The saga reached its pinnacle earlier this month when the Judicial Committee of the Privy Council (JCPC) recommended that Derek Schofield CJ should be removed from office (17 November 2009).
This came after Gibraltar’s governor Sir Robert Fulton set up a tribunal to examine whether Schofield CJ had brought his office into disrepute. Angry at the Tribunal’s conclusions, Schofield appealed its findings to the Privy Council.
The Tribunal’s report, which looked into 23 allegations of misconduct between 1999 and 2007, produced some damning conclusions. “It hardly needs to be pointed out that integrity is essential to the proper charge of the judicial office,” it said.
The row is rooted in Schofield CJ’s opposition to Gibraltar’s Judicial Services Act 2007, which effectively stripped him of his role as head of the judiciary.
The Tribunal heavily criticised Schofield CJ for publicly condemning the constitutional reforms. It also lambasted him for sharing confidential information with his wife Anne.
Mrs Schofield found herself at the centre of the storm after she wrote to the Chief Minister of Gibraltar to blast him for agreeing to the reforms. They were, she said: “An attempted rape of the Gibraltar Constitution and the Chief Justice’s Office and contract.”
This was followed up with an email to James Neish QC, chair of the Gibraltar bar, to argue that the Act had been introduced with the intention of forcing the resignation of her husband.
The seven-strong Privy Council was divided in its reaction to the Tribunal’s conclusion. Schofield CJ had shown his wife confidential information which was subsequently leaked to the press.
The majority agreed with the Tribunal that this was a “discreditable episode” and that the Chief Justice “bore responsibility” for the documents being passed onto the press.
But the minority dissenters questioned the Tribunal’s findings. “To what extent, and in what circumstances, is a judge to be held accountable for the actions of his or her spouse or other close relatives?” they said.
It was not right that the Chief Justice should distance himself from his wife’s opinion. Indeed Mrs Schofiled, a practicing member of the Kenyan bar, was entitled to a view, the dissenters said.
“Judges are not to be taken as supporting or endorsing their spouse’s or partner’s conduct if they do not publicly dissociate themselves from it,” they said. “The law should recognise that they’re independent actors and that the deeds of the one are not to be visited on the other.”
The Privy Council was split four to three in its ruling, with Lord Phillips leading the majority.
Herein lies the thorny issue of whether the judiciary itself is divided in its opinion of what behaviour should warrant the removal of a judge.
As one senior lawyer commented: “Phillips must be very disappointed. They drafted in two extra judges and there should be a seven-nil ruling. It’s amazing that they’re split on the issues.”
Earlier this year Lord Phillips publicly emphasised the need for justice to be seen to be done. The opening of the Supreme Court heralded a new era of transparency, he said.
It should therefore bring with it a new era of accountability. However, the country’s most senior judges are divided in their views on how the judiciary should conduct itself. And that doesn’t bode well for the new approach of a modern judiciary.
How the judges were split:
Lord Phillips of Worth Matravers,
Lord Brown of Eaton-under-Heywood
Lord Judge (the Lord Chief Justice)
Lord Clarke of Stone-Cum-Ebony
Lords Hope of Craighead
Rodger of Earlsferry
Baroness Hale of Richmond
Blackstone Chambers’ Michael Beloff QC, instructed by Gibraltar-based Charles Gomez & Co and Carter Ruck, represented Schofield J at both the Tribunal and his appeal to the Privy Council.
Clifford Chance partner Michael Smyth instructed Timothy Otty QC of 20 Essex Street to represent Fulton.
Blackstone Chambers’ James Eadie QC acted for the Government of Gibraltar.