SCOTLAND’s top judge has said he will strengthen the rules on judicial ethics amid concerns over the system for declaring conflicts of interest.
Lord Carloway has agreed that publishing details of when judges and sheriffs have declined to “recuse” themselves [stand down] from cases may provide “additional transparency”.
However, he has stopped short of supporting a full register of interest on the grounds that criminals could use the information to target his colleagues.
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Holyrood’s Public Petitions Committee has for four years been considering whether judicial office holders should be compelled to publish details of their outside interests.
Under the plan, judges would be required to declare details of shareholdings, directorships and membership of bodies.
The previous Lord President, Lord Gill, was against the proposals as he feared judges’ privacy could be compromised by “aggressive media or hostile individuals including dissatisfied litigants”.
He also initially refused to give oral evidence in front of MSPs – citing a legal exemption – before eventually appearing after he left office.
However, on Gill’s watch, the Judicial Office for Scotland (JOFS) introduced a register of recusals which reveals when judges and sheriffs came off a case due to a potential conflict of interest.
Since 2014, there have been over 70 instances declared on the JOFS website, but campaigners believe the disclosure requirements do not go far enough and want a mandatory register of interest.
In a letter to the Public Petitions committee, Carloway has signalled he will beef up the register: “I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.”
He has also agreed to provide oral evidence to MSPs, if they still feel it is necessary, but he stepped up his criticism of a register of interest.
He wrote: “All senators and all sheriffs exercise a civil and criminal jurisdiction. I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that.”
He added: “One possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these, if that requires the disclosure of financial interests. In the same way, a register of judicial interests may have a damaging effect on judicial recruitment.”
Peter Cherbi, the campaigner who introduced the petition to Holyrood, said: “I welcome Lord Carloway's agreement to my earlier suggestions to MSPs to include further details on recusals and whether a judge recuses themselves or not.”
However, he added: “A register of interest for Scotland's judges would be a significant step forward in helping court users and legal teams ensure fair hearings of cases in our justice system. Lord Carloway could take the next step and authorise the creation of such a register.”
Tory MSP Jackson Carlaw said: “It seems that the judiciary may now be ready to respond to the calls made for some time and come into line with other elements of public life when it comes to declaring interests. It’s a move that’s been resisted for too long, and people are growing impatient about the ongoing prevarication.
“We want Scotland to be as transparent a place as possible and, while progress has been made in areas like politics, it’s essential that is matched elsewhere.”
A spokesperson for the Judicial Office for Scotland said: “The Lord President intends to amend the register of recusals to include details of cases where a judge has declined to recuse, and this change will be implemented as soon as the necessary guidance is drafted and issued”.