Hearing on the Report of the Chief Justice of Gibraltar (Gibraltar)

Removal of a senior judge under the Gibraltar Constitution Order 2006 requires inability to discharge judicial functions or misbehaviour of exceptional seriousness. Inability is not confined to illness. A cumulative defect of character, repeated misconduct and the resulting loss of confidence may suffice where they substantially impair the judge’s ability to sit or damage the administration of justice. The assessment includes the effect of conduct on public perception, the appearance of bias and the reputation of the judicial office. Judicial independence warrants latitude for robust action, but it does not protect serious and continuing failures of judgment. The majority advised removal; the minority considered that the demanding threshold for removal had not been met.

Following memoranda from members of the Gibraltar Bar, the Governor appointed a tribunal under section 64(4) of the Gibraltar Constitution Order 2006 to investigate the Chief Justice’s conduct. The Tribunal found numerous episodes of criticism, concluded that he was unable to discharge the functions of his office, and advised the Governor to request a referral to the Judicial Committee. The Chief Justice challenged the Tribunal’s factual inferences, the standard of proof, its assessment of procedural fairness and its conclusion that removal was justified. The central issue before the Committee was whether the conduct, viewed cumulatively, established inability or misbehaviour warranting removal.

Majority advice

By a majority comprising Lord Phillips, Lord Brown, Lord Judge and Lord Clarke, the Committee advised Her Majesty that the Chief Justice should be removed. The Committee exercised an original jurisdiction. The Tribunal’s findings were not binding, but the Committee could act on them and review disputed inferences from primary facts.

1. Factual issues bearing on fitness were to be determined on the civil standard, using the rational approach that more improbable allegations require stronger evidence. The ultimate question whether removal was justified was a matter of judicial assessment, not a fact subject to a separate standard of proof.
2. Under section 64(2) of the Gibraltar Constitution Order 2006, inability could extend beyond physical or mental illness to a defect of character. Conduct, including incidents of misbehaviour, could cumulatively establish inability where it affected the judge’s functioning or the administration and reputation of justice.
3. Applying the approach in Lawrence v Attorney General of Grenada [2007] UKPC 18, the Committee considered whether the conduct directly affected the Chief Justice’s ability, adversely affected perceptions of his ability, would be inimical to the due administration of justice if he remained in office, or brought the office into disrepute. The standard in Therrien v Canada (Ministry of Justice) and another [2001] 2 SCR 3 confirmed that high standards alone were insufficient, but that removal could be justified when confidence in the judge’s ability was destroyed.
4. The Chief Justice’s freedom of expression was necessarily constrained by the requirements of judicial office. In a small jurisdiction, his public conduct, apparent hostility towards the executive and Bar, handling of judicial independence issues, conduct in the MOT prosecution, judicial review proceedings, and failure to distance himself from his wife’s repeated public accusations created serious risks of apparent bias and recusal. These effects substantially disabled him from hearing important cases involving the Government and damaged the reputation of his office.
5. The episodes were treated as part of a continuing course of conduct. Although no criticism was made of the Chief Justice’s ability to decide questions of fact or law, the majority concluded that his conduct and its consequences had rendered his position untenable and established inability to discharge the functions of Chief Justice.

Dissent

Lord Hope, with whom Lord Rodger and Lady Hale agreed, would have advised against removal. He considered that judicial independence required substantial latitude for mistakes made in good faith while confronting the executive. In his view, inability required proof that the judge was wholly unfitted to perform judicial functions. The Chief Justice’s judicial competence, periods of normal relations with the executive and the absence of a sufficiently grave defect in character meant that the case for removal was not made out.

• Privy Council: On the referral under section 4 of the Judicial Committee Act 1833, the majority advised Her Majesty that the Chief Justice should be removed. Lord Hope, Lord Rodger and Lady Hale dissented.
• Tribunal appointed by the Governor: The Tribunal investigated 23 episodes, reported on 12 November 2008, found that the Chief Justice was unable to discharge the functions of his office, and advised the Governor to request a referral.
• Governor of Gibraltar: The Governor appointed the Tribunal under section 64(4) of the Gibraltar Constitution Order 2006 and suspended the Chief Justice under section 64(6).