Wednesday, 7 June 2017

JUDICIAL COMPLAINT AGAINST LORD TYRE


Mr Eddie Cairns

72 Hillhouse Street

GLASGOW G21 4HP

Tel 07501 346 490

7 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 TYRE

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

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 Tyre 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 23page 480. Further, recusal would be necessary where a wellinformed

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 Tyre appears to have violated all these principles.

 

Firstly, Lord Tyre ought to have recused himself from considering my proposed writ in order to avoid an appearance of bias against me. It is public knowledge that Lord Tyre worked as Standing Junior Counsel for the government and later as Crown Counsel and a reasonable suspicion could arise in the mind of an independent observer that Lord Tyre may well have been aware of my allegations of misconduct and criminality against one or more of his former colleagues and acquaintances, in respect of the same fundamental issue as in the proposed action, the operation of a conspiracy to cover up alleged financial irregularities in Enterprise Ayrshire and Scottish Enterprise, including 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 Tyre thereby failed to avoid an appearance of bias. Actual bias does not have to be proven in order to render Lord Tyre’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 Tyre’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.  

Thereafter Lord Tyre failed to address the arguments and evidence presented in the proposed writ, which properly focussed upon the law of Scotland for defamation, 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 Tyre’s conduct with regard to my request for authority to proceed are reproduced below in bold type and my comments follow in normal type:

 

‘I am not satisfied either that the proposed litigation is not vexatious or that there is a prima facie ground for proceeding.’

‘Taking the second part of the test first, no prima facie ground is stated for proceeding with an action for defamation against the proposed defender.’

This is simply a false statement from Lord Tyre. Perusal of the proposed Initial Writ by any person of average intelligence would confirm that there is indeed a prima facie ground for proceeding that is firmly based upon sound legal arguments, authorities and proofs relative to defamation.

 

‘No arguable case could be made that any of the communications relied upon by Mr Cairns is defamatory of him.’

On the contrary the proposed Initial Writ contained such an arguable case in points 3 and 4 which are reproduced below:

‘3.       The defender’s statements about the pursuer and the defender’s repetition of statements about the pursuer were false and misleading.’

‘In particular, the defender’s assertion that SE (Scottish Enterprise) had investigated the pursuer’s allegations in 1993 carefully and thoroughly is shown to be false by the attachments to the defender’s email to Police Scotland on 15 April 2016.’

‘The defender’s assertion that the complaints handling process had been followed to its limits is also false.’

‘The defender defamed the pursuer thereby since the defender’s words would tend to lower the pursuer in the estimation of right-thinking members of society generally.’

‘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.’’

‘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.’’

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

‘Especially damaging are 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 and repetition of defamatory statements about the pursuer have resulted in Scottish Enterprise continuing to disregard the pursuer’s rights as a former employee, whistleblower and complainant. Clearly the defender’s false words about the pursuer unjustifiably persist in lowering the pursuer in the estimation of Scottish Enterprise whereas the facts truly stated by the defender could have helped to reduce the damage to the pursuer.’

‘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 respect of which the defender falsely states there is no evidence had been carried out was in fact copied to Police Scotland by the defender on 15 April 2016 on behalf of Scottish Enterprise and it is included in the productions at item 11. 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 had been forced by the pursuer’s crucial email dated 17 August 1993 to his supervisors in Enterprise Ayrshire, Mr Gary Tracey and Ms Janie Maxwell, which was copied to Police Scotland by the defender on 15 April 2016 on behalf of Scottish Enterprise and it is included in the productions at item 11, but the Scottish Enterprise report, which was also copied to Police Scotland by the defender on 15 April 2016 on behalf of Scottish Enterprise and is included in the productions at item 10, 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.’

 

‘Most of the statements set out in the initial writ consist of a factual narrative of the response by Scottish Enterprise to Mr Cairns’ allegations.’

Since I plainly stated that the statements in question were false Lord Tyre has unfairly assumed that they were ‘a factual narrative’ without proof and in direct contradiction of the proofs that I produced in support of my position along with the proposed Initial Writ.

 

‘It is not defamatory to express disagreement with another person’s personal or professional opinion.’

As properly averred in the Initial Writ, the law of Scotland on defamation requires consideration of the test established in the case of Sim v Stretch.

‘’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.’’

