new averments are no more than a narration of additional facts, they do not address the concerns of Lord Woolman, Lord Pentland or Lady Rae. The case remains one where there is, in my view, nothing averred which is either defamatory or capable of hearing (sic) a defamatory innuendo.’

Since the averred defamatory statements have to be taken as a whole and in context Lord Brailsford’s reference to an earlier version of the proposed writ was entirely irrelevant. The complete proposed writ presented to Lord Brailsford ought to have been considered in its totality.

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.

Lord Brailsford’s view that there is nothing averred averred which is either defamatory or capable of hearing (sic) a defamatory innuendo has no reasonable basis. It appears to be completely false. Any financial expert whose professional competence and integrity have been repeatedly attacked could of course argue that such attacks are defamatory. 

Inexplicably, Lord Brailsford 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, Lord Brailsford 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, Lord Brailsford 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, Lord Brailsford 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, Lord Brailsford 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, Lord Brailsford 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, Lord Brailsford has held that prima facie the defender’s statement that my former employer 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.   

Inexplicably, Lord Brailsford has held that prima facie the defender’s statement that the money was correctly received from Europe and correctly handled thereafter but I was incapable of accepting that and that’s why my contract was terminated 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 was aware of my allegations and rejected them totally, that the European funds were handled absolutely correctly in legal and accounting ethical terms and that the money was correctly received from Europe and correctly handled thereafter but I was incapable of accepting that and that’s why my contract was terminated 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. 

Therefore Lord Brailsford’s decision appears to be irrational and biased against me. Pertinent explanations from Lord Brailsford in support of his decision that the defender’s statements about me were not 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 Lord Brailsford’s interlocutor dated 22 September 2016 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.’

As averred in the proposed writ:

‘The pursuer is a qualified accountant therefore the defender’s defamatory statements in the context of alleged financial irregularities in a public authority were particularly insulting and damaging. The words amounted to an unjustified attack on the pursuer’s professional competence and integrity. They falsely portrayed the pursuer as a dishonest and unreasonable person, an incompetent accountant, a false accuser and someone who had breached professional standards.’

‘Especially damaging were the defender’s repetitions of statements that the pursuer’s allegations that £187,000 of European funding had been omitted from the agency’s main computer for months but put in a high interest bank account were utterly groundless and the defender’s repetitions of statements that the pursuer was incapable of accepting that the money was correctly received from Europe and correctly handled thereafter.’

‘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, that their enquiries were complete and there were no grounds for taking any action, that the pursuer’s former employer said it was aware of the pursuer’s allegations and rejected them totally, that the European funds were handled absolutely correctly in legal and accounting ethical terms, that the European funds were handled absolutely correctly in legal and accounting ethical terms, that the bank statements had been reconciled only to the cash book, that as the entry had been made in the cash book for the ERDF income, no discrepancy arose, that had the cash book balance been subsequently reconciled to the bank account in the financial ledger the difference would have been highlighted and that there was no evidence that this reconciliation had been carried out.’

‘Taken as a  whole these false statements would undoubtedly tend to lower the pursuer in the estimation of right-thinking members of society generally, especially in view of the pursuer’s status as a qualified accountant and in the context of the pursuer’s valid objection to financial irregularities in a public authority.’

‘The reconciliation in question is included in the productions. It shows that £187,069 had been omitted from the balance sheet, in accordance with Mr Gary Tracey’s unlawful directions to more junior finance staff, as other productions confirm.’

‘Clearly the correction to the accounts on 18 August 1993 was forced by the pursuer’s crucial email dated 17 August 1993 to his supervisors in Enterprise Ayrshire, Mr Gary Tracey and Ms Janie Maxwell but the report makes no mention of this email which stated the following, reproduced here in italics for convenience:’

‘‘For the record, as I said to you both today, I am not comfortable with your instruction to exclude from Enterprise Ayrshire’s balance sheet funds received from the EC.’’

‘‘Your comment that the management accounts do not matter so much, being produced only for internal use, seems to underplay the potentially serious consequences of circulating figures that are incorrect.’’

‘‘I stated to you both that I know this aspect of Scottish Enterprise’s finances is under investigation by the National Audit Office therefore you must accept my concern as genuine.’’

‘‘I have been advised that such omissions from management accounts are in breach of the Institute’s ethical guidelines.’’  

Lord Brailsford addressed none of the important adverse consequences for me that was averred in the proposed writ as detailed in the above extract.

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

Lord Brailsford 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. He 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 Lord Brailsford has not stated which test he did apply and in what respects every averred defamatory statement failed to meet the requirements of that test.

Lord Brailsford’s overt failures render his conduct fundamentally unlawful and in breach of ethical standards.

Contrary to Lord Brailsford’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 Lord Brailsford applied this test. Even if he did he has not stated why every averred defamatory statement failed the test.

Lord Brailsford’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, Lord Brailsford’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.....’

  

Lord Brailsford’s reason for rejection of the proposed writ is entirely lacking in specification.  

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

Lord Brailsford has provided no sound basis for making the critical observations in his 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 Lord Brailsford was determined to exclude me from the court by whatever means regardless of the valid grounds for the proposed proceedings.

Most importantly, his decision that the averments are not defamatory would appear to any independent observer of average intelligence to be simply wrong. 

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 Lord Brailsford’s decision appears to be unlawful, irrational, incomprehensible, unexplained and biased rendering it unethical and unacceptable.

Lord Brailsford’s decision appears to be based upon falsehoods and to be simply wrong.

It should be set aside in the public interest and in the interests of justice.

In a wider context Lord Brailsford’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 Lord Brailsford 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 his decision, that prima facie the proposed action for defamation would be vexatious and that there is no ground for it.

Yours faithfully,

                                Eddie Cairns.

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