David Hope, Baron Hope Of Craighead

James Arthur David Hope, Baron Hope of Craighead (born 27 June 1938) is a retired Scottish judge who served as the Lord President of the Court of Session and Lord Justice General, Scotland's most senior judge, and later as first Deputy President of the Supreme Court of the United Kingdom from 2009 until his retirement in 2013. He had previously been the Second Senior Lord of Appeal in Ordinary. He is the Chief Justice of Abu Dhabi Global Market Courts.

He has published 5 volumes of his diaries, archived his papers at the National Library of Scotland, and been involved in numerous controversies. He continues in private practice as an arbitrator. His other appointments have included Lord High Commissioner to the General Assembly of the Church of Scotland, and Convenor of the Crossbench peers in the House of Lords.

Background and personal

Background

A descendant of Charles Hope, Lord Granton, Lord President of the Court of Session from 1811 to 1841, through his third son, David Hope was born on 27 June 1938 to Edinburgh lawyer Arthur Henry Cecil Hope, OBE, WS and Muriel Ann Neilson Hope (''née'' Collie). He was educated at Edinburgh Academy and Rugby School. He completed National Service as an officer with the Seaforth Highlanders, between 1957 and 1959, where he reached the rank of lieutenant. In 1959 he commenced his studies as an Open Scholar at St John's College, Cambridge where he read Classics. He graduated with a B.A. degree in 1962. He then returned to Scotland and studied at the Faculty of Law of the University of Edinburgh, graduating LL.B. in 1965.

Personal

In 1966, Hope married Katharine Mary Kerr, daughter of solicitor Mark Kerr WS, with whom he has twin sons and a daughter. Lord Hope of Craighead resides in Edinburgh and in 2014 appeared in a television documentary programme about Moray Place.

Career before the UK Bench

Hope was admitted as an advocate in 1965 and became a Queen's Counsel in 1978. He served as Standing Junior Counsel in Scotland to the Board of the Inland Revenue from 1974 to 1978, and as an Advocate Depute from 1978 to 1982, prosecuting cases on behalf of the Crown. Between 1985 and 1986, he was Chairman of the Medical Appeal Tribunal and the Pensions Appeal Tribunal. From 1986 to 1989 he was Dean of the Faculty of Advocates. He is an Honorary Bencher of Gray's Inn.

The Bench in the UK

In 1989, Hope became a Senator of the College of Justice, taking the judicial title Lord Hope, and was appointed directly from the practising Bar to the offices of Lord President of the Court of Session and Lord Justice General. He was made a Privy Counsellor at this time, and was awarded a life peerage in the 1995 New Year Honours. His title was gazetted as Baron Hope of Craighead, of Bamff in the District of Perth and Kinross on 28 February 1995. In 1996, Lord Hope of Craighead retired as Lord President to become a Lord of Appeal in Ordinary, and was succeeded by Lord Rodger of Earlsferry. On 21 April 2009, he was appointed Second Senior Law Lord, succeeding Lord Hoffmann. On 1 October 2009, Hope became one of the first Justices of the Supreme Court of the United Kingdom, and its first Deputy President. He retired from that position on 26 June 2013.

Positions after retirement from UK Bench

Private practice

Lord Hope of Craighead, having retired from the Bench in the UK, became available privately as a practising arbitrator. In October 2013 he joined Brick Court chambers in London as an arbitrator. Additionally he joined Terra Firma chambers in Edinburgh as an arbitrator from June 2023.

Abu Dhabi

From October 2015 to December 2023 and continuing, Lord Hope of Craighead served as remunerated Chief Justice of Abu Dhabi Global Market Courts. In 2024 in the House of Lords Register of Interests he declared an income of £257,000 for the period 1 January – 31 December 2023 for performing his duties.

Honorary positions

In November 2014 it was announced that Lord Hope of Craighead would be appointed as Lord High Commissioner to the General Assembly of the Church of Scotland in 2015. This position ceased to be occupied by him after 27 May 2016.

He served as Convenor of the Crossbench peers in the House of Lords from 2015 to 2019.

On 20 March 2024, Lord Hope, as an independent peer successfully moved in the House of Lords an amendment of his own to the Safety of Rwanda (Asylum and Immigration) Bill whereby implementation of the legislation would be delayed pending the decision of a proposed panel of experts tasked with deciding whether Rwanda satisfied certain safeguarding criteria. The amendment was removed by the House of Commons on Monday 15 April 2024 but reinstated in substance once again by the House of Lords on Wednesday 17 April 2024. Speaking on the BBC radio programme “Today” on 18 April 2024, Lord Hope of Craighead defended his intervention on the basis that he was seeking to correct a defect in the legislation.