Lord Tyre’s assertion about a disagreement with another person’s opinion has no relevance in the context of a defamation action. Lord Tyre has failed to apply the proper test:

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

Clearly, the statements averred to be defamatory in the proposed Initial Writ do pass that test.

 

‘In particular, the expressions of view that there is no substance to Mr Cairns’ allegations and that his claims are without foundation carry no defamatory implication.’

Again, Lord Tyre has failed to apply the required test for defamation:

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

  

‘It is likely in any event that all of the correspondence founded upon is protected by qualified privilege, although I cannot be certain as (contrary to the terms of the initial writ) ; the letters have not been produced.’

The matter of qualified privilege was addressed at point 5 in the proposed Initial Writ in the following terms:

‘5.       The defender either knew that the words communicated about the pursuer were false, or communicated the damaging statements about the pursuer recklessly not caring whether or not the damaging statements were false, therefore the defender acted maliciously.’

‘By communicating defamatory statements about the pursuer and repeating defamatory statements about the pursuer either knowing that they were false or recklessly not caring whether or not the statements were false, the defender acted without the defence of qualified privilege.’

‘In these circumstances the defamatory statements are assumed to be false and the burden of proof is on the defender.’

‘Under defamation law the falsity of a defamatory statement is rebuttably presumed leaving the defender with the onus of proving, as a defence, truth or veritas, according to Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), at page 8.’

At the very least my arguments against qualified privilege deserved fair consideration. Lord Tyre completely disregarded my valid arguments on this point.

 

‘Turning to vexatiousness, it is readily apparent that the true purpose of the proposed proceedings is to re-open the substance of Mr Cairns’ allegations of wrongdoing in 1993. That is, of itself, vexatious.’

This is completely irrelevant to a proposed Initial Writ for defamation.

Firstly, the context of the alleged defamatory statements was a review in 2016 by Police Scotland of the 1993 allegations so clearly Lord Tyre’s imputation of the true purpose being to re-open the substance of allegations of wrongdoing in 1993 is false.

Secondly, as averred in the proposed Initial Writ any repetition of a defamatory statement is actionable. The Initial Writ contained the pertinent assertion that the defender has fallen foul of the “repetition rule”, i.e. that a person who repeats a libel is equally responsible with his author.

 

In the light of all the above, Lord Tyre 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 Tyre has unfairly taken advantage of the position later notified to me by the Court on 1 June 2017 that ‘This decision is final and not subject to review to this or any other court’.

Lord Tyre appears to have acted recklessly because he knew that his decision is final and not subject to review.

Is Lord Tyre completely unaware of the law of Scotland regarding defamation? Does Lord Tyre really have not the slightest inkling about the test to be applied?

Lord Tyre’s statements certainly indicate that his understanding of Scots law on the point is far less than adequate.

Lord Tyre’s defectively 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 apparently improper conduct violates Judicial Ethics and would tend to undermine public confidence in the administration of justice.

Lord Tyre 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 Tyre was determined to exclude me from the court by whatever means regardless of the valid grounds for the proposed proceedings.

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 Tyre’s conduct appears to be unlawful, unsound and biased rendering it unethical and unacceptable.

In a wider context Lord Tyre’s failure to have any regard for my right to restore my professional reputation and to claim reparation for the unjustified disparagement of my personal and professional reputation when I had acted properly as a financial expert and whistleblower to oppose financial irregularities in a public authority, is clearly not in the public interest nor is it in the interests of justice.

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

My proposed writ contained 7 pages of averments and there were 73 pages of supporting evidence. These were placed before Lord Tyre on 26 May 2017, the same day that Lord Tyre produced his interlocutor.

In the light of the very serious misrepresentations by Lord Tyre of the law of Scotland for defamation and his total disregard for the legally valid averments and authorities in the proposed Initial Writ that are detailed above a reasonable suspicion could arise in the mind of an independent observer that Lord Tyre did not take my proposed action seriously enough to peruse the documents adequately.

Certainly Lord Tyre’s obviously defective understanding of the issues as expressed in his unjustified criticisms of the proposed writ reveal his conduct in this matter to have fallen far short of applicable professional standards.

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 Tyre appears to regard himself as above the law, impervious to ethical principles and answerable to nobody.

Such blatant injustice will be a matter of very grave concern to the general public who naturally expect the authorities to support finance workers who try to maintain integrity in public finance.

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

Yours faithfully,

                                  Eddie Cairns.

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