Full text of all closing submissions
28 July 2008
Monday, 14 July 2008 (10.26 am)
LORD CULLEN: Before we return to the taking of evidence, there's one matter
which I should like to mention in order to put on record. The tribunal has
received from Mrs Anne Schofield, the wife of the Chief Justice, a written
application which was submitted on 11 July, Friday of last week. We understand
that copies of this application have been provided to counsel for the parties.
The application is for the tribunal to direct disclosure by counsel to the
tribunal and by Clifford Chance, the solicitors to the tribunal, of the
following. There are four heads. I quote:
"(i) Who recommended the appointment of counsel as counsel to the tribunal.
(ii) who recommended Clifford Chance as solicitors to the tribunal.
(iii) who briefed counsel to the tribunal with respect to his role.
(iv) who negotiated the fees of counsel and Clifford Chance. Provide details of
fee arrangements and details of members of Government involved in negotiations."
The application then goes on to put forward a number of reasons for the
application being granted. Those reasons include a further disclosure which is
sought which is in these terms, and I quote: "I also seek disclosure as to
whether the Secretary to the Tribunal briefed Mr Neish and in what capacity and
when." For brevity, we will ask the stenographers to incorporate the full text
of the application into the text of today's proceedings:
Application text inserted "Dear Emmeline, I wish to set out the reasons for my
request for disclosure from counsel to the tribunal and Clifford Chance:
(i) Who recommended the appointment of counsel as counsel to the tribunal.
(ii) Who recommended Clifford Chance as solicitors to the tribunal.
(iii) Who briefed counsel to the tribunal with respect to his role.
(iv) Who negotiated the fees of counsel and Clifford Chance. Provide details of
fee arrangements and details of members of Government involved in negotiations.
"The following are my reasons for seeking disclosure:
(i) This tribunal is dealing with complaints from lawyers whose genesis was an
email seeking disclosure of conflicts of interest. It is important that counsel
and Clifford Chance disclose information which may allay fears of conflict.
(ii) The tribunal is dealing with matters that involve the removal of a Chief
Justice. It is appropriate that the selection process, the fee arrangements and
who was involved in negotiations of the team advising members of the tribunal
are disclosed.
(iii) It is appropriate that counsel who is determining what questions to ask
before the tribunal discloses whether any of the witnesses were involved in his
selection, appointment and fee negotiations and briefing. These witnesses
include the Attorney General, the Chief Secretary, the Chief Minister, the
Deputy Governor.
(iv) It is appropriate that counsel and Clifford Chance disclose information
above because of their role in determining/advising on what evidence and
witnesses is put before members of the tribunal.
(v) It is also appropriate that counsel discloses the information as he has been
involved in advising that I should not close examine witnesses.
(vi) It is appropriate that counsel should disclose the information prior to
cross-examining any witnesses who may have been involved in his selection, fee
negotiations and arrangements.
(vii) In a past email Clifford Chance suggested that counsel of Mr Fitzgerald
could cross-examine on my behalf. It is inappropriate for Mr Fitzgerald to act
for me in any manner. I am considering whether I should provide counsel with
questions which I wish to ask Mr Neish, Mr Caruana, Robert Vasquez, Mr Bossano,
JE Triay and Attorney General. It is my view that some of the questions that I
would put through counsel are relevant to the facts and credibility of some of
the witnesses. Some of the questions relate to information that I have received
since the start of the tribunal which would assist the tribunal in its
fact-finding role.
(viii) I also seek disclosure as to whether the secretary to the tribunal
briefed Mr Neish and in what capacity and when.
(ix) I require the disclosure to allow me to seek advice with regard to final
submissions that I may wish to make. You have on two occasions asked me to make
an application if I have any problem with the tribunal. May I make the appoint
that I see a distinction between the tribunal and counsel to the tribunal. The
disclosure is specific to counsel and Clifford Chance.
(x) The requested disclosure is also a matter of public interest when dealing
with a matter such as the removal as a Chief Justice and the information would
assist in ensuring public confidence in the process as well as fair trial
considerations. "May I please ask that my request be placed before members of
the tribunal for their decision on disclosure. "I look forward to hearing "Kind
regards "Anne Schofield." Anybody who wants a full copy of the text can apply
for a copy to Clifford Chance. I would like to know if counsel for the parties
have any observations which they would like to make about this application.
MR EADIE: My Lord, we have none.
LORD CULLEN: Mr Fitzgerald?
MR FITZGERALD: My Lord, the Chief Justice has never suggested there's any cause
to doubt the propriety of the appointment of either my learned friend Mr Otty or
of Clifford Chance, and we are entirely neutral. It is a matter in the
tribunal's hands.
MR WHITE: We have no representations.
LORD CULLEN: Thank you very much. We will give our decision to the application
on the application later. Now, Mr Otty.
MR OTTY: My Lord, as you have seen, today the evidence will be from Mr Caruana
and from Mr Rhoda. Can I just mention before asking Mr Caruana to come forward,
three other procedural matters. Firstly, the timing for tomorrow's hearing. It
is proposed, and there is no objection from the party and the stenographers, to
start tomorrow morning's hearing at the early hour of 9.00 am to catch up for
the time lost last week. Secondly, the question of transcript references. As all
will be aware, the transcripts contain two page references, one internal
numbering and one a number at the foot of each page. It is proposed that for
ease of reference and consistency, all parties use the internal electronic
numbering. Thirdly, there is, as the tribunal will be aware, a fourth witness
statement from Mrs Schofield which was received yesterday which contains within
it the potential for further disclosure requests relating to the PAYE, or maids
issue as it has been called. As to that, I have invited Mr Fitzgerald and
Bindmans to consider that statement and discuss with me the appropriate course
forward and whether any further documentation should be sought at this stage.
My Lord, with that out of the way, I would like to ask Mr Caruana –
LORD CULLEN: I think we would want to make sure that whatever time we do take
tomorrow, we have appropriate breaks for the stenographers. We will try to work
out what a sensible break or breaks in the morning will be.
MR OTTY: Certainly, my Lord. Mr Caruana, can I ask you to come forward, please?
CHIEF MINISTER PETER CARUANA (sworn) Examination-in-chief by MR OTTY
MR OTTY: You will find open, I think, in front of you a bundle E open at tab 5A
which has your witness statement in it. Do you see that?
A. Yes.
Q. You will also find at tab 8A of that bundle a set of submissions placed
before the tribunal by Mr Garcia. Do you see that?
A. I do, yes.
Q. Now, first of all, as far as the witness statement at 5A is concerned, it is
obviously a recent document. Can you formally confirm that its contents are
accurate?
A. I believe them to be entirely accurate, yes.
Q. Thank you. Now, as far as the Government submissions at A are concerned, I
would like to just clarify with you, if I may, the process by which the
submissions were prepared. Mr Garcia said that he went through -- he described
the process in the following way. He went through the files and drew out what
appeared to be relevant material based upon the documentary record. Thereafter,
Mr Montado, as he put it, put flesh on those bones and prepared a first draft.
And after that, you went through the draft prepared by Mr Montado and amended
and added to it. Is that a correct summary of the course of events?
A. It is not incorrect, but I think it would have been a fuller account to say
that I very substantially added to it. In other words, there are large chunks of
that document which were penned by me and then after I had finished, others
wrote other bits of the document, but I am certainly willing to be held
accountable for the content of all of it. It is a statement submitted on behalf
of my Government with my approval, much of it written by me. It represents the
position of the Government as the Government wished it to be represented, and it
was simply placed before the tribunal by Mr Garcia as the senior civil servant.
Indeed there are paragraphs in it which make it clear that Mr Garcia is not the
author of it.
Q. Yes. Don't trouble about that for now. You say that after you had added to it
and revised it, others input into it. Who were those others?
A. Members of the Government's legal team wrote more technical summary sections.
Q. I see. It's fair to say that you are to be regarded then as its principal
author?
A. I am perfectly content to be regarded as that and it is in great substance
true.
Q. Thank you. I would like to ask you one or two detailed questions about the
particular events that the tribunal is concerned to investigate. The first of
them that I wish to ask you about, in chronological sequence, arises out of the
visit by you to the Registry of the Supreme Court in December of 1999. Now, you
became Chief Minister in 1996; that's right. The Chief Justice was appointed in
March of 1996. Did you visit the Registry in 1996, at the end of the year?
A. I don't recall. I assume so, and I have no distinct recollection now of doing
so or not. I believe that I have visited the Supreme Court Registry every year
that I have been Chief Minister.
Q. Now, you may be aware that Mr Bossano, who was your predecessor, has said
that he did not visit the Registry during his time as Chief Minister, and that
he is supported in that by the recollection of Mr Mendez and to a large extent
by the recollection of Mr Garcia. Why did you decide to visit the Registry
yourself as Chief Minister?
A. As a new incoming Government, I was advised that that is what Chief Ministers
did, a list was placed in front of me. I don't remember who asked for me to
visit the Registry, if it hadn't been on the list, I don't know if the tribunal
has had explained to it how that day happens. There is a long list of places
that I have to visit, and the Supreme Court Registry and indeed the Magistrates'
Court Registry are simply two items on that list that I get pushed around for
the whole day basically, from one place to another. How it got on the list, I
don't know. But I would have been most surprised if it had not been on the list
because I certainly would have wanted to visit it, and I knew that Sir Joshua
Hassan used to visit it. Whether Mr Bossano used to visit it or not, I neither
knew nor regarded it as relevant.
Q. Can you remember who provided you with that list?
A. It is provided by my office. I don't know who actually in the office, but
there is a timetable, 20 minutes here, 20 minutes there at such and such a time.
I think it all starts with breakfast somewhere in one of the offices. I don't
know.
Q. We don't in the papers before the tribunal have a copy of that list. Would it
still be in existence or not?
A. It might be. It might be. It might be in existence. But certainly we can find
out.
Q. Thank you. The next area I wanted to explore with you is one you've dealt
with in your witness statement. That is the question of consultation of
Government in relation to judicial appointments. If you turn in your witness
statement you dealt with this at paragraphs 24 to 32 of your statement.
A. I wonder if the tribunal might indicate to me whether it would be all right
if I consulted my own copy of it which is slightly larger.
Q. It maybe easier for all concerned, Mr Caruana, if you could refer to the one
in the bundle and then we will know we are all on the same page.
A. Yes. But subject to doing that, is there any --
LORD CULLEN: If it is just the size of the print you are talking about, is that
right?
A. Amongst other things, yes.
LORD CULLEN: I am not quite sure what you mean by amongst other things.
A. Well, it is just for the purposes of refreshment of memory. There are some
bits which are marked in the Government statement. I don't know whether that's
right or wrong.
MR OTTY: I think, Mr Caruana, we wouldn't want it to be suggested -- Mr
Fitzgerald certainly wouldn't want to be in a position to suggest that you were
prompting yourself in any way from anything written down on a draft you have had
a chance to mark up. So it might be simplest if we work from --
MR EADIE: My Lord, if I may say, if one of the reasons that the witness wants to
refer to his own copy is the size of the print -- it is a very substantial
document and I imagine his evidence is going to last some time -- he can't be
disabled from doing that.
MR FITZGERALD: My Lord, we have no objections if the Chief Minister wants to
refresh his memory from the big copy.
LORD CULLEN: Thank you very much.
A. I will try to do is as little as possible.
MR EADIE: It may be as well to make clear that the document Mr Otty has just
referred you to is your statement rather than the Government's statement at tab
5A.
MR OTTY: Yes, tab 5A.
A. Yes.
Q. Do you see paragraphs 24 to 32 you address the subject of the consultation in
relation to judicial appointments?
A. Yes.
Q. Now, you have also attached to your witness statement a number of documents
relevant to this issue. You see those running on on the internal pagination at
the foot of the witness statement and the documents attached. You see those
running on from page 10 onwards?
A. Yes.
Q. Those documents, it is a fair summary, appear to reflect some discussions and
agreements between the Governor or former Governor and the former Chief Minister
in respect of the extension first of a contract for the stipendary magistrate.
We see that at page 11.
A. Yes.
Q. Mr Pizzarello. We see some form of discussion and agreement apparently
reflected in relation to the extension of the then Chief Justice's contract, Mr
Justice Kneller, that is page 12. Then at page 13 we see reference to clearance
with the Chief Minister of the selected list of Justices of the Peace, JPs, at
page 13. Is that a fair summary of those documents?
A. It's a fair summary of these documents, and these documents are themselves
only a sample. As the Chief Secretary, the previous Chief Secretary has said in
the statement, the Government's files going back to the early 1980s are replete
with incontravertable evidence of this practice. These documents that I have
appended to my statement are simply a sample. I could have added many more which
I have not done because they reveal views about individual applicants or
individual candidates and I thought it best just to give those that don't.
Q. When you refer to the statement from the previous Chief Secretary, that is Mr
Montado?
A. Yes.
Q. Is the statement you are referring to that of page 14, the press release?
A. Yes. Yes, indeed.
Q. It's the last --
A. He said it publicly at the time.
Q. It is at last paragraph there you must be referring to. Now, we also have in
the last of the run of that documentation a letter from you dated 12 May 1997.
This is page 15 where you express some surprise to Lord Luce at his failure to
consult you prior to the appointment of two Justices of the Peace. Now, is it
fair to say that your position as at 97, the time you were writing to Lord Luce,
was that you expected to be consulted to at least some extent in relation to
judicial appointments?
A. No, I don't think that was the position as a new -- I had been in office --
it was almost on my first anniversary. I had first been elected on 16 May. I was
sitting in my office during the lunch hour working, and I was listening to the
lunchtime news to the radio, and it suddenly came up, as an item of news, that
the Governor had appointed, I think, two -- but the number may not be accurate
-- new Justices of the Peace, and it just occurred to me that it was odd that
this could happen, and that the Chief Minister would discover this in a small
place like Gibraltar on the news. So I asked the Chief Secretary, is this usual,
or isn't it? I had been in office for 12 months. And he clearly advised me, and
then confirmed that in a written minute, that this was not the case; that this
was a departure from the established practice, that previous Chief Ministers had
indeed been consulted on judicial appointments and of course unless invited to
do so by you or by a member of the tribunal or indeed Mr Fitzgerald, I don't
feel it necessary to explain what the concept of consultation means. It is not a
joint stake in the decision-making process. It is precisely what the word means
in the English language. And when he told me this, I wrote in this letter to
Richard Luce, to the Governor, as he was at that time, on the basis of advice
that I had received from the senior civil servant, that this was not in keeping
with very long established practice, going back to the early 80s, and my letter
to the Governor, I think, is in that vein.
Q. I see. You referred to the Chief Secretary having written a minute prior to
you writing that letter. Is that minute, so far as you are aware, still in
existence?
A. I don't recall saying that the minute was written prior to the letter. He
confirmed it in the minute and the minute is certainly on the file. I have seen
it. I am very happy to produce it if the tribunal would want me to.
Q. At all events, after the position had been clarified for you by Mr Montado,
and after you had written this letter to Sir Richard, as he then was, it was
your expectation that you at least be consulted to some extent prior to any
judicial appointments being made or judicial contracts being extended?
A. And indeed I have been. In other words, since this incident which was an
aberration brought about, I now believe we understand why and how, that the
practice restored to its original -- and I was consulted on subsequent -- JPs,
in other words the Governor, I don't know if the tribunal has been told yet, the
Chief Minister meets weekly at lunch with the Governor and we discuss things of
general public interest or importance, and the list of proposed appointees gets
run past me, do you have any comments, in fact all the comments that I have had
is I think they are all jolly good appointments. I have never objected to
anybody, expressed a negative view, even though I was being invited to. So the
practice post this incident was restored to what the Chief Secretary had advised
me it was before this incident.
Q. Yes, I understand that. Now, as you are aware, one of the issues relating or
one of the issues that the tribunal is investigating relates to the
circumstances of the renewal of the Chief Justice's contract, both in 1999 and
also in 2002. So as I understand it, consistent with the practice you have just
described, in February or prior to February 1999, when the Chief Justice's
contract was first renewed, you would have been consulted by Lord Luce to some
extent in relation to that renewal; is that right?
A. We had many discussions. I have had many discussions with almost all
governors about issues relating to matters affecting the Chief Justice. And
certainly the question of his contracts would have arisen. Except of course in
the context of the fact that when his first contract, and I am using the word
"contract" specifically, distinguishing it from tenure and warrant -- the
question of the contract became itself a little bit controversial because of
course he declined to sign a contract after the first three-year contract term,
if you like, expired. So I certainly remember expressing the view to the
Governor that this was unusual, that contracts weren't just about security,
which was in any way guaranteed by the Constitution. It was about all manner of
other things, remuneration, and that I did not think it appropriate that there
should not be a contract, but it was left at that, and I believe a contract has
still not been signed beyond 99.
Q. Did you in 1999 have a view on whether it would be desirable for the Chief
Justice's warrant to be renewed?
A. I don't think I have had a discussion -- I say never. In this case, I would
like to put in a caveat. I would be surprised if the issue of warrants had ever
been discussed with me because of course warrant is something different. A
warrant is a matter -- it is the way that Her Majesty brings about formally the
matter which is previously been decided by others. So I don't think I have ever
been consulted, my best recollection of it, on the question of the warrant. Or
the length of it, even though I know that they have historically been
co-extensive with the contract.
Q. Aside from the fact that you thought it was appropriate that a contract be in
place, did you have a view as to whether the Chief Justice's contract should be
renewed in 1999?
A. Indeed, I was urging that there should be a contract because I do not think
it was appropriate that there would not shouldn't be a contract. Mr Otty,
despite all the conversations and -- Governors and Chief Ministers discuss
anything and everything which is of public importance. It's my evidence, it is
the Government's position, and I am repeating it here today: I have not ever
held the view that the Chief Justice's contract should be discontinued as a way
of removing him or shoehorning him or whatever word others use out of office,
and I have never -- despite the fact that as the record shows, the Government
has been very unhappy with some of the Chief Justice's conduct over the years,
that has never been converted into an objective or any attempt towards an
objective to securing Derek Schofield's remove as Chief Justice of Gibraltar
until the Government's position has been cleared now very recently in the
context of the 06 and 2007 issues.
Q. You are well aware of the allegation that was raised in, amongst other
places, the Chief Justice's witness statement in his judicial review
proceedings. He has said that Lord Luce told him that you, the Chief Minister,
had made representations that his "contract" not be renewed?
A. That is not the case, Mr Otty, and the Chief Justice has never said anything
to me that made me believe that he thought that I had been machinating for ten
years to remove him from office. It is not the basis upon which we have
conducted a relationship on many issues over the last ten years. I believe -- I
don't know to what extent I am free to express opinions, perhaps I shouldn't. I
think it is a self-serving construction erected late in the day, indeed it
doesn't arise, this whole notion that the Government in general and the Chief
Minister in particular had a long standing ambition to remove the Chief Justice
and that he was hounding him out doesn't really emerge in any recognisable place
until Mrs Schofield says it, I think I am not good on dates, 2006, or 2007, in
the context of all these things that start appearing in the press. In the ten
years before that, I had no idea even that the Chief Justice thought or rather
that he thought that this was the case, and the relationship simply didn't
reflect the view that suddenly emerges in 2006 or 2007 for the previous ten
years I am supposed to have been embarked on this --
Q. Just pausing there, Mr Caruana, and dealing with that point, do you have core
bundle 1 in front of you. It should be in one of the bundles standing up
directly in front of you.
A. Yes.
Q. Core bundle 1, rather than bundle 1?
A. Sorry.
Q. It is slightly confusing, I am afraid. Now, if you turn in that to page 208?
A. These are big numbers at the bottom?
Q. Yes, bottom right, in bold.
A. Yes.
Q. We have there a letter from the Chief Justice to the then Governor, his
Excellency, the Honourable David Durie, where this matter of the renewal in 1999
is addressed to some extent. Do you see the third paragraph there?
A. Sorry, is that the letter dated 3 September?
Q. I am sorry, no, it is not. It is dated 8 October 2001. Page 208, using the
bold numbering in the bottom right-hand corner?
A. I beg your pardon. Yes, I have it now.
Q. This is, as you see, dated 8 October 2001. And referring to a meeting that
has taken place in September of 2001. In the third paragraph, it says: "In the
period leading up to the expiry of the last warrant of appointment, I recall
that the then Governor, Sir Richard Luce, called me to a series of meetings
suggesting on a number of occasions that I consider and reconsider my position,
only to have to admit at the end of the day the Chief Minister had made
representations that I should vacate office." Now, have you ever seen this
letter before?
A. Not before the material for this tribunal started to flow past my desk, no.
Q. I see. So it wasn't raised with you at the time --
A. No.
Q. -- by the Governor?
A. No, and I have not spoken myself to Richard Luce about this, but Richard
Garcia has, and Sir Richard's recollection is that this conversation didn't take
place, and that I never made any such representation to him, which is indeed my
recollection.
Q. Yes. Lord Luce's statement is in the E bundle, and it's absolutely right to
say that -- this is tab 12 in the E bundle, paragraph 15. He has said there in
the last two sentences that he can't recall the verbatim details of his
discussions: "... suffice it to say the Chief Minister never sought to undermine
my sole responsibility to decide on the Chief Justice's contract and that I
renewed the contract."
A. Yes.
Q. So far as recall, you never made any suggestions at all to the effect that
the Chief Justice's contract should not be renewed or his warrant not extended?
A. I have never made any observation or submission because it has never been my
position that Derek Schofield should be removed from the bench and certainly not
for any of the reasons at the time that the Government was unhappy with him
about. But there have been occasions where we have believed that his behaviour
was not what the Government would have expected of him.
Q. Now, you also indicated that you were entirely unaware of any suggestion of
an attempt to hound the Chief Justice from office prior to 2006/2007. There is a
reference to such an attempt, albeit that it appears to be suggested that the
British Government rather than the Government of Gibraltar was at the heart of
it. If you turn to this larger bundle, the A4-bundle in front of you, behind the
microphone?
A. Yes.
Q. Page 164 in that bundle.
A. Sorry, is it in one of these?
Q. Page 164 if you use the numbering at the bottom centre of the page. It is tab
4.
A. I have it, thank you.
Q. Now, this referred to or followed the renewal of the Chief Justice's warrant
in 2002, some three years later. Do you recall this incident attracting press
attention at the time?
A. I do.
Q. Did you understand there to be any suggestion that your Government was
involved in some way in seeking to undermine the Chief Justice's position?
A. I would have to re-read this article. There were so many articles being
written.
Q. As I say, it is right to say that this article deals specifically with the
position of the British Government and you won't find reference --
A. I know that at one point Mrs Schofield wrote to the foreign secretary, and it
is not my recollection that she was in that letter complaining about any acts of
the Gibraltar Government.
Q. Thank you. Now, I should ask you the same question in relation to the renewal
of the Chief Justice's warrant in 2002. Did you have any consultation or
discussion with the Governor at that stage?
A. Mr Otty, my recollection is that the subject of warrants as opposed to
perhaps contracts was governors would not expect to discuss warrants. The Chief
Justice is in office until the age of 67, and therefore the question of warrants
is mechanical.
Q. We know in 2002 the Chief Justice was offered a one-year warrant of
appointment as opposed to the three-year warrant he had been provided with
previously. Do you recall any discussion about that change in the rationale for
that change?
A. No. Nor was I aware of any of the correspondence that I am now aware from the
bundles were being exchanged between the Governor and the Chief Justice on that.
Q. Thank you. I would like to move forward, if I may, to the events of 2006 and
2007 and deal firstly with the question of the draft Constitution. Now, the
chronology in relation to the process leading up to the draft Constitution is
helpfully summarised in the Government's submissions. I don't understand it to
be controversial. If you go to the Government submissions at tab 8A in the E
bundle, which had your statement in, the first bundle we looked at?
