Tuesday, 16 May 2017

JUDICIAL COMPLAINT AGAINST LORD DOHERTY


Mr Eddie Cairns

72 Hillhouse Street

GLASGOW G21 4HP

Tel 07501 346 490

13 May 2017

 

Judicial Office for Scotland

Strategy & Governance

Court of Session

1A Parliament Square

EDINBURGH EH1 1RQ

 

Dear Sir or Madam,

JUDICIAL CONDUCT COMPLAINT – LORD DOHERTY

I want to raise a formal complaint about unethical conduct by Lord Doherty in his handling of my request submitted to the Court on 1 May 2017 for authority to proceed with an application for a judicial review of an omission by the Police Investigations and Review Commissioner.

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.

 

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

In the section of the published report on Judicial Ethics that addresses

the principle of impartiality the following statements are made:

 

‘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 Doherty appears to have violated all these principles.

 

Firstly, Lord Doherty ought to have recused himself from considering my proposed petition in order to avoid an appearance of bias against me. It is public knowledge that Lord Doherty worked as an Advocate Depute therefore a reasonable suspicion of impropriety could arise in the mind of an independent observer that Lord Doherty is aware of my allegations of misconduct and criminality against one or more of his former colleagues and acquaintances in the Crown Office, in respect of the same original case as in the proposed petition, involving the operation of a conspiracy to cover up alleged financial irregularities in Enterprise Ayrshire and Scottish Enterprise, including my allegations of misconduct and criminality against 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, Mr David Harvie and Ms Lesley Thomson. 

Lord Doherty thereby failed to avoid an appearance of bias. Actual bias does not have to be proven in order to render Lord Doherty’s involvement unlawful. 

Since the Court is obliged to comply with the terms of the Human Rights Act 1998 which may be relied upon in any legal proceedings Lord Doherty’s appearance of bias renders his involvement in this case unlawful without consideration of any other points, being a breach of the European Convention on Human Rights and Fundamental Freedoms by a public authority.  

Thereafter Lord Doherty failed to address the arguments and evidence presented in the proposed application for a judicial review 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 Doherty’s rejection of my request for authority to proceed is reproduced below in bold type and my comments follow in normal type:

‘The proposed Petition does not disclose a relevant basis for Judicial Review of a decision of the respondent.’

According to point 2 of the Court’s published Form 58.6 Form of petition in application for judicial review, which is reproduced below, an act or a decision or an omission can be the basis for an application for a judicial review:

‘2.        That on (date) the respondent (specify act, decision or omission to be reviewed).’

Clearly, Lord Doherty’s reason for rejecting my application does not accord with the guidance given to the general public in the Court’s published Form 58.6 and accompanying notes on this point which allow applications for omissions to be reviewed.

Lord Doherty has had no regard whatsoever for my application for the judicial review of an omission by the respondent. Lord Doherty has focussed entirely on the absence of a decision to be reviewed, completely rejected my application for that defective reason and thereby appears to have deliberately disregarded the alternative lawful basis for my application which was plainly stated to be for the judicial review of an omission by the respondent.

The Court’s published form and notes have been directly contradicted by Lord Doherty and Court officials in this case. I followed the Court’s published guidelines and was effectively punished for that with no appeal available.

Lord Doherty’s defectively reasoned decision cannot reasonably be regarded as an inadvertent error. Lord Doherty will have been fully aware of the validity of an application for the judicial review of an omission therefore a reasonable suspicion of impropriety could arise in the mind of an independent observer that Lord Doherty deliberately acted dishonestly in order to reject my application and exclude me from the Court by whatever means.

My valid application appears to have been rejected on the grounds of a falsehood known to Lord Doherty and to Court officials to be false. Such misconduct in concert and in the full knowledge of its opposition to Scots law on the point would tend to bring the Court into disrepute, being contrary to the interests of justice and the public interest. 

I provided adequate averments and proofs in support of my application which Lord Doherty has culpably disregarded completely.

Therefore Lord Doherty has acted unlawfully and unethically by failing to examine and address the arguments and evidence put forward. ((Quadrelli v Italy (11 January 2000), para 34), (Ruiz Torija v Spain (1994) A 303-A, para 19)  

In these circumstances a reasonable suspicion could arise in the mind of an independent observer that Lord Doherty has unfairly taken advantage of my vulnerable position as expressed in the Court’s notification to me on 9 May 2017 that ‘This decision is final and not subject to review to this or any other court’.

Lord Doherty appears to have acted dishonestly in agreement with Court officials because he knew and the officials knew that his decision is final and not subject to review.

Lord Doherty’s wrongly reasoned decision 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.....’

 

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

Lord Doherty 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, this increases the reasonable suspicion that could arise in the mind of an independent observer that Lord Doherty was determined to exclude me from the court by whatever means regardless of there being valid grounds for the proposed petition.

Lord Doherty has acted fraudulently in concert with Court officials to deny me access to the Court on the grounds of a falsehood known to both parties. The Court officials and Lord Doherty cannot credibly be regarded as unaware of Scots law on such a fundamental issue.

In Scots law fraud has been defined as ‘the bringing about of any practical result by false pretences.’ (Macdonald, 52)  

In a conspiracy each participant is responsible for the acts and omissions of all the other participants.

Consequently I have attached copies of my letters of complaint to the Court on this matter dated 12 May 2017 and 13 May 2017 in which several relevant failures are detailed and are held to be incorporated brevitatis causa in this complaint.

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 Doherty’s decision appears to be fraudulent, unlawful, unsound and biased rendering it unethical and unacceptable.

In a wider context Lord Doherty’s failure to have any regard for my right to object to very serious inaccuracies about me that are held and processed by the respondent, his failure to have any regard for my right to act to repair the damage to my professional and personal reputation and his failure to have any regard for my right to claim reparation for insult and hurt feelings resulting from the respondent’s false and damaging statements to the press about me when I had acted properly as a financial expert and whistleblower to oppose financial irregularities in a public authority are clearly not in the public interest nor are they in the interests of justice.

In the light of the available evidence Lord Doherty has effectively denied justice to me regardless of the law of Scotland on the issue by falsely pretending, without giving valid reasons to enable the public to understand the rationale for his decision, that prima facie the proposed petition is vexatious and that there is no ground for it.

Lord Doherty’s criticisms of the proposed petition indicate his conduct in this matter to have fallen far short of applicable professional standards. He appears to regard himself as above the law, impervious to ethical principles and answerable to nobody.

In Scots law the following has been outlined by David M Walker, Regius Professor Emeritus of Law in the University of Glasgow, on the subject of professional misconduct by a solicitor or advocate:

‘....... his conduct must be characterised by candour and fairness. It is professionally disgraceful to resort to or be a party to any fraud, deception or trickery, such as fabricating documents or deliberately withholding evidence, or knowingly to misquote the substance of a document, a witness’s testimony, an opposing argument, or a decision or textbook.’

(David M Walker, The Scottish Legal System, Seventh Edition, W Green/Sweet & Maxwell, (1997), at page 374)

Lord Doherty’s conduct will be a matter of very grave concern to the general public who naturally expect the authorities to support workers who try to maintain integrity in public finance.

Consequently I have published this letter in my blog on Scottish Justice which has attracted almost 50,000 views to date.

Yours faithfully,

                                  Eddie Cairns.

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