Douglas J. Cusine: In whose interests is the creation of a judicial register?

Douglas J. Cusine questions the purpose and scope of the proposed register of judicial interests.

The Scottish government is insisting on a register of judicial interests, to promote the ends of “openness and transparency”. It is unlikely that any arguments presented by the former and current lord presidents will be other than ignored. Their views will be dismissed because they will be seen to be biased and not in touch with reality. Rather we should subscribe to the views of those career politicians who have done nothing other than be involved in politics. 

The register is to be limited to “financial interests,” which we assume will be defined, but how adequately? Let’s start there. Every holder of judicial office (“judge”) takes the Judicial Oath which requires the holder to “do right to all manner of people….” Thus, at present, if the judge feels that a holding of, say, 100 shares in the Right Bank of the Dee might be seen by someone suing the Bank as a significant holding, the judge might decline to deal with the case.

The decision is one for the judge. The judge will probably mention the matter in court and listen to argument, but the decision lies solely with the judge. The judge might decide that the holding of 100 shares of the 1 million issued is so insignificant that it is unlikely to influence, or be seen to influence the outcome. Under the proposed system, that might not be enough because there are some party-litigants who will have scrutinised the register and spotted this holding. The argument will be that the mere holding of the shares, no matter what the register might say, is sufficient to debar the judge from sitting. This argument will consume court time, in some instances, an excessive amount.

Should the judge decide to sit, the decision will be appealed and the appeal court will have to consider the matter and some of the individuals will not stop until they get “justice”, as defined by them. The reality is that unless the judge is a major shareholder, and, hence in a position to influence the value of the shares, the shareholding is of little or no significance. Litigants who are represented are more likely to listen to their legal advisers about what is or is not a significant financial interest. For that reason alone, the idea is nonsense on stilts. It is even more nonsensical if the judge’s partner knows the party litigant’s neighbour who describes the party-litigant as “not on this planet”, a comment which will not be on the register, but form will have been satisfied. That is, of course, very important. Let’s concentrate on form and not get bogged down with substance.

Not all party-litigants are obsessed, but those who are already take up the time of the courts, because they have nothing to lose, and they are the very people who will consult the register, if only to delay what may turn out to be the inevitable. One of the examples of a persistent party-litigant is Martin Frost. There are 10 reported cases involving him and, in one of these, his motion was that every judge in the Court of Session should decline to deal with one of his cases. The Court of Session took the rarely used step of declaring him a vexatious litigant. John Renton Mowbray and Robbie the Pict are other party-litigants who took up a significant amount of court time, often to no avail. Virtually every sheriff court will have at least one person in this category. 

In one of Mr Frost’s cases, in delivering the decision of the Appeal Court, Lord Milligan said this: “In deciding whether to decline jurisdiction, a judge has a duty to apply the objective test of legitimate apprehension of impartiality already referred to. In particular it would never do if a judge was to feel himself or herself disqualified simply by reason of unfounded allegations made against him or her. By definition, if all that is shown is a clearly unjustified apprehension of impartiality then the judge has a duty not to decline jurisdiction. In this regard, a judge and the court as a whole have a duty to all litigants to expedite the progress of litigations consistently with the application of the rules of natural justice.” An accurate statement and invaluable guide, but clearly not good enough for the Scottish government.

Let us assume that the judge uses ACE Investment Trust to manage financial interests. The judge’s adviser in ACE looks at the clients’ holdings every day and buys and sells in accordance with the degree of risk which the client is willing to accept. The judge is allocated a case involving a party-litigant and, on day 1, the judge has no holdings in the Left Bank of the Tweed. Unbeknown to the judge, who gets only quarterly statements from ACE, on day 2, ACE buy some shares in the Bank. Before the judgment is handed down, the judge, properly, amends the statement of interests and this is spotted by the party-litigant. Although the argument is entirely without merit, the litigant may argue that the acquisition of these shares may have influenced the judge and so, Hey Presto, the case has to be stopped according to the litigant. The judge does not agree, pointing out that the existence of the holding was not known at any time while the evidence was being heard and submissions made. Not good enough for the party-litigant. Please convene the appeal court!

There is a way round the register and that is for any judge to transfer shares or whatever other financial interest needs to be declared to another person taking from that other a back letter saying that while the holdings are held by A, they really belong to the judge. No way round that that I can see. I am not suggesting that any judge would or should adopt this; my objective is to give another reason for the idea being flawed. It sends out the message that the Scottish government does not trust judges to disclose anything (not just financial matters) which might give the impression of bias or partiality and decide whether or not to sit. When did we last have a case in which it was decided that a judge who dealt with a case should not have done so? There are no recent cases. The system does not seem to be broken, but the government seems to think it needs to be fixed. 

The stupidity of the register is compounded by the fact that it is to be restricted to financial interests and so membership, for example, of The Wester Hailes Snooker Club is not one for the register. Thus, the judge can be trusted to decide whether or not to deal with a case involving a fellow member of the Club. If the judge (and it will be a sheriff or JP) sits in a small town, it is inevitable that many inhabitants will be known to the sheriff/JP and so, the issue of whether to deal with a case or not is perhaps more likely to arise, but the government trusts the local person to make that decision. But the 100 shares. They have to be declared, so that the local nosey parkers can get into the library on a cold day and pore over the register. 

This register with all its flaws, is probably inevitable, if reason does not prevail and so far, it has not. Who cares if it becomes even more difficult to recruit judges at all levels, but especially in the Supreme Courts and who cares if court time is taken up by party-litigants arguing at length about matters of no consequence? I suspect that most members of the Scottish government have no idea about how the courts operate and of the problems judges can face, especially with some party litigants. Other people who have “proper” issues to litigate can wait; and some of them will be on legal aid. But, of course, “openness and transparency” have to be worshipped while common sense, the drain on the public purse by legal aid cases having to be postponed, and trust in the judges go out of the window.  

I am grateful to T.A.K. Drummond, QC, another Quis member for his thoughts and for reminding me of Mr Frost.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.

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