Jonathan Mitchell QC

Judicial conduct and complaints

JM — Tue, 05 Oct 2010 10:13:43 +0000

Last month, the Scottish judiciary launched an excellent new website (even the reliably-bilious Peter Cherbi described it as 'quite good'!) It has a great deal of material which was previously inaccessible, ranging from all travel and subsistence expenses claimed by individual salaried judicial office holders to summaries of significant sentencing statements in the courts; even a Twitter feed, for the benefit of journalists rather than lawyers or the public. An enormous improvement on the tired and convoluted Scottish Courts Service website, the site shows care at every level. One small but politically-significant example is the domain, which as Iain Nisbet has explained is sensibly 'org.uk' rather than the governmental 'gov.uk': something the UK Supreme Court couldn't manage in spite of cogent judicial criticism. Something I particularly liked is the use at many points of FAQs. The matters I'd like to draw attention to here, however, are these: the publication of the new 'Statement of Principles of Judicial Ethics for the Scottish Judiciary', formerly available only in samizdat form since April, and the implementation of an interim complaints procedure.

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Beyond parody: Miss World and South Lanarkshire

JM — Fri, 03 Sep 2010 14:09:08 +0000

I’ve said before that Mr Justice Albie Sachs of the South African Constitutional Court is one of the great judges of our time. One of his great writings is his concurring opinion in the case of Laugh It Off Promotions CC v South African Breweries International (Finance) BV, [2005] ZACC 7, in which he posed [...]

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What’s wrong with South Lanarkshire?

JM — Thu, 02 Sep 2010 22:43:29 +0000

South Lanarkshire Council has long had a certain reputation for Brezhnevism. Recently it seems to have excelled itself by ~~bringing~~threatening proceedings for defamation ((They say they didn't; but this is what the victims say.)) in Lanark Sheriff Court against the membership of a local community council for an article on its website which linked to another article on a different organisation's website entitled "South Lanarkshire Council and Scottish Coal Hand-in-Hand at Community LIE-aison Meeting”. I have never before heard of a Scottish local authority attempting to bring a defamation action at all, let alone one like this which is done purely to shut up ordinary political criticism. No authority with any appreciation of the right of free speech, and its relationship with the rule of law, could abuse the legal system like this. This sort of legal action happens in Russia, which is one reason why Russia keeps the European Court of Human Rights so busy: but until now, it didn't happen in Scotland

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Standing in public law cases

JM — Sun, 13 Jun 2010 13:40:03 +0000

This is a written version of my talk given to the Scottish Public Law Group annual conference on 7 June 2010. There is widespread agreement that the Scottish law of title and interest to sue in public law matters is over-restrictive and in need of reform. I wish to put, and answer, three questions as to this area of law:

How did things get into this state?
What is hidden underneath the debris?
How can it get cleaned up?

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Legal aid in the Upper Tribunal: update on what’s happening

JM — Tue, 01 Jun 2010 08:35:17 +0000

At long last, the Scottish Legal Aid Board and the Scottish Government have promulgated regulations for legal aid in the unified tribunal system. There's plenty of evidence that legal representation makes a substantial difference to success rates in the tribunals, so this is welcome, although the effect of the regulations is patchy. This post gives a brief description of the proposed scheme and its background. There will be fuller discussion at this conference on 14 June.

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Representing victims of trafficking in Scotland

JM — Tue, 25 May 2010 23:19:13 +0000

As the EMLC said in evidence to the Scottish Parliament inquiry on 18 May "we would see it as essential for the individual to be able to access expert legal advice and assistance from a trusted source with an understanding of the issues". This conference, organised by Scottish Refugee Council together with the Murray Stable, is designed to help meet that need.

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Forthcoming conference: Scottish Public Law Group

JM — Tue, 25 May 2010 23:09:59 +0000

Scottish Public Law Group conference on 7 June — title and interest to sue in public law — related reforms — intervention in the public interest

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The Court of Session meets article 6 of the ECHR

JM — Mon, 22 Feb 2010 20:55:17 +0000

In what seems to be an odd coincidence, there were two apparently unrelated developments this month concerning the systemic problem of delay in civil appeals in the Inner House: one in Edinburgh, one in Strasbourg where the European Court of Human Rights considered the practice and procedure of the Court of Session.

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Success rate in judicial review petitions in Scotland

JM — Tue, 09 Feb 2010 00:10:40 +0000

This post quotes in full a response by the Office of the Advocate General to a recent freedom of information request by Alan Caskie, an advocate specialising in judicial review and particularly asylum and immigration. This response shows that the success rate for petitions in this area is high, and rising year by year. Awards of expenses are an acid test of success; there may be many reasons why no award is asked for or made, but if one is asked for and made it is pretty clear that the paying party lost .

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So last year

JM — Mon, 01 Feb 2010 00:20:56 +0000

Answers to last month's quiz below. Nobody got more than one question right, so rather than embarrass my loyal readership I am awarding myself the prize in terms of Rule 5. 1. Which published Court of Session opinion was removed from the Scotcourts website at the request of one party because its contents were said to be commercially confidential? Hat-tip to Douglas Macgregor of Brodies for this one, and also for supplying some of the background. The case is BSA International v Irvine 2009 CSOH 77, an opinion of Lord Glennie's which discusses the duties of expert witnesses and also describes a potentially significant distinction between Scots and English law as to legal professional privilege. Douglas says that, on enquiring of Scottish Courts why the opinion had been removed, he was told " On occasion opinions can be withdrawn if it is brought to the Court’s attention that it contains confidential information, which could possibly cause prejudice to a party. The opinion has now been redacted by his Lordship...". It seems, though, that nobody told BAILII, which continued to publish the opinion here. Sometime in January 2010 a copy went back on Scotcourts here, but I haven't looked to see what the differences are. Douglas, however, points out that the version published at 2009 SLT 1180 seems to be the original version as on BAILII. The interest of this, other than the obvious point that the failure to withdraw the opinion effectively shows the difficulty in concealing information once published on the internet, is that it puts into sharp focus the practice of the Scottish courts in publishing personally confidential, if not commercially sensitive, information relative to litigants and witnesses; see my earlier article on privacy in case reporting. See on this now the Supreme Court's decision last week in Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1. At the Four Jurisdictions Conference which I've been attending this weekend in Ireland, Janys Scott QC gave an interesting paper on this issue which I hope to see published on the Murray Stable News and Articles site. More follows…

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