Tuesday, 6 June 2017

JUDICIAL COMPLAINT AGAINST LORD DOHERTY


Mr Eddie Cairns

72 Hillhouse Street

GLASGOW G21 4HP

Tel 07501 346 490

5 June 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 application submitted to the Court dated 19 May 2017 for authority to proceed with an Initial Writ against 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.

Lord Doherty knows that a complaint against him in concert with Court officials that I had submitted to the Court on 12 and 13 May 2017 was under consideration by the Court at the time he produced his interlocutor therefore in those circumstances there was a real possibility of bias against me.

Further, 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 Initial Writ, 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, Ms Lesley Thomson and Ms Jane Benson. 

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 Initial Writ and failed to provide convincing reasons for his conduct that would enable the public to comprehend it.

The reasons given by the Court for Lord Doherty’s rejection of my request for authority to proceed are reproduced below in bold type and my comments follow in normal type:

‘The proposed Petition does not disclose a prima facie ground for the proposed proceedings. I am not satisfied that the proposed proceedings are not vexatious or that there is a prima facie ground for them.’

On the contrary the proposed proceedings were soundly based upon my rights under section 14 of the Data Protection Act 1998 as plainly stated at the beginning of the proposed Initial Writ in the following terms, reproduced here in italics for convenience:

 

The Pursuer craves the court to order the defender to rectify inaccurate data about the pursuer in accordance with section 14 of the Data Protection Act 1998 and to find the defender liable in the expenses of the action.

 

Productions presented to the Court supported the validity of the proposed proceedings not least the communication to me from the Information Commissioner’s Office dated 21 April 2017 which specifically related to the PIRC’s inaccuracies about me and was contained in point 6 of the proposed Initial Writ in the following terms:

 

‘6.     The Information Commissioner wrote to the pursuer on 21 April 2017 including the following points, reproduced here in italics for convenience:’

 

‘Where an individual makes an organisation aware that they believe it to hold inaccurate data, the organisation should take appropriate steps to ensure that the data it holds is accurate, although it cannot be required to correct data at the request of the individual. However, section 14 of the DPA entitles individuals to apply to the court to request that it orders an organisation to rectify, block, erase or destroy personal data that the court is satisfied is inaccurate.’

   

These facts could give rise to a suspicion of impropriety in the mind of an independent observer that Lord Doherty did not give fair consideration to the proposed Initial Writ and the supporting productions but instead acted in accordance with the appearance of bias against me detailed above. Certainly Lord Doherty completely omitted any reference to the specific averments in the proposed Initial Writ and the important evidence presented to him. 

This suspicion of bias against me is given further credence in the light of Lord Doherty’s interlocutor dated 25 May 2017 in concert with Mr or Ms H Fraser, Clerking Services Manager, as detailed in my complaint dated 5 June 2017 about Mr or Ms Fraser’s disregard of the appearance of bias against me by Lord Doherty and about Mr or Ms Fraser’s carelessness, negligence and fraud in concert with Lord Doherty, the contents of which are reproduced below in italics for convenience:

 

FORMAL COMPLAINT

I want to submit a formal complaint about your unfairness, carelessness, negligence and fraud in the handling of my proposed Initial Writ against the Police Investigations and Review Commissioner in concert with Lord Doherty.

You and Lord Doherty were fully aware of the fact that this proposed Initial Writ was against the Police Investigations and Review Commissioner yet you have sent me an interlocutor dated 25 May 2017 and signed by Lord Doherty in respect of a proposed Initial Writ against the Crown Office and Procurator Fiscal Service.

Your letter erroneously refers to my proposed Initial Writ as dated 23 May 2017 whereas it was dated 19 May 2017.

You inaccurately refer to the proposed Initial Writ as a Petition twice in your letter.

In any event the Court should not have presented the proposed Initial Writ to Lord Doherty for his consideration knowing that a related complaint is currently being considered by the Court.

 

The Court already notified me that my complaint against the Court submitted on 12 and 13 May 2017, which also involved Lord Doherty, was under consideration by the Court at the time the proposed Initial Writ was presented to Lord Doherty therefore in those circumstances there was a real possibility of bias against me.

Your acts and omissions in concert with Lord Doherty unlawfully denied me access to the Court.

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

You and Lord Doherty falsely pretended that Lord Doherty was sufficiently independent and impartial to consider my proposed Initial Writ.

You acted in concert with Lord Doherty against me unfairly, carelessly, negligently and fraudulently. In a conspiracy each participant is responsible for the acts and omissions of all the other participants.

Consequently I have attached a copy of my judicial complaint against Lord Doherty dated 5 June 2017 which is held to be incorporated brevitatis causa in this complaint since it provides details of unethical conduct in respect of which you also have responsibility since you and Lord Doherty acted in concert against me unfairly, carelessly, negligently and fraudulently.

 

The last sentence ends the reproduced contents of my formal complaint against Mr or Ms Fraser.

Consequently I have attached a copy of my complaint against Mr or Ms Fraser which is held to be incorporated brevitatis causa in this complaint since it provides details of unethical conduct by Mr or Ms Fraser for which Lord Doherty also has responsibility since Lord Doherty and Mr or Ms Fraser acted unfairly, carelessly, negligently and fraudulently against me in concert.

A further reasonable suspicion of impropriety could arise in the mind of an independent observer that Lord Doherty acted unfairly, carelessly, negligently and fraudulently because he wanted to exclude me from the Court by whatever means because of his bias against me, regardless of the prima facie ground for the proposed proceedings.

Such an appearance of bias, carelessness, negligence and fraud by Lord Doherty in concert with Mr or Ms Fraser 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 the proposed proceedings 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 29 May 2017 that ‘This decision is final and not subject to review to this or any other court’.

Lord Doherty appears to have acted unfairly, carelessly, negligently and fraudulently in concert with Mr or Ms Fraser because they knew that Lord Doherty’s decision is final and not subject to review.

Lord Doherty’s wrongly reasoned conduct 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 defectively identified 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.

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 conduct appears to be unfair, careless, negligent and fraudulent, 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 PIRC and his failure to have any regard for my right to act to repair the damage to my professional and personal reputation 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 conduct, that prima facie the proposed Initial Writ was vexatious and that there was no ground for it.

Lord Doherty’s conduct in this matter appears 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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