A. Yes.
Q. If you turn there to paragraph 12.7, page 78, using the numbering in the
bottom centre of the page?
A. Yes.
Q. You see the chronology there, and it starts, as we see, with the approval of
a motion to review all aspects of the Constitution in July of 1999. And then it
runs through the establishment of a Select Committee, and the invitation of
representations in 1999, receipt of representations, Select Committee report in
2002, and then negotiations -- this is 12.7.5 -- between a cross party
delegation representing Gibraltar and the United Kingdom, and then the receipt
of representations from the Chief Justice, first of all in March 2005, and then
a response by you to the Chief Justice in January 2006. Now, you will find the
text of it is set out there, but it may be easier to look in core bundle 1 at
the actual letter. You will find your letter dated January 2006 in the bundle at
page 334 in core bundle 1.
A. Yes.
Q. You refer to the process that's been undergone to that point, and you refer
to the Chief Justice's representations of March 2005, and you attach a schedule
setting out the recommendations made by the judiciary at the various positions
under the existing Constitution and under the proposed new Constitution, and the
delegation's position, and you refer to ongoing negotiations with the United
Kingdom. In the last sentence of that letter, you say -- this is page 335: "I
will of course let you know as soon as it becomes apparent what is the likely
outcome of the negotiations with the United Kingdom as they affect issues
affecting the judiciary." Now, picking up the chronology from there, as I
understand it, a draft Constitution was substantially agreed in around March of
2006.
A. The negotiations concluded in March 2006 with an agreed text which was at
that point still subject to the approval of the British Government whether at
cabinet level or Secretary of State level, but although there was an agreed text
between us, it was subject to HMG's chop at higher level.
LORD CULLEN: Can I ask at that point: was it also subject to any approval by the
Gibraltar Government, or was it only the matter of the final say-so of the
United Kingdom?
A. No. As far as the Gibraltar Government was concerned, it was -- the text was
settled.
SIR JONATHAN PARKER: The text was, sorry?
A. The text was settled, and that's right. I think it's -- you have referred me
to the chronology.
MR OTTY: Yes.
A. And the date of publication of course of Gibraltar's aspirations in the form
of a draft new Constitution that we were going to try and obtain from the United
Kingdom in our negotiations with them, had been in the public domain since I
can't remember, 2000 -- I can't now remember exactly. It is in the chronology
that you referred me to, when the Constitutional -- when the Select Committee
reported to the House, and the House then approved unanimously the -- because
the way the Select Committee had done its work is not a series of aspirations.
It had actually gone through the current Constitution, marking amendment, and
then attached to the Select Committee's report there was actually a new text of
the Constitution in the form of a marked up version of the old one, and that
document, which was Gibraltar Government/opposition/house aspirations, had been
in the public domain for many years and it has to be said that the Chief Justice
not only declined to participate in Gibraltar's own domestic process for
developing its Constitutional reforms, never responded or reacted to what we
wanted in our Constitution as was published in that form, and even in March, the
letter to which you have just --
Q. March 2005?
A. Even in March 2005, the Chief Justice was still ignoring the Gibraltar end of
it. That letter was not addressed to the Government of Gibraltar. That was the
addressing the British Government through the Governor. It is part of the
problem here that until he tries to rope us in after it is too late from our
perspective, he had been studiously refusing to participate with all local
mechanics. That is how we saw it.
Q. Just pausing there, he did send you a copy of his representations to the
United Kingdom.
A. He did, absolutely. And even though they were not addressed to us, because we
had seen them in copy and because he was the Chief Justice of Gibraltar, and we
did think, even though we had already closed our negotiating position that as
Chief Justice of Gibraltar, his views were worthy of taking into consideration,
he reconvened the delegation, late in the day, after the negotiations with the
United Kingdom had already begun on the basis of a text that had been out there
for two years, and we went through each one of the Chief Justice's
recommendations.
Q. And that is what led to your letter of 9 January?
A. Absolutely. I instructed the Chief Secretary to go through our proposals, to
go through the Chief Justice's recommendations and to draw up this matrix which
would show up where our proposals were different from the Chief Justice's ideas,
and the delegation sat, and we went through them one at a time, and those that
were accepted were accepted unanimously, and those that were not accepted by the
Gibraltar delegation were not accepted and everyone --
Q. Mr Caruana, just to fix for everyone's reference, the March 2006 date as
being the end of the process as far as the Gibraltar end was concerned --
A. It was the end -- can I just interrupt you in case I may have said something
that is not strictly accurate, it was the end of the process so far as the
process of the Constitution. There were then still outstanding political issues
about whether the United Kingdom was going to be willing to include a clause
about recognition of our right to sub determination, I think it was, or whether
our referendum would constitute an act of self-determination. There were broadly
political issues in relation to the text of the dispatch, which is the covering
letter under which the Foreign Secretary sends the Constitution. But there was
in terms of the text of annex 2, it was settled.
Q. Just for your reference, and if you would like to just look at it, core
bundle 1, page 376, we have what is part of a letter from Hassans written in
August 2006 on behalf of the Chief Justice. As part of that letter, Hassans set
out what they understand to be the chronology. At page 376, paragraph 12, it is
said: "On 20 March 2006, the Chief Justice telephoned the Deputy Governor
seeking a copy of the final draft. He was told that the draft was complete and
on the Foreign and Commonwealth Secretary's desk and he would be able to obtain
a draft once it was made public." So if that summary is right, it appears that
as far as the negotiating parties on both sides were concerned, the draft was
complete and simply awaiting the Foreign Secretary's approval?
A. That was certainly the Gibraltar Government's understanding.
Q. The question I had for you arising out of that chronology goes back to page
335 of core bundle 1, where you say in the last sentence: "I will of course let
you know as soon as it becomes apparent what is the likely outcome of the
negotiations with the United Kingdom as they affect issues affecting the
judiciary." Now, on the documentation we have, it does not appear that there was
any further communication between you and the Chief Justice at any stage between
this letter -- I am sorry, any communication from you to the Chief Justice at
any stage between this letter and the press release announcing the publication
of the draft Constitution in July 2006. Now, do you consider that you abided by
that undertaking in the last sentence on page 335?
A. It appears that I omitted to give him the good news, because I don't know
whether the Chief Justice interpreted that paragraph otherwise. I had understood
it to mean the outcome of the negotiations in respect of the points that we were
now going to take to the negotiating table arising from the matrix itself
arising from the Chief Justice's submissions in March and all of those that were
acceptable to the Gibraltar delegation -- not the Gibraltar Government, the
Gibraltar delegation which was cross-party. All of those were accepted by the UK
Government and incorporated into the text of the document. So there was no
shortfall in the Gibraltar delegation's position to report back to him. It is
true that there were one or two points which arose in the negotiation and were
settled in March. From January to March, it all moved very quickly, and there
were then some points which the UK wanted to write in which had not been in his
original submissions, and which had therefore not been in the matrix and which
came out in the negotiation, and of course he hadn't been consulted on those
because they were not -- they just emerged in the negotiation as it went
forward, and I think that one of the difficulties that was gotten into in that
matter is that I think the Chief Justice, and it is now clear from some of the
statements that has made in the context of this tribunal that I think that that
is what he felt at that time that he was somehow entitled to a stake as a third
party in the negotiation. He wasn't just a consultee.
Q. Just pausing there, Mr Caruana, can you recall what the specific issues that
arose between January and March 2006 were upon which the Chief Justice was not
consulted?
A. I think there were three. They are summarised. I think his description of
them in some of his letters is not disputed, article 50 something of the
Constitution, and there was one that he was particularly exercised about, about
the exceptional circumstances in which the Governor could disregard the advice.
I think that was something 3. So there were three points there which had
emerged. Indeed that point, interestingly, was something that the UK insisted on
as a quid pro quo for giving us some of the other things that we wanted and that
the Chief Justice wanted achieved in the matrix. The United Kingdom's position,
I don't personally agree with it, and as I think I said to the Chief Justice in
the letter, the Government of Gibraltar had no requirement for section 50 --
what number did you say it was?
Q. 57.3?
A. 57.3. It served no purpose of the Gibraltar government and we could have
perfectly done without it. But the UK Government took the view that we were
still an overseas territory of the United Kingdom and it was not willing to have
even no residual ability to protect the administration of justice in Gibraltar
from an aberration decision. During the negotiations from memory now, I think
they used the example of something being known about -- let's say that the
Gibraltar Judicial Services Commission recommended a particular individual for a
particular post, the UK Government or the security services or somebody might
have known something about them which they were prevented from sharing with the
Commission.
Q. I understand.
A. But there was a veto right, and it was not a power, and this we did
negotiate. I have to say that the United Kingdom's first draft of that purported
to reserve unto themselves the Government's right to act in their discretion,
and we declined to accept that. We said one thing is a veto right and another
thing is for you then to be, having exercised your veto, to erode the need for
the role of the Judicial Service Commission, by purporting to implement your own
view. That was a red line issue for us in the negotiation.
Q. I understand. One last matter I would like you to comment on which relates to
the Judicial Services Bill of 2007 which followed the Constitution. Two matters
arising out of this. If you could turn to core bundle 2 which is in front of
you. By all means clear the decks.
A. Okay. You carry on, Mr Otty. Thank you.
Q. Core bundle 2. Page 1112.
A. Yes.
Q. Paragraph 29. There it appears to be suggested, both here and elsewhere, that
you provided the consultation paper to the Chief Justice at a time when you knew
it would be particularly inconvenient for him to respond to it because he was
about to go on holiday. I wonder if you could comment on that suggestion?
A. That is wholly untrue, and the contemporaneous letter that I wrote to the
Chief Justice does not, nor any of his replies to that letter, suggests any such
view of my bad faith on the Chief Justice. He thanked me, in his reply. I don't
know if the tribunal is aware of how this arose. We were having a dinner at the
Governor's house. I think it was on the occasion of a visit by the Court of
Appeal. I commented to the Chief Justice -- I do not know if it was pre or post
dinner social conversation -- that the Government was almost ready to put out
the consultation paper on the Judicial Service Bill and he said "Oh dear, I am
going on holiday", and I said "Don't worry, I will try to get it to you in
advance." That is the first I knew, and I think he has now accepted that, I
think, in his fifth witness statement he does say that he accepts the Minister
may not have known about that before.
Q. Now, it is also suggested in relation to that conversation in the Chief
Justice's opening submissions to the tribunal --
A. I beg your pardon. I haven't -- I am not the first person of whom the Chief
Justice has said that. In connection with the Constitutional debate, having got
his lawyer to write to us during the summer vacation, imposing a September
deadline for a response, when we write on or around that deadline, I think he
then accuses the Deputy Governor of taking advantage of the fact he was in
Canada.
Q. Don't worry about that. We will explore that with the Deputy Governor. Going
back to the conversation you had with the Chief Justice that you were just
referring to, at which you learnt that he was about to go on vacation, and you
discussed the consultation paper, it's also been said in the opening
submissions, filed by the Chief Justice before the tribunal, that you told him
that he had nothing to worry about in the draft. Now, at that stage, as we now
know, the draft did presumably include the particular provision at section 6
providing that the president of the Court of Appeal would be president of the
courts of Gibraltar. Do you recall that?
A. Well, I recall the president of the courts of Gibraltar. I do not recall
telling him that he had nothing to worry about. It would not concern me if I had
said that, even though I can't recall having said that. It was then my view, and
it remains my view, that he has nothing -- the Judicial Services Act contains
nothing that he ought to have been concerned about because it does not alter the
role or function of the Chief Justice in the context of the judiciary and the
courts of Gibraltar. That was the Government's position at the time, and remains
the Government's position. We profoundly disagree with the case that he then
built in complaint about the effect of the Act. Indeed, our view was that far
from diminishing the functions of the Chief Justice, it increased them in the
sense that it gave him this right to petition Ministers and Parliament directly
which he had never had before. So we didn't see the Judicial Services Act as
diminishing. The concept of the president of the Courts of Appeal came to us
from the criminal -- not the criminal, the UK act -- the Constitutional Reform
Act which creates the figure of president of the courts. The tribunal may have
noticed that there are large -- significant bits of the Gibraltar Judicial
Services Act which are inspired from and indeed in some respect plagiarise bits
of the Constitutional Reform Act. That is what it was. The Chief Justice had
this view in his mind that he was some sort of Constitutional head of the
judiciary. The position of head of the judiciary, whatever may have been
people's casual view of it, did not exist under the old Constitution or in any
legislation. And the role of president of the Court of Appeal -- as far as we
were concerned, and for the reasons stated in our consultation paper, we were
creating something new. They were creating in statutory framework for the first
time ever, an office with a name and a title which was the pinnacle, and we said
the logical place to put it is the most senior judge of Gibraltar's most senior
domestic court. That is what it was, and everything else is conclusions that the
Chief Justice chose to come to, and that is a matter for him.
MR OTTY: Thank you, Mr Caruana. Mr Fitzgerald will have some questions.
Cross-examination by MR FITZGERALD
MR FITZGERALD: Chief Minister, can I just indicate broadly the areas which I
would like to cover with you to assist yourself and the tribunal. The first one
is just a general overview of the history. Secondly, I want to take you to our
challenges to certain statements in the Government's submissions, and finally to
the question of whether steps have been taken from time to time by yourself or
by the Government here to encourage him to resign. Those are the three issues I
wish to cover with you. The first, just if we can look generally at the start,
you have accepted that you are in effect the author of a very large proportion
of the submissions that we have?
A. Yes. I think the word "accept" suggests a degree of postponement. As far as
we are concerned, it's clear from the face of the document that it does not
purport to be the statement of Richard Garcia.
Q. Right. So you claim authorship of a large part of it in that case?
A. Absolutely.
Q. Yes. Obviously it expresses the view in the conclusion that he is guilty of
misbehaviour and satisfies the test of inability. That's your view?
A. It is my personal view and it is the Government's position, both.
SIR JONATHAN PARKER: Mr Caruana, I appreciate entirely why you are looking at Mr
Fitzgerald; if you could just turn a little bit this way I can hear you.
A. I will, sir.
MR FITZGERALD: So that is your view and that of the Government. Now, when did
you first decide that?
A. Well, it's -- these things are an evolutionary process. It's clear that from
1998 onwards there are events in relation to Derek Schofield's charge of the
functions of Chief Justice with which the Government was deeply unhappy. But if
you ask me when the Government took the view that it had been pushed over a
certain line, and you may not, and I am sure will not agree, but the Government
actually thinks that during many of these years the Government was actually
exercising, as is its obligation to do, considerable restraint in its public
handling of some what we thought to be pretty provocative events, politically
damaging, electorally damaging to the Government. We nevertheless kept our
statements to a minimum and then always as undramatic as possible. If you ask me
when did the Government believe that the views reflected in the statement -- in
other words that the game was up and I think the public interest of Gibraltar
required Derek Schofield no longer to be Chief Justice of Gibraltar -- very
difficult to pinpoint. But if you forced me to, I would say that the beginning
of that terminal process was probably Anne Schofield's statements in relation to
-- I can't remember the exact month or year. I think it was 2006 or 2007 about
the hounding and the trying to hound us out of office and all the things which
she was saying to the Kenyan jurists and the Bar Council and all that, about the
Chief Minister trying to do this and trying to do that.
Q. Will you talking about February 2007?
A. For example. That was the beginning when the Government started to say this
is getting very serious, and that is the beginning of the process when the
Government felt this is beginning to cross bounds of what society at large and
the Government at large ought to be expected to tolerate.
Q. So --
A. Then if you ask me what sort of concluded that process, I think it was Derek
Schofield's witness statement in which for the first time, although the
Government of course had believed it from the beginning, and we said so in our
recusal application, that we thought it wasn't possible to distinguish so
clinically the position of Mr and Mrs Schofield. It was actually confirmed in
his statement when he actually swore a statement in his own court, openly
accusing the Government of using executive and legislative means to remove him
from office. At that point I think the Government decided that this is it. One
of us has got to go. Our system of governments, both in the UK and in Gibraltar,
are simply not designed or built to withstand this degree of antagonism in the
public domain between two important pillars of the State, and accordingly that
was probably the Government's recusal application, and Derek Schofield's witness
statement were probably the point, if you insist on my fixing it, at a precise
point in time when the conclusions reflected in that statement probably had
their genesis.
Q. The Government's recusal applications you have referred to were of course
made in May of 2007. Are you saying that at that stage you took the view that he
was incapable of discharging the functions of the Chief Justice?
A. Well, no. Mr Fitzgerald, I have tried to give you -- you have asked me a
question which is not capable of precise answer and I have tried to give you, as
helpfully as I can, the period in time and the events in time during which the
Government's and my own views crystallised. The recusal application is what it
means. The Government by then had formed the view that Derek Schofield could not
sit in judgment against the Government having manifested publicly that degree of
hostility and antagonism toward the Government. Now, it was probably also my
view, although I wasn't pressed to have to articulate it, that if he can't sit
in judgment -- if in the Government's view he can't sit, obviously the courts
never adjudicated on the recusal application; I don't know what view the courts
would have taken of that issue. But if he couldn't sit in judgment over the
Government, then in practical terms, it is difficult to see how he could stay in
a jurisdiction have this size with only two judges as Chief Justice.
Q. It is right that if you form that view in May 2007, you didn't do anything
about it, did you, apart from the recusal application, you didn't join in an
application for his removal?
A. The Government's behaviour has been consistently that throughout. Whatever
the strength of our views about Derek Schofield's behaviour at the time, we have
never initiated any remedial action until the Governor, prompted by others,
decided to convene this tribunal and suspend the Chief Justice in the meantime.
Q. Well, you would accept that May 2007 is before the Judicial Services
Commission reached its decision that this matter should be -- and made its
recommendation that this matter should be referred?
A. Absolutely.
Q. Yes. So if the Government had reached the view by May 2007 that he was
incapable of acting as a judge --
A. Against the Government.
Q. Yes. Incapable as acting as a judge generally; is that your view?
A. No, May 2007 is the recusal, is it?
Q. Yes.
A. The recusal is that he can't act as judge against the Government. That is
what the recusal application --
Q. So you were perfectly content for him to act as a judge in other cases --
A. Are you asking me now?
Q. Yes: were you in May 2007 perfectly content that he should continue to act as
a judge in other cases?
A. The Government didn't actually form a view. It was not the Government's
position that it would bring about the removal of the Chief Justice of
Gibraltar. That was the Government's position. Happily, I don't know whether
events had not taken the course they took, the Government might have been forced
to abandon that position because by now the position was getting indefensibly
serious, and the situation, as it affected the judiciary at that time could not
have continued. Something would have had to give, and that might have led the
Government to do what I have just told you it had not thitherto done, that was
itself to seek the removal of the Chief Justice, when the Government had already
taken the view that it could not sit in judgment over it.
Q. Was that view that you have described yourself as having in May 2007 --
A. Sorry, which view?
Q. The view that he could not sit in any case involving the Government?
A. Yes.
Q. Was that view shared by the Attorney General and by the Chief Secretary?
A. I don't know.
Q. Well, presumably you discussed it?
A. No. You know, the Government in litigation, how the Government chooses to
conduct itself in relation to litigation is a matter of policy decision for
ministers. It is not the system in Gibraltar that that sort of judgment is made
by the Attorney General or by the Chief Secretary, which is not to say by the
way that they did not agree, but certainly if your question is: did you seek the
Chief Secretary's or the Attorney General's tick or views, I don't recall
whether specifically. I would be very surprised if they were not aware. Indeed,
now I am speaking dangerously because it is really just from the gut, but it may
even be that the Attorney General was involved in the recusal instructions but
you will have the opportunity to ask him that.
Q. That's correct?
A. Yes.
Q. Can you just assist us on this? Before that day -- that is to say May 2007 --
you didn't yourself question his ability as a judge or his performance in court?
A. No. The Government's position up to that point has never been based on
whether he is capable of giving a correct technical judgment. I mean, all judges
get overruled on appeal beyond the normal risk of that, the Government has never
had the view that he is a bad judge in that sense. Of course, there is more to
being a good judge than that.
Q. Well, your principal remarks, if I can put it this way, Chief Minister, is on
his extra judicial activities?
A. Absolutely, yes.
Q. And the head office --
A. Well, can I just -- please, if you are willing to give me the opportunity to
qualify that.
Q. Of course?
A. It depends how you read the opening of the legal year speeches. If those are
judicial actions of a judge, then we do have grave objection to that aspect. As
is clear from our statement, we take grave exception to the accuracy of many of
the statements that he was making in these speeches, and on which he was basing
what we regard was his unjustified campaign against the Government. So his
speeches from the bench on the occasion of the legal year is a judge function,
then of course we do criticise that.
Q. I am talking about his performance in court --
A. Inter partes.
Q. -- in deciding cases?
A. When I was in legal practice before him, which was for about a year, I then
used to do a lot of work in Admiralty, and I used to get a lot of my rulings in
judgments, which is most lawyers' idea of what a good judge is.
Q. So then looking back from that, you have had this experience of a conflict
about the speeches that he made in the openings of the legal year. And you have
identified certain tensions with the Chief Justice at key periods. 1999 to 2000,
2006, and then 2007 over the Judicial Services Act. Is that fair, just
summarising the history, those are the key periods?
A. Have you added the Constitution to that?
Q. Yes, the Constitution is 2006.
A. I see. You are just going by years, not by issues.
Q. The issues are 1999 to 2000 was the dispute about the opening of the --
A. Yes, I recall that the denial or delay of funding points and the consultation
on judicial appointment, yes.
Q. Then in 2006 there is the Constitution issue, leading to his speech in
October 2006.
A. Correct.
Q. And then finally there is the Judicial Services Act, to certain provisions of
which he took strong exception?
A. Yes, and our difficulty with that extends to the handling of the consultation
process and indeed to his subsequent challenge to the Act itself.
Q. I appreciate that is your objection. But just looking at that overall
history, there were quite long periods, were there not, with perfectly normal
regulations -- that is to say between 2000 and 2006, with a short exception of
the brief crisis about the renewal of the warrant, there was a period of what
one could describe as perfect normality in terms of --
A. Well, precisely so, Mr Fitzgerald, and that is the reason for my previous
evidence that I could not understand this idea that is now propagated in the
Chief Justice's documents and this tribunal that there had been some sort of
machination going back to 1998 since which time I am alleged to have been
seeking his removal precisely because, as I said when Mr Otty was leading me,
that that was not the nature of the relationship as it has unfolded. Sure, there
have been incidents, and you have described them.
Q. Yes.
A. But from that to now trying to create the impression that the Government is a
sort of a serial attempted remover of the Chief Justice, going all the way back
to this 1999 discussion with Sir Richard Luce and since, is just not borne out,
and it is not borne out by the very question you have just asked me, with which
I agree. There was instances of tension, but between those instances of tension
there was complete normality and friendship of relation. Indeed, in the
Government's statement, since I don't want to open it because it's marked, there
is this paragraph, the number of which I don't now remember, perhaps you can
help me with it, in which we try to give a quality of the flavour of the
relationship within those periods of peace and love where the Government was
doing the opposite things that you would expect.
Q. I think it is 19. I am afraid I will have to take you to that.
A. All right. That -- I am not -- those are not listed there for any reason
other than to try on illustrate the Government's general proposition that this
broad canvas that is now painted --
Q. I think it may be 13.9.4?
A. -- of 11 or 10 ten years' worth of guerilla warfare is just not sustainable
to the events as they have happened.
Q. I regret I will have to come on to that, but it is 13.9 where you give a
number of instances of as it were -- you say it is good treatment of the Chief
Justice?
A. I am not saying that it is good treatment of the Chief Justice. I am saying
it is not treatment of the Chief Justice compatible with the view that we were
at daggers drawn with him, and which I think is the underlying premise of your
last question to me, that there were long periods of complete normality of
relations.
