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Lord President holds out against declaring of judicial interests

30 June 2017

A register of judicial interests would deter lawyers from applying to join the bench and help disgruntled litigants exact revenge, the Lord President told MSPs yesterday.

Lord Carloway was giving evidence to Holyrood’s Petitions Committee, which is considering a petition from campaigner Peter Cherbi, who argues that it would create more transparency in public life and bring the judiciary into line with other public officials.

The Lord President said the creation of a register would be a “powerful disincentive” for lawyers considering joining the judiciary. He also claimed that it might help litigants commit online fraud against judges, though he could not give an example of this occurring where a declaration of financial interests had been made.

He commented: “Judges are in a peculiar position in relation to this matter. They make decisions which inevitably cause disappointment to one party to a litigation, and they can be resentful.

“The losing party can in some extreme cases blame the judge for the failure of their case and seek to find a reason beyond actual decision as to why the judge found against them.

“It is not unknown for persons to form a malicious or hostile intent towards a judge, or even judges in general, if they are disappointed with the outcome of their case. They can become paranoid or suspicious about the reasons for what is a simple finding of fact in law by the judge.”

On the recruitment question, Lord Carloway explained: "We have a relatively small pool of lawyers of excellence who are capable of taking on the job of being a member of our senior judiciary.

"We have particular difficulties with recruitment at the moment. If I were to say to senior members of the profession, 'By the way, if you wish to become a judge you will have to declare all your pecuniary interests and open them to public scrutiny', I have no doubt whatsoever that that would act as a powerful disincentive for lawyers of experience and skill becoming members of the judiciary.

"I can assure the committee, we need them more than they need us."

Asked whether it should be left to judges to recuse themselves from a case if there was a potential conflict of interest, Lord Carloway replied: "Until such time as it's demonstrated that there is corruption within the Scottish judiciary, I'm entirely satisfied that there is no requirement for a register of interests and that it would be positively detrimental to the administration of justice, particularly in relation to the recruitment of judges and especially at the higher level of the judiciary."

Moi Ali, the former judicial complaints reviewer, commented that Lord Carloway had done a "great disservice" to the judiciary in his evidence.

"It seems to me that if a register is required to be completed by MPs, MSPs and public board members, then it must also be required of the judiciary", she said.

“My opinion is not founded on a belief that judges are corrupt; rather, it comes from the view that transparency builds trust and confidence. As a society, we must be able to have complete confidence in our judiciary – and that starts with their openness and transparency.” 

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