V1.0 – This is a first release of this document. It will be regularly updated.

Introduction

1. Legislation in Scotland bans Sheriffs[1] from engaging in any business outside of their judicial role.

2. This paper will first set out the legislation that bans a Sheriff from engaging in any other business. Next, it will explain the criminal offence of fraud before contending that a Sheriff commits fraud if they act judicially while engaging in business outside of their judicial role. It will finish by setting out the consequences where a Sheriff has unlawfully engaged in non-judicial business.

3. Appendix A lists some examples of Sheriffs who have unlawfully engaged in business. This list will be updated as more information becomes available.

The legislation

4. Section 15 of the Courts Reform (Scotland) Act 2014 states the following:

15      Disqualification from practice, etc.

• An individual holding a judicial office mentioned in subsection (2) must not, for so long as the individual holds the office—
  • engage, whether directly or indirectly, in practice as a solicitor or advocate or in any other business,
  • be in partnership with, or employed by, a person so engaged, or (c) act as agent for a person so engaged.
• The judicial offices are—
  • sheriff principal,
  • sheriff, (c) summary sheriff.
• A part-time sheriff, or a part-time summary sheriff, who is a solicitor in practice must not carry out any function as a part-time sheriff or, as the case may be, a part-time summary sheriff in a sheriff court district in which his or her place of business as such solicitor is situated.

5. The legislation is mandatory. It uses the words ‘must not…engage.’ If a Sheriff does engage, then they cannot act as a Sheriff. It then follows that to continue to act as a Sheriff is unlawful. A sheriff who engages in any other business has no authority or jurisdiction to act judicially. Therefore, anything they have done is null and void.

6. Please note that Section 15 replaces Section 6 of the Sheriff Courts (Scotland) Act 1971. Sheriffs have always been banned from working extra judicially.

7. Please note that the Sheriffs’ Principal and the Sheriffs Association took part in a consultation exercise with the Scottish Parliament and Executive on this legislation. Therefore, the ban on Sheriffs engaging in business is well known.

The reasons behind the legislation

8. “The rule of law requires that judicial tribunals established to resolve issues arising between citizen and citizen, or between the citizen and the state, should be independent and impartial.”[2]

9. Parliament has decided that if a Sheriff was to engage in any other business, then that would pose a risk to their independence and impartiality. Therefore, they make it clear that Sheriffs must not do this.

10. Please note that a statutory ban from engaging in business does not interfere with a Sheriff’s role. Instead, it enhances the independence and impartiality of every Sheriff as it stops them being affected by extra judicial interests.

11. An example can show this. One of the Sheriffs who the Fair Trial Project alleges is unlawfully engaging in business is Sheriff Tony Kelly. Appendix A shows evidence of Sheriff Kelly acting as a Professor at Strathclyde University while being a Sheriff at Glasgow Sheriff Court. The School of Law at Strathclyde University, where Professor Kelly lectures, is a 20-minute[3] walk from the court.

12. If any case involves Strathclyde University, their staff or students, then Sheriff Kelly would be unable to sit due to his conflict of interest. It is possible that if he did sit, then his links to the University would affect him subconsciously (as they pay him). But, what about the families of students or staff? How many people cannot be involved in a case that involves Sheriff Kelly? Then there is the possibility that Sheriff Kelly has lectured on an area of human rights law that becomes relevant to a case he is judging. Can he remain impartial and uninfluenced by his previous lectures or discussions with students?

13. In summary, the Scottish Parliament has decided that allowing Sheriffs to engage in any other business presents a risk to their independence and impartiality. Therefore, they have banned Sheriffs from doing so.

The law on fraud

14. ‘Fraud involves a false pretence made dishonestly in order to bring about some definite practical result. It is not necessary that the result should be actual gain to the offender or actual loss to some victim. Where the practical result is achieved, the fraud is complete…’[4]

15. A false pretence can be a failure to disclose where there is a duty to do so, or remaining silent about the facts when there is a duty to speak up or to correct an inaccuracy.

16. Civil fraud or misrepresentation occurs where someone makes an untrue statement of fact or law that induces another to enter into a contract and suffer loss.

17. It is contended that it is a fraud for a Sheriff to sit judicially while engaging in other business as the Sheriff is making the pretence of being lawfully allowed to act.

Human rights violations

18. Article 6 ECHR, given domestic effect by the Human Rights Act 1998, gives people the right to a fair trial. One important aspect of this is the independence and impartiality of the judge who decides the case. If the judge is continuing to act unlawfully then article 6 is breached and any ‘victim’ is entitled to damages.

