The Scottish Legal Complaints Commission erred in law in admitting three grounds of complaint against a solicitor employed in the Crown Office & Procurator Fiscal Service, when on two of them it had rejected other similar grounds as totally without merit, being unsupported by evidence, and on the third the SLCC had wrongly interpreted a letter by the solicitor concerned.
Lord Justice Clerk Lady Dorrian, Lord Malcolm and Lord Turnbull gave the ruling in allowing an appeal by Jane Benson against a decision of the SLCC to remit for investigation by the Law Society of Scotland three issues out of a larger number of complaints raised by Edward Cairns, the rest of which were ruled ineligible for investigation.
During the hearing the SLCC decided not to contest the appeal, but Mr Cairns did not concede. He was a former employee of Enterprise Ayrshire, a branch of Scottish Enterprise, who since about 1993 had been pursuing a claim that wrongdoing occurred in respect of its financial affairs. He was aggrieved that no one who had investigated the matter had concluded that criminal proceedings were merited. He had been declared a vexatious litigant but had turned his attention to bringing complaints to the SLCC.
On the first issue, in the course of her duties Ms Benson had advised Mr Cairns that certain material held by COPFS had been destroyed in accordance with its records management policy, and that other material would also be. Mr Cairns chose to categorise this as her colluding with Police Scotland and Scottish Enterprise to pervert the course of justice by destroying evidence, but produced no evidence in support.
Lord Malcolm, delivering the opinion of the court, said the Commission had applied its mind to the correct test for a “totally without merit” complaint, but “we consider that, on any reasonable appraisal, a decision-maker would be bound to conclude that there was no evidence upon which such a serious allegation could be upheld”.
He added: “In passing we note that it is not easy to understand why this complaint was treated as eligible for investigation, yet a more or less identical complaint (issue 8) was not. It is clear that the complaint in issue 1 has to proceed upon the basis that what was destroyed had evidential value in support of Mr Cairns’ concerns about Enterprise Ayrshire; yet in respect of issue 8 the Commission stated that the Crown Office is uniquely placed to assess that question.”
On the next issue admitted, issue 4, where an alleged motive of covering up was “not supported by anything beyond mere assertion”, similar comments could be made. “The Commission states that... an investigation is required in order to see whether Mr Cairns is correct in stating that Ms Benson was covering up for her colleagues. If this general approach is correct, it is hard to identify how or why an allegation of wrongdoing could ever be dismissed as ineligible... the outcome of a referral would be bound to be a conclusion that the allegation was but a part of Mr Cairns’ vexatious fixation on pursuing his grievances against all who stand in his way, and that nothing would be gained from an investigation by the professional body.”
On the final issue, issue 5, which had been admitted on the basis that, having copied to Mr Cairns a letter written to him by COPFS in 2005, Ms Benson might have been party to a false statement, Lord Malcolm concluded: “There is nothing in the appellant’s letter... which suggests that she was taking personal responsibility for this view, nor that, even if she was, she was doing so on a false basis.
He continued: “The court is satisfied that the Commission reached decisions which can be characterised as unreasonable and unsupported by sufficient evidence to jump even the low hurdle of the complaints not being 'totally without merit'. Whatever else this amounts to an error of law. That is sufficient for the disposal of the appeal; however, having regard to the test outlined in Mazur v SLCC  CSIH 45, we are also satisfied that the three complaints are vexatious.”
Mark Paxton, the SLCC's interim director of public policy, commented following the ruling: “We are of course disappointed that we were ultimately required to concede this appeal. In this case, as often happens in our work, we were faced with a huge volume of information and took the view that what was complained of merited investigation. This is always a balance, as we have to steer a path between obtaining relevant information without carrying out an investigation at this initial sifting stage. We accept the judgment of the court that we got the decision wrong in this case.”
Pointing out that fewer than 2% of the SLCC's determinations were challenged, he added: “We are now already considering the detail of the court's finding and considering what learning points we can include in our training and quality assurance.”