[2009] UKPC 43 Privy Council No 0016 of 2009 HEARING ON THE REPORT OF THE CHIEF JUSTICE OF GIBRALTAR REFERRAL UNDER SECTION 4 OF THE JUDICIAL COMMITTEE ACT 1833 before Lord Phillips Lord Hope Lord Rodger Lady Hale Lord Brown Lord Judge Lord Clarke ADVICE DELIVERED ON 12 November 2009 Heard on 15,16, 17, and 18 June 2009 Chief Justice of Gibraltar Governor of Gibraltar Michael Beloff QC Timothy Otty QC Paul Stanley (Instructed by Clifford (Instructed by Charles Chance LLP) Gomez & Co and Carter Ruck) Government of Gibraltar James Eadie QC (Instructed by R J M Garcia) LORD PHILLIPS : 1. The task of the Committee is to advise Her Majesty whether The Hon. Mr Justice Schofield, Chief Justice of Gibraltar, should be removed from office by reason of inability to discharge the functions of his office or for misbehaviour. The independence of the judiciary requires that a judge should never be removed without good cause and that the question of removal be determined by an appropriate independent and impartial tribunal. This principle applies with particular force where the judge in question is a Chief Justice. In this case the latter requirement has been abundantly satisfied both by the composition of the Tribunal that conducted the initial enquiry into the relevant facts and by the composition of this Committee. This is the advice of the majority of the Committee, namely, Lord Phillips, Lord Brown, Lord Judge and Lord Clarke. Security of tenure of judicial office under the Constitution 2. Gibraltar has two senior judges, the Chief Justice and a second Puisne Judge. The Gibraltar Constitution Order 2006 (“the 2006 Order”) provides: “Tenure of office of judges 64 (1) Subject to the provisions of this section, a person holding the office of Chief Justice or of Puisne Judge shall vacate that office when he attains the age of 67… (2) The Chief Justice … may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour… (3) The Chief Justice… shall be removed from office by the Governor if the question of the removal of that judge from office has, at the request of the Governor made in pursuance of subsection (4),been referred by Her Majesty to the Judicial Committee Page 1 of Her Majesty's Privy Council under section 4 of the Judicial Committee Act 1833 or any other enactment enabling Her Majesty in that behalf, and the Judicial Committee has advised Her Majesty that the judge ought to be removed from office for inability as aforesaid or misbehaviour. (4) If the Governor considers that the question of removing the Chief Justice…from office for inability as aforesaid or for misbehaviour ought to be investigated, then – (a) the Governor shall appoint a tribunal…; (b) the tribunal shall inquire into the matter and report on the facts thereof to the Governor and advise the Governor whether he should request that the question of the removal of that judge should be referred by Her Majesty to the Judicial Committee [of Her Majesty’s Privy Council]; and (c) if the tribunal so advises, the Governor shall request that the question should be referred accordingly. (6) If the question of removing the Chief Justice…has been referred to a tribunal under subsection (4), the Governor may suspend him from performing the functions of his office… . (8) The powers of the Governor under this section shall be exercised by him in accordance with the advice of the Judicial Service Commission.” 3. These provisions, other than those in subsection (8), reproduced provisions to the same effect in section 60 of the Gibraltar Constitution Order 1969 (“the 1969 Order”). Page 2 Procedural background 4. On 17 April 2007 all the Queen’s Counsel in Gibraltar, with the exception of the Speaker in the House of Assembly, were among the signatories (“the Signatories”) to a Memorandum to the Governor that expressed on behalf of themselves and their respective firms “their deep concern at a state of affairs which has developed seriously affecting the administration of justice and the reputational image of Gibraltar”. They stated that they had lost confidence in the ability of the Chief Justice to discharge the functions of his office. At the request of the Governor they submitted a Supplementary Memorandum (“the Second Memorandum”) dated 21 May which set out in detail the reasons for their dissatisfaction with the Chief Justice. One firm, Hassans & Co, wrote dissociating themselves from those parts of the Second Memorandum that related to matters in respect of which they had professionally represented the Chief Justice or his wife. 5. Copies of the two Memoranda were supplied to the Chief Justice and his solicitors sent a preliminary response to the Governor. All of these documents were considered by the Judicial Service Commission, which advised the Governor to appoint a Tribunal under section 64(4) of the 2006 Order. The Governor did so on 14 September 2007 and on 17 September he suspended the Chief Justice, pursuant to section 64(6) of the Order. 