The consequences

19. Any Sheriff who acts judicially while continuing to engage in other business is acting unlawfully. It is contended that the Sheriff has no jurisdiction to act as a Sheriff and therefore has no immunity from prosecution. The Sheriff must face a criminal investigation and possibly prosecution for fraud.

20. People who have appeared in front of a Sheriff. who is also engaging in other business, are entitled to damages for fraud and the violation of their human rights. Anyone convicted must have that conviction set aside.

21. All other Sheriffs or more senior judges who know about a Sheriff engaging in any other business have a duty to intervene. If they remain silent, then they too are guilty of fraud.

22. All legal professionals have a duty to speak out and inform their clients of this. A failure to do so is fraud.

23. The court staff have a duty to put cases in front of Sheriffs who are competent to act. It is fraud and possibly criminal negligence to put a case in front of a Sheriff that is engaging in business.

A list of Sheriffs who are engaging in business.

24. Appendix A lists some examples of Sheriffs who have unlawfully engaged in business. This list will be updated as information becomes available.

Appendix A – Sheriff Principals, Sheriffs and Summary Sheriffs who are unlawfully engaging in other business

1. Sheriff Tony Kelly – Glasgow Sheriff Court

• Sheriff Tony Kelly has acted as a Visiting Professor at Strathclyde University, lecturing in Human Rights Law while being a Sheriff at Glasgow Sheriff Court.

• Strathclyde University – LLM Human Rights Law (On web site in Oct 2020).

“In addition to Law School Staff, Visiting Professors teach on core and optional modules. Our Visiting Professors with special expertise in human rights law are:

Professor Tony Kelly: Summary Sheriff and solicitor-advocate with experience in Scotland’s most high-profile human rights cases; (https://www.strath.ac.uk/courses/postgraduatetaught/humanrightslaw/)”

• Also from Strathclyde – Visiting Professors (https://www.strath.ac.uk/humanities/lawschool/centreforthestudyofhumanrightslaw/visitingresearchers/)

“Tony Kelly

Professor Tony Kelly enjoyed a career in private practice in Coatbridge in the field of human rights, and has lectured and published extensively in this area of law. He has taken forward cases to the Judicial Committee of the Privy Council; the House of Lords; the Supreme Court and the European Court of Human Rights. Prior to his appointment, as Summary Sheriff to Glasgow and Strathkelvin in April 2016, he also enjoyed extended rights of audience before the Court of Session, the High Court of Justiciary and the International Criminal Court.  He is a member of the Advisory Board of the Judicial Institute. Sheriff Kelly was member of the advisory Board, of the newly formed Scottish Women’s Rights Centre. He was a Fee-paid Judge of the First-tier Tribunal (Social Entitlement and Immigration and Asylum Chambers), and a legal member of the Parole Board for Scotland. He is a Centre for the Study of Human Rights Law Board Member and teaches human rights at postgraduate level.”

2. Sheriff Lindsay Wood

• Sheriff Lindsay Wood has continued to unlawfully engage in other business as an after dinner speaker. The Scottish Legal News (SLN) online magazine reports this here: https://scottishlegal.com/article/now-you-see-him-now-you-don-t-sheriff-s-speaker-profile-removed-after-sln-enquiry

• One of the problems with the SLN report is that when this was reported to the Judicial Office for Scotland, the organisation responsible for complaints about judges, nothing was done.

• The Fair Trial Project contends that investigation should be performed with a view to the criminal prosecution of those involved (if any criminal actions are found). Surely, lack of disclosure of Sheriff Wood’s dual role by those who knew is criminal?

• Once this article was published by SLN the Fair Trial Project contends that everyone who did nothing, and had a duty to do something, has committed a criminal offence. The Sheriff Principal at Glasgow, the other Sheriffs, the Sheriff Clerk, Lawyers and court staff all have a duty to reach out to the victims of not receiving a fair trial or hearing and to report this matter to the police. Why did no one perform a citizen’s arrest on Sheriff Woods?

• What is the point of reporting something to the Judicial Office for Scotland if all they do is cover it up?

[1] A judge in the Sheriff Court. See the Courts Reform (Scotland) Act 2014 for the judicial organisation of Scotland’s courts and the naming conventions used. Sheriff is used to cover three judicial roles – Sheriff, Sheriff Principal and Summary Sheriff

[2] Davidson v Scottish Ministers (No 2) 2005 1 S.C. (H.L.) 7 at para. 6

[3] According to Google Maps.

[4] Whyte v HMA [2017] HCJAC 14 at para 4