Act of Sederunt (Fitness for Judicial Office Tribunal Rules) (No. 2) 2014

Citation, commencement etc.

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Fitness for Judicial Office Tribunal Rules) (No. 2) 2014.

(2) Subject to paragraph (3), it comes into force on 1st June 2014.

(3) Rule 16 comes into force on 19th May 2014.

(4) A certified copy of this Act of Sederunt is to be inserted in the Books of Sederunt.

Interpretation

2.  In these Rules—

“the 1971 Act” means the Sheriff Courts (Scotland) Act 1971;

“the 2008 Act” means the Judiciary and Courts (Scotland) Act 2008;

“chairing member of the tribunal” means the person appointed to chair the tribunal in terms of section 12A(8)(1) of the 1971 Act or section 35(9) or (10) of the 2008 Act;

“clerk to the tribunal” means the person nominated by the Principal Clerk of Session and Justiciary to act as clerk to a tribunal;

“investigating officer” means the person appointed in accordance with rule 4(1), and references to an investigating officer are to be read as references to a substitute investigating officer where one has been appointed;

“judicial office holder” means—

(a)

the person who holds a shrieval office specified in section 12A(2) of the 1971 Act; or

(b)

the person who holds a judicial office specified in section 5(2) of the 2008 Act,

as the case may be, with regard to whom a tribunal has been constituted;

“Lord Justice Clerk” means the Lord Justice Clerk of the Court of Session;

“Lord President” means the Lord President of the Court of Session;

“the parties” are the judicial office holder and the presenting officer;

“presenting officer” means the person appointed in accordance with rule 8(1), and references to a presenting officer are to be read as references to a substitute presenting officer where one has been appointed;

“statement of reasons” means a statement of the grounds on which it is alleged that the judicial office holder is unfit to hold office by reason of inability, neglect of duty or misbehaviour;

“tribunal” means a tribunal constituted under section 12A(1) of the 1971 Act or section 35(1) of the 2008 Act to investigate and report on a judicial office holder’s fitness for office; and

“tribunal case” means the issue of whether the judicial office holder is unfit to hold his or her judicial office, having regard to the terms of section 12A(1) of the 1971 Act or, as the case may be, section 35(1) of the 2008 Act.

Commencement of investigation

3.  When a tribunal is constituted, the clerk to the tribunal must give the judicial office holder written notice of—

(a) the decision of the First Minister to constitute the tribunal;

(b) the membership of the tribunal.

Investigation

4.—(1) The chairing member of the tribunal must appoint an investigating officer from a list of persons who have been nominated for that purpose by the Lord President or, where the Lord President is the judicial office holder, by the Lord Justice Clerk.

(2) Such an appointment is to be made within two months of the date on which written notice is given in terms of rule 3.

(3) The investigating officer is to investigate the tribunal case and in so doing—

(a) must consider the existing information relating to the tribunal case and make such further enquiries as the investigating officer considers appropriate;

(b) may obtain and consider any documents and productions which appear to be relevant; and

(c) may interview any person the investigating officer considers appropriate to interview, including the judicial office holder if the judicial office holder agrees to be interviewed.

(4) If the investigating officer considers that it cannot be established that the judicial office holder is unfit to hold his or her office, the investigating officer must––

(a) recommend to the tribunal that no further procedure is required; and

(b) give reasons for that recommendation in writing.

(5) The clerk to the tribunal must provide a copy of the recommendation and reasons to the judicial office holder.

(6) If the investigating officer considers that further procedure is required, the investigating officer must—

(a) submit a recommendation for further procedure;

(b) provide a statement of reasons to the tribunal; and

(c) provide a list and copies of any documents and a list of any other productions that are relied on in the statement of reasons.

(7) The clerk to the tribunal must provide the judicial office holder with—

(a) written notice of that recommendation;

(b) a copy of the statement of reasons; and

(c) a list and copies of any documents and a list of any productions that are relied on in the statement of reasons.

(8) If the investigating officer is unable to fulfil his or her duties, the chairing member of the tribunal may appoint a substitute investigating officer from the list of persons referred to in paragraph (1).

Application for further specification of reasons

5.—(1) The judicial office holder may apply to the tribunal for further specification of the information contained in the statement of reasons.

(2) The application must—

(a) specify the matters in relation to which further specification is sought; and

(b) be made within 21 days of the date on which written notice is given under rule 4(7)(a).

(3) Where the tribunal grants the application, it must direct the investigating officer to provide such further specification in writing as the tribunal considers appropriate within 21 days of the decision to grant the application.

(4) Where the tribunal refuses the application, it must notify the judicial office holder in writing within 21 days of the receipt of the application by the tribunal and give reasons for its decision.

Response to statement of reasons

6.—(1) The judicial office holder may lodge a written response to the investigating officer’s recommendation and statement of reasons.

(2) Any written response must—

(a) be submitted to the clerk to the tribunal within 28 days of—

(i) the date of the written notice provided under rule 4(7)(a);

(ii) the date on which the tribunal notifies the judicial office holder that it has refused an application for further specification in terms of rule 5(4); or

(iii) the date on which the investigating officer provides further specification in terms of rule 5(3),

whichever is the latest;

(b) state to what extent any facts set out in the statement of reasons are admitted or denied;

(c) include any statement of facts that the judicial office holder wishes to make;

(d) indicate any issues of law that the judicial office holder intends to raise;

(e) provide the names and addresses of any persons that the judicial office holder may wish to provide as witnesses; and

(f) provide a list and copies of any documents and a list of any productions to which the judicial office holder may wish to refer at any hearing.

(3) The tribunal may, on cause shown, allow the judicial office holder to lodge a supplementary written response containing further information falling within the scope of paragraph (2)(b) to (f).

