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Credibility at stake in crisis of confidence

1 June 03

Various solutions are being considered to the problem of restoring public confidence in the civil enforcement system

by Roger Mackenzie

Compulsory membership of the Society of Messengers-at-Arms and Sheriff Officers and an independent body to oversee the regulation of the 500-year-old profession are two of the solutions being mooted to increase public confidence in Scotland’s civil enforcement system.

The recent controversy highlighted in The Herald over the tactics employed by Stirling Park and fines imposed on two of their managers for unlawful practices by Sheriff Principal Bowen has ignited the debate about public accountability of sheriff officers.

In a separate event, 17 sheriff officers from Stirling Park & Co resigned from The Society of Messengers-at-Arms and Sheriff Officers (Smaso), undermining the Society’s credibility as it presses for legislation to ensure that no sheriff officer should be employed by a limited company and illustrating that divisions in the profession run deep.

The issue of whether sheriff officers should be employed by a limited liability partnership was debated at the recent international congress of the International Association of Sheriff Officers and Judicial Officers, where a resolution was passed stating that the professionals in charge of the execution of court decisions should benefit from a guaranteed and protected level of independence.

The takeover last year of Stirling Park by Intrum Justitia, a Swedish debt collection firm and limited liability partnership, has raised concerns that the cherished independence of the sheriff officer has been substantially compromised.

Presenting to the congress last month, Roderick Macpherson, of Rutherford & Macpherson Messengers-at-Arms, Glasgow, and Reporter General of the congress, said “it is perhaps curious that sheriffs principal should tolerate a situation that might seem at odds with their previous statements about a sheriff principal’s ‘primary concern’ about the ways in which sheriff officers organise themselves or compete for business.

“A sheriff principal has no apparent authority over any senior partner or other holder of a corporate interest in such a business, who is not himself a sheriff officer.

“But not a single Scottish judge or other authority has, to date, given any public comment that might call the propriety of the acquisition of the business of messengers-at-arms and sheriff officers by an international debt collection company into question.”

In fining and censuring two of Stirling Park’s senior managers, Sheriff Principal Bowen did state “the gathering of debts is not a matter which is thrown open to market forces”.

However, in a strongly worded editorial, The Herald argued: “The position of sheriff principal is meant to be a powerful one. Only they can take away a sheriff officer’s right to practise. Given the often vulnerable nature of the people with whom they come into contact, it is only right that sheriff officers are subject to the most rigid scrutiny and held accountable in a public way. That has not happened in this case.”

The outcome of the Executive’s consultation on the enforcement of civil obligations in Scotland may well bring the titles of sheriff officer and messengers-at-arms under one designation of “enforcement officer” and transfer responsibility for officers of the court from the courts to a body under the Executive’s authority.

But in consulting on the whole issue of enforcement of civil obligations, it seems the Executive may have missed a constitutional anomaly.

As one of the biggest creditors in Scotland is of course the Executive, it is questionable if officers of the court should be appointed at the instance of an executive agency, as that blots the clear separation of powers and potentially infringes the independence of the courts.

Roderick Macpherson has deep concerns about diminishing the judicial character of the officers of court.

“If the Scottish Executive legislates in accordance with its published suggestions, some of the best features of an old and valuable profession may be lost.

“If the judicial control of the profession, as presently constituted, had been fully maintained it could be argued, some of these current difficulties would not have arisen; the need for radical reform would not now be apparent to some politicians; the danger of losing our profession’s historical character would not now be looming”, said Macpherson.

However, Chairman of the Society of Messengers-at-Arms Stuart Hunter insists that the recent example “clearly indicates there is a disciplinary procedure there”.

“Our view has always been that we have been regulated and the regulations are in place. On the other hand we are prepared to accept that if there is a problem with public perception, we are prepared to look at alternatives.”

Hunter points out that while the public perception of the sheriff officer is always as the “bad guy”, in fact there has only been one case of disciplinary action under the Debtor Scotland Act.

He said that in their response to the Executive’s consultation, “Striking the Balance”, Smaso have made it clear that “we are not averse to the case for an independent panel to oversee complaints against officers, and there is no objection to the inclusion of lay representation on such a panel”. He said the Society was keen also to work with the Scottish Civil Enforcement Commission

On the matter of the Society’s role, and the suggestion that membership might be made compulsory, Hunter says this was suggested by the Society prior to the 1987 Act, but the view was taken then that if sheriff officers were regulated by the courts, then the society should remain voluntary as it would not be a regulatory body like The Law Society of Scotland; the judiciary would remain the regulatory body.

He agrees it could be argued that lack of compulsory membership may be a factor if you accept the view that the society, as Roderick Macpherson contends, is weak.

One report suggested “the professional association is not particularly strong and has not always been able to mobilise its members to resist external pressures and incentives”.

Smaso has broadly endorsed that view in its response to the consultation on the enforcement of civil obligations in Scotland.

“Compulsory membership would ensure that standards of professionalism, training, education and ongoing improvement of professional status would be achieved and this would be financed by the profession itself.”

Putting in place a proper system of continuing professional development was one of the arguments the Society has advanced for compulsory membership – the feeling exists that beyond the initial entrance examinations there is no follow-up to ensure sheriff officers are required to keep up to date with legislative change.

Adam Lewis of Stirling Park, one of the officers fined for misconduct by Sheriff Principal Bowen, said that Stirling Park is a strong supporter of the need for compulsory membership of the Society.

Mass resignations from Smaso by Stirling Park’s sheriff officers was due to increasing “disillusionment” with the society, which he claims is run as a society for certain firms’ self-interest and not in the interests of the membership as a whole.

Specifically, by proposing to prohibit limited liability partnerships, members from Stirling Park felt the society was acting to jeopardise their livelihood.

“The Society felt they were above that, but lawyers and accountants have set up as LLPs. There is no suggestion of being compromised, the allegiance of a sheriff officer is always to the court and the sheriff principal. Large numbers of firms have non-sheriff officers as partners in any case.”

Lewis says he would be happy to see an independent body constituted which would remove any suspicions of conflict of interest in the decision making of the society.

There’s little doubt that Stirling Park’s actions, and the resultant coverage, caused significant damage to the reputation of the profession, and gave fuel to Tommy Sheridan’s “rottweilers in suits” charge

However, Lewis maintains that the practices for which he was fined were common in the industry, that three past presidents of the society alluded to that in their testimony to Sheriff Principal Bowen, and in any case such practices had ceased “for a number of years”.

David McLaughlin, managing partner at Scott & Co, Scotland’s largest sheriff officers, said he shared concerns about the ability of the Society’s Executive to divorce the commercial aspects of their own firms from the interests of sheriff officers as a group.

Most of the sheriff officers employed in his organisation did not feel membership offered value and compulsory membership wouldn’t address those concerns, because the bigger issue is confidence in the Society and whether it was an organisation for employers or members.

“The proposed concept of a civil enforcement authority could be a better option to instil confidence; the public are easily fired up about sheriff officers and an independent complaints handling process would address unwanted allegations. As a group we have nothing to fear from an independent body, we are already heavily regulated by the courts in any case.

“I would be supportive of any regulatory change if it resulted in an improvement in public confidence.”

McLaughlin said he had no concerns about the use of limited liability partnerships as a vehicle, his concerns would be that mainstream debt recovery companies buy debt and if the sheriff officer then became responsible for enforcing its own debt, the role of the sheriff officer would be fatally compromised.