Lord Hope of Craighead's Historical Archives

In November 2014, Lord Hope of Craighead donated to the National Library of Scotland 16 boxes containing 90 files spanning the period 1953 - 2014. Access to all these documents is unrestricted. The Inventory references: 1-79 Professional Papers (1-46 Advocate’s Opinions, 1978-1989; 47-55 Dean of Faculty Notes and Draft Letters, 1986-1989; 56-78 Judicial Opinions, 1989-1994; 79 Financial Papers, 1965-1989); 80 Personal Papers, 1959-1962; 81-90 Ephemera, 1953-2014. The first 46 items in the Inventory, Advocate’s Opinions, 1978-1989, were produced under legal professional privilege.

Diaries

Starting in 2018, Lord Hope of Craighead's diaries were published in five volumes. These are:

Senior Counsel 1978–1986: Lord Hope's Diaries Volume I

Dean of Faculty 1986–1989: Lord Hope's Diaries Volume II

Lord President 1989–1996: Lord Hope's Diaries Volume III

House of Lords 1996–2009: Lord Hope's Diaries Volume IV

UK Supreme Court. and Afterwards 2009–2015: Lord Hope's Diaries Volume V

The works chronicled his life, experiences and rise to the top, from Senior Counsel to his retirement from the Supreme Court. They contain observations on his judicial colleagues and disclose information as to panel deliberations, as appears in the Controversies section below.

Controversies

1989: Handling of Homosexual Judge Scandal

On 22 December 1989 Lord Dervaird, a Scottish judge, resigned from the bench after two years of service. On 17 January 1990 the press reported that three senior Scottish judges had been questioned by Lord Hope, the Lord President, as to their possible involvement in vice rings or homosexual behaviour. This reportage arose because Lord Hope had called a meeting of newspaper editors at his Edinburgh home in which he detailed the rumours "unattributively" regarding three Court of Session judges (out of a then total of 24 judges). This meeting caused the scandals to be "splashed across the front pages." By December 2016 government papers covering these events had been declassified and were now available to the public. This resulted in human rights campaigner Peter Tatchell demanding an apology from Malcolm Rifkind, the former Scottish Secretary, for his actions in forcing Lord Dervaird from judicial office because of rumours of his being homosexual.

2011: Scottish Appeals to the Supreme Court

Lord Hope of Craighead, then Deputy President of the UK Supreme Court, allegedly suggested that Scottish Judges were somewhat hostile to cases being reviewed on appeal to the Supreme Court in London. He was reported b
Lucy Adams
of the Glasgow Herald as saying: "There is n England and Walesnone of the feeling of antipathy  towards cases being sent to London that lies just below the surface here in Scotland." These words were subsequently described by Lord Hope as misreported or not said at all, despite the journalist publicly offering a recording. The version of the speech Lord Hope of Craighead approved for posting on the Supreme Court website does not include the contested wording. He maintained in response a complete news blackout at a subsequent speech-giving in Glasgow a month later.
This speech was also described as "an unprecedented counter-attack on the Scottish Government for its assault on the jurisdiction of the Supreme Court earlier this year."

2020: Allegations by Lord Hope of Craighead of Judicial Gerrymandering

Lord Hope of Craighead's diaries have been analysed by academic write
Lewis Graham
He highlights three incidents as described by the diary writer as together establishing a "deeply concerning" possibility and pattern of judges being included or excluded from hearing a case based on outcomes to be expected if they were to sit on it. Graham cites consideration by Hope of excluding Northern Irish Lord Kerr of Tonaghmore from a devolution case; and successful lobbying, according to Lord Hope of Craighead, by Lord Hoffmann to exclude Baroness Hale of Richmond from a Jamaican death penalty appeal. Additionally, Lord Judge asked, according to Lord Hope of Craighead, to be included on a miscarriage of justice case in order to further his pre-existing views. While accepting that the account of Lord Hope of Craighead could be doubted, Graham observed that the possibility of it being correct "strikes at the heart of judicial neutrality and procedural fairness".

2023: Intervention Limiting the Right to Protest Abortions

In 2023 Lord Hope of Craighead introduced an amendment to the Public Order Bill at the report stage. The amendment was adopted by the Conservative government. It was designed to affect policing around abortion clinics. Police were to intervene where there was "serious disruption". The amendment widely defined this as any activity that "prevents or would hinder to more than a minor degree the individuals or the organisation from carrying out their daily activities."

2024: Displeasure of the Senior Judiciary at Lord Hope's Diaries

In 2024 the Society of Legal Scholars published the results of an academic investigation by way of semi-structured interviews given by 13 very senior judicial figures from across the United Kingdom, some attributed and some anonymously. The actions of Lord Hope of Craighead in disclosing judicial panel deliberations was a focus of the study. The disclosures by Lord Hope of Craighead were widely condemned by the interviewees as a transgression due to breach of collegiality or loyalty to other judges, and as constituting inappropriate conduct from a former judge. Additionally, the publishing of confidential deliberations was widely seen as potentially threatening “ the procedural and institutional legitimacy of the court.” Only one person, Lord Brown of Eaton-under-Heywood, regarded Lord Hope of Craighead's disclosures as defensible.