Q. I am trying to explore, Chief Minister, the areas of agreement between us
before I come on to --
A. The areas of disagreement.
Q. I think you have fairly accepted there were these long periods of normality?
A. The Government doesn't deal in periods of normality. The Government deals in
issues and events.
Q. Okay. But nonetheless, you have accepted that that description --
A. Absolutely.
Q. -- is a correct description?
A. The relations between the Government and the Chief Justice had been normal,
save whatever incidents the chronology of events revealed.
Q. Right. Can I just indicate this, or invite you to accept this, that all the
debates between yourself and the Chief Justice in 1999 about the opening speech
in 6 about the Constitution, and in 2007 about the contents of section 6 of the
Judicial Services Act, those are all been about matters which are properly
described as judicial matters?
A. Yes. Mr Fitzgerald, the Government -- I think I have made it perfectly clear
in our statement.
Q. I wonder if you could just accept whether that is true or not and then --
A. I don't mind answering the question.
LORD CULLEN: I think Mr Fitzgerald is quite right. I would like to know the
answer to the question followed by an explanation. Don't stint yourself as I
would like to know what your explanation is.
A. Thank you. The underlying subject matters, subject to accuracy of statement,
may have been of legitimate interest to a judge properly concerned to protect
the independence of the judiciary, which I believe, and I have believed it since
I have been a young lawyer, is an obligation, not just a right of a judge,
subject to being accurate and truthful in the statements that you make in
support of an attack on an executive, judges, I believe, ought to have the
courage to defend the independence of the judiciary, however inconvenient or
uncomfortable that may be. But they have an obligation to use that as a last
resort, and not as a first resort, and to do it properly, within the bound of
proper judicial comment, having first ensured and been very careful about the
accuracy of their statement, and my principal complaint about the Chief
Justice's 1999 speech, is not that he should have put up a public marker about
what he might have -- you know, judges are free to defend the judiciary in
public, even if it means saying things with which the Government does not agree.
But I was shocked beyond description that these issues should have emerged as a
first resort in public in that way, without the Chief Justice ever having
thought that the proper way to deal with this alleged interference with the
judiciary and its funding would have been simply to raise the matters with the
government directly and as a last resort, if the Government persisted then to
have flagged it up publicly, and I have to say that this practice of going
public before going through the conventional private phase first is systemic in
Derek's system of conducting himself, not just in this issue, but on the
consultation, the existence and the non-existence of the consultation practice.
The logical thing I would have expected would have been for Derek Schofield to
pick up the phone and say to me, or one of his officials to one of my officials:
the Government has just put out a press release saying that there has been this
longstanding practice of consultation. Is the Chief Minister absolutely sure of
that, because somebody has told me this, or somebody has told me that and I
doubt its existence. No, straight away a statement contradicting the accuracy of
the Government's statement. Similarly, also, in respect of the letter of August.
He writes to me on the Constitution. He knows by his own admission -- he says it
in his statement -- he knew at the time that I was on leave. That didn't prevent
him from putting that letter in the public domain before I could possibly have
had a chance to read it, let alone consider or reply to it, and he does the same
in relation to the Judicial Services Act consultation process.
LORD CULLEN: Mr Caruana, I think you will have to remember that there is a
question which was asked for which the answer is required. I appreciate that you
have gone on to a number of matters that went well beyond what Mr Fitzgerald was
asking.
A. I apologise.
LORD CULLEN: Please try and focus on the question and answer it yes or no with
whatever explanation is necessary. Remember it is not an opportunity for a wide
extensive exposure of your views. We will come to those no doubt in due course.
It will help us all if we could concentrate on the question.
A. I am obliged.
MR FITZGERALD: These comments were all about judicial matters, weren't they?
A. The subject matters to the extent that they were correct related to judicial
matters.
LORD CULLEN: Mr Fitzgerald, we have a period of normality and we will have a
break of 15 minutes. (11.43 am) (A short break) (12.01 pm)
LORD CULLEN: Yes, Mr Fitzgerald.
MR FITZGERALD: Chief Minister, I want to move on now to the certain statements
that have been made in the submissions of the Government. So this is the second
of the topics. Can I invite you to start by looking at .1 at page 152 of the
internal pagination. This is of your submissions.
A. Is that in core file 1?
Q. I think it is actually in bundle E at 8A.
A. Thank you. Yes. You are referring me to which paragraph?
Q. 152 of the internal pagination in the middle, 1.1?
A. Yes, I have it, thank you.
Q. Now, I just remind you that it contains the heading "Hassans Legal Fees and
MOT Case", and the first sentence is: "It is it is widely stated in Gibraltar
that the Chief Justice has never paid the professional fee note and
disbursements of Hassans for his legal representation in this manner, having
asked them to waive it." Did you write that yourself?
A. Yes, indeed.
Q. And the fee note is said to be in the order of £29,000. So you included that.
That was based simply on gossip, wasn't it?
A. The inclusion of that which is not an allegation of the Government itself was
making, but information in the possession of the Government which the Government
was bringing to the attention of the tribunal, well, it depends how you define
gossip, Mr Fitzgerald. It is information in the airwaves, that the Government
was aware of. I believe it was generally commented throughout the legal
profession that the Chief Justice was being represented pro bono, and --
Q. It was generally said that he was represented pro bono?
A. Yes.
Q. Is that --
A. That is -- well, I understand that the information in the possession of the
Government was not -- that there was a fee note, although that is not correct,
even though that is what was the information that was reaching the Government,
it appears now that there was no fee note, that is true.
Q. If the information from the legal profession of which you yourself were a
member was that the lawyers acting for him had acted pro bono, what business of
yours was it to put in a suggestion that there was a specific fee note in the
order of £29,000?
A. Well, Mr Fitzgerald, in the Government's view, the question of whether there
was actually a bill, a piece of paper, invoice, was not the issue.
Q. What was your source for the statement that there was a fee note of £29,000
in existence? What was your source?
A. Well, I can't tell you what the original source of the information was
because I don't know it. But, you know, suffice it to say that we were made
aware of it and that this is not information even on this non alleging basis
that was put in without the best -- well, not the best. Clearly it wasn't the
best, but without some degree of verification about whether fees had been paid
or not, although I accept that the statement that there was an invoice issued as
opposed to the separate issue of whether fees were being charged or not, that
that is incorrect information in the hands of the Government.
Q. So you had incorrect information which you put, and then you said that if
true, it is a very serious issue of impropriety?
A. The very serious issue of impropriety in the Government's view is not whether
an invoice had been raised which had not been paid. The serious issue of
impropriety which if it were true would be serious in the Government's view was
that a Chief Justice in a small two judge jurisdiction should be represented --
should receive free services effectively from lawyers who are amongst the most
frequent appearers in their courts. That is the issue. That was the issue in the
Government's mind, although I understand that the articulation of it --
Q. Just look at?
A. I accept --
Q. A professional fee note has not been paid which is believed to be in the
order of £29,000. Where do you mention anywhere about it is commonly said that
he was acting pro bono, that the lawyers were acting pro bono?
A. Yes, but, Mr Fitzgerald, the essence of the confusion is not that he is a bad
debtor. I mean, that is not the Government's views. The essence of the
Government's position, were it true -- what the tribunal was being invited to
look into to see if it were true is not that the Chief Justice doesn't pay his
bills. It's whether he was accepting free legal -- the Government takes the view
that that would have been serious. The tribunal may have taken a very different
view. These are issues under other issues --
Q. Where do you mention anything about free representation there? Where do you
mention anything about free representation in any of that paragraph?
A. Mr Fitzgerald, I think it is implicit in it, but can I just repeat if this is
--
Q. Correct me if I am wrong?
LORD CULLEN: Let him finish.
A. Mr Fitzgerald, this is the information that the Government received. It may
have been incorrect information, but this is it which the Government received.
The Government was not converting it into an allegation of its own, indeed was
not assuming the truth of it. It was simply saying to the tribunal: this is what
we have been told, we think you should enquire, because if it were true, which
is hardly the language of somebody making an allegation, it would in the
Government's view be serious and therefore you can ask me as many questions as
you like. I do not make myself responsible for the accuracy of that information
because it is not information that the Government is saying is accurate. It is
information -- no, no, hang on. It is information that the Government was saying
had reached it, and that is indeed the information that had reached the
Government, true or accurate or inaccurate.
MR FITZGERALD: Can I just ask you two questions and perhaps you can try and
answer them a little bit shortly. Did you check the contents of this allegation
about a fee note for £29,000 with Hassans before including it in .1 and
suggesting very serious impropriety? Did you check it?
A. Mr Chairman, can I have some guidance from you on this? As I understand it,
this is no longer an issue before the tribunal. It has been raised as a matter
of credibility on the Government's part. I understand that your Lordships have
decided that you do not wish -- this is not in the statement of issues and
therefore given that it is not a Government allegation, I would ask the tribunal
to be relieved of the source of the Government's information for checking it. It
was checked. But I fear that if I reveal openly in respect of an issue which is
not before the tribunal any longer, identities, this could have disruptive
implications for people within Hassans. Now, Mr Chairman, there were
conversations held through which the Government was able to establish that fees
were not being paid. This is the -- but if Mr Fitzgerald wants me to say whether
we had explicit confirmation from within Hassans that there was a fee note
issued and raised which had not been paid, the answer is that the Government had
no such confirmation from within Hassans. But by the same token it would not be
true either to say that even in this limited way, the Government threw this into
the statement without any degree of whether this was complete fabrication or
whether there was some issue about the fees.
LORD CULLEN: I am just going to say something about this. You obviously answered
the question Mr Fitzgerald put to you, but at the same time voiced some
concerns. We will see if those concerns arise as matters develop. But in the
meantime, Mr Fitzgerald will no doubt bear in mind that this no longer being one
of the issues for us to consider, its relevance can only be in regard to
questions of reliability and credibility of some other aspect of your evidence.
So he can no doubt bear that in mind if he seeks to pursue that.
MR FITZGERALD: I am obliged, my Lord. I am afraid, my Lord, it is simply to the
issue of credibility.
LORD CULLEN: No doubt you will link it to something else, as it were, within the
evidence of Mr Caruana.
A. Perhaps -- I have already said to you, Mr Fitzgerald, that this is not the
Government's allegation.
MR FITZGERALD: All right.
A. And it is not placed before the tribunal with the Government asserting it as
fact.
Q. All right. Can I invite you to look at bundle A, if you have it there, at
300.045B?
A. What numbers would I be looking at?
Q. 300.045B?
A. Where?
Q. You have to go to tab 11 and then go on. 300.045B.
A. The 045 being the little numbers after the full stop?
Q. Yes.
A. That is fine. Yes.
Q. You see the statement there. This is signed personally by all the partners at
the bottom?
A. Yes.
Q. In fact, this firm took the view that --
A. Where are you reading from?
Q. Sorry. It is right at the bottom of page 300.045B, the first page. You see:
"In fact, this firm took the view that in the representation of the Chief
Justice, we should agree to act as one would for a fellow member, without
charging him a professional fee." Do you accept that that is the case?
A. Do I accept the fact that they said it in their letter of 13 March? Yes.
Q. And do you accept?
A. Do I accept that it is the case?
Q. That that is the case, yes?
A. That they said it?
Q. Well, you accept that it is written because it is written.
A. Yes.
Q. But do you accept that that is the truthful situation?
A. Are you asking me whether I think that taking the view that we should act as
one would for a fellow member of the Bar without charging a professional fee
that that is a proper position? I don't understand your question.
Q. Did you accept that they did not charge a professional fee for their
services?
A. Well, it became clear on 13 March that they hadn't, and that they thought
that that was fine.
Q. Now, that was something -- that is to say whether or not they had charged a
professional fee for their services -- which you could have checked with them,
isn't it, before including this statement?
A. Before including...
Q. 19.1?
A. Before flagging up the issue as one about which the Government had
information? Yes.
Q. Yes.
A. It is not an allegation by the Government.
Q. You could have checked with them: is there in fact a professional fee for
£29,000 unpaid before putting in that suggestion?
A. Well, I have just indicated, Mr Fitzgerald, that there was some checking
about whether fees had been paid or not.
Q. Well, can we go on to 19.9?
A. Yes.
Q. 19.9, you include the statement lobby for partnership for his wife, "The
Government has been informed" does that mean you personally have been informed?
Are you the source?
A. Well, I don't know if other people in the Government were aware. I certainly
was aware.
Q. You wrote this, didn't you?
A. I wrote this, yes.
Q. And the person who had been informed was yourself; is that right?
A. Yes, but I just don't want to give the impression that I was the only -- I
don't know who else in the Government knew. I certainly knew and therefore I
wrote it.
Q. So the only person who could take responsibility for that statement as the
Government has been informed that Mrs Schofield saw the partnership is yourself?
A. I take responsibility for everything in this statement, Mr Fitzgerald.
Q. And do you accept that in fact, as confirmed by Hassans, she never sought a
partnership?
A. Apparently not. It was something called a permanent position as opposed to a
partnership. So the information was slightly wrong.
Q. You then say: "The Government has also been informed that the Chief Justice
personally intervened with Hassans to lobby." What was your source for that
claim? The Chief Justice personally intervened with Hassans to lobby?
A. This is what I was told, and this is what in subsequent discussion with
Hassans and the circumstances of my discussions with Hassans on this point are
set out in the letter to which they reply and which are attached to my
statement, he did indeed intervene, whether someone chooses to describe it as
lobby, or not, the point of my statement -- look, this is an issue which the
tribunal, Mr Fitzgerald, has already decided it doesn't wish to investigate. In
your April representations, when the tribunal first convened here in April, you
launched a tirade against the Government based on this paragraph 19.9 that it
went to the core of the Government's complete credibility.
Q. That is absolutely right.
A. And the Government immediately wanted to know whether it had been told things
that were completely untrue or whether in fact the attack on its credibility was
launched, not on the basis that there was no truth in what the Government was
saying, even though it was not saying it in the language of its own allegation
even, but rather that was some interpretive -- you know, it was not a
partnership; it was a permanent position, and it was not lobbying, not because
he didn't approach, but because those whom he approached chose not to interpret
it as lobbying. It very quickly transpired that it was the latter and not the
former and the Government, even in those circumstances, was more or less minded
to let it pass and would have let it pass had you not repeated the allegation in
your opening submissions. When you repeated your allegations in the opening
submissions, the Government said: fine, if the Chief Justice wants to put in
issue the Government's credibility on this issue, we wish to return to the
conversations that we had already started with Hassans to clarify the proper
interpretation of their letter of March, and the outcome is reflected in
Hassans's response to that letter which clearly shows that the Government's
information, which it had put into the paragraph 19.9, albeit not as its own
allegation, was not precisely correct in that she had not applied for a
partnership, and therefore the statement that he has not lobbied for a
partnership for her must be true because if it wasn't a partnership application,
there can't have been lobbying for a partnership, but that there was an
application for "a permanent position within the firm" and that whilst the firm
was considering that matter, the Chief Justice on at least one, possibly two
occasions, extolled her virtues to a partner in the firm. Now, answer: is
everything in 19.9 correct? Obviously not. Do the facts warrant the use that you
sought to put them to in April in opening submissions? In my much determinative
view, it does not. That is a matter for the tribunal.
Q. Would this be right, that you accept now that there was no question of any
partnership?
A. No, I think -- yes, no partnership; permanent position.
Q. That when we read the words "personally intervened", you had no basis for him
personally intervening to lobby?
A. I was not alleging personal intervention. I was simply informing the tribunal
that the Government had been told this and that the tribunal should investigate
it because if it were true, it would, in the Government's view -- look, the
tribunal may take a different view even of that -- it would have been serious.
That information, that the Government had received, was not accurate as to the
precise words used, but in essence it was not as inaccurate as you have made use
of it and it is certainly not inaccurate enough for you and the Chief Justice to
say that it is entirely without foundation and entirely untrue. It is certainly
not totally true, and it is certainly not totally on all fours with the facts as
they happened, and, you know, somewhere in between the two lies the reality.
Q. Chief Minister, can I just ask you this final matter? The source for this
claim contained in 19.9 is said to be the Deputy Governor passing on something
that the Governor had told him; is that right?
A. No, that is not what 19.9 says. 19.9 does not say that it is the Deputy
Governor was the source.
Q. No, you say that in your later statement, that the source of this was
something the Deputy Governor told you.
A. No. I think I said, or I hope I said, that it had been checked with the
Deputy Governor. The Deputy Governor was not the source. The Government knew
this. It had been told this, and rather than throw it in, even on a non-allegative
basis, without checking it, it was checked. Part of the information that had
reached my ears was not just what is in 19.9 but that indeed this had been a
conversation between a partner in Hassans and the Governor about it. So I picked
up the phone, and I rang up the Deputy Governor, the Governor in question
obviously no longer being with us.
Q. Who is the Deputy Governor?
A. Philip Barton.
Q. So you checked it?
A. Let me just answer the question. I rang Philip Barton and said the Government
has been told this. Do you know anything about it? And his reply was, Chief
Minister, I wasn't present at the meeting, and therefore I cannot confirm that
it took place or indeed what might have been said in it, if indeed it did take
place. But I can tell you that the Governor at the time told me at the time that
he had had precisely such a conversation with a senior partner in Hassans. And
that is -- and he also told me that the Attorney General had also heard about
this. So when I put the phone down, I rang up the Attorney General and I said:
Ricky, this has been suggested, this information has reached the Government. Do
you know anything about it? And he went on to confirm it to me in not dissimilar
terms.
Q. And so --
A. Alleging a different source, not the Deputy Governor, and therefore, although
neither of those is forensic as to whether the conversation between the partner,
that they could both have been misinformed by the two different people by which
they had been informed, this nevertheless was sufficient in my view to at least
writing it in in the terms in which it was written, not --
Q. You are saying that you checked all this before you wrote 19.9? Before you
wrote 19.9?
A. I think it was checked before the statement was submitted, I believe.
Q. So you had confirmed suggests that they had confirmed it before you included
19.9?
A. Before the statement was submitted with 19.9 in it. I think that is the case,
yes.
Q. You have said that in your statement. You say the Government did not raise
this recklessly and without foundation. The Deputy Governor had confirmed -- not
has now confirmed, but had confirmed -- that the Chief Minister that the
Governor at the time had informed him.
A. I don't know whether --
Q. Well, it is important if we are going to --
A. My recollection now is that it took place, yes, before the statement was
submitted. That is my recollection.
Q. Right. I want to move on, if I may, to the 1999 speech which has been the
subject of your representations, and to take you to 3.3 at page 25 at the
bottom. This is in the Government's statement at 3.3. Now, the context is the
speech which you have set out the relevant passages of at pages 23 to 24. That
is the speech of the opening of the legal year.
A. Mm-hm.
Q. Now, we of course now know that there were two instances that he intended to
refer to, one being the denial of funding to attend a seminar on the Woolf
reforms, and the other being delay because of a dispute about consultation in
the funding of judicial appointments of stipendary magistrates as part-time
magistrates.
A. Sorry, are you asking me to agree with that? I do not no, I don't.
Q. We now know that that is what he was referring to?
A. No, we now know that he was referring to an instance of denial of funding and
an instance of delay in the release of funding and we do not agree that the
recruitment of -- the new model for the recruitment of magistrates was an
instance of delay in the release of funding at all. We do not accept that.
Q. You dispute that, but I am just trying to establish that that is what he
intended to refer to by these passages?
A. That is what he has said, yes.
Q. Now, as to the first -- that is to say the denial of funds by the Government
to attend the seminar on the Woolf reforms -- do you accept that those funds to
attend the seminar on the Woolf reforms were denied by the Government?
A. I accept that at the time that they were requested they were not provided. I
do not accept that those facts were made proper use of in the context in which
he alluded to them in his speech at the opening of the legal year.
Q. You accept that there was a request for funding to attend a seminar on the
Lord Woolf reforms?
A. I accept that there was a request towards the end of the year, and that
funding was not provided. I do not accept that in the context of the even draft
Latimer House guidelines that the use to which the Chief Justice sought to put
that instance in the context of the Latimer House guidelines even constituted a
breach of the draft Latimer House guidelines to which he was referring. I do not
accept that.
Q. Do you accept that the reason given for that refusal was that the Woolf
reforms were not relevant to Gibraltar?
A. There was a letter written which I think said not sufficiently important at
this stage of the year, funds have run out. I can't remember the exact wording
but there is a letter to that effect.
Q. Do have a look if you want. It is at volume 10, tab 71, page 3610. 361112 is
the actual refusal. So at tab 73: "The Government does not consider that the
subject matter of this conference is of sufficient value to Gibraltar at this
stage, and funds cannot be approved for this purpose. Please note that funds are
now fully committed." Do you see there --
A. I do, I do, yes.
Q. It is right, isn't it, that you later accepted that the fund should have been
granted for that?
A. No, I don't. I later accepted in a Parliamentary debate that it would have
been better if the funds had been granted if it had avoided this, in the
Government's view, relatively inconsequential matter that did not justify the
problems that it subsequently went on to give rise to. If you had told me before
the incident this is what is going to happen if you don't provide the funds, the
Government may have made a greater effort to provide the funds. But it is very
different to agreeing that the decision not to provide the funds was improper. I
have never accepted that. But certainly if it had avoided the to-do that
happened, I just wish the funds had been provided, and there would have been one
highly damaging event less.
Q. If you would like to look at core bundle 1, page 130 on the dark pagination
at the bottom?
A. Yes. What page number would you like me to go to?
Q. Page 130 at the bottom of the core bundle.
A. 113 or 130? The Hansard.
Q. Yes, page 130.
A. Mm-hm.
Q. You say there, if you can see, it is about 12 lines down: "With hindsight, I
think it would have been a much better decision to have allowed him to go to
this conference." Is that right?
A. I can't see, but I am happy to accept you are reading accurately.
Q. With hindsight?
A. Whereabouts is it? I am happy to accept that you are not misreading.
Q. I am obliged. It is about ten lines down to the left-hand column on page 130.
You probably see the word Gibraltar just above it, and then "With hindsight".
SIR JONATHAN PARKER: The line begins "Actually entail, with hindsight I think".
A. What is the page number?
MR FITZGERALD: It is page number 130 at the bottom.
A. I am there. On the left-hand side. Ten lines from the top: "With hindsight",
I see it.
Q. It would be a much better decision to have allowed him to go to this
conference, but perhaps if the Government had been fully informed about the
Woolf reforms then and now, the Government might have made the decision to allow
supplementary funding; is that right?
A. Yes, that is what I said.
Q. And it's right that he had in fact drawn attention in the correspondence
before as to the importance of the law reforms if one goes back to tab 71, one
has the Chief Justice being asked to give a reason, and he says: "Lord Woolf has
put forward proposals for a complete overhaul of the system. I understand the
changes are imminent. The English Judicial Studies Board is holding a series of
seminars to familiarise judges with the proposed new procedures. The Chief
Justice has managed to secure a place. He considers it vital that he attends."
So he identified the relevance and importance of those to Gibraltar, and asked
--
A. The people who have to understand the relevance and importance of it are the
people who are being asked to provide supplementary funding late in the stage of
a financial year action and certainly even I, and I was a lawyer at the time,
had no understanding whatsoever about what the Woolf reforms were, and what the
implications of them were for Gibraltar. And this is another of those examples,
Mr Fitzgerald, where if this were such a big issue in the Chief Justice's mind,
why didn't he raise it with me privately before making this use of it publicly?
