Gibraltar’s Chief Justice, Derek Schofield, will be removed from office following a 4 to 3 majority recommendation by a committee of Britain’s most senior judges, one of whom yesterday described the controversial case as “a Greek tragedy”.
The decision by the Judicial Committee of the Privy Council was reached by the narrowest of margins: while four judges said the Chief Justice should be sacked, the other three found there were no grounds to justify dismissal.
The dissenting judges said the Chief Justice should be allowed to resign without a blemish on his career and warned that removal risked setting a dangerous precedent.
But with the majority of the Privy Council committee against him, the fate of the Chief Justice is now sealed.
The Governor, Sir Adrian Johns, said was now “giving careful consideration” to the 87 pages of advice sent to him by the Privy Council.
The key finding by the four majority judges – Lord Phillips, Lord Brown, Lord Judge and Lord Clarke – is that Mr Justice Schofield should be removed “…by reason of his inability to discharge the functions of his office.”
They said the Chief Justice had brought both himself and his office into disrepute, rendering his position in Gibraltar untenable.
They had stern words for “headstrong” Anne Schofield, the Chief Justice’s wife, and in particular her claims that Chief Minister Peter Caruana was trying to hound Mr Justice Schofield from office.
The Chief Justice had always maintained that his wife was an independent person entitled to do and say as she wished, but the majority judges rejected that view as “wrong” and said the Chief Justice had publicly adopted his wife’s views.
“The evidence demonstrates that Mrs Schofield has a strong personality and we have concluded that, in her relationship with her husband, it was the dominant personality,” the four judges said.
“This case,” they later added, “has aspects of a Greek tragedy.”
Mrs Schofield’s response to what she “mistakenly” saw as attempts to drive the Chief Justice from office “…threatened to make that office untenable by him unless he publicly disassociated himself from her conduct.”
“This he was not prepared to do,” the majority judges said.
“He was not persuaded that her allegations were unfounded and in the end he publicly associated himself with them.”
To this day the Chief Justice had not apologised to Mr Caruana for the unjustified allegations made against him, the judgement added.
In preparing its findings, the Privy Council committee spent five months trawling deep through the evidence and findings of the disciplinary tribunal that first considered the Chief Justice’s position and recommended his removal last year.
The tribunal, set up on the advice of the Judicial Services Commission, followed a formal complaint about Mr Justice Schofield from Gibraltar’s top law firms, which said they had lost confidence in the judge.
The Chief Justice was accused of overstepping the boundaries of his post and attempting to influence political debate, in particular with regard to the new Constitution and the subsequent Judicial Services Act.
Mr Justice Schofield maintained that he was acting in defence of judicial independence and in defence of Gibraltar’s best interests.
The four Privy Council judges who found against the Chief Justice had this to say on his challenge to the Constitution: “We accept that the Chief Justice’s actions were motivated by the praiseworthy aim of promoting judicial independence.”
“But to attempt to achieve this by a public and unbalanced attack on the draft Constitution shortly before the referendum showed a serious lack of judgment.” The Chief Justice failed to exercise the foresight required of someone in his position, the judges said.
“It may be open to question whether his headstrong action amounted to misbehaviour,” they said in their judgement.
“It certainly demonstrated an inability to pay due regard to the likely political consequences of his actions.”
In reaching their conclusion, the four majority judges referred in close detail to transcripts and documentary evidence collected by the tribunal and found that a number of its criticisms of the judge were unjustified.
However they agreed with the tribunal on the central issue of the extent to which the Chief Justice was aware of his wife’s actions and intentions, adding that his statements on this had been “evasive”.
“It is simply incredible that he and his wife would not have discussed matters that were of great mutual concern and how they were going to react to them,” the four judges said.
They also found that although a number of incidents amounted to misbehaviour by the Chief Justice, none warranted dismissal on the ground of misconduct.
These incidents nonetheless illustrated a course of conduct that resulted in an inability on the part of the Chief Justice to carry out his job.
“They reflect badly on the judgment of the Chief Justice, leading to inappropriate behaviour on a number of occasions,” the judges said.
The three dissenting judges – Lord Hope, Lord Rodger and Lady Hale – reached a starkly different conclusion.
They agreed that there were instances where the Chief Justice’s conduct showed a lack of judgement, but also highlighted that there was no criticism of his ability as a judge.
The analysis by the other four Privy Council judges “…fails to give proper weight to the crucial importance of protecting senior judges against attacks by the executive upon their efforts to uphold judicial independence in their jurisdiction,” they said. “Errors of judgment there may well have been. But to say that this amounts to an inability to discharge the functions of the office…which justifies his removal from office seems…to go too far.”
“It risks setting a dangerous precedent.”
The three judges concluded: “We do not regard the remaining grounds of criticism as justifying the conclusion which the majority have reached that he ought to be removed from his office of Chief Justice on the ground of inability to discharge the functions of that office.”
The dissenting judges said that for most of the time, Mr Justice Schofield fulfilled his functions as Chief Justice in a way that did not attract criticism.
Their judgement noted that Mr Justice Schofield had now been suspended for more than two years and had been exposed to “a long and bruising” inquiry that had hardened attitudes on both sides.
The three judges said that under those circumstances, it was unrealistic to think that Mr Justice Schofield could return to his post in Gibraltar.
But they said that this consequence should not be held against him because “it was not his choice that he should be suspended.”
The way out, they said, was for the Chief Justice to resign with dignity.
“He should be given that opportunity and, if he were to do so, no adverse inferences of any kind should be drawn against him,” the three judges said.
“The case that was made against him has not been made out.”