Notable cases

As Deputy President of the Supreme Court
*'' R (E) v Jewish Free School'' 009UKSC 1 – discrimination in school admissions on religious grounds
*'' R (L) v Commissioner of Police of the Metropolis'' 009UKSC 3 – criminal records checks and right to respect for private and family life
*'' BA (Nigeria) v Secretary of State'' 009UKSC 7 – right of appeal against deportation orders
*'' Gisda Cyf v Barratt'' 010UKSC 41 – employment contracts as against general contracts
*'' Cadder v HM Advocate'' 010UKSC 43 – police detention of suspects
*'' HJ and HT v Home Secretary'' 010UKSC 31 – homosexuality in asylum claims
* '' HM Treasury v Ahmed'' 010UKSC 2 – strikes Treasury Orders related to UNSC 1267 Committee
*'' Jones v Kaney'' 011UKSC 13 – immunity from suit of expert witnesses
*'' Fraser v HM Advocate'' 011UKSC 24 – role of the UK Supreme Court in Scots criminal law

As Lord of Appeal in Ordinary
*''R v Woollin'' 9991 AC 82 – indirect intention
*'' Lubbe v Cape Plc'' 0001 WLR 1545 – tortious liability of shareholders
*'' Bruton v London and Quadrant Housing Trust'' 0001 AC 406 – rights of landlords and tenants
*'' White v White'' 0011 AC 596 – distribution of property on divorce
*'' DGFT v First National Bank plc'' 001UKHL 52 – unfair contractual terms and the construction of unreviewable core terms
*''Wilson v First County Trust Ltd (No 2)'' 003UKHL 40 – impact of the Consumer Credit Act 1974 on pawnshop dealers' human rights
*'' Campbell v Mirror Group Newspapers Ltd'' 004UKHL 22 – right to privacy and confidentiality
*'' Chester v Afshar'' 004UKHL 41 – patients' right to give fully informed consent
*'' Archibald v Fife Council'' 004UKHL 32 – reasonable adjustments for the disabled
*'' Jackson v Royal Bank of Scotland'' 005UKHL 3 – remoteness
*'' Re Spectrum Plus Ltd'' 005UKHL 41 – definition of "floating charge"
*''Jackson v Attorney General'' 005UKHL 56 – fox hunting ban
*''J & H Ritchie Ltd v Lloyd Ltd'' [2007] UKHL 9 – Sale of Goods Act 1979, section 35 and measure of damages for poor quality after repair
*''Stack v Dowden'' [2007] UKHL 17 – beneficial interest in the family home on divorce
*'' The Achilleas'' 008UKHL 48 – remoteness
*'' Austin v Commissioner of Police of the Metropolis'' 009UKHL 5 – kettling of protestors
*'' Chartbrook Ltd v Persimmon Homes Ltd'' 009UKHL 38 – influence of pre-contractual negotiations on construction

As Lord President
*'' Sharp v Thomson'' 1997 SC(HL) 66 – Scots property law
*'' West v Secretary of State for Scotland'' 1992 SC 385 – Scots judicial review

As Lord Justice General
*'' Jamieson v HM Advocate'' 1994 JC 88 – rape and consent
*'' Ross v HM Advocate'' 1991 JC 210 – automatism

Honours and Arms

The Lord Hope of Craighead became Chancellor of the University of Strathclyde in 1998 and was appointed a Fellow in 2000. He stepped down as Chancellor in October 2013. He was awarded an honorary LL.D. by the university in 1993, and by the University of Aberdeen in 1991 and the University of Edinburgh in 1995.

In 2007, he was awarded the David Kelbie Award by the Institute of Contemporary Scotland. He was formerly an Honorary Professor of Law at the University of Aberdeen, and is an honorary member of the Canadian Bar Association (1987) and of The Society of Legal Scholars (1991), an Honorary Fellow of the American College of Trial Lawyers (2000), and an Honorary Bencher of Gray's Inn (1989) and of the Inn of Court of Northern Ireland (1995). He was also, as of 2008, the Honorary President of the ''Edinburgh Student Law Review''.

On St Andrew's Day, 30 November 2009, Lord Hope of Craighead was appointed to the Order of the Thistle by Queen Elizabeth II. The Order of the Thistle is the highest chivalric honour in Scotland. In the UK as a whole it is second only to the Order of the Garter amongst chivalric orders. The order honours Scottish men and women who have held public office or who have contributed in some way to national life. Lord Hope of Craighead represented the Order at the 2023 Coronation.

References

See also

* List of Senators of the College of Justice
* Courts of Scotland
* Abu Dhabi Global Market Courts

External links

*

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