Why didn't he approach me or himself directing somebody else, not just the
Registrar's letter, explaining -- you know, I don't understand. This is one of
the examples I gave before which are in breach of the subsequent guidance given
by Mr Chair of straying outside of the realms of the answer to the question. Mr
Fitzgerald, the Government does not object to the Chief Justice, or any judge
for that matter, complaining that the Government has denied funding because if
the Government -- the Government must always be willing to stand by, justify and
defend its decisions. But the Government believes that between pillars of the
State there are conventional and proper ways to go about business, and if this
was to important to the Chief Justice, and if he was planning to make or thought
it was so important that he would have to speak to it publicly, I think just my
opinion, but I feel it very strongly, that it is not proper or conventional for
the Chief Justice not to have gone further and directly raised the matter. He
appears to have raised it with the Governor, but look, he must know that the
Governor does not control the purse strings in Gibraltar, that the purse strings
are controlled ultimately by the Chief Minister, who is also the Minister for
Finance. So I don't know what transpired between them. Obviously quite a lot
because eventually I think the funding was provided by the Foreign Office.
Q. By the Foreign Office?
A. By the Foreign Office. But, you know, this is the issue. This is one of the
things that the Government felt aggrieved about.
Q. Well, I appreciate that that is a question of the way in which it was
approached, but what I am putting to you is he had a legitimate complaint that
on a matter which through considerable correspondence he had identified as
vital, he had been refused funds on the basis that it was not of sufficient
value to Gibraltar.
A. I could agree with a slightly different version of that statement. I do not
believe that he had a legitimate complaint. I believe -- I am perfectly willing
to accept that he believed he had a perfectly legitimate complaint, but even in
those circumstances he ought to have gone about it differently. That is my view.
Q. Did you personally take the decision that this was not a matter of sufficient
importance to Gibraltar?
A. The decision was not taken in the context of the importance of the Woolf
reforms which nobody in the Government understood. The decision was taken in the
context of access to supplementary funding. Apparently the vote for this sort of
expenditure, conferences, I think, had by then been exhausted. I don't know if
it was November or December, anyway, the last third of the financial year, and
that's the context, I understand, in which the decision was made. In any event I
think the Woolf reforms were postponed. I don't know. They weren't immediately
applied. The committee was set up. The Woolf reforms -- the Government never got
stuck into the Woolf reforms. The Government had thought that the Woolf reforms
would eventually require some sort of legislation. In fact the Chief Justice and
the legal profession took the view that it didn't and that was that.
Q. I think it is right that the rules of the Supreme Court from England apply
directly here; is that right?
A. Correct.
Q. So if the --
A. No, they apply directly here, providing local rules and legislation does not
make a provision.
Q. And it was accepted that local rules and --
A. I am not criticising the provision that no local legislation would apply.
Q. So once this major reform came through in England, it had to be applied here?
A. Not necessarily, no.
Q. As a matter of fact it was interpreted that it did have to be applied?
A. No, that is the purport of the Supreme Court Act. The Chief Justice is free
to make for Gibraltar whatever Supreme Court rules he pleases, and indeed there
are Supreme Court rules in Gibraltar which I suspect are different from the
United Kingdom. The purport I understand -- this is not a matter on which my
evidence is required. It is there in the Supreme Court Act. My recollection from
many years ago in legal practice of the Supreme Court Act is that where there is
no local provision the Supreme Court Acts -- the White Book as it was then
called, I understand it is no longer called that -- apply. But that is very
different from saying that Gibraltar has to have the Woolf reforms just because
the UK has them. Gibraltar could have decided not to go anywhere near the Woolf
reforms, I think it would have been unwise, given the amount of thinking that
went into creating the Woolf reforms, as I subsequently discovered, but
certainly they were in no sense mandatory or obligatory on Gibraltar.
Q. Now, can I move on to the next, which is the question of funding for the
judicial appointments? Can I just ask you to look, if you go on a little bit
further, one sees --
A. In this Hansard report?
Q. No. I think the Hansard can be put away for the moment. Can I ask you to go
back to bundle 10, I think, it is, which you were on?
A. Yes.
Q. Do you see there there is talk about funding of the proposals?
A. Sorry, where?
Q. I am sorry. Tab 89?
A. Yes.
Q. In volume 10. Recruitment of stipendary magistrates?
A. Yes.
Q. "The Chief Justice is pleased that funding is available for the proposals he
suggests and will discuss the way forward". Now, the proposals were for
part-time stipendary magistrates to be employed to, as it were, assist in
dealing with the workload, and build up a new --
A. I can't recall the exact one, but if those are your instructions about the
purport of the proposals, I am happy to accept that.
Q. It was for part-time stipendary magistrates?
A. It was for some new way of servicing the needs of the stipendary
magistrateship and from recruiting people from the Bar to serve there.
Q. So it had been agreed, the funding, and one sees over the page at --
A. The funding was agreed almost immediately.
Q. Then 3630: "The Chief Minister has asked me to let you know the funding for
the proposals will not be made available until the Gibraltar Government has
agreed the way forward."
A. Correct.
Q. That was the way forward in terms of the recruitment?
A. Yes. That was in July.
Q. Yes. And then --
A. Government had agreed to provide the funding very much earlier within days of
the Governor raising it with me. I can't remember if it was April or May.
Q. But you were saying there won't be any funding until we have agreed on the
process of selection?
A. No, that is a simplification. The realities as it happened, Mr Fitzgerald,
are this: there has been a longstanding process in Gibraltar for the recruitment
of services to all officers under the Crown, and they are all by publicly
transparent process and contest. And indeed, that has been the case in respect
of judicial appointments as well. At the time that I accepted to fund the Chief
Justice's proposals, it had not been explained to me that part of his proposals
were that he personally should select who would go forward to the Governor for
this position. In other words, that he was the gatekeeper of who could be
considered for this process, and the Government said to the Governor: the
Government is not, without fuller discussion and fuller consultation, willing to
upturn decades of policy and practice in relation to the manner in which
officers under the Crown are recruited to it. And it was not acceptable to the
Government that the Chief Justice should be entitled to preselect himself which
members of the Bar could apply to the Governor for appointment to this model,
whatever the rest of it was. The rest of it was completely acceptable to the
Government.
Q. Is this right, that the Government wanted to control the appointment process?
A. Absolutely not. The Government in its administrative sense has always -- if
that is the meaning that you are putting the word "controlled" to.
Q. Yes.
A. The mechanics for the recruitment of officers, even the Chief Justice, as he
well knew, since he was corresponding with the personnel manager when he was
appointed, the mechanics of recruiting people to all public offices, including
judicial offices, are dealt with by the personnel department of the Government
of Gibraltar, which does not mean that the Government of Gibraltar or its
ministers have any stake in the decision-making process in terms of deciding who
gets selected and who doesn't. So if you mean was the Government insisting on
the long established process which was open tender, open application, response
to the personnel department, followed by the Governor's composition of his
boards which is how these things used to happen, followed by recommendations by
that board to the Governor, yes, the Government was insisting on the established
method mechanically of recruitment to judicial offices being maintained. It was
not acceptable now and it was not acceptable then to the Government for this to
become somehow a patronage of the Government, that he would decide who from
amongst the members of the Bar could put their name forward to the Governor for
consideration for this position. That is the totality of the Government's
position, and I believe it is not in the bundle, Mr Fitzgerald, but if the
tribunal wants me to, I will undertake to provide it to the tribunal. There's a
letter written to the Government which clearly says that the Chief Justice
expected to select himself the people that went forward, and that was the
dispute, and the Government said: until we agree the way forward on the
mechanics for the implementation of the model, the money is not available
because this is not the model for which my agreement to provide funding was
solicited and funded in the first place.
SIR PETER GIBSON: Wouldn't it be better to show the Chief Minister the letter at
3627 at volume 10?
MR FITZGERALD: Yes. I am obliged. One has the letter from 7 at tab 87, the Chief
Justice's suggestion that three or four local members of the Bar should be given
the opportunity. Do you see that, and: "I think therefore we should adhere
closely to the above procedure in order to speed up the process. It would
therefore be helpful if you would ask the Chief Justice to identify a list of
suitable candidates to be submitted under confidential cover to me. I will then
arrange for due process and consultation via to final selection." That was the
suggestion being made. I am obliged.
A. As a matter of mechanics, I am not aware of this letter -- I was not aware of
this letter at the time. As a matter of mechanics, that is correct. The Chief
Secretary was the person to whom the Governor did all these things, and that is
perfectly correct. That is not the letter to which I was referring.
Q. But that does suggest that the Government, if: "I think in order to speed
up." "If you ask the Chief Justice to identify a list of suitable candidates to
be submitted to me, I will then arrange for due processing and consultation."
That is to say --
A. Mr Montado has already -- I think there is a public statement from Mr Montado
about what the system for recruiting people to the judiciary are, and he
explains it. I think the position as always been that applicants address their
applications to the administrative machinery, which is part of the Chief
Secretary's organisation. That applicants address their applications to the
personnel manager of the government department which is one of the functions for
which the Chief Secretary is responsible. So, I mean, if I had read that at the
time I would not have been -- I agree that it could have been slightly
differently formulated, but even with that formulation, it is not inconsistent
with the practices as they were. And still are, by the way.
Q. By as far as the --
A. I say still are, no longer so necessarily since the new Constitution came
into place.
LORD CULLEN: I think it may be helpful for the purposes of completion if you
could provide the letter to which you had referred a little bit earlier,
assuming there is no other difficulty about it being produced I think it would
be useful to have it --
A. I am surprised if wasn't attached to the --
LORD CULLEN: -- added into this particular folder.
MR FITZGERALD: Chief Minister, I just want to move on. We know he made this
speech in which he identified -- he referred to the fact that there-one or two
instances where there had been a delay or denial of fund, and you are obviously
very aware of that statement.
A. That is not a question?
Q. No, no. You will forgive me. It is just a fact.
A. In circumstances where I knew what I have just explained.
Q. If you are unaware, please tell me. But that's what he said. Now, the initial
reaction of the Government was actually -- is this right -- in response to the
fact that the opposition then said this may be something about judicial
independence, and the Government put them right about that, if I can put it that
way, in a press release dated 15 October 1999, page 34 to 35. Do you see there
--
A. Sorry, where are you --
Q. Back in the core bundle.
A. The Government's -- my statement?
Q. No, I am sorry. This is the core bundle. So you can put away volume 10?
A. Okay. Core bundle 1?
Q. Yes, bundle 1. At page 34?
A. Bottom or top?
Q. The at the top of the press release.
A. What page of the bundle?
Q. It is page 34. Page 34 at the bottom. It's 9 and 10 at the top.
A. Thank you, yes. I have that. Thank you.
Q. Do you see the first paragraph: "The Government rejects Dr Garcia's call for
a public inquiry into judicial independence and roundly condemns his
misrepresentations into distortions. The Chief Justice has not suggested that
there is political interference in the independence of the judicial process." Is
this right, it was quite clear the speech had referred to the limited issue of
funding and had not suggested that there was political interference in the
judicial process in Gibraltar?
A. Well, Mr Fitzgerald, no. Look, the Government was quite upset about this
precisely because the language that he used was open to misinterpretation and
unnecessarily unspecific. If the Chief Justice had said there were two
instances, delay of funding, et cetera, one involved a training course and the
other involved the funding of magistrates, we would still have had the
objections to it that they were not fair statements. But we would not have had
the view that if the facts had justified it, then that would not have been
improper comment subject to my point that it was premature to go public about
it. But it was a coincidence that I was not in the gallery listening to this
speech, and if I had been in the gallery listening to this speech at the time, I
would have had a fit that this matter -- it is purely fortuitous that I did not
go that year to the opening of the legal year speech. This is an example of what
I am trying to explain to you earlier of the Government going the extra mile to
be -- to put out fires and not to pour oil on them, and not to pour petrol on
them. This is what a wholly self-serving, in the event unsuccessfully because it
did not succeed in satisfying the media or public opinion or political opinion.
The only man who could have put the fire out and chose not to do it was the
Chief Justice. I accept that we in a way that you now try to use against us,
were perhaps more responsible than perhaps the provocation that we had been
subjected to required us to be. But if you interpret that -- I did not think
that the Chief Justice was saying, you know, to us in that speech you have
interfered in the judicial making process.
Q. So it wasn't --
A. But the public, who was going to consume this speech, cannot be expected to
understand by the Chief Justice's words that this related to a training exercise
and a recruitment exercise, as all the public comment, all the press comment,
you know, I remember there was one line in the Gibraltar Chronicle which went
something like this: "The Chief Justice has opened Pandora's box and he should
not now play with the key." Or words to that effect. The Government's statement,
helpful as it was intended to be in not -- and obviously seeking to defend
itself as well because we did not believe that the Chief Justice was accusing us
of interfering with the freedom of the judges to come to their own decisions in
court, which is what most people understand by judicial independence. The
average layman understands by judicial independence the ability of judges to
come to decision without having politicians telling them what they have got to
decide. That is what the average layman understands by judicial independence.
Not only did he not clarify that, but his subsequent statements made matters
worse, intentionally, or unintentionally, I don't know. But it simply made in
that context matters worse and that is the position. But if you are asking me
whether I thought at the time that the Chief Justice was accusing the Government
of that form of judicial interference -- in other words, you know, what laymen
understand by it -- the answer is no. I did not read the Chief Justice's remarks
to mean that he felt that Governments were interfering with their ability to
come to independent judgments in the sanctity of their courts which is what most
people understand on Civvy Street by judicial independence, although I
acknowledge as lawyers that it means much more than that.
Q. And the first time that the Government asked to identify what the issues that
he was referring to were, was in the letter which we find at core bundle page 41
of October.
A. Yes.
Q. That's right, isn't it?
A. Yes.
Q. Do you see?
A. Yes, obviously the Government's position was that what we would have
expected, again, is for the Chief Justice to say: look, Government, you have put
out this statement, those are not the two instances that you have referred to,
not in a public war of press releases. The Government's press release was not a
challenge to the Chief Justice. He made these unspecified remarks. I instructed
people in my office to investigate what were the instances in which the
Government had denied -- these are the two instances. That is what the
Government believed in good faith were the instances that he must have been
referring to. Fine, so they were not the instances. What I would have expected
is for a Chief Justice to get his Registrar or to get himself to say, no, no,
look, Government, these are not the two instance. The two instances I had in
mind were these and these. There could have been no Official Secret Act
impediment to him doing so. But in fact, Mr Fitzgerald, we know that that was
not his animus, because we know -- I know now, although I have to admit that I
did not know it at the time, that I have now seen in the context of this
tribunal his instruction to say Mr Causer, and indeed Mr Causer's opinion, that
he was in belligerent mode. What he in fact said to Mr Causer in his
instructions to him of early November was: the Government is spinning. Why
should the Chief Justice have come to the conclusion that the Government was
spinning? Spinning tends to mean premeditatively putting a different complex on
matters for a self-serving reason. Why should the Chief Justice have come to
this conclusion?
Q. I would ask you if we could proceed by question and answer.
A. I was just going to finish, but not if you don't want me to.
Q. I will give you an opportunity to deal with this matter. The question was the
first time that you invited him to clarify the matter was in a letter dated 20
October, and that is right, you accept?
A. Well, yes, in response I believe, although I don't remember -- I am not very
good to chronologies and dates as you may have gathered already, in response to
his public challenge of I don't know what date, 18 or 19 October that the
Government had got it wrong. Why should we have asked for confirmation of the
reasons before then? We publicly tried to come clean with what we thought were
the unspecified reasons in order to downplay the controversy, and a few days
later, after he had gone out publicly saying that those were not the reasons and
there are legal impediments for me giving the reasons, we said: give us the
reasons?
Q. Look at the letter of 28 October in response to the first request from you he
I identifies through the Registrar what the two issues are.
A. Yes, that's correct.
Q. And is this right, in the meantime, without asking him, you, as we can see
from page 39, Government had suggested that the two instances were the costs of
attending international conferences and a limitation of entertainment expenses.
A. Are you testing my memory on chronology?
Q. No, page 39.
A. In other words, yes. I understand your question.
Q. Page 39?
A. We did not ask him before putting out our statements what we thought were the
reasons.
Q. Thank you. So you could be interpreted, could you not, as trivialising the
issue by saying this was all about the issue of attending international
conference and a limitation of entertainment expenses without first asking him
what are those two instances?
A. No, Mr Fitzgerald, I can't agree with you that the Government either on the
facts, the content or the tone of that statement, which were in no sense
aggressive or hostile or disrespectful or trivialising or minimalising or
rubbishing anything that the Chief Justice had said, I don't think that in those
circumstances it is reasonably open to the interpretation that the government
was spinning or trivialising. The two reasons stated by the Government in its
press release were the fruit of research by professional civil servants, most of
whom probably couldn't care less what my electoral prospects are.
Q. Well, I am not going to comment on that. The truth is the moment he was asked
by the Governor, he did identify what the two instances were?
A. That's correct, and I believe that is --
Q. In public correspondence, which is the right way to identify the specific
instances to the Government.
A. Yes. And I believe that that is what he should have done at the outset, and
before engaging the Government in aggressive public statements. That is
precisely one of the things that upset the Government. The Government did get it
wrong. What he ought to have done, and what I think any Government anywhere in
the world would reasonably expect of its Chief Justice is that if he wants to
take issue with the Government on something, that he should raise it privately
before going to war publicly. That is precisely one of the things that most
upset the Government about this entire episode.
Q. Can I put an alternatively view, which is that before you publicly speculate,
as you described it in Hansard, that this is all really about entertainment
expenses, you might have asked him privately before going on record what is it
about?
A. Mr Fitzgerald, you know, life moves quite quickly when controversial
political issues. The Government could have done that. I do not believe in the
context of the issues before this tribunal, that that is the relevant issue. The
relevant issue is whether the Chief Justice behaved as a Chief Justice can
reasonably be expected to behave. That is the issue before us, and it is not, I
believe, an answer, although of course that is not for me to decide, for the
Chief Justice simply to answer: you could have asked me earlier. The essence of
the Government's unhappiness is not that he declined to answer when asked. The
essence of the Government's unhappiness was that he chose to engage the
Government publicly unnecessarily in terms which he must have known would just
exacerbate the situation when he could have corrected the Government, and the
Government would then have done what it has done whenever he has put information
in our possession, which is itself to clarify. The Government does not accept
that there was any legal -- I think you should know that the Government does not
accept that there was a legal impediment even to him saying this publicly. But
certainly the Government does not accept that there was a legal impediment to
him having said this privately to it.
Q. Well, you do draw the distinction. Is this not right, that there is an
Official Secrets Act concern about going public about the specific instances
without first clearing it with the Government? You would have to say to the
Government, "Do you mind me mentioning this?"
A. No, I don't. I think that -- and frankly, particularly given the Causer
opinion is ex post facto -- in other words, by the time Mr Causer gives his
opinion, the two issues are already in the public domain. But anyway, leaving
that issue to one side, I am not the judge in an Official Secrets Act
adjudication. But if Mr Causer eventually advised, albeit after the event, that
to reveal a Government decision is in breach of the Official Secrets Act, an
issue with which, irrelevantly, I don't agree, but anyway, why didn't the Chief
Justice take the same view about revealing the Government's decision in the
first place? The Government's decision had been denial of funding, delay of
funding. I just don't see what the distinction is between revealing that the
Government has made a decision to deny funding and simply adding two or three
extra words to put it in context: don't worry, oh great people of Gibraltar, no
one is suggesting that we cannot independently dispense justice, because nobody
in Gibraltar would have agreed with the Chief Justice -- I am not saying
rightly, because of course there are many aspects of judicial independence, and
you and I as lawyers know that. But no one in Gibraltar would have been as
concerned as they were made to be by the Chief Justice's words if they had known
that the issue related to going to one conference in England and whether the
Government was willing to fund a novel recruitment process, the non-agreement to
which could not have undermined the independence of the judiciary. I mean, there
was the old system still available, and eventually it was deployed. So even if
the Government had denied funding for the magistrate business, which the
Government was entitled to do -- the Government is not obliged to provide
funding for the Chief Justice's novel recruitment processes. But anyway, even if
the Government said, "No, I don't approve of your model, I don't think this is a
sensible way to recruit magistrates, I am not funding it", why would that be a
criticisable threat to the independence of the judiciary? I just think
unfortunately insufficiently precise language was used, which sets hares
chasing, and obviously the opposition then wades in. But not just the
opposition; the press, which is not politically motivated, was also demanding
explanations and was also demanding it from the Government and the Chief
Justice, and then instead of helping the Government to put the fire out, he was,
as the Government sees it, although others may see it in a different way, as the
Government saw it at the time, he was standing over the flame with a petrol
hose.
MR FITZGERALD: I think it may be that my Lord will wish to adjourn at this
stage. Is it 1 o'clock?
LORD CULLEN: It is. Sorry, I hadn't realised. The time had flown. I was
following the hares and the fires.
MR FITZGERALD: My Lord, I am moving on.
LORD CULLEN: We will resume at --
MR FITZGERALD: I will endeavour to --
LORD CULLEN: We will resume at 2 o'clock. (1.02 pm) (The short adjournment)
(1.58 pm) Ruling
LORD CULLEN: Before we resume evidence, we would like to refer to the
application by Mrs Schofield that I mentioned first thing this morning. This is
our decision on that application. We have considered the application, including
the reasons given in support of it, and we have reached the view there is no
justification whatsoever for our directing disclosure as sought, and accordingly
the application is dismissed. In view of the implication which appears to
underlie the application, we think it right to say publicly that we are entirely
confident of the integrity of Mr Otty as counsel to the tribunal and Clifford
Chance as the solicitors to the tribunal. We are also entirely confident of
their independence in the performance of their respective duties, and of their
dedication to the interests of the tribunal in pursuing the investigation which
it was commissioned to undertake. We should add, lest there be any
misunderstanding, that the duties of Mr Llamas as secretary to the tribunal are
of a purely administrative nature, dealing with matters such as transport and
accommodation. That is all I wish to say about that application. Now, Mr
Fitzgerald.
CHIEF MINISTER PETER CARUANA (continued)
Cross-examination by MR FITZGERALD (continued)
MR FITZGERALD: Yes. Chief Minister, can I ask you just to look at two passages
on the matter of the Official Secrets and the reason for not disclosing the
particular instances or the details about them. Can I just take you, first of
all, to your 3.10 at page 29? I am going on the pages --
A. I am there, yes.
Q. You see you set out the Chief Justice is unable to give details of the two
instances until he has considered the legal implications of revealing the
contents of confidential files and you there say this statement was not true.
That is your choice of language, is it?
A. Correct.
Q. And then if we go on from there there is a further reference at 4.7 to the
legal impediment matter, and the Chief Justice repeated the second sentence in
at 4.7: "The Chief Justice repeated the ludicrous and untrue statement that
there was a legal impediment to his identifying the two instances to which he
had alluded in his speech." Can I just get this clear? Are you suggesting that
he was being dishonest or simply that his justifications were in your view not
good justifications?
A. Well, I am not sure it is for me to assess people's behaviour and decide
whether they are dishonest or not, but --
Q. You used the word untrue?
A. Untrue means inaccurate in the English language.
Q. That is all you were intending to say?
A. That is all I am intending to say there. It was in the Government's view
untrue. In other words, and I think elsewhere in the statement I think it says
whatever may have been in the impediment in his mind to saying so publicly,
there could have been no impediment to telling the Government privately he
didn't. We have views as well as to whether it was actually an impediment
reasonably in his own mind, but that is a different issue.
Q. Can I take those issues in turn. Do you accept that he did, when asked by the
Government, identify to the Government the two instances? That is October 20 and
October 22, the two matters?
A. Yes, when the Government wrote to him he gave the Government information
privately, yes.
Q. You accept as a matter of law there is a difference between disclosing
something to an authorised enquirer -- that is to say the Government -- and
disclosing the matters such as that, and the basis for the complaint publicly to
the world at large?
A. In a context where the Official Secrets Act is relevant, obviously one is
breach and the other isn't.
