Between a rock and a hard place
17 June 2009 | By Katy Dowell
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Tensions have been simmering between Gibraltar’s suspended Chief Justice Derek Schofield and its Governor Sir Robert Fulton for almost a decade.
This week the row reached a climax with the Lord Chief Justice, Lord Judge, presiding over a seven-strong Privy Council panel that will determine whether Schofield J should be sacked or reinstated in his position.
Schofield J was suspended from duties by Fulton in September 2007 after four Gibraltar firms, including Triay & Triay and Hassans, wrote to Fulton in April 2007 expressing their “deep concern” at how Schofield J had conducted his duties.
At the heart of the matter was Schofield J’s response to the introduction of the Judicial Service Act, passed in July 2007, which stripped the Chief Justice of his powers as head of the judiciary. The act laid out that the powers should instead be handed to Sir Murray Smith, head Gibraltar’s Court of Appeal.
Schofeld J vehemently opposed the reforms, arguing that they would deprive the Gibraltar judiciary of its independence and make the head of the judiciary a political appointment.
His wife Anne Schofield failed to make matters better when she accused Gibraltar’s Chief Minister Peter Caruna of bringing about reforms that were, she said: “An attempted rape of the Gibraltar constitution and the Chief Justice’s Office and contract.”
She also wrote to the chair of the Gibraltar Bar Council, James Neish QC, suggesting that the reform was designed purely to “force the resignation of the Chief Justice”. The row escalated further when the bar issued a writ for libel against her.
Then came the letters from the lawyers complaining about Schofield J’s conduct.
In September the Judicial Services Commission recommended that a tribunal be set up to examine the accusations. Fulton asked the tribunal, which was chaired by Lord Cullen of Whitekirk, to specifically “report on whether the Chief Justice of Gibraltar is unable to discharge the functions of his office by reason of inability or for misbehaviour”.
The tribunal’s conclusions were damning and said that the Chief Justice should be removed from office.
“It hardly needs to be pointed out that integrity is essential to the proper charge of the judicial office,” the report said.
The conduct of the Chief Justice, it added, showed that he repeatedly fell far short of what befitted the dignity of his office, including a propensity to “overreact to perceived slights”.
The matter was referred to the Privy Council, which will hear the arguments that will help it decide whether Schofield J is fit for duty.
It is an unprecedented area of law, meaning seven of the country’s most senior judges have been appointed to the council panel, including Lord Judge.
Schofield was not in attendance when the hearing got underway on Monday. His barrister, Blackstone Chambers’ Michael Beloff QC, listened intently as the presiding judges discussed the reasons that could result in a judge being removed.
“What is the standard that justifies removal?” said Lord Rodger of Earlsferry during proceedings.
Blackstone’s James Eadie QC, representing the government of Gibraltar, argued that Schofield had acted beyond the bounds of his duty. He had become involved in “deeply political issues in a hostile and sustained battle” with the Gibraltar Government, suggested Eadie.
Yesterday, Beloff argued that the conclusions reached by the tribunal were “both wrong and unfair”, adding: “Where there were two versions, the tribunal too readily favoured a version hostile to the Chief Justice.”
Tim Otty QC of 20 Essex Street, acting for the Governor of Gibraltar, presented his case yesterday afternoon and rejected Beloff’s arguments that the tribunal had been unfair.
The council is scheduled to conclude today, but, given the complexity of the case, it could well continue into tomorrow. As Baroness Hale of Richmond said: “We’re talking about the removal of a judge who is entitled to a considerable guarantee of independence in the performance of his judicial function.”