Consideration of recommendation etc.

7.—(1) The tribunal must consider the investigating officer’s recommendation and statement of reasons and any written response by the judicial office holder, and determine whether—

(a) the investigation should proceed to a hearing; or

(b) no further procedure is required.

(2) The tribunal must give reasons in writing for its determination.

Representation at hearings

8.—(1) If the tribunal determines that the investigation is to proceed to a hearing, the chairing member of the tribunal must appoint a presenting officer from a list of persons who have been nominated for that purpose by the Lord President or, where the Lord President is the judicial office holder, by the Lord Justice Clerk.

(2) The investigating officer must provide to the presenting officer copies of all documents supplied to or by the tribunal and the judicial office holder.

(3) The tribunal case is to be presented by the presenting officer.

(4) The presenting officer may instruct the investigating officer to carry out such further investigations as the presenting officer considers necessary.

(5) The judicial office holder may be represented before the tribunal by an advocate or solicitor, or any other person authorised by the tribunal.

(6) If the presenting officer is unable to fulfil his or her duties, the chairing member of the tribunal may appoint a substitute presenting officer from the list of persons referred to in paragraph (1).

Duty to disclose information

9.—(1) The presenting officer and the investigating officer must disclose to the judicial office holder any information not previously disclosed that—

(a) is likely to form part of the facts and circumstances placed before the tribunal by the presenting officer; or

(b) may materially strengthen the judicial office holder’s position before the tribunal; or

(c) may materially undermine the presenting officer’s position before the tribunal.

(2) During the relevant period, the presenting officer must—

(a) keep under review all the information that may be relevant to the tribunal case of which the presenting officer is aware; and

(b) disclose to the judicial office holder any information not previously disclosed in accordance with paragraph (1).

(3) In this rule, “relevant period” means the period which begins when the presenting officer complies with paragraph (1) and ends when the tribunal reports to the First Minister.

Preliminary hearing

10.—(1) Before proceeding to a hearing under rule 11, the tribunal must hold a preliminary hearing.

(2) The clerk to the tribunal must give the parties written notice of the date, time and place of the preliminary hearing.

(3) At the preliminary hearing, the tribunal may—

(a) confirm with the judicial office holder what facts, if any, are in dispute;

(b) hear argument from the parties on and decide any legal or other preliminary issue raised in any written response or supplementary written response lodged under rule 6;

(c) make any case management directions, including directions as to the lodging of documents or the attendance of witnesses that it considers necessary for the future conduct of the proceedings; and

(d) fix a hearing under rule 11.

Hearing

11.—(1) If the tribunal determines that a hearing is necessary, it may fix—

(a) a hearing on legal submissions only; or

(b) a hearing at which—

(i) the parties may present oral and documentary evidence and refer to productions;

(ii) witnesses may be examined; and

(iii) the parties may make submissions on fact and law.

(2) The clerk to the tribunal must give the parties written notice of the date, time and place of the hearing.

Conduct of hearings

12.—(1) Subject to paragraph (3), hearings of the tribunal are to be in private.

(2) The tribunal is to deliberate in the absence of any other person.

(3) The tribunal may conduct the hearing or any part of it in public if—

(a) the judicial office holder so requests; or

(b) for any reason the tribunal considers that the circumstances are such as to make a private hearing inappropriate.

(4) All hearings must be recorded by electronic means or otherwise as approved by the tribunal.

Powers of tribunal

13.—(1) Subject to the provisions of sections 12A to 12F of the 1971 Act, sections 35 to 39 of the 2008 Act and these Rules, the tribunal may regulate its own procedure.

(2) The tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the tribunal may, on cause shown—

(a) extend or shorten the time for complying with any rule or direction;

(b) permit a party to amend a document;

(c) adjourn or postpone a hearing;

(d) sist proceedings.

(4) If any hearing is postponed or adjourned, the clerk to the tribunal must give the parties written notice of the date, time and place to which the hearing has been postponed or adjourned.

Termination of proceedings

14.—(1) If the presenting officer considers at any time that it cannot be established that the judicial office holder is unfit to hold his or her office, the presenting officer must—

(a) recommend to the tribunal that no further procedure is required; and

(b) give reasons for that recommendation in writing.

(2) The clerk to the tribunal must provide a copy of the recommendation and reasons to the judicial office holder.

(3) If the judicial office holder ceases to hold judicial office at any stage in the proceedings, the proceedings are terminated.

(4) At any stage in the proceedings, the tribunal may—

(a) on the basis of a recommendation by the investigating officer or the presenting officer;

(b) on the basis of a submission by the judicial office holder; or

(c) on its own motion,

determine that it cannot be established that the judicial office holder is unfit to hold his or her office.

(5) Where the tribunal makes a determination mentioned in paragraph (4), it must report that determination to the First Minister in accordance with section 12D of the 1971 Act or section 38 of the 2008 Act.

Decision and report

15.—(1) Where the tribunal, having considered the evidence, proposes to make findings of fact on disputed issues, it must send to the parties a draft of its findings and invite them to comment on the draft by such date as the tribunal specifies.

(2) The tribunal must have regard to any comments made under paragraph (1), but need not give the parties an opportunity to comment on any alterations made to the draft before the submission of its report.

(3) The tribunal must—

(a) submit its report to the First Minister in accordance with section 12D of the 1971 Act or section 38 of the 2008 Act; and

(b) send a copy to—

(i) the judicial office holder; and

(ii) the Lord President or, where the judicial office holder is the Lord President, to the Lord Justice Clerk.

Revocation

16.  The Act of Sederunt (Fitness for Judicial Office Tribunal Rules) 2014(2) is revoked.

BRIAN GILL

Lord President

I.P.D.

Edinburgh

9th April 2014