Q. Right. When you wrote those statements, is this right --
A. Well, privately, of course, it isn't, as long as it is to somebody who owns
the information such as the Crown. You couldn't say privately to somebody
outside the Government.
Q. Privately to the Government after request, publicly saying: I've got a
problem with that because of the Official Secrets Act --
A. That is not what he said.
Q. He makes it clear that he cannot identify the two instances, and indeed go
into the details of them, because of a legal impediment?
A. That is what he eventually said: his first -- you don't want me to help you
clarify this area?
Q. You go ahead?
A. No, I won't if you ...
Q. You go ahead?
A. His first reaction when asked by the Gibraltar Chronicle was words to the
effect -- the question that he answered through the Registrar, if the Chief
Justice had been minded to give details, he would have done so in his speech. So
his first answer was: I was not minded to give the details. His second answer
was, having already felt no compunction from saying publicly that the Government
had denied him funds, which is the very decision that he then felt he needed
legal advice to further particularise, he then said: I cannot disclose this, or
I shouldn't or can't, I don't remember the words in his statement of around 18
October, until I have considered the legal implications.
Q. Yes.
A. There was in fact no opinion which is what he describes as the impediment at
any time prior to him -- prior to the Government itself putting the information
in the public domain. So the impediment in his mind can only have been a view
that he held which was ex post facto confirmed to him by Mr Causer. But Mr
Causer's opinion did not exist at that time.
Q. No one is suggesting that. What I am suggesting to you is that there are
legal implications towards revealing the contents of confidential files about
the details of a funding dispute?
A. No one was asking him or expecting him to reveal the details of files. In
fact, he said one or two, he didn't actually say two at the time. He eventually
went on to give two examples, but his original remark was one or two instances.
You know, he could, by the same token as he felt that giving that information,
not content of files, that information did not require him to check with
lawyers, I don't see why he felt he needed to check with lawyers the addition of
three or four more words that would simply have described the decision, the
revealing of which in public he never thought he needed legal advice for.
Q. Well, do you accept that your claim that this was a ludicrous and untrue
statement is going way beyond what is justified once one has seen Mr Causer's
opinion?
A. No, I don't. No, I don't. I think that he could have and should have given it
to us privately and most of the references to ludicrous and untrue in relation
to the impediment point, if I could call it that in shorthand, relates to the
fact that there was no impediment whatever might have been in his mind, the
impediment to saying it publicly, there was none to saying it privately, and
that was essence of the Government's complaint. The government was not
complaining that he wouldn't say it publicly. The Government's unhappiness was
why hasn't he told us privately, and there was no impediment to that.
Q. If you look at the context of your complaint of ludicrous and untrue, it is
after --
A. Sorry, what paragraph?
Q. 4.6 and 4.7. You are making that statement about his reference to legal
impediments on 11 November. You say that this was ludicrous and untrue. Do you
accept --
A. Sorry, Mr Fitzgerald, which paragraph -- I have so far got 3.10 and 3.11 in
front of me.
Q. Look at 4.6?
A. 4.6 contains the transcript of the speech.
Q. And the date, 11 November 1999?
A. The following is the text, yes, I see.
Q. The full text. 11 November 1999. So by then he has sought the advice of Mr
Causer; is that right? Do you accept that?
A. He had sought -- I think Mr Causer's advice was dated or 6 November.
Q. So he sought the advice of Mr Causer. He has privately disclosed the matter
to the Government; that is right, isn't it? He has already disclosed the matter
privately to the Government?
A. Yes.
Q. And you are saying that his claim that he couldn't discuss the details of it
without there being legal impediments was ludicrous and untrue. That is not a
fair statement to make, is it?
A. No, I don't agree with you because the statement that he makes on 11 November
goes -- is about the contents of files. Mr Causer, which I had not appreciated
until somebody showed me the opinion in the last few days, appears to have been
advising on a draft press release, on a draft press release that was going to
issue after the Government had already put into the public domain the two
issues. So whatever Mr Causer was advising on, it wasn't about whether he could
have articulated in some general way the two reasons. What Mr Causer was
advising on was you can't disclose the contents, documents and things, of files.
And that advice may or may not be right, I don't know. It is not for me to say.
Other lawyers, I am sure, might take a different view. But that is what Mr
Causer was advising to. I do not believe and that Mr Causer -- I haven't studied
the opinion, I have to say, in minute detail, but I don't think Mr Causer could
have been intending to advise on something that was already redundant, in other
words whether he could refer publicly to the two reasons. He was advising about
revealing the content of Government files or official files.
Q. You would accept that in order to deal with this matter fully, that is what
he would have had to do. He would have been to describe confidential
discussions?
A. No. All the Government wanted him to do and expected him to do was to give a
sense of the areas of the judiciary's interest which they thought he thought the
Government was not performing in. In other words, all he would have to say,
there are two instances where the judiciary might have been undermined or
whatever his actual words were, relating to the provision of funding, relating
to training and recruitment. That is all. And I cannot believe that the Chief
Justice of Gibraltar believes that he is free to say that the Government has
denied him funding -- in other words, he is free to publish the Government's
decision, he thinks, without taking advice or being concerned by the Official
Secrets Act but is not advised simply to add the words "training and
recruitment", to put his allegations into context. I do not accept that it is
reasonable for a man of his judicial and legal experience to have drawn the line
precisely in that position.
Q. Would you accept this: this is a matter of legal interpretation and detail on
which people can reasonably differ?
A. Of course.
Q. Yes. And it's not the case that just because you think it, it is correct, is
it?
A. Sorry?
Q. You have said this is ludicrous and untrue. Would you accept that that is
just taking your own view and saying that is the only view there can be?
A. No, I think it is ludicrous and untrue to hide behind this distinction of
public publication -- sorry, publication into the public domain, when propriety
only required him to do it privately, not publicly, and in the sense of the
conventional way of dealing with disagreements between the judiciary and the
Executive, which is that you first exhaust your private routes, in the context
of the private -- not having raised this with the Government in private either
before he made the speech or after he made the speech until the Government
eventually asked him, in that context, it was ludicrous for him to be alleging
Official Secrets Act. The Government was not concerned. The Government was not
inviting him to say it publicly.
Q. Can I move on to part 6, and page 51? You there deal with the call on the
Supreme Court Registry staff by the Chief Minister. Again, is this in your
language?
A. I think, Mr Fitzgerald, you can proceed on the basis that it is, although I
think that this is one of the areas the previous Chief Secretary put up the
first draft, but I wouldn't concern yourself with that. I am happy for you to
proceed on the basis that it is my language even if it isn't.
Q. You refer to the long-standing tradition for the Chief Minister to visit
staff. Then in the last sentence you say this has always included a call on
Supreme Court and Magistrates' Court staff?
A. Yes.
Q. Would you accept that that is incorrect in the light of the evidence that we
have heard from yourself, from the Chief Secretary, and indeed from Mr Mendez
that there was no such practice in the time --
A. Well, I think the premise of your question is a non-sequitur. It is a
tradition, and the fact that one incumbent in Gibraltar's legal history chooses
not to carry out the practice does not destroy the tradition, still less suggest
that there has never been a tradition does not cease to be a tradition because
somebody chooses not to carry it through during a limited period of time. So I
do not accept that.
Q. What do you mean by the word "has always included" other than that it has
always included?
A. It means that it has always included. In other words, for as long as
Gibraltar has had a Chief Minister, that has been the tradition, and it does not
cease to be a tradition because one Chief Minister decides that his priorities
are different. In other words, if Mr Bossano says instead of going to the
Supreme Court Registry and the Magistrates' Court Registry, I would rather go to
see the post office staff or some other, that is his decision. It does not
affect that there was a long-standing tradition going back many decades,
initiated by my predecessor, never objected to by any Chief Justice before,
whereby Sir Joshua Hassan, who was Gibraltar's most pre-eminent ever Chief
Minister, QC and in debenture of the Middle Temple, didn't think was
inappropriate, and it was his tradition. He started it, and I continued it.
Q. But it did not always include a visit by the Chief Minister to the Registry,
did it?
A. Mr Fitzgerald, the most I can help with you on that is it appears -- whether
it was a tradition or not, and I say it was, Mr Bossano chose to interrupt the
tradition during the eight years that he was Chief Minister. That is the most
that I can say to help you.
Q. That might be quite important if instead of always that in fact the tradition
had not taken place for the eight years before the Chief Justice came in on the
picture?
A. No, it has always been a tradition. The word "always" relates to tradition,
not to the visit.
Q. No, it doesn't. You say this has always included a call on Supreme Court and
Magistrates' Court staff?
A. The interested has indeed always included a visit to the Supreme Court and
Magistrates' Court staff.
Q. Would you accept that from the point of view of the Chief Justice the
question was: has this been the subject that went on during the eight years
prior to you saying I am going to make a visit in 1996?
A. Well, actually, Mr Fitzgerald, if you really do want to invite me to express
on view on that, the answer is that I don't. I think it is completely
irrelevant. I think it is a mountain out of a molehill. The issue is not whether
I was starting the tradition. The issue is whether there was any impropriety
with it. That should have been the Chief Justice's concern. Whether or not that
had been a tradition before it is not forensic to whether it is right or wrong.
There was a tradition, and I wasn't visiting the courts, the court rooms. I was
visiting the Supreme Court and the Magistrates' Court Registry, which is a
Government department, staffed by civil servants, who are transferable to the
tourist office, whenever the Government fancies. This is the Government's
political leader visiting Registry staff who are employees of the Government in
a Government department. So it's not even the Chief Minister visiting the courts
in what people would normally understand the courtroom, and its -- I thought
there was nothing wrong. If I had thought there was anything wrong, obviously I
wouldn't have done it. I did it because I thought it was nothing wrong.
Q. Do you accept that the simplest and most polite way would have been for you
to phone the Chief Justice and say: this is what I am proposing to do, I hope
that is okay with you?
A. No, I don't. This is a Government department. This is a Government department
like any other, and the Chief Minister of Gibraltar -- you may take a different
view, but this is what life is like in a small place, I am afraid, and I don't
know if it is comparable to what it might be elsewhere -- the Chief Minister
does not ask permission to visit socially, or even in an official sense,
Government departments. No one has ever said, you know, this is not a Government
department. It is a Government department. And frankly, it would not have
occurred to me, even if I had been invited to take that view, which I wasn't by
my officials who were planning my itinerary for that day, they certainly didn't
put it to me in this those terms. Obviously that must have been because that
wasn't the way it used to happen when Sir Joshua was the Chief Minister, and
frankly, the answer to your question is it has never occurred to me because I
don't believe that that is required. I had been a practitioner in those
Registries since right up to -- the election was in May 1996, almost weeks up to
the elections. The last thing I was going to do was send the signal that I
didn't want to go to see them. I don't know who requested the meeting. I don't
think I requested the meeting, although I would have felt quite free to request
the meeting, let me hasten to add. It either was put in front of me my officials
or it was requested by the staff themselves; it doesn't matter which. The basic
issue here that we ought to be concerned about was: was it a propriety or an
impropriety, and was the Chief Justice right to make the fuss about it that he
did?
Q. I appreciate --
A. If indeed he made a fuss, which is disputed, apparently.
Q. Would you simply accept that he solved the problem but not being there
himself on these visits and you continued having the visits?
A. Absolutely, nor was I aware of that minute that the Chief Secretary sent to
the Governor that I have now become aware of. As far as I was concerned, I was
not exposed to any of this controversy.
Q. Nor when you visited did you see intimidated and unhappy staff torn with
conflicts of loyalties. You had a perfectly normal visit, didn't you?
A. Can I just agree with the last part of your statement? I had a perfectly
normal visit. I don't see how you could see -- nobody said to me: I can't speak
to you whilst I offer you this canape because the Chief Justice is peering at me
from the distance, he is going to sack me.
Q. No. So that wasn't put?
A. No.
Q. Can I move on to part 7, page 55? You have put there -- those are your words.
A. Page 55.
Q. Non-payment by the Chief Justice of PAYE tax deducted by him for the payment
of his domestic staff -- non-payment of Social Security contributions?
A. I think so. You should proceed on the assumption against me --
Q. Can I ask you to look at that? The allegation there in the heading at least
is that non-payment of tax deducted. Would you accept that the allegation was
never that he had deducted tax and then not paid it?
A. It is true that the paragraphs that appear underneath the heading do not
articulate the allegation in that way. But, as I say in my statement, I think it
is a distinction without a difference.
Q. Can I just ask you to look? You are saying that it is fair to describe his
conduct as deducting tax and then not paying it?
A. Effectively, I think I say.
Q. Can I ask you to look at the Attorney General's statement, E14 and paragraph
25?
A. Yes. Well --
Q. The allegation there is of failure to deduct.
A. Yes. Mr Fitzgerald, I think I've conceded to you that the essence -- well,
not the essence actually, literally the Government's factual assertions in this
section 7 are articulated around the failure to deduct, and that the headline,
if I could call it that, it is one of those examples where a newspaper, the
headline is not justified by the content of the article underneath it, and I
have no difficulty acknowledging to you that the case described in the headline,
the heading -- sorry, not the headline, the heading -- is not the case that the
Government intended to make. It is therefore a mistake, but it is not a mistake
that the Government needed to have made. In other words, the Government could
just as easily have articulated the Chief Justice's -- I don't want to use the
word behaviour -- the Chief Justice's conduct in the context of failure to
deduct because in effect, that is what he was doing. But he did not do it and
that was not the intention of section 7 to do it in that way, and the heading
therefore is an aberration in that sense.
Q. Would you accept that that is an unfair way of putting the allegation against
him?
A. You know I don't think that because I have just put in a statement to the
contrary. I have just said that this is effectively -- this is what -- the Chief
Justice was effectively --
Q. Let's just look against at 76.551 -- where the Income Tax Commissioner
describes the nature of the offence -- of the core bundle. The core bundle,
76.001. My learned friend Mr Eadie is --
A. Core bundle 1 or 2?
Q. It is core bundle 1, we are on page 76.001.
A. Yes.
Q. You can see there that the allegation is all about you should have been
deducting tax, but you didn't. That's what the Commissioner is describing. You
should have been deducting and you failed to.
A. No. With respect, Mr Fitzgerald, that is not the purport of the
Commissioner's letter. The purport of the Commissioner's letter is the grossing
up point. In other words, when he was eventually required to pay tax, or when he
tendered the tax -- I don't know how this letter came in. I don't want to make
any point about that. I don't know who got the ball rolling in relation to this
letter. The Commissioner didn't say to him: this lady was taking home or your
salary was £100 a week, that is the amount upon which you must pay tax. The
Commissioner grossed up the lady's salary to take account of the fact, and that
is why it says "grossed up amount", in other words, The Commissioner was saying
to him: you have not been deducting tax. The effect of that is that you have
been paying your employee a salary net of tax, and I am going to tax you on the
grossed up version, not on the net version and therefore the effect of that was
he was in effect deducting tax, how, by paying his staff a salary net of tax and
then not forwarding it to the Commissioner of Income Tax. That is why I said
that if you push -- first of all, I concede that the Government did not intend
to articulate in that respect, but if you press me in terms of the Government's
credibility, I have to tell you that the nature -- the proper assessment,
analysis of the Chief Justice's behaviour is that he was paying his staff a
salary net of tax, he was therefore in effect deducting the tax. He was not
forwarding it to the Commissioner of Income Tax. So that when the whole thing
caught up with him, he had to pay tax on a higher amount than he had actually
paid to the staff, ie the grossing up point. That is why I cannot agree with
you. But I can agree with you that the Government did not intend to articulate
it in that way, and the heading of article 7 was not intended to say that and it
is an error because it's inconsistent with what we then go on to articulate.
Q. I am obliged for that. Can we move on to the extension of the warrant in
which is dealt with at part 11? In relation to that, you have no personal
knowledge --
A. Sorry, is this tab 11 of core 1?
Q. No, it is part 11 of your statement, the Government statement, page 73 of
your Government statement.
A. Yes. Okay. I am with you.
Q. You weren't involved in those events at all; is that right?
A. No, not in relation is to the warrant itself. Well, I say I was not involved.
I was not. I understand that the Chief Secretary's office deals with the
gazetting of the warrant after the Governor has issued it. So when the Governor
has issued the warrant, he sends it across to number 6 Convent Place, and the
Chief Secretary deals with putting it in the gazette. But that is not
involvement of the sort that you had in mind.
Q. I may have to come back to the issue of extension of warrant, but just in
terms of that narrative there, that is not something you can help us on this?
A. No. No, no. All the goings on about whether the warrant would be for one year
or three, no, I was not aware of that correspondence.
Q. The 2006 Constitution, you deal with at part 12. You make various allegations
about -- first of all, you say that the actions of the Chief Justice --
A. Where were you?
Q. Page 76, 112.1, the first sentence, under the heading: "New Constitution for
the behaviour of the Chief Justice."?
A. I am there.
Q. You say: "The actions of the Chief Justice in relation to the new
Constitution exceeded by a wide margin legitimate part of the comment by a judge
concerned about important matters affecting the judiciary, and constituted
improper political activity." Now, do you accept that in fact he made no public
comment about the 2006 Constitution until he gave his speech at the opening of
the legal year in October 2006?
A. I don't know whether that is factually true or not, but with respect it would
strike me as a somewhat disingenuous point. He had been fielding his opposition
through the press to the new Constitution; whether it was his public statement
or not, I don't know. But the Chief Justice made it plain to the press and to
everybody else that he was not content with the situation. I believe that was
the case before then. But if you say that this was the first time he made a
public statement in a set piece position, I don't know. You may be right. You
may be right.
Q. The only time he made any public comment about the 2006 Constitution is when
he gave his speech?
A. If you are not wrong, I am sure others will correct you later.
Q. I think you are probably right. Will you accept that for the purposes of --
and the comment I think you have accepted already, the comments that he made
were on matters affecting the judiciary actually on the section 5 which you
used?
A. There was one or two other points, but there was a limited number of points.
Q. Essentially it was looking at issues of tenure, of appointment, disciplining
and removal of judges. That was the concern?
A. Yes, in language that was erroneous and attributed to the Constitution,
effects which it did not have.
Q. I think it is a yes, I appreciate, Chief Minister?
A. I beg your pardon. Yes. But, you know, you ask general questions, Mr
Fitzgerald.
Q. You are allowed to elaborate.
A. The answer can't always be a simple yes or no.
Q. You accept that what he was principally -- you said this morning -- concerned
about was section 57 of the Constitution.
A. Well, do you want me to speculate about this? My speculative views about
this? If you ask me to speculate about this, I think the Chief Justice was
primarily concerned with matters of his status. That is what I think.
Q. Section 57 is about whether there could be the Governor with the prior
approval of the Secretary of State may disregard the advice of the Judicial
Services Commission, that is what it says?
A. Yes.
Q. We have the authorities bundle, tab 1 of the authorities bundle?
A. Yes.
Q. That doesn't make sense?
A. Sorry, perhaps I am misunderstanding what your question is. If what you are
saying is: was the subject matter of his areas of interest at that time things
to do with the judiciary or were they about the price of fish, the answer is
clearly they were about matters relating to the judiciary. They were not about
the price of fish or football.
Q. You are talking about inappropriate political comment. I am just trying to
establish clearly you are not saying he was going out and saying: vote Bossano,
or the governing parties -- he was just saying 57.3 raises these important
points we have to address?
A. With the greatest of respect to you, Mr Fitzgerald, no, he wasn't canvassing,
although he didn't make the Government's position in support of the yes campaign
easier, that is true. The Government's accusation is not that he was lobbying in
a political partisan way, but of course the definition of politically
inappropriate activity or inappropriate political activity is much wider than
you suggest in your question. In other words, may I elaborate or would it not be
appropriate?
Q. You are entitled to elaborate.
A. I just don't want it to transgress the Chairman's guidelines.
LORD CULLEN: The question is whether you need it for the explanation of your
answer.
A. All right. Well, what Government meant by that is this. There was a time when
this exercise as between consultees was closed, the Government had made its
position clear. Let's put it at the latest in your interests. Whatever may have
been the Chief Justice's view about the propriety or impropriety of the extent
or lack of extent of the consultation process of which he had been the
beneficiary up to then, and of course we can have a discussion about that too,
by 7 September, he was done and dusted as a consultee. The three points that
were concerning him had been squarely addressed by the two governments, and he
knew that the positions of the governments, both of them, UK and Gibraltar, was
that they did not agree with him. He was not party to the negotiations. He was
not entitled, in my view, to persist -- this is what we mean by inappropriate
political comment. The Chief Justice was behaving as if he was in the
negotiating table with his consent to the terms of legislation being required.
That was not the position. So consultation is always good, but it is not an
obligation. You know, people are not entitled to be consulted, still less is
somebody who upholds the separation of powers, as Chief Justice rightly does,
entitled to believe that the separation of powers is a principle and used only
to the benefit of the judiciary, it inures also to the benefit of the
legislature and also the Executive. But whatever might be the view on all of
that, by September he knew that the governments were not with him, and that the
governments were not accepting his ideas or his views, and at that point, he
ceased to be even if you were willing to view him as a legitimate consultee
before then, I think the time for consultation had demonstrably long since
passed even before then. But beyond 7 September, it was pure politics, by which
I don't mean partisan politics with a capital P, it was inappropriate judicial
comment because all he was doing was challenging the Executive and the
legislature, the legislature in this case being the UK legislature, by the way,
and the Privy Council, and not the Gibraltar legislature, on matters which were
for them. When he says in that speech at the beginning of the legal year 2006
that he is still very unhappy and he is going to get his expert's opinion, at
that point it could only have been for the purposes of publishable challenging
the Governments who had already considered his three points and rejected them.
But he wouldn't accept that the point had been adjudicated against him. So all
this business about the three wise men, the expert's opinion, was beyond the
pale, and to publish the decision, to publish the opinion of the three -- sorry,
I shouldn't call them three wise men.
MR FITZGERALD: I think they would be quite happy.
A. To publish the opinions of the three lawyers that the Chief Justice chose to
consult, days ahead of a referendum which is an intrinsically political act, at
a time when he must have known that the game was up, that he had no prospect
whatsoever of getting either governments to reopen the text of that, can only
have been improper judicial interference in what was a political legislative
process.
Q. All right?
A. That is my view.
Q. Thank you very much, Chief Minister. Now, can you just look at section 57.3
and would you --
A. Of the Constitution?
Q. Of the Constitution. I think it follows from what you said this morning, this
was not something which the Gibraltar Government, led by yourself, wanted in
there.
A. Well, it is not --
Q. You didn't want this power of veto, did you?
A. We didn't ask for it, but as I have said in my letter to the Chief Justice on
7 September, even though we didn't think there was a need for it, we did not
regard it as objectionable for the reasons that the Chief Justice was alleging.
Q. I think you said this morning that there was a trade-off, that you didn't
think it was necessary or appropriate, but that the UK Government --
A. No, no. I said it wasn't necessary, and that the UK's original version, which
included the discretionary power to replace the UK Government's decision with
the rejected advice, that that was inappropriate and was resisted by the
Government successfully in favour of a pure veto without the ability by the UK
government to substitute its own decision for the rejected advice of the
Judicial Service Commission.
Q. All right. Do you accept this: that veto power, whereby the Governor can
overrule, disregard the advice of the Judicial Services Commission, was not
something that you regarded as ideal?
A. No, you can't say that, Mr Fitzgerald. You can say that in the terms that it
eventually found its way into the Constitution, we did not regard it as
necessary. But we did not regard it as not ideal, if by that you mean somehow
dodgy in relation to the interests of the judiciary.
Q. It does not leave the last say with an independent Judicial Services
Commission. It leaves it with the Governor, who is --
A. Yes, it does. I think, with respect, that you are perpetuating the same error
of assessment that the Chief Justice made. There are no circumstances even in
the context of section 57.3, in which the UK in exercise of that power, which
they have described as exceptional, there are no circumstances in which the UK
can have its way, either on who should be a judge, or the disciplining of a
judge because the most that the UK can say, take the example of an appointment.
