A tale of two judges

Sunday National, Herald on Sunday, 30th October 2022.

I want to tell you a tale of two judges. From time to time, a report appears in the Scottish media which seems to have all the makings of an important news story. Perhaps it involves public money, a public scandal, or a public figure caught in some wrongdoing – and then the story disappears from the news agenda with barely a peep. The public imagination goes uncaptured, and we decide to focus on smaller scandals instead.

Sometimes there are good legal reasons for this disappearing act. These reasons can’t always be disclosed in public. Contempt of court rules are strict in this jurisdiction. Defamation laws remain powerful. Sometimes privacy rights are engaged, and the lawyers won’t sign off disclosures in the public interest. But sometimes the press just chooses to shut up.

Earlier this month, Lady Poole abruptly resigned as chair of the Scottish COVID inquiry after less than a year in post. Poole has a distinguished career as an advocate behind her and seemed well-qualified for the task – though some thought the Lord President’s decision to appoint a fairly green judge to the role was a surprising, given the high profile of the inquiry and massive commitment of time involved, just two years into her Court of Session career. Ten months later, she was gone.

On Thursday, John Swinney told MSPs that she will replaced by Lord Brailsford. Brailsford has been a judge since 2006, and the deputy FM said he was confident he had the “sensitivity, empathy and compassion” to clear up the mess his predecessor left behind her.

The official explanation was that Lady Poole left the inquiry “for personal reasons” – an ambiguous phrase beloved of resigning cabinet ministers everywhere . So what was the real story? The opposition in Holyrood and much of the Scottish media immediately leapt to the conclusion that Scottish Government interference must have been responsible for the judge’s abrupt departure, but it quickly transpired that John Swinney hadn’t tried to stitch-up the inquiry’s efforts to “establish the facts about the devolved response to the COVID-19 pandemic.”

The Times subsequently quoted sources close to Poole who indicated that she threw in the towel “to protect her family and health” – but the scuttlebutt doing the rounds in Scottish legal circles eventually leaked out into the wider media: underpinning Poole’s “personal reasons” were what have been described as “tensions and disagreements” within the COVID inquiry team itself.

This came as news to bereaved families, who were left in the dark for days about the real reasons the judge had stepped down. Representing these families, Aamer Anwar said the inquiry looked like “a sinking ship” and that his clients felt “betrayed by those who promised them the truth.” You can understand the sentiment.

Instead, it emerged that four members of Poole’s inquiry team – including her leading counsel Douglas Ross KC and three of his juniors – had tendered their resignations just the day before. This isn’t the equivalent of your solicitor passing your file to another lawyer in the same firm. These departures gutted the inquiry’s core legal staff. Mass resignations like this don’t just materialise from nowhere.

From the perspective of a jobbing advocate, being instructed to act as counsel in a major public inquiry is a licence to print money. Gone are all the uncertainties of freelance work. By resigning, these lawyers were not only foregoing a guaranteed and substantial income for years – but also the opportunity to work on a major investigation of universal public concern.

Just how toxic must the atmosphere have been to prompt all four senior and junior counsel to up sticks and forego these opportunities? The lawyers involved are all being characteristically discreet, leaving us only with the vaguest public understanding of what prompted the inquiry to collapse in this way – and who was ultimately responsible.

Public inquiries operate independently of government. Ministers can draw up their terms of reference and civil servants are routinely seconded to do behind-the-scenes work, but it is ultimately up to the chair how their inquiry is run. This includes appointments, staffing and working practices.

Judges often seem like good appointments to public inquiries – and often do a good job. Their title gives the appointment some gravity. The public are generally confident in judges’ independence from the political process. Judges are generally experienced decision-makers too, used to processing large quantities of complex material over the course of their legal careers. But one thing most judges aren’t is experienced people-managers and team-players. The bar breeds lone wolves. Most also have only limited experience of delivering large-scale long-term projects – which helps explain why judicial inquiries tend to come in over-time and over-budget. Adding 10 months to the COVID inquiry isn’t likely to help on either front.

Perhaps Poole felt she couldn’t rescue the situation. Perhaps Parliament House gossip made it impossible for her to recruit a functioning slate of legal replacements – particularly if the news got around about the inquiry’s dysfunctional working environment. But all of this is speculative. If there are better answers – better explanations for that happened – then let’s hear them. Getting to the bottom of these kinds of question are precisely what parliamentary committees are for.

But on discovering that the Scottish Government couldn’t reasonably be blamed for this unanticipated interruption in the inquiry’s work – the political caravan rolled on, and the parliamentary questions and outraged headlines dried up. Not so fast. Respecting judicial independence doesn’t mean judges can act with impunity. Upholding the rule of law doesn’t mean senior lawyers should be treated as if they’re above criticism.

This is public money which has been poured down the drain. This is ten months of public work up the chimney. “Personal reasons” isn’t approaching an adequate explanation for why this happened. It isn’t the Scottish Government’s job to run PR cover for a judge who seems to have blown her first public inquiry – just as it isn’t the opposition’s job to give the story a free pass because it doesn’t seem to have a strong political angle. Where is the accountability?

Lady Poole isn’t the only judge who finds themselves at the middle of unresolved questions about their role in Scottish public life right now. During the Salmond affair, it suited some people to pretend that James Wolffe – the former Lord Advocate – had been responsible for the Crown Office’s botched fraud probe into the sale of Rangers Football Club. This was not true. At the time, Frank Mulholland was the chief public prosecutor. Mulholland has since been appointed – and continues to sit – as a High Court judge while the Crown Office slowly settles the debts accrued during his period in office.

In a statement to Holyrood last year, Wolffe admitted that the Crown Office and Procurator Fiscal Service launched these prosecutions without “probable cause” – which is to say, without sufficient evidence to establish any crime had been committed. The damages which have been paid out to the victims of these malicious prosecutions are eyewatering. Audit Scotland have recently confirmed that more than £40m has already been paid out by the Crown Office, which is to say – paid out of the Scottish budget. Further claims are pending.

All the fundamental questions about how this came to pass – and how millions of pounds of public money has ended up being shovelled into clearing Scottish prosecutors of civil liability – remain unanswered. The Crown Office isn’t a hivemind. It is a hierarchy – at the head of which you find the Lord Advocate. Someone signed-off these prosecutions. Someone reviewed the evidence and concluded that raids, and arrests, and prosecutions could in good conscience be set in train. In all probability, several people were involved. But as I write, we still have no idea how this happened, and what role in the story – if any – the former Lord Advocate played.

Some politicians have been critical of Lord Mulholland’s continuing role as a High Court judge, while his part in this story remains unclear. In Holyrood last year, Adam Tomkins argued that “Frank Mulholland’s judgment as Scotland’s prosecutor is in the dock, while Frank Mulholland himself sits in judgment.” In response, Lord Mulholland took the remarkable step of putting out a press release through his solicitors, characterising this as an “unfounded personal attack” on his personal integrity and committing to fully cooperate with any subsequent inquiry into what happened. As contretemps between serving politicians and serving judges go, this was unprecedented – but curiously passed without much public comment.

Oh. And we’re still waiting for that inquiry.