3. The Role and Remit of the Judicial Complaints Reviewer

The role of the JCR was created by the Judiciary and Courts (Scotland) Act 2008 which introduced the Complaints About the Judiciary (Scotland) Rules 20171, (the Rules). The role is twofold:

To review investigations into complaints against judicial office holders (JOH)2 which are undertaken by the Judicial Office for Scotland (JOS) to check that they have been carried out in accordance with the Rules.
To make written representations to the Lord President about procedures for handling the investigation of matters concerning the conduct of a judicial office holder. The Lord President, who is the head of the judiciary in Scotland, must have regard to my representations.

The role was extended in 2018 with the implementation of the Complaints About the Scottish Tribunals Rules 20183, which allows the JCR to review the handling of investigations into complaints against about the conduct of ordinary and legal Tribunal Members (TM) of the Scottish Tribunals in the:

First-tier Tribunal for Scotland, and
Upper Tribunal for Scotland.

Complaints about judicial members of Tribunals are dealt with under the Complaints About the Judiciary (Scotland) Rules 2017.

The JOS undertakes investigations into complaints against a JOH or TM on behalf of the Lord President. In the first instance, a complaint must be accepted as a complaint under the Rules. If a complaint is not accepted by the JOS, I cannot consider it and I would have no information available to me to question such a decision.

The Complaints About Judiciary (Scotland) Rules 2017 and the Complaints About the Scottish Tribunals Rules 2018, can be found under publications at www.scotland-judiciary.org.uk

Once the investigation process has finished the JCR then provides a free, impartial service to:

Any person who has made a complaint about a JOH/TM, who requests its handling to be reviewed.
Any JOH/TM who has been the subject of an investigation and seeks a review of the investigation process to ensure that it was conducted in accordance with the Rules.

A request for a review of a complaint investigation must be made within four months of the date of the determination by the JOS otherwise, unless there is a very good reason for the delay, it will not be accepted for review.

Review requests can be made by post, E-Mail or via the JCR website. Once a request has been acknowledged and I have established that it falls within my remit, I ask the JOS to send me their complaint file.

My remit is very narrow. I can review the handling of the complaint but only as a paper-based exercise using papers received from a complainant and case papers provided to me by the JOS. I cannot look at the merits of a complaint and I cannot require a complaint to be reinvestigated or overturn a decision. Nor can I obtain compensation, apologies, or other redress. I can, however, make referrals to the Lord President where I find the Rules have been breached, so that he can consider what action may be required, for example he may re-open an investigation if appropriate.