The Judicial Services Commission advises His Excellency to appoint you or me to
be a judge, and the UK Government says: no, we are exercising our powers and we
don't think that is appropriate. That doesn't mean that you or I won't be a
judge, but it doesn't mean that the UK gets a say about who eventually is the
judge because then that has to be the subject matter of new advice from the --
in other words, whoever becomes a judge in Gibraltar can only become a judge
because the Judicial Service Commission has advised the Governor to make him a
judge. The same with disciplinary. The Judicial Services Commission has to
advise His Excellency on whether there should be disciplining or not. The UK can
say: we do not think the judge should be disciplined. The veto. But the UK can
never bring about discipline because the veto has to be veto of advice given by
the Judicial Services Commission.
Q. But they can veto an appointment?
A. They can veto -- they can prevent somebody that the Judicial Services
Commission thinks is appropriate, they can prevent that person from becoming a
judge in circumstances that they have described as exceptional but there is no
reason why you should rely on that. But they cannot --
Q. Is there a reason why they should rely on them?
A. It is a political commitment. It has no legal status.
Q. And that is why the Chief Justice sought in the explanatory note to try to
nail to down?
A. No, with respect to the Chief Justice, that point had already been conceded
in writing to the Bar Council, which is why the Bar Council dropped their
objections to this point. The Chief Justice didn't rest this concession in his
meeting with the Foreign Office in London. It had already been given away by the
Foreign Office in London, in writing to the Bar Council, long before the much
delayed meeting in London with the Chief Justice. The point is that the Chief
Justice was saying to the world in his opening of the legal year speech in that
one, the 2006 one, that all of these clauses were actionable because it left the
disciplining of the judiciary in the hands of -- that may not be his exact
words, but that was the purport of them -- in the hands of the Governor and
these are all the square brackets that you don't like with the bold language in
my statement.
Q. Yes. Can I ask you to assist on this? If we can turn to the consultation
process itself?
A. Yes.
Q. It is right, if we look at page 319 of core bundle 1, the Chief Justice on 7
March 2005 sent a letter to you enclosing the judiciary's recommendations?
A. Yes.
Q. And he also sent a letter with those recommendations to the Governor.
A. No. It was a letter -- sorry of March 2005. No. This was --
Q. He sent a letter to you?
A. Isn't this the -- sorry, let me just get my bearings, Mr Fitzgerald.
Q. He puts its representations in?
A. No. This was -- letter that you have pointed out to me is the covering letter
under which he copies to me --
Q. Right?
A. -- representations that he is making to the UK Government through the
Governor. These letters -- this letter.
Q. I think that is what I said?
A. I have no need to argue. The record will show it. That is not what I
understood you to say.
Q. I absolutely agree, that he sent it to the UK Government, through the
Governor, and he sent a copy to you in advance?
A. Under this cover letter, yes.
Q. And on 9 January 2006, you then wrote to the Chief Justice, and we have that
at page 334, enclosing a matrix. That is to say the recommendations of the
judiciary and the position under the new Constitution?
A. And the decisions of the Gibraltar delegation on each question.
Q. Yes. It's right that you there say, in the last paragraph: "I will of course
let you know as soon as it becomes apparent what the likely outcome of the
negotiations with the UK as they affect issues affecting the judiciary." All
right? So it's not just halleluiah, there is some agreement about something. It
is as they affect the judiciary that you promise to get back to him?
A. I don't know how you would define the word "promise". There is a statement
there, and I can't be more helpful to you than I have been to Mr Otty on this
question. What I have said to Mr Otty on this question this morning is that I,
as the scribe of that paragraph, meant the issues upon which we were agreeing to
take from him, from his March recommendations. And I think I have said this
morning that I could have written back saying: Dear Derek, we have had success
in all the points that we agreed that the Gibraltar delegation agrees with you
on, and it is true that I didn't do that, and I said that to Mr Otty too. So I
do not think I can add much more to that, but please try.
Q. Is this right, those matters that affected the judiciary, on which there was
a subsequent agreement, including section 57, you never wrote to him and said:
look, I think you ought to know that there's going to be the Judicial Services
Commission, but there's also going to be this veto power?
A. I don't have the precise chronology, but there was a very short time period.
All of these points arose very quickly, you know, we are talking about January.
The whole thing was done and dusted by March. I can't recall whether there was
exchange of correspondence, but certainly the deal was done across a negotiating
table between the two negotiating parties which were the Gibraltar Parliament
and the Gibraltar -- and the UK Government, and not -- there was no third party
at the negotiating table. That is true.
Q. Right.
A. There was no third party, and the Government did not -- you could also say,
and I would agree with you, that the Government, and indeed nobody in the
Gibraltar delegation, took the view that the Chief Justice was himself a de
facto third stool to the negotiating process. I say that only because in that
speech to the opening of the legal year, the one that you are questioning me on,
he actually says that. Can you just, unless you are not interested, point me to
the --
Q. To the text of the speech?
A. Yes. I think he says words to the effect: the Executive were forgetting. He
says something like: the Executive were forgetting something, and I can't quite
remember his exact words.
Q. If you give me a moment, I will find you the speech. That is at pages 402 to
411.
A. Thank you. Yes. Is this the 2006 speech?
Q. Yes, this is the speech at the opening of the legal year, commenting on --
A. Cull help me just find --
MR EADIE: My Lord, at 406, I think, the passage, the end of the paragraph at the
top.
A. That's right. It is the end of the first paragraph at the top: "It would
appear that it was forgotten or ignored that the third branch of Government, the
judiciary, should have been fully consulted ..." And consultation is a matter of
good practice, although not obligation. I would never argue with somebody
calling for consultation, and then he goes: "... and engaged during the process
which led to the draft." And I believe that many of Derek Schofield's -- I beg
your pardon, the Chief Justice's positions on this were anchored in this view
that he had. There is no other explanation for it, that somehow he was a party
to this political negotiation which is what the new Constitution was, and that
he was only being treated as a consultee, and he didn't that think that was
appropriate.
MR FITZGERALD: I just want to take you on from there. But he puts a proposal as
to the composition of the Judicial Services Commission in February 2006, at page
341 to , and that's as what the composition should be. And we see at page 342 --
A. That wasn't his first view about the composition. You will remember that in
the March 2005, there was a view about the composition, and the one that we
secured was very close to that view. In fact, it had -- what we eventually
secured had one member of the judiciary more than what he was recommending in
March 2005, or thereabouts, for the composition of the judiciary.
Q. In February 2006 was a change of mind about the composition, and it was
something supported by the Bar Council, wasn't it? If we just look ahead, page
345, the Bar Council felt that the proposals of the judiciary should be
supported.
A. Sorry, you are asking me -- I am just reluctant to agree with some of your
general -- unless I know exactly --
Q. Fair enough.
A. Where are you?
Q. Page 345, bundle 2, composition of the Judicial Services Commission, go three
sentences in, do you see the words: "The Bar Council felt that the proposal of
the judiciary should be supported on the composition of the Judicial Services
Commission?"
A. Yes, and what the Chief Justice I believe was told on that was that we
weren't reopening that question. We had accepted -- we had already met, despite
the circumstances of the tardiness of his submissions, we had already met as a
delegation to consider his March 2005 proposals, and we were not going to reopen
that which is a matter which had been fully discussed by the delegation, and we
had decided to go with the composition that we went with, which was the one that
eventually appeared in the Constitution.
Q. Where is there any evidence that you got back to him about this before he was
simply presented with the text of the Constitution?
A. Sorry, did I suggest that there was? If there was, and you want me to find it
--
Q. No, you just said that we explained to him that that was not possible, that
this issue was closed. Just show us where you told him that, where you told him
anything?
A. You would have to give me notice of that. I do not at this point in time
discount that there was such a thing, although I am not in a position to assert
now in answer to your question without notice that there wasn't and I hadn't got
--
Q. You have just told us there was?
A. Mr Fitzgerald, I do not have in my mind all the Government documents in all
the Government's files. If you want me to assist you by trying to find out
whether there was such a written communication -- this is not presumably a test
of my memory of every bit of paper and every bit -- no, fine. So if you want me
to assist you by trying to find out whether or not there was a written
confirmation, I am very happy to do that for you.
Q. Well, do you accept that so far as we can see, in these materials, which
undoubtedly you have studied carefully because you wrote in representation
yourself, and you have been preparing for giving evidence in that matter,
obviously with close attention, are you really saying that there was an occasion
when you have got back to him and said to him, look, Chief Justice, your
recommendations I am afraid we can't accept, this is the reason why, you ought
to know that there is a new section 57.3, it is not ideal, but we've got to live
with it, that is the position. Did you ever do that?
A. Well, I can only repeat the answer. I am not prepared at this point in time
to say to you that there was not such an instance, but I cannot assert that
there was and I will check. Perhaps you can help me by refreshing my memory as
to what the Government's statement says in this area, as to whether there was or
there wasn't.
Q. I don't think it's been suggested that there was by anybody, and indeed Mr
Otty put to you that was there ever any occasion when the promise to get back to
him in January led to you saying: well, this is what the result of the
negotiations on matters of fact --
A. No, there was none of that. There was none of that.
Q. So he was never told what was going on, until he found out for himself in
August of 2006.
A. Until he read the text of the -- yes, of course, the fact that there had been
an agreement as to the text.
Q. Yes.
A. Back on the 20 something of March was in the public domain.
Q. I appreciate that.
A. And if the Chief Justice had wanted to see the text of that, all he had to do
was write to me and --
Q. Did you provide him with the text -- in March you had reached agreement. Did
you say, look, Chief Justice, I promised to get back to you, here is the text?
A. No, we didn't promise to get back to him. The word "promise" you keep on
putting on my lips. The purport of the letter intended by the writer of that
letter, namely me, in the last paragraph was not that I would give him a blow by
blow account of the matters affecting the judiciary all the way through the
negotiations, what I have intended to communicate, and that is what I had
understood by it, was that I would let him know how the points that we were in
February or in March agreeing to take from the matrix, the matrix point that the
Gibraltar delegation was going with, how those would go. It is true that I
didn't. All I could have done is to say to him, if I had limited myself to
discharging that which had been my understanding of what I said I would do and
didn't, it would have simply said: Dear Derek, you will be happy to know that we
have obtained from the United Kingdom agreement to the issues that we would we
modify our negotiating position by following the matrix. That is what it would
have said. It would not have gone on to say, I don't think, because that was not
what I thought I was promising him, to use your word, "promising" you know, that
he was somehow going to form part of the negotiating process.
Q. No, but just showing him what the text was after the text had been agreed in
March could have done no harm and would have enabled him at least to familiarise
him with the contents and comment on them and discuss with you his concerns.
A. Well, precisely, Mr Fitzgerald, but, you see, that is not the role of a
consultee, and certainly there was no consultee with a right to demand
consultation. Now, you may think that is a --
Q. That is completely wrong, Chief Minister. A consultee has a right to demand
consultation.
A. If he has a legal right to be consulted. But the Chief Justice -- and you may
think that governments behave sensibly or less sensibly, as to whether they seek
consultation and the extent of consultation that they seek. But there is no
legal right to be consulted upon what is a matter of legislation, and the
Government did not deal with the Chief Justice as anything more than a consultee
in the consultation process, and actually, although you now think that both
governments apparently misbehaved on that, the Government actually had a very
different frame of mind at the time. We thought that we were actually being
hugely deferential to the position of a Chief Justice that had markedly refused
to engage with several years' worth of local consultation process, that when he
did eventually deign to put pen to paper, it was to the United Kingdom
Government and not the Gibraltar Government, and even though negotiations had
already started on what was a settled Gibraltar position, we still, in deference
to his position, engaged on his views, accepted some, rejected others, and
secured the UK's agreement to all the ones of his views that we accepted. You
may then form whatever view you like about whether that went far enough or that
was enough or not enough consultation, but you ought to put that into context.
That is the context in which the criticisms that you now aim at the Gibraltar
government and both, but I am not here to defend the UK Government, ought to be
put into -- we thought this we were going the extra, extra mile in engaging with
a person that had refused to engage with us, and indeed had never engaged with
us, before that time. Even when he engaged, it was with the UK Government, not
with us.
Q. Well, you accept that you were fully aware, because he copied them to you, of
his proposals that he had made in February of 2006?
A. The ones -- sorry, you are not talking about the 2005 or the ones we did deal
with? You are talking about the ones we didn't deal with in consultation?
Q. You were aware of the 2005 representations --
A. Belatedly. That is what I have spoken of at length.
Q. And you were aware of the 2006 proposals?
A. I think he wrote to me.
Q. Yes.
A. He wrote to me or somebody in the Government. I certainly saw the letter.
Q. Hardly someone who has not been giving his views, is it? He is giving his
views to you?
A. No one can accuse the Chief Justice of not giving his views, Mr Fitzgerald.
Q. Would you accept this, that the first time he could have become aware of the
text would be after it was published in July 2006?
A. No. I do not accept that, Mr Fitzgerald, because if this was such a big issue
for him, he knew in March that there was a settled text, subject to UK
Government agreement, and that I am aware of, insofar as the Gibraltar
Government is concerned, he made no attempt to seek a copy from us. It is true
that then when the foreign secretary had given his chop so the settled text, the
March settled text, that we then -- both governments put our -- I don't know
whether it was the joint or separate equivalent statement as saying the text is
now definitively agreed, and it is available, and then all I see in this bundle
of documents, is references to the website and the email, and whether he had
difficulty from 6 July to August in downloading from the website. I don't know
whether he had difficulty or not. But even if he did, the same statement said:
and hard copies are available from number 6 Convent Place. The very same
sentence which pointed to the website also pointed to the availability of hard
copies from number 6 Convent Place, and number 6 Convent Place is 200 yards down
from his office, and in the 30 days that he apparently had difficulty
downloading from the website he made no attempt to obtain a hard copy from 200
yards down the road. So you will forgive me if I don't accept some of the
propositions you are putting to me.
Q. Can I just invite this: he would have no way of knowing even of the existence
of section 57.3 until the terms of the Constitution were published in July.
A. Absent making an effort to arm himself with that information earlier, yes, I
agree with your proposition.
Q. And would you agree that he then made his representations in August 2006,
which we have at page 356, and 362 and 363? Do you see 362 to 363 we have 11
August letter, and at page 363 he picks up the problems about sections --
articles 57.2A, B and about article 57.3 at page 366?
A. Correct. Of course the Commonwealth, whatever, what is the title? The
Commonwealth Magistrate Judge had apparently had no difficulty in downloading.
They were already in a position to write a detailed analysis to the Foreign
Secretary by 8 August.
Q. Right, and indeed his was in early August too?
A. His was two days, having just got access to the download, apparently.
LORD CULLEN: Can I ask a question at this point because it is the right moment?
In the speech we are looking at, there is a reference to section 64.7. I am not
sure --
A. What speech are we talking? The opening of the legal year speech?
LORD CULLEN: Yes. That's right, 64.7. Does that ring a bell? I simply wanted to
know is it correct that that position was in exactly the same position as the
provisions of 57. They had appeared in the course of some late stage negotiation
with the UK Government; is that right?
A. You would have to familiarise me with the provision of that clause.
MR FITZGERALD: It is page 48 of the Constitution.
LORD CULLEN: Thank you very much. I just want to be clear about this. 48.
A. Sorry, what is the clause number? I have a booklet.
MR FITZGERALD: It is 64.7 at page 48 of the Constitution.
LORD CULLEN: It is one of the ones mentioned by the Chief Justice in the speech.
For completeness, I wanted to know what the position is. Just read it to
yourself. You will see it's about --
A. Yes.
LORD CULLEN: -- short appointments.
A. Yes. I don't think that is -- that is not in the old Constitution.
LORD CULLEN: Indeed, you are quite right, I have checked. But did that turn up,
or do you not know offhand, whether that came at this same stage as 57.2 and 3.
A. Or whether it was in the previous -- if your Lordship thinks that is
important, I can go back to the working drafts and pinpoint.
LORD CULLEN: I think it will be possible to find it out in some other way, but I
think it might useful to check if that is the position.
MR FITZGERALD: Yes.
A. I think what your Lordship is asking is: was that provision in the draft
Constitution, the new draft Constitution, that the House of Assembly appended to
his report back in 2000 and something, or did it first emerge post the
consultation with the Chief Justice?
LORD CULLEN: Yes.
A. I don't know what the answer to that is, my Lord, but if I were a betting
man, which I am not, I would venture that it falls into the latter category. I
think it emerged late in the day.
LORD CULLEN: Thank you.
MR FITZGERALD: Is this right, he never actually saw a working draft? The limit
of what he saw was that matrix which you provided him with in January.
A. The working draft was in the public domain.
Q. I see. But in terms of the comparison of what the Chief Justice had
recommended with what the Gibraltar team, if I can put it that way, were
recommending, the only information he had was that contained in the matrix that
you disclosed to him; is that right?
A. And the fact that the marked-up version of the desired Constitution, as
approved by the House of Assembly back in 2000 and I don't remember exactly
when, some years before, was itself in the public domain. So yes, he had the
matrix, and he could compare that. He could compare the accuracy of the matrix
with the published text of what we were trying to achieve in the new
Constitution.
Q. All right. Chief Minister, what I have to put to you is this. You made the
submission, and we know that in it he dealt with two things. One was the
substance of section 57.3, and the other sections of section 57 that he was
objecting to. Now, as to the merits of those, you don't say that his complaints,
that didn't achieve a full judicialisation of decisions were ill-conceived, do
you?
A. No. Maybe at the proper time and in a proper way, I think a judge is entitled
to express the view, look, why are you diminishing the security of tenure of
future Chief Justices? But he is entitled to make that view at the proper time,
which you will argue rightly he never had before his letters of 11 August were
engaged in, and that may be true. Whether he was entitled, as a matter of right,
to interfere in the process in order to make even a good point of course is a
different issue.
Q. I appreciate that.
A. But he certainly did not have, before he had an answer to his letters of 11
August -- I don't know whether he had an indication slightly earlier because the
Chief Justice -- the Foreign Secretary had written just one or two days earlier
than that, or round about that time. But certainly until he got the reply on 7
September or thereabouts, I think it was, where the two Government replies to
his letter of August, he had had no definitive answer on his areas of concern,
and my complaint is not that he would not have been entitled to make those
points. Certainly I think that he was articulating some of the points in
language which were diametrically opposed, which would have transmitted to the
opposite sense to the listener in that 2006 speech. But on this point there
clearly was an altering of the possibility, even then he wasn't quite using
accurate language. He was saying under the new Constitution future Chief
Justices will have -- I mean, I would vary he had said may have, because of
course the Constitution does not operate -- the new Constitution does not
operate to curtail that. But certainly under the new Constitution future
appointers could instead of 67, say to a Chief Justice: you can be Chief Justice
for a five-year term. That's correct.
Q. So in terms of the substance of what he said, that was making legitimate
points of Constitutional importance?
A. On that point, yes. On the others, he completely misspoke the proper purport
of the Constitution.
Q. All right. So there are matters of disagreement there. But he was making --
A. No, on that point he didn't actually speak to this point in the opening of
the legal year, except, I think, a passing reference to and future Chief
Justices will be curtailed.
Q. Yes, but he was concerned about section 57.3, the veto power, wasn't he?
A. This is not a section 57.3 point.
Q. So there were a number of points --
A. There were a number of points.
Q. -- he made in that speech which were perfectly legitimate matters of
Constitutional importance, weren't they?
A. The others were not, in the terms that he articulated them, which were
entirely wrong. This one is in a different category. This particular point was
an issue in which his remarks, subject to the fact that he said will, rather
than may, in other words, subject to the suggestion that it was the direct
effect of the tugs that future Chief Justices would have their security which is
not the correct meaning of that, but if he had said under the old Constitution
Chief Justices were entitled to serve until 67, and under the new Constitution,
that is the position unless he gets a limited term at the time of his
appointment, that would have been a perfectly accurate articulation, and would
certainly have been a noteworthy observation --
Q. Yes.
A. -- for a Chief Justice to make. The other points that he made, I assert, and
these are the square brackets that you don't like, he misspoke and
misrepresented the Bar.
Q. Section 57.3 was something that the Bar had expressed concerns about, and
that later Sydney Kentridge with his two other wise men expressed concerns
about; that is right, isn't it?
A. Look, Mr Fitzgerald, my concern is not that people take a different view to
mine and the Government's. My concern is the accuracy and fairness with which
they articulate their arguments when taking a different view in public. If you
are going to challenge the Government, you know, weeks before a political
referendum on a Constitution about the effect and purport of that Constitution,
I think there is a supreme onus on such a judge to make sure that he is not
misstating and misrepresenting the purport of the provisions of that document
that he is criticising, and I think that the square brackets make it perfectly
clear that he did not do that.
Q. Chief Justice, I am not going to debate each and every one of those, but can
I move on to the second area?
A. You only want to debate the ones that you find helpful.
Q. Chief Minister, that may be a fair point.
A. I used to do the same.
Q. We might here until midnight. The second point that he made in the opening
speech is I should have been consulted more, I should have been provided with
the draft, I should have been told that matters such as section 57.3 were there,
and I had been led to believe that I would be kept abreast of developments. Now,
was that, in your view, something that he was entitled to say, that it is
important --
A. It is something that he was entitled to feel, and to say, in an appropriate
and timely fashion, but not beyond a certain point in time. It is not something
that he has a right to do. It's not something that he has a right to. But it is
perfectly legitimate for a judge to feel that he has been insufficiently
consulted. That is not the Government's complaint against him. The Government's
complaint against him is not that even without legal entitlement to consultation
good practice did not require him to be more consulted. He is entitled to say
that. But there comes a time when continuing to say that asserts a position
beyond that of a consultee and becomes inappropriate political comment because
your views have been considered, not accepted, and therefore anything beyond
that point is a campaign. It is not consultation. He is campaigning against the
acceptability of a document beyond that of a properly consulted consultee, and
even on his definition of proper consultation, that is the 7 September. So the
three wise men and the -- I beg your pardon -- the three lawyers.
Q. Sir Sydney Kentridge --
A. The three lawyers that he consulted and particularly the timing -- this was
not the Chief Justice saying I have obtained their advice and it is just tough
luck. He announces the decision to consult them after the letters of September;
in other words, after his views have been taken into account, albeit belated
according to you and him, beyond that point, he was initiating a campaign
against two Governments that have already decided against him, and then to
publish that opinion just days -- because at that point you could argue I did
not and know what the referendum was going to be and that was true. At the time
of the legal year speech, the Government had still not announced the date of the
referendum but in between the date of the Chief Justice's legal speech and his
receipt of the opinion, the Government had announced the date of the referendum
and he consciously chose to publish that advice in the knowledge that it could
make no difference to the text of the referendum, knowing that it was literally
days in front of the referendum speech. Not even the Chief Justice then could
have thought that the referendum could have been cancelled, the Constitutional
negotiations reopened, for what was already an approved referendum by the
Parliament. Therefore at that point, I say that he was just campaigning beyond
the rights even of a properly and timely consulted, he was engaged in politics
against both governments, not just mine.
Q. I think you have enough faith in the democratic process that if the points
were ill-conceived, they could be rejected. If the points were good, they might
be taken into account?
A. I haven't said I thought the points were good. I said that I think that they
were legitimate points for him to take.
Q. What is wrong with simply saying: there is this material --
A. There is nothing wrong. I have conceded to you, Mr Fitzgerald, there is
nothing wrong with the Chief Justice taking the point that he did not think that
section 64.7.
LORD CULLEN: 64.7.
