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Lord Carloway confirmed as next Lord President

18 December 2015

Lord Carloway, the Lord Justice Clerk, has been appointed as Lord President of the Court of Session and Lord Justice General, it was confirmed this morning.

The announcement confirms that the man who has been acting head of the Scottish judiciary since the retirement of Lord Gill on 31 May this year now officially takes up the post. As Lord President he will also chair the board of the Scottish Courts & Tribunals Service.

The appointment was made by the Queen on the nomination of First Minister Nicola Sturgeon, on the basis of recommendations by a selection panel constituted under the Judiciary and Courts (Scotland) Act 2008.

A graduate of Edinburgh University, Lord Carloway was admitted to the Faculty of Advocates in 1977. He served as an advocate depute from 1986 to 1989 and was appointed Queen’s Counsel in 1990. From 1994 until his appointment as a judge he was treasurer of the Faculty of Advocates.

Lord Carloway joined the Court of Session bench in February 2000 and was elevated to the Inner House in August 2008. He became Lord Justice Clerk in August 2012. A contributor to and editor of works on litigation practice, he was appointed in 2010 to undertake the review of key elements of criminal law and practice which was published in November 2011. His recommendations included the controversial proposal to abolish the doctrine of corroboration in Scots law, which was eventually dropped from the resulting bill following a lengthy campaign and further reviews, but many of his other proposals have been passed by the Scottish Parliament in the Criminal Justice (Scotland) Bill which is currently awaiting royal assent.

He is also leading a steering group overseeing the Scottish Court & Tribunal Service review into evidence and procedure, including options for improving how children and other vulnerable witnesses provide evidence in criminal cases, and authored a research paper published earlier this year.

Welcoming the appointment, the First Minister commented: "Lord Carloway has a wide breadth of experience in both the civil and criminal spheres and his commitment to continuing reform and modernisation of our justice system is clear. Under his leadership I am confident that the already substantial improvements to Scotland’s courts will continue.

“I would also like to take the opportunity to thank Lord Gill for his outstanding public service both in his role as a judge and as the Lord President. Lord Gill is an eminent individual of great stature and integrity who led Scotland’s judiciary with distinction. The reforms that were recommended by the review which Lord Gill led on the Scottish civil justice system will be his legacy, and are seen as the greatest changes made to the system for over a century. Lord Carloway is a worthy successor in this important role.”

Adding his congratulations, James Wolffe QC, Dean of the Faculty of Advocates, said: “His appointment as head of Scotland’s judiciary is richly merited – having regard not only to his personal qualities but to his distinguished career of service, as an advocate before his appointment to the bench in 2000, as a judge since that date, and since 2012 as Lord Justice Clerk.

“Lord Carloway becomes Lord President at an important time for our legal system as it responds to technological, social and institutional change. I look forward very much indeed to working with him.”

Lord Carloway will be formally installed as Lord President early in the new year. The appointment creates a vacancy for the office of Lord Justice Clerk. The First Minister is required by s 19 of the Judiciary and Courts (Scotland) Act 2008 to establish a panel to recommend individuals suitable for this appointment.

Christine McLintock, President of the Law Society of Scotland commented: “I warmly congratulate Lord Carloway on his appointment. As one of our most senior and respected judges, and with a wealth of experience across both criminal and civil law, he has already made a substantial contribution to justice and the rule of law here in Scotland. I have every confidence he will make an even greater contribution as our Lord President.

“Lord Carloway assumes this role at a critical time for Scotland’s justice system, with major reforms to improve the efficiency of our courts but also pressures from reductions in public spending. We are also seeing a transformation in the legal services market, with new business models, changing expectations from clients and a greater internationalism amongst legal firms. Against this backdrop of change, we look forward to working with Lord Carloway, building on the excellent relationship we have enjoyed with him as Lord Justice Clerk.”

 

 

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Tom Muirhead

Friday December 18, 2015, 12:34

The problem is that Lord Carloway is disqualified from sitting as a judge in all criminal and civil cases.

The main reason for this is that he was commissioned by the Scottish Executive, while he was a judge, to review and recommend changes to Scottish Criminal Law and Procedure (The Carloway Review). While doing this he worked with senior members of the Executive and the Crown Office Procurator Fiscal Service.

This resulted in a great political controversy over corroboration. Lord Carloway firmly backed the Executive (and his own) stance for the abolition of corroboration!!

The results of the Carloway review are set to become law once the Criminal Justice (Scotland) Bill receives royal assent.

To understand why Lord Carloway is now disqualified from sitting as a judge you only have to read one case and that is Davidson v The Scottish Ministers [2004] UKHL 34.

Lord Carloway also has a duty to disclose his links to the Executive and his involvement in criminal law and procedure well before any case comes before him. He is failing in his duty. He is not disclosing!

Of course Lord Carloway’s disqualification affects the Sheriff and Justice of the Peace Courts. If the senior judge is disqualified then there is no effective appeal to Scotland’s highest courts.

My own understanding of this is that Scotland now has no legal system. If Scotland’s top judge is disqualified then all first instance cases and all criminal prosecutions become unlawful due to there being no effective appeal...

Tom Muirhead.