6. One member of the Tribunal recused himself and was replaced, whereupon the Tribunal consisted of the Rt Hon Lord Cullen of Whitekirk, the Rt Hon Sir Peter Gibson and the Rt Hon Sir Jonathan Parker. 7. There were two directions hearings. These were attended by representatives of the Chief Justice and of the Government of Gibraltar, the Governor of Gibraltar and the signatories to the Memoranda (“the Signatories”) as interested parties. At the second hearing all agreed “that in making its report to the Governor the Tribunal should express its own view on whether the facts found by the Tribunal showed any inability on the part of the Chief Justice to discharge the functions of his office or any misbehaviour on his part and, if so, to reach its own conclusion as to whether such inability or misbehaviour should warrant his removal from office.” The parties agreed a Statement of Issues that set out 23 episodes between 1999 and 2007 where the conduct of the Chief Justice had been the subject of criticism. 8. The Tribunal sat from 7 to 28 July to hear evidence of fact. 18 witnesses gave oral evidence. The Tribunal also had regard to written statements by a further 11 witnesses who Page 3 did not give oral evidence. These included Mrs Schofield, the wife of the Chief Justice, who had been expected to give evidence. She declined to give evidence on the ground that she did not consider satisfactory the terms on which funding had been provided to her to enable her to obtain legal advice in relation to certain matters relating to her appearance before the Tribunal. The Tribunal indicated that it did not consider that this justified her failure to appear to give evidence. They were right to do so. Had Mrs Schofield wished to give evidence there was no reason why she should not have done so. The Report of the Tribunal 9. The Report of the Tribunal to the Governor is dated 12 November 2008. It was provided to the Chief Justice on 3 December and published on the following day. The Report makes findings of primary fact in relation to each of the 23 episodes identified in the Statement of Issues. In relation to all but one of these it criticises the conduct of the Chief Justice. Some of these criticisms are based on inferences drawn from the primary facts as to the knowledge, perception or motive of the Chief Justice. In making findings of fact the Tribunal has applied the civil standard of proof of balance of probability. The Tribunal commented that in a number of instances the conduct of the Chief Justice amounted to impropriety, giving four examples of this, but added that no single instance of misbehaviour showed that the Chief Justice was unfit to hold office. 10. The conclusions of the Tribunal were set out in the following final paragraphs of its Report: “7.36 The conduct of the Chief Justice which we have summarised earlier in this chapter directly affected the way in which he discharged part of the responsibilities of his office, such as his relations with the Governor and the Government (covering such matters as funding, proposed legislation and appointments), and his relations with the representatives of the Bar. The conduct stemmed, in our view, from a number of characteristics of his personality and attitude, as follows. 7.37 First, the Chief Justice did not seem to be alive to the boundary between what was and what was not proper for someone in his position to do or say. He repeatedly showed a lack of judgment in this respect. He also showed the lack of a sense of proportion, and tended to over-react to perceived slights. He did not observe appropriate restraint or respect for accuracy in his public pronouncements. 7.38 Secondly, he showed a pre-occupation, bordering on an obsession, with judicial independence. He claimed that it was under threat when this was not the case. This led to his responding in an improper or excessive manner to executive Page 4 action of which he disapproved. Allied to this was his pre- occupation with the status of his office and his continuance in office. This showed itself in a number of ways ranging from petty discourtesy to the Chief Minister to the unfounded accusation that the Government had long sought to have him removed from office. 7.39 Fourthly, he showed himself to be unable to restrain himself from supporting his wife in her attack of the members of the Bar Council or her libel action against its Chairman.