A. It is perfectly legitimate a view for the Chief Justice, or anybody else for
that matter, to say: I don't think that the previous nature of security which
was to the age of 67 should be tampered with. But you are right to express that
your right to express that view is not the same as somebody else's ability to
disagree with you. In other words, the fact that I recognise that he had a right
to make the point does not commit me to agree being it and we did not agree with
that.
MR FITZGERALD: I am not inviting you to. I am saying you are making this big --
as if it were a treasonous act. This was simply someone contributing on a
limited judicial issue to the debate, and if people are with the referendum,
they are going to vote for the new draft, if not, they are guilt to vote against
it.
A. I think it is a very big thing. It affected the result of the referendum. The
caused the opposition to -- it gave the opposition a hook on which to play
politics with the Government on the referendum vote and as I was saying to the
Chief Justice in the letter:why are you doing this? If this referendum does not
get carried, we are stuck with the old Constitution, which is -- and this is a
huge improvement. You cannot condemn as being interference with the independence
of the judiciary a Constitution which is years and miles ahead improvement on
that issue. You can say: enough. You can say it doesn't go far enough in
improving the old one, but you couldn't say as between this one compared to the
old one, this one interferes with the independence of the judiciary. It did
nothing of the kind. So it was a big issue, and if you could persuade me to be
as generous as possible to Derek Schofield's position, I could only give him
credit up to September. Beyond 7 September he must have understood that he was
simply campaigning, and no longer exercising a judge's legitimate right to
express a view as a consultee before the decision-makers make their decision.
The decision-makers had made their decision, and his duty as a judge at that
point, was to remain silent and allow the legislature to make bad law, if that
is what the legislature want to do. I do not believe that judges have a right to
insist and to campaign and to have their way against the legislature. I do not
believe that.
Q. There was no way of him insisting to have his way. He was simply putting
matters into the public domain for debate?
A. For debate in the context of a referendum. Precisely. That is my point, Mr
Fitzgerald. Because there was no other context in which to put anything after
September.
Q. Can we move on?
LORD CULLEN: Would that be a convenient point at which to break?
MR FITZGERALD: My Lord, I am just moving on to the Judicial Services Act. So
that is a good point.
LORD CULLEN: Quarter of an hour. (3.16 pm) (A short break) (3.30 pm)
LORD CULLEN: Yes.
MR FITZGERALD: Chief Minister, just one final matter to the 6 Constitution, if I
may. You accept that the Chief Justice together with Sir Sydney Kentridge had a
meeting with the Foreign Office on 20 November. It is core bundle 1, page 414 to
1. So there was that meeting?
A. No. The nod was: I found the page.
Q. Okay. Well, if we can lay the foundation, you accept there was a meeting
attended by Sir Sydney Kentridge as the Chief Justice, Richard Tur and Baglietto
with Foreign Office representatives in London, I think?
A. Sorry, what do you mean, I accept? You mean do I challenge whether the
meeting took place?
Q. Yes.
A. I do not challenge that the meeting took place. They say they met. They must
have right.
Q. You are right. The result of that was an undertaking that there would be an
explanatory note, explaining the context of section 57.3. You accept that there
was an explanatory note as a result of that?
A. Almost. I accept that that which had already been agreed by the Foreign
Office to the Bar Council many weeks or months before -- I don't know how long
before -- as to the proper interpretation of section 57.3, and that which was
already the recorded documented position of the UK Government, was then repeated
in the explanatory memorandum and neither have legal effect.
Q. But the idea of having an explanatory note actually setting it out had not
come up until that meeting between the Chief Justice, Sir Sydney Kentridge and
representatives of the Foreign Office; that is right?
A. It was old ground. The ground had already been recorded in writing by the
Foreign Office.
Q. The idea of putting it in a explanatory note appended to the Constitution had
not come up, had it?
A. Not that I am aware of, no.
Q. If you just look at the Constitution --
A. But of course had it been asked for, it would have been, I suppose, done. It
wasn't -- what happened immediately before it was not necessary to procure that.
Q. Can I just invite you to look at the Constitution and then to look at the
explanatory note so we know what we are talking about? You have the Constitution
in the authorities at tab 1?
A. Yes.
Q. It's stressed there the Judicial Services Commission is the decision-making
body. It is at page 61, the penultimate sentence. Page 61 of the Constitution in
tab 1. It establishes a public service commission, a specified commission, each
of the executive powers subject only to an exceptional power of veto by the
Government. Do you see that?
A. Yes.
Q. It is right that that was obtained by private consultation and discussion by
the Chief Justice?
A. No.
Q. The explanatory note?
A. Are you talking about the point or the fact that it was described as an
explanatory note in the document containing the Constitution?
Q. Yes?
A. The fact had already been obtained many months before in writing.
Q. The idea of including as an explanatory note the Constitution came up at that
meeting on 20 November and led to the inclusion of an explanatory note?
A. Yes, as I recall, the Foreign Office said: we have already confirmed that in
writing, but if it makes you feel better to see it in a place where it has the
same legal validity of where I have said it before, we are very happy to repeat
it. That is all it has. You will see that under the explanatory memorandum, it
says in brackets: "This note is not a part of the order". This is simply
repeating here what I have already said elsewhere and both have the same legal
purport, namely none.
LORD CULLEN: Mr Fitzgerald, I am not quite clear what you are putting to the
witness. Is it the idea of the whole note, so to speak, or simply the inclusion
within explanatory note of this power of veto being exceptional measure? I
wasn't quite clear because it is very common to find explanatory notes added on
to legislation of one kind or another.
MR FITZGERALD: It's both. Is it the idea of appending an explanatory note came
up at that meeting?
A. I can't say. I don't know whether the existing Constitution, for example, had
a explanatory note or not.
Q. And certainly the idea of including within that explanatory note an
explanation that this was an exceptional power of veto was the product of that
meeting.
A. Including that statement in the explanatory memorandum, may have been the
fruit of that meeting. The point itself was not the fruit of that meeting.
Q. Would you accept this: That for you to say that he was acting in a purely
political vein after the September is not accurate because he was going for
private discussions to ensure that there was a limit to this power.
A. Well, Mr Fitzgerald, I mean, are you putting to me -- because if you are I am
perfectly happy to answer it -- that he said to the Bar Council or rather that
he said to the world in his opening of the legal year speech, everything that he
said there including the fact that he was seeking the opinion of the three
experts, in order to obtain four words in an explanatory memorandum that had no
legal effect, is that the proposition you put to me, that is not the exercise of
the Chief Justice embarked on after 7 September letters, and to suggest that
this is fruit, that justifies the exercise in my opinion is completely
unsustainable.
Q. I am putting it to you that it is not fair to say he was simply playing
politics when he went in a confidential way, in a proper way, for consultations
which yielded a positive result in the explanatory note?
A. I don't think it was a positive result. There was no positive result at all.
That was the point which had already been made in writing, a copy of which the
Chief Justice had, which is why the Bar Council dropped its opposition to
section 57.3 a long time before this. The idea that all the angst that was
caused by the three lawyers' opinion and the opening of the legal year speech
was in order to obtain this is -- I do not want to use the word ludicrous, I
know you already think it is my favourite word, but ludicrous.
Q. You have read the transcript of Friday, obviously.
A. It's been explained to me.
Q. Can I move on to part 13 of the Judicial Services Act, and deal with that?
The Judicial Services Act, this is right, was passed in July 2007?
A. If you say so.
Q. Yes.
A. June sounds more accurate to me. I don't know.
Q. I don't think anything is going to turn on that. But is this right, that you
were Minister of Justice from January 2007?
A. June.
Q. June? But you were Minister of Justice from January 2007; is that right?
A. Indeed.
Q. And you had direct responsibility for the Judicial Services Act?
A. Correct.
Q. And can you confirm this, that the Chief Justice never himself made any
public statement about it to the press?
A. How could I possibly know that?
Q. Any public statement to the press, anything public said by --
A. I don't know what he may or may not have said to the press. It may be true
that there is nothing in the press attributing to him any information that they
used, that may be true. I cannot speak to whether he has ever spoken to the
press about this or not.
Q. And he never made any public speech about the Judicial Services Act such as
you complain of in relation to the 2006 Act?
A. The Judicial Services Act. You may be right, but you know that the
Government's position is that throughout all of this, that it is just not
realistic to clinically separate the positions. I mean, his wife was saying
things in the press which only he could have fed to her. Now, whether that means
that he was saying that to the press or not is for other people to decide. He
was passing information to his wife, without bothering to seek Mr Causer's
opinion on whether it constituted a breach of the Official Secrets Act, which
his wife was then putting in the public domain. Whether that, in our view,
constitutes his participation in putting matters into the public domain. Whether
he himself directly spoke to a newspaper man or not is to me not the issue.
Q. The draft bill, is this right, was calculated for the first time in February
2007 without any prior consultation?
A. No, that is not right. What happened in February 2007 was the consultation.
Q. Well, yes. But that was a draft bill that was circulated.
A. Well, it is not unusual for -- I think in the UK you call them white papers.
It is not unusual for consultation papers to helpfully give an indication of
what the legislation might look like. So to suggest, as I suspect that you are
doing, that he wasn't consulted earlier, no one was consulted. That was the
initiation of the consultation proceeds. The Constitution had come in -- had
just come into effect, and that was the legislation to give the detail to the
creature created by the Constitution which was the Judicial Services Commission,
and there was at the time some urgency, I recall that there was a need to make
some appointments, I don't know. There was some Court of Appeal issue that
needed to be resolved. To cut a long story short, there was some urgency. In
other words, we had a Constitution that required there to be a Judicial Services
Commission in order for the judiciary functions to function, and it wasn't put
in place. So it was put in place, and this was the opening shot, this was the
initiation of that process.
Q. It went ahead pretty fast, from February to June, this Judicial Services Act?
A. No, if you put it into the local context, let me say this is -- I won't say
it is the first such example, because we had already initiated the process of
written consultations some time just before this in respect of financial
services legislation. But there has never been a tradition in Gibraltar of
formal written consultation processes, like you are very accustomed to in the
UK, for legislation. In fact, before we arrived in office, I think it had never
happened. This was one of the first instances in which there was a formal
written consultation process by the Government in an area of legislation outside
financial services, and we were actually very proud of it.
Q. Do you accept that before publishing this draft you should have consulted the
Chief Justice about the terms of section 6?
A. Certainly not.
Q. And you do accept that they --
A. He was being consulted about that. That was what the whole document was
about. Every person howsoever connected with the administration of justice in
Gibraltar was being asked what they thought of the whole bill, including section
6, indeed, there are many senior judges in Gibraltar, and some not so senior,
that had things to say about section 6, and succeeded in persuading the
Government to change section 6. That is what consultation processes are for.
What you are asking me is whether I think that the Chief Justice is somehow
entitled to a preconsultation process, preconsultation, the answer is that I do
not think that he was entitled to any such thing.
Q. Now, if I can just ask you this, do you accept that prior to this there had
been a situation where the head of the judiciary was in fact the Chief Justice?
A. No. I accept that there was a passing reference in the Government's website
-- I have written, I don't know by who, perhaps by the judiciary, that he was
the head of the judiciary. And you know, you could say that he was regarded
locally in informal terms -- I will define what I mean by informal in a moment
if you like -- was regarded as the head of the local resident judiciary. But the
figure of head of the judiciary does not exist, and did not exist, anywhere in
the Constitution. The Constitution appointed him Chief Justice, and then that
and some other bits of legislation gave him certain functions, none of which, by
the way, he lost as a result of the Judicial Services Act. His functions were
enhanced. So you will not, through any number of questions, Mr Fitzgerald, get
me to accept that the effect of the Judicial Services Act is to remove him from
the office of head of the judiciary. He retains under that Act in relation to
the judiciary precisely the same role and functions as he exercised before it.
Indeed, enhanced in some very significant respects.
Q. I just want to put certain things to you. You have already referred to the
Government website. This is at volume 5, page 2341.
A. Don't trouble yourself. I concede that the Government website --
Q. The Government website had described --
A. Alludes to him as the head of the judiciary.
Q. Describes him as the head of the judiciary.
A. Mr Fitzgerald, surely you are not arguing that a reference in a website is
constitutionally forensic as to the proper analysis of an officer of this
status. It was at best a mistake, and at worst an insufficient phrase. It should
have said, perhaps, "Head of the resident judiciary". He is clearly the most
senior judge resident in Gibraltar. There was no doubt about that, and he
remains that.
Q. Right. So he had been described as the head of the judiciary. Then if we look
at page 342 --
A. Of what document, sorry?
Q. Of core bundle 1. You see the recommendation of the Chief Justice at and in
the course of the Constitutional consultation process, at the bottom of page
342, the recommendation is that there should be some expression to the effect
that the Chief Justice is responsible for all matters in judicature, to make it
clear that he and not the Governor was the head of the judiciary. Do you see
that?
A. I do, Mr Fitzgerald. Sorry, you want to formulate a question or just ask
whether I see it?
Q. First of all, you do see that. Secondly, he was saying that this is something
that ought to be made clear as part of the Constitution?
A. No, he was saying that the Governor -- let me say that there is a long
history of issues between this Chief Justice and a string of governors as to the
role of the Governor and the Chief Justice in relation to the judiciary. In
other words, I think the Governor's position was basing himself on the dispatch
on the old Constitution which says the administration of justice shall remain
the responsibility of the Governor.
Q. Yes.
A. Or words to that effect.
Q. That is absolutely right.
A. Now, that has led successive governors going back time immemorial, not
challenged until Derek Schofield arrived in Gibraltar, that the Governor had
certain -- and when the Constitution said: the Governor shall appoint this and
the Governor shall discipline that, it meant precisely that. That is why we
thought that the new Constitution was such a huge improvement because it put
distance between the Governor in favour of an independent body, and the Governor
was no longer the head or had that function in relation to the judiciary. The
Governor has been removed from any discretionary power, save the veto which he
can only exercise with the discretion of the Secretary of State under section
57.3 or 52.3. That is the only real power left in the Governor.
Q. Could I now ask you to go onto page 345 to 346, the Bar Council's own
recommendations as to the Constitution, and do you see that they were
recommending in February 2006 to allay any concerns -- this is page 346 -- in
the light of the dispatch to the 1969 constitution, they are recommending the
following wording to be included: "The Chief Justice is the head of the
judiciary and is responsible for the administration in justice of Gibraltar."
A. Yes, the new Constitution did not designate, whatever other people's views
may be, they were perfectly entitled to express the view, but once the Privy
Council promulgated the order in Council that is the Gibraltar Constitution, the
Chief Justice's views and the Bar Council's views did not succeed. It did not
create the position of head of the judiciary. What it did do however in the
context of the Judicial Service Act was to designate the president of the Court
of Appeal and not the Chief Justice as the chairman of the Judicial Service Act.
That is what the Constitution did. Thereafter, the rest is opinion as opposed to
right.
Q. No, what I want to put to you is this, that the understanding of the Chief
Justice in 2006, the understanding of the Bar Council in 2006, and the fact
reflected in the Government website was that the Chief Justice was in fact the
head of the judiciary. That is right, isn't it?
A. He might have been regarded as that. I suppose if somebody had asked me in a
cocktail party who is the head of the judiciary during the last 12 years, I
might have said the Chief Justice, but that is very different from that being
the formal statutory framework position. There is an office holder with certain
functions which nowhere are described as constituting the headship of the
judiciary. Those functions are preserved, indeed enhanced, by the Judicial
Services Act, and therefore as far as we were concerned, we were designating a
president of the courts. The Judicial Service Act doesn't name a head of the
judiciary. It names a president of the court, a position that we will have to
say we stole from the UK's Constitutional Reform Acts, where it did not exist
before, and left intact the Chief Justice's function. If he wants to carry on
describing himself as the head of the judiciary, despite the fact that he is not
the president of the courts, there is as little or as much statutory authority
for that proposition now as there was before the new Constitution and before the
Act.
Q. But it is right that in your original draft, the person put in charge of the
day to day running of the justice system was the president of the Court of
Appeal?
A. No. I think the word overall has been there from the outset, even from the
original paper, and it is true that the Court of Appeal, and indeed several
other consultees, I think, from memory all the Court of Appeal judges, the Bar,
I think both the puisne judge, the magistrate, they all expressed the view not
that it was unconstitutional or improper or unlawful, but that they thought it
was impractical for a non-resident judge to exercise the day to day
responsibilities. Not that we had thought that the Chief Justice would not
exercise that role, because I think you will find that in the original -- I
think I am right. I am speaking from memory. In the original consultation paper
in relation to section 6 -- I am taking a risk looking at this now.
Q. Page 436.
A. The clause as it then was, 6.2, says: "As president of the courts of
Gibraltar, he has overall responsibility." So even when we were penning this, we
realised that the Chief Justice would have none overall responsibility. But we
were very heavily advised by consultees that that ought to be made clearer, and
it was.
Q. The truth of it is that the local judiciary were unhappy at the idea of a day
to day running being put in --
A. No, they weren't unhappy. They thought it was impractical, and they were
right, not that that was the intention anyway.
Q. Why didn't you consult the Chief Justice before even proposing in section 6.1
of its original draft that the day to day running would be put in --
A. Mr Fitzgerald, this is the process which the Chief Justice was being
consulted. The fact that he did not behave as you would expect somebody to
behave when he receives a consultation document, that he winds up his wife to
initiate a campaign in the pages of Vox, is not something you can convert into
something that I have to explain myself for. The fact of the matter is that what
anyone would expect when a judge is -- every other judge thanked us for the
consultation process, possibly understanding that there was no great tradition
of it in Gibraltar. Everybody had their say in this consultation process. It was
an effective consultation process. Before replying to the consultation process
the Chief Justice had 1: embarrassed me by breaching my call to confidence on
giving him an advance copy; had informed his wife about all the things, you
know, that he informed his wife about, which she then put into the press within
hours of the Government having published to him the consultation process. You
may wish to now ask me questions about why I didn't have an exclusive
preconsultation process with the Chief Justice. I think there is no merit in
that proposition. That is my position.
Q. If you would like to go to page 452, in fact you will see there the only
thing that the Chief Justice did do, which was immediately to write, having seen
the draft before he went away, saying: my immediate reaction is that I have
reservations about the constitutionality of clause 6. Furthermore it may well
have --
A. I don't accept that that is the only thing the Chief Justice did. There are
things appeared in the Vox newspapers within 48 hours of this document having
been sent to the Chief Justice which only he could have known about. For
example, as soon as I received the consultation process I asked -- the Chief
Justice asked for an appointment to the Governor. Unless Mrs Schofield was
camped in the Chief Justice's office, how could very possibly know that as soon
as the Chief Justice -- how could she possibly know that as soon as he came
back, that he found a document on his table. There are things in the Vox article
-- sorry, I am speaking from memory, but there are things in the Vox article
recited both in the government's recusal statement and in this statement here
which only the Chief Justice could have possibly known, and therefore only he
could have told his wife.
Q. You are not suggesting as a matter of reality in the real world that if one
receives a document referring to something like section 6 you can't even discuss
it with your wife?
A. I am not sure the Official Secrets Act makes an exception of your wife.
Q. But in the real world?
A. This is a man that had been punctilious according to your case in the past
about denial and delay point to release of finance, but had taken legal advice
about whether he could even mention the word "recruitment", and yes, I believe
that it is completely improper for a Chief Justice who receives a consultation
process of this sort to say to his wife -- what could have been the point of the
Chief Justice -- I can understand that the Chief Justice would still be
improper, but I can understand that the Chief Justice says to his wife: we
received this consultation process, and this ogre Caruana is obviously using
this as a legislative attempt to remove me. But why would he have demanded to go
and see the Governor? All he was doing was feeding information to his wife, and
I say in the expectation that she was going to use it for some extraneous
purpose which she did, to put it in the press. And if he did not intend that,
and his wife was on a frolic of her own, as he appears to maintain, then he
ought to have done something about clarifying his position and not remaining
silent if he felt that his wife had betrayed the confidences of his domestic
environment. By passing the information to his wife, before he even bothered to
reply to the consultation process, and by remaining silent on the use to which
his wife put that statement, I conclude that he intended her to do it.
Q. The next letter that he wrote was on 26 March 2007, page 469, in which he
expressed himself, would you accept, in a perfectly moderate way to you?
A. Yes, a month too late.
Q. Chief Minister, you have expressed your views --
A. I am answering your question. Perfectly proper terms, but a month too late.
Q. All right. Expressed himself in perfectly proper terms as to the
complications of clause 6?
A. Correct.
Q. He set out, in the penultimate paragraph on page 469, the practical
implications, possibly in the interests of the administration of justice for
overall responsibility for the judiciary to be transferred from a full-time
resident Chief Justice with full security of tenure to a part-time non-resident
president of the Court of Appeal?
A. With the greatest of respect to you, he was not making the same practicality
point that the other consultees made. Further up the page he was already
challenging the Constitutionality of clause 6: "I am concerned that in creating
a president of the courts of Gibraltar whose duties conflict with those of the
Chief Justice, clauses 6.1 and 6.2 are ultra vires the Constitution." Its Chief
Justice has never articulated his position about this point in relation to the
practicalities of it. In contrast, no other judge has articulated their position
by reference to the legality of it, only by reference to the practicality of it.
In other words, the Chief Justice of all the judges that the Government
consulted is the only one who took the view that this was or possibly was
unlawful. Everybody else thought it was lawful, but impractical, and the
Government dealt with that.
Q. So there were three matters he identified, Constitutionality, practicality?
A. Where does he deal with this? Point out to me.
Q. Dealing with the practical implication?
A. Sorry, I am not suggesting it is not there. I am asking you to point me to
it.
Q. Surely that can only be read as saying?
A. Sorry, where?
Q. Dealing with the --
A. I am with you, I beg your pardon.
Q. I agree it is pretty --
A. It is just that this is very small.
Q. "Dealing with the practical implications, my concern as Chief Justice is the
best interests of the administration of justice. How can it possibly be in the
interests?" The real problem is that the person isn't there. The president of
the Court of Appeal isn't there. He visits from time to time.
A. But, Mr Fitzgerald, even when he comes close to making the practicality
point, he shrouds it in the language of legal challenge. Why else would he add
"resident Chief Justice with full security of tenure" to a part-time,
non-resident president of the Court of Appeal on a relatively short-term
contract. He wasn't there making the point about practicality. He was
articulating his view that this assaults the independence of the judiciary.
Q. Yes, a view shared by Rabinder Singh when he gave his advice which no doubt
you have seen.
A. Yes, but by nobody else that was consulted by the Government.
Q. Let's just go on. He says: "I also have sympathy with Mr Justice Dudley's
submission that this clause effectively blocks a Gibraltarian in becoming head
of the judiciary for a generation or more."
A. That point is neither relevant nor correct.
Q. Will you just go back to see --
A. No, it is correct that the other judge said that, but we dealt with that by
explaining to them that this Act represented no impediment, no glass ceiling to
Gibraltarians reaching the position of Court of Appeal.
Q. You see that Mr Justice Dudley did express at view at page 465?
A. I am not saying that everything that the Chief Justice says is improper.
Q. You see that indeed Mr Pitto, the stipendary magistrate, expressed that view
himself?
A. These are not in terms of practicalities of loss of legality. They were
worried, as young Gibraltarians, whether having a president of the Court of
Appeal from amongst the UK judiciary -- they were very complementary, by the
way, and understanding about why the Government wanted to do this. They were
concerned, however, whether this was a curtailment to their career, and we
simply pointed out to them that why should there be? We already had
Gibraltarians who were judges of the Supreme court, the High Court, there was no
reason why in the future those judges could not proceed to the Court of Appeal
of Gibraltar, and no reason why one of them -- I just didn't understand the
point. I had never understood the grass ceiling point. For the first time ever
-- well, we had a puisne judge. We now, during the Chief Justice's suspension
period, have had a Gibraltarian acting. There is no reason why we can't have
Gibraltarian Court of Appeal justice. But in any case it was not a challenge
that was made to the legality and what is more important, it was dealt with
properly in the consultation process. The first thing that Mr Pitto and Mr
Dudley or Messrs Justice Pitto and Dudley said was: thank you for the
consultation process. Thank you for giving us the opportunity to express our
views and here they are. Both lamented the problem controversy that had been
blown up around -- which I interpreted to mean criticism of what Mr Justice
Schofield -- what was happening in the newspapers. Derek Schofield had made that
point in the context of the consultation process, at times a perfectly
legitimate point to make. The concern that we had about the Schofields'
behaviour in relation to this was not that they expressed any view that was
wrong. People are entitled to express views that are wrong in a consultation
process. They are entitled to their views, whether they are wrong or whether
people disagree with them. But in the consultation process, and not in some
public campaign designed to conclude that the Government -- that this was all a
legislative attempt to remove me from office and I am now going to turn the heat
up against the Government in the pages of the press.
Q. You see, I am taking you through, Chief Minister, and so far, apart from
saying that everything his wife did she said in his name, I am not seeing
anything from the Chief Justice in that letter or any subsequent letter, which
is other than moderate, reasonable and legally expressed.
A. Yes, to get away with that point you will first have to persuade the
tribunal, which you may well be able to do, it is not a matter for me, that the
Chief Justice bore no responsibility whatsoever for what his wife was doing, and
at the very least, he passed confidential information to her which enabled her
to initiate a vicious campaign in the press, and at the worst, he failed to
dissociate himself from that, and this is no longer the wife entitled to a
frolic of her own. She was on a frolic of her own using information improperly
passed to her by Chief Justice, and that is a different to a wife that just goes
on a frolic of her own with information that she has obtained on her own.
Q. Can I move on to your public comment about this Chief Justice? You gave an
interview with GBC on 4 May 2007 against that background, and can I take you to
page 589? You were asked by Christine Podesta, the interviewer at the bottom of
page 589, you say that: "Everyone involved in the consultation process replied
in writing, but in the press release, it was signed that those who so
constructed who respected the spirit of the exercise that the Chief Justice is
not mentioned here." And then you said: "I don't include the Chief Justice in
that, although he did actually respond in writing. Although the Government
doesn't agree with many of his views, as did many other consultees not agree
with many of his views. I cannot say that the Chief Justice has limited the
expression of his views to the consultation process. The spirit of the
consultation process you know otherwise we would not have the unseemly rows that
there have been in the press for what was supposed to be a consultation process
at the time when all the parties consulted -- had the opportunity to express
their views." So you are there criticising publicly the Chief Justice for not
abiding by the spirit of the consultation?
A. Yes. In my opinion, in terms which were much more gentle and generous to him,
than his conduct warranted. In other words, we could have said much more,
couldn't we? I could have said: I sent him a consultation process
underconfidential cover, he didn't respect the confidence. He passed the
information to his wife, which only he could have known. I could have said all
of that. In the end, I simply opted not to mention him in a list of people.
Q. Yes, and then you said --
A. The questioner then asked me: and what about the Chief Justice? That was not
part of my answer. It was a supplementary question that I was asked and could
not avoid. I could not have dealt with him in gentler terms. What I was not
willing to do was to pretend in public that I thought that the Chief Justice had
behaved properly in relation to the consultation process when it was my position
that he had behaved hugely improperly.
Q. Shall we go on to his response to your public criticism of him, which is in a
letter of 21 May 2007?
A. Sorry, what page?
Q. Page 699 to 700. Now, you wrote that private letter to you, expressing his
concern about the interview that you had given to GBC. He quotes that, and he
then deals in perfectly reasonable and moderate terms with the reasons why he
thinks the Chief Justice should remain the head of the judiciary; isn't that
right?
A. No, it isn't. It is right that the letter is written -- what you have said
about the letter and its content is right.
Q. Yes.
A. But I think it is frankly -- you know, this is 21 May. This is what, three
months after the matter had raged in the debate. The consultation paper, Mr
Fitzgerald, which the Government published in good faith to the Chief Justice
resulted in allegations in the press attributed to his wife, that the government
was hounding him out of office, amongst other things. You know, a month after
that, with him maintaining silence while the press ran rampage with this
information attributed directly to his wife, a month later he replies to the
Government -- to the consultation process. The Government did him the courtesy,
which others might have thought was more than he was then entitled to, of
responding to him in normal terms in the consultation process without alluding
to any of these other issues. So I stand by the Government's behaviour. I stand
by my behaviour, and my statement. I think that they are yet another example of
how the Government has been moderate, constructive and minimalist in the face of
supreme unconventional unacceptable provocation from a judicial quarter, and I
don't think there is evidence of Government misbehaviour. I think this is
evidence of supremely responsible behaviour by a Government that had been given
cause to say much more than it actually chose to say.
Q. If you look at his response finally at page 701, he makes the point at the
top of that page: "Furthermore, in this passage you seem to connect what you
describe as unseemly rows in the press with my submissions. As yet, I have made
no public comment on the bill." Did you ever say: you are wrong about that, you
have made public comment?
A. Mr Fitzgerald, the Government did not engage privately. It was all over the
press, and the Government chose not to lock horns with the Chief Justice
publicly or privately. But frankly, for all of this to be raging, and for the
Chief Justice to behave as if he was sitting in an ivory tower, unaffected by
everything that was going on -- so he must have known that the allegations being
put into the public domain by his wife were sourced to him. It is all very well
for you to come back several years now and pretend that it was some sanitised
environment of normality. The Chief Justice was not entitled in my view, even
though he chose to deal with him as a normal consultee in terms of my written
response to him, when I responded formally to every consultee, he was amongst
them. Frankly, many would say that that was more than he was entitled to, given
what he had unleashed. He had chosen to undermine the consultation process and
many governments would have taken the view that he had had his yacht. That was
not our view. It was not the view that we took. We answered his point in his
letters like we did to other consultees who didn't agree with them. That is a
different matter.
Q. Now, I do want to now come on to the final area, but before that, I should
deal with one matter of history. I think you are aware that the Chief Justice
has made a reference to -- and we have heard evidence from Mr Gomez about it --
to the replacement of Mr Gomez as an Employment Tribunal Chair in 1996. Are you
aware of that occasion?
A. I am not aware of it. Refresh my memory.
Q. It involved the case of a Jill Koehane --
A. Having seen the reference as it was reported to me, I perused the file.
Q. She had been employed about the Chief Minister under the previous Government,
and --
A. Chief Ministers don't employ people.
Q. Had she been employed as a civil servant?
A. She was a contract officer. Not permanent -- under the previous Government.
Q. And had she been dismissed and sought to sue for unfair dismissal in the
Employment Tribunal?
A. Yes. Do you want me to talk generally to that issue?
Q. Could I just ask this. Do you accept that there came a stage when the Chief
Secretary sought to remove Mr Gomez as chairman of the employment tribunal?
A. Yes.
Q. That is when he told him you have been removed?
A. Yes.
Q. He didn't go and make an application to him: please recuse yourself; he just
told him: you have been removed.
A. Correct, but this is not an instance of interference with the judiciary. You
need to hear some background to this, Mr Fitzgerald. Briefly, to Mrs Koehane,
because it is not actually central to the point that you are I making, Mrs
Koehane was a contract officer for the Government that was very associated with
the previous administration. On the eve of the election that brought me to
office -- the election was on 16 May. I think this must have been a day or two
before. The Chamber of Commerce had the habit of inviting the leader of the
opposition and the Chief Minister, or rather the candidates for the office of
Chief Minister, to a dinner and we would both speak as part of the hustings. And
at the end of that meal, I will always remember this, at the end of that meal I
approached Mrs Koehane socially, and said, almost in jest: what are your plans,
what will you plan to do if I should win the election, to which we are answer
was "I cannot work for a government" and by the way, this she did not contest in
the subsequent legal challenge to -- her precise words to me were: "I cannot
work for a government whose policies I so radically disagree with. I don't agree
with your policies and I will not be able to work with you." Mrs Koehane's
contract had expired by the time of the election so she was actually not sacked.
The Government simply opted in the light of her statement to me just four days
earlier not to renew her contract. Those are the circumstances in which Mrs
Koehane came to cease to work for the Government.
Q. All right --
A. Then she did indeed make a claim for unfair dismissal in which the issue was
not that point. The issue was both sides agreed whether this technically
constituted a dismissal, regardless of the factual background which was not
challenged, dependent on some esoteric point and the parties agreed to leave
that as the sole remaining point to the tribunal. There is true. There was then
put in place under the previous administration a system where there were only
two Chairmen of the tribunal. One was then an employee or a recent exemployee of
the Government, and another was Mr Gomez. Mr Murphy and Mr Gomez were the two.
The Government -- we subsequently changed that into a wider panel. Mrs Koehane
herself, when she went to ask who had been appointed chairman of the tribunal,
said to the secretary of the tribunal: Mr Gomez has been appointed. Mrs Koehane
said to the secretary of the tribunal "I think that there is a difficulty with
that because I have worked --" all this is recorded by the way in the files and
I am very happy to produce them. Mrs Koehane said: "I think there is a
difficulty with that because I have worked very closely with Mr Gomez." This was
reported to Mr Montado, who is the public authority that actually dealt with the
appointments of -- because I suppose I should say as an aside that the tribunal
system in Gibraltar, I am not sure it is right, but anyway the tribunal system
in Gibraltar was not and has never been part of the judiciary. Indeed it still
isn't. You will see from the Constitution and the Judicial Services Act that it
does not deal with industrial tribunals. The industrial tribunal is administered
by and has always been administered directly by the Government, and the
judiciary has never had any stake in it and it has never been thought of as part
of the judiciary. Mr Montado on powers delegated from the Governor was the
public authority that appoints the Chairmen of Tribunals. He appointed Mr Gomez.
When the secretary of the tribunal informed Mr Montado, the previous Chief
Secretary, that Mrs Koehane had said this, Mr Montado said: well, in that case,
he had better be replaced, and it is true did try to replace him by reversing
his own decision to appoint him in the first place. Or the decision of the
system, I am not sure it was his personal decision. The view was then taken that
the proper way to achieve that was a recusal application and that is how it
proceeded thereafter. He was restored. He was recused on application from the
Government, the Governor advised, then said perhaps a stipendary magistrate, the
stipendary magistrate, then, a Mr Mockett, was appointed, and Ms Koehane sought
his recusal. So in a bird's eye view, this idea given not just by Mr Gomez in
his evidence, but indeed by the statements, I am not sure if it is the fifth or
the third or the fourth statement by the Chief Justice. But this was an instance
of political interference in the judiciary such as was sufficient to put him on
notice that the Chief Minister had a record of judicial interference, is
completely unfair. And unsustainable on the facts of the matter.
Q. Can I just put this to you, is that right? It follows from that recitation
that the Chief Secretary did remove him by his own fiat, if I can put it that
way, from sitting on that tribunal, and then when this was a protest about that
--
A. Absolutely. That's correct. The Chief Secretary thought because the
appointment of him had been his own administrative act, when informed that one
of the parties had raised an objection, the Chief Secretary thought that he was
free to simply disappoint him because the proceedings had not started. Nothing
had happened. There were no papers. There was just an administrative designation
of Mr Gomez. There had been no hearings and no papers. Mr Montado thought this,
and, you know, we can have a lawyers' seminar about whether that was technically
correct or not if you like, but that is how it happened, and not as suggested by
anybody.
Q. Well, I think what the Chief Justice is saying that as a result of this, he
himself intervened, and the matter was then put before the stipendary
magistrate, and you have said there was a recusal application before him?
A. Yes, it is true. In the absence of the Chief Minister, me, and the Chief
Secretary, then I think still called the Administrative Secretary, away from
Gibraltar certain representations were made to the Governor by Mr Gomez and by
the Chief Secretary, and by Mr Gomez on the Chief Justice, imputing from
misstated facts, which are contrary to the ones I have just given you, which
would not have happened had we been in Gibraltar at the time. If might still
have been the correct view. It might still have been the correct, and indeed may
be the correct view that even in circumstances where there was an administrative
appointment, the administrative appointer, even if he thinks he is still in time
to do it, cannot reverse his decision because one of the parties -- not the
Government. This was not the Government saying: we think that Gomez is a bad
choice. It was all triggered by the other side, Mrs Koehane, making the
observation. Otherwise I would not have known. Nobody would have known that Mrs
Koehane worked closely with Mr Gomez and the matter would not have arisen.
Q. Did you discuss this at any stage with the Chief Secretary, the question of
changing?
A. I remember when the Chief Secretary brought it to my attention, I said to the
Chief Secretary: perhaps in a case involving the Crown it is appropriate for a
senior lawyer, for a silk, to be appointed -- what are they called -- the
chairman of the tribunal, and I was careful to point out to him in a minute that
it should not be any silk that had been my ex partner. So I said: I think
perhaps when the case involves the Crown, because very few industrial tribunal
cases involve the Crown, in fact this might have been the first in many, many,
many years, I said perhaps, given the Government is the appointer, when it
effects the appointment, it should be somebody who is senior from the bench who
is much less likely to be thought suspect. But if you do appoint a silk, don't
appoint -- and I think I mentioned JE Triay, who is not just my father-in-law
but my ex-partner, Serfaty, who is also my ex-partner, and I think I mentioned
three people who he should not consider because they had been recently my ex
partners, even though they were silks.
Q. If you would just like to look at page 17 to the Chief Justice's speech at
the opening of the legal year?
A. Sorry, can you take me back --
Q. The core bundle. After this --
A. Page 17?
Q. Page 17 of core bundle 1.
A. Sorry, page 17 of core bundle 1 is something different. Page 17 of core
bundle 1.
Q. Yes.
A. The address. You are right. You beg your pardon.
Q. You see at the end of the address there a reference there to -- he gives the
Supreme Court to opportunity to remind the public that: "All who appear before
it are equal, no matter whether they be a mighty corporation or the most humble
individual. Justice will be dispensed here according to law by an independent
court. Courts and tribunals must be totally independent. Improper inferences..."
A. I agree. I wholeheartedly agree, even though the tribunal is not part of the
court system. But the statement is still correct.
Q. Is it right that you took exception to that statement in the light of the
history, and that you --
A. I don't recall taking any public exception to that statement.
Q. Is it right that there was thereafter a drinks party which you stormed out of
because you were unhappy at this reference to the importance of impartial
treatment?
A. I don't think so. It is not impossible, but I have no recollection -- would
you like me to give me a bit more tidbits so I might recall my memory? At the
moment I have no recollection. I don't think I have ever in my life stormed out
of a cocktail party. But if there is one exception of which you can remind me,
please try and remind me. At the moment I have zero recollection of it.
Q. Perhaps cocktail party is putting it a bit high. There was a drinks party.
A. I don't like cocktail parties, but it doesn't mean I storm out of them.
Q. I am sure that we can discuss cocktail parties at a later stage. There was a
drinks party.
A. Where?
Q. After the ceremonial opening, is this right, in the hall of the courts there
is a drinks party held?
A. On the occasion of the opening of the legal year, the Chief Justice offers a
glass of sherry to the people hanging around.
Q. Is it right that you, displeased with his reference to tribunals being
independent and free from improper influence, stormed out of that --
A. I don't think so.
Q. You don't think so?
A. I have no recollection of it, but I don't think so, and it depends what you
mean by "storming out". I recall making no reaction to this of any sort. But if
I exercised my displeasure by not having a glass of sherry with him, I don't
recall it, but that would not be so unusual. But storming out of a cocktail
party at which I was certainly doesn't sound like me. That I might have decided
not to go to the cocktail party at all, I have no recollection of, but is
somewhat different in nature to storming out of a cocktail party.
Q. You've given us your recollection of those events and I am not going to take
it any further in relation to that. Just if we can go back --
A. Are you asserting that I did storm out of a cocktail party? Presumably you
are.
Q. That is what the Chief Justice was informed. You had been --
A. If I had stormed out of his cocktail party, he wouldn't need to be informed.
He would know about it firsthand.
Q. No, I don't think --
A. You think I stormed out ineffectively and he didn't even notice?
Q. That's right. I am afraid so.
A. A very ineffective storming out, if you don't mind my saying so.
Q. That is the situation. At paragraph 123 you deal with --
A. Of what?
Q. Sorry, part 13, page 111. So we are back to --
A. We are back on our main statement, yes.
Q. Now, you complain that allegations have been wrongly and falsely made of an
attempt on your part to remove the Chief Justice, and that is really the subject
of the following pages all covered by part 13, if I can put it that way.
A. Yes.
Q. Now, do you accept that until the judicial review application was made, the
Chief Justice had made no public allegation that the Government was trying to
remove him from office or encourage his resignation or anything of that sort?
A. I do, but I think the point to be disingenuous, Mr Fitzgerald. You know that
the Government's position is that they were in a concert party with each other
throughout this.
Q. Yes.
A. At the time that we submitted our recusal statement, of course it was
forensic analytical speculation. If you read the Government's recusal statement,
you will see that we went to great lengths to compare things and to say he must
have known about this, he must have known about that. At the time that we made
the recusal statement in the Salina case, our view that the Chief Justice was
not an innocent hand in these very serious allegations against the Government
was arguably speculative. But our speculative view didn't take long to be
confirmed because when he swore -- I don't think you swear statements anymore.
When he made a statement in the judicial review proceedings, he confirmed it. He
repeated -- or are we to believe that those were not his views before, that he
formulated them three days before he swore his witness statement in the judicial
proceedings? It's clear that he thought it througout, and therefore the question
of whether he had himself directly said it in public or not is a distinction
without a difference.
Q. It may be quite important that we're entitled to our own thoughts, but we
have to accept the consequences of our words.
A. Well, look, Mr Fitzgerald, I am not the judge in these matters. But I were a
judge and my wife were making serious allegations of this nature, I would find
some way which did not cause more difficulty for my wife than was necessary to
somehow put a line of some sort between my wife's statements and my views, and
he made no such attempt. That, coupled with the fact that he was the principal
source of the information that his wife was using, coupled with the fact that he
then confirms it to be his own views in a sworn statement in his own court, I
think, entitles people at least to the inference -- more than an inference, I
would have thought -- that the Government's speculative view that the judge was
behind this, or at least shared his wife's views, was a view that we
subsequently have found to have been justified in holding.
Q. Chief Minister, I have to come on to this, which is: do you accept that he
has been given reason to believe from time to time, by actions taken by
yourself, that he was being encouraged to resign?
A. No. I have set out -- I did not mean anything of the sort, and neither did
you this morning when you told me that there were long periods of tender loving
care between us.
Q. No, I said from time to time.
A. These things don't arise from time to time. If a Government were to come to a
view that a judge, improper as the view would be in any circumstances, had to be
bullied out of office --
Q. Right.
A. It is a process. It is not one instance, and therefore this idea that there
are isolated instances during those ten years, but nevertheless during those ten
years we were hounding him out of office, when actually what we were doing is
feathering his financial bed by helping him pay his school fees, we could have
just said no, you collect your gratuity at the end of the three-year period.
Does that really sound to you like the activities of a Government, the actions
of a Government determined to hound him out of office? Let me say this to you.
First of all, I categorically deny that the Government has ever said or done
anything designed to hound him out of office because until very recently it has
not been the Government's position that he should be out of office. But let me,
having said that, express to you this view, at the risk of getting into
difficulty. Even if the Chief Justice thought that a piece of legislation which
is otherwise proper nevertheless had that as an ulterior motive, that does not
entitle him to challenge the legislation if it is otherwise proper. Now, I want
to emphasise that that is entirely an aside. There is absolutely no truth
whatsoever in the scurrilous suggestion, not developed until 2006 by either your
client or his wife, that the Government was throughout this period involved in
an attempt to hound him out of office. Where is the pre-Anne Schofield statement
to the Vox to that effect? Where? Even in your own documents where are they?
Q. I think you have already been shown the letter that he wrote in October 2001,
page 208, to Governor Durie?
A. But even if we -- even if that were true, which it isn't, do you honestly
think that if a Chief Minister of Gibraltar, which is not me, by the way, but if
a past or a future Chief Minister of Gibraltar expressed the view to a
Government that a Chief Justice's continued presence in Gibraltar was not in the
public interest, on one occasion, that that justifies that person making ten
years later the allegation that that Chief Minister has been hounding me out of
office for the last ten years, when actually during those ten years what that
Chief Minister and that Government has been done is addressing your pay claims,
giving you our financial benefits, funding your wife's human rights seminars in
Gibraltar, all the behaviour of the Gibraltar Government is the opposite, and
you ask me how I reconcile my position with yours, I think, Mr Fitzgerald, is
just another example of the clear systemic drive of both the Chief Justice and
Mrs Schofield, that whenever they have a case to answer, they just scatter
criticism in the direction of anybody else. In other words, they are wonderful
proponents of that view that attack is the best form of defence. They did it at
the time of the MOT, at the time of the maids, they did it on this occasion as
well.
Q. Chief Minister --
A. The reality of the matter is that there is no evidence, aside from my denial,
there is absolutely no evidence whatsoever. There is evidence, circumstantial at
least to the contrary, there is no evidence whatsoever of this broad canvas that
has been painted of a Government embarked on a campaign to harass and hound the
Chief Justice out of office. Apart from all of that, I deny on the record that I
have said or done anything because it has never been my view, apart from
anything else.
Q. Chief Minister, I think it may assist if I put to you and invite your short
comments on the various matters which the Chief Justice says supports his
reasonable suspicion that he is being or has been encouraged --
A. A suspicion never put to me. Throughout his relationship with me, he has
never put to me the suspicion which you are now about to try and demonstrate
that he has.
Q. Well, I hope you will assist if I can just put the matters to you in turn.
The first of those is the matter which you have already dealt with, that is to
say whether you in the run-up to the renewal of the contract in February 1999
made representations to Lord Luce that you didn't want him to continue as Chief
Justice?
A. The Governor's statement is clear on that.
Q. I don't think it is clear on that. He doesn't actually say whether the
conversation took place or not. Do you say it took place --
A. I haven't said the Governor's, I said the Government's statement which I am
accountable --
Q. Of course?
A. Is clear on that.
Q. Right?
A. It did not take place, and Richard Garcia, I understand, has given evidence
to the fact to the effect that he has had a conversation with Richard Luce
recently, in which Richard Luce said that not only that I had not said any such
thing to him but also that he had not said any such thing to the Chief Justice.
Q. The second matter is that the simple denial of the funding in 199, when it's
just simply said --
A. I see.
Q. -- you can't have funding to go, it is not appropriate and not relevant to?
A. Even if that were true, which it isn't, is that evidence of hounding him out
of office? Is it the position, as your client sees it, that unless the
Government provides all the money that a judge requires, he is being hounded out
of office? Should that even be on your list, that point?
Q. Chief Minister, I think it is not appropriate for me to debate with you, but
to put what the situation is?
A. Absolutely. I am here to answer questions, not ask them.
Q. I am obliged. I take it that you are saying it has to go to do with it?
A. I am saying more. I am saying first it is not true, and then it has nothing
to do with it.
Q. The third matter, the press release after the maid incident, can you look at
pages 119 to 120 of the core bundle? It is right that that came after the public
statement by the Governor. We have a public statement by the Governor at page
111, 4 October 2000, saying he was going to take no action, and explaining why?
A. He was going to take no action under the Constitution.
Q. Yes.
A. To remove him from office.
Q. Yes?
A. Which is the only action that was open to the Governor.
Q. Yes.
A. What the statement actually says -- sorry, you ask your question. I am
falling into the trap again.
Q. Okay. The Governor had made a statement?
A. Yes.
Q. The Government then issued a press release, some days later, setting out the
full facts in