A judge with a conflict of interest can’t judge fairly.

Introduction

(1) The main responsibility of the Scottish Courts and Tribunals Service (SCTS) is to ensure the smooth running of Scotland’s courts and tribunals. The management board is controlled by Scotland’s judges.

(2) This paper will briefly explain that judges, when resolving disputes between citizen and citizen or citizen and the state, must be free from bias. It will contend that any conflict of interest will make a judge biased and therefore unable to resolve a dispute fairly. It will conclude by showing that a duty to ensure the smooth running of Scotland’s courts and tribunals will conflict with a judge’s duty to decide a case or appeal fairly.

Independence and impartiality and a conflict of interest

(3) The law requires all judges to be independent and impartial. This means that a judge should be able to decide a case or trial based on the law and facts presented to them, free from any conflict of interest.

(4) Covid-19 has caused a backlog of cases. Any judge who is a member of the SCTS and hearing a case or appeal will be faced with a dilemma. If, as one example, the appeal concerns a case or trial that took many days in the courts below then it is possible that the judge will be subconsciously conflicted by this. The duty to decide the case fairly may be overridden by their concern about the disruption caused to the courts below if the case is sent back for a retrial.

(5) Covid-19 has highlighted this conflict of interest due to it causing a backlog of cases but it has always existed. No one has ever had their case, trial or appeal decided fairly.

The duty to disclose

(6) The law requires anyone involved in a criminal prosecution or a civil case to disclose anything that puts the fairness of the trial or hearing in doubt. Therefore, all judges have a duty to disclose this conflict of interest. All prosecutors, all lawyers, the police and the staff of the SCTS have a similar duty. The Fair Trial Project contends that the failure to disclose these facts is a) contempt of court; and b) criminal and civil fraud.

The consequences

(7) If you have been prosecuted at a criminal trial then the prosecutor is committing a criminal offence and violating your human rights. They are continuing to prosecute you in full knowledge that you cannot receive a fair trial. Similarly, no civil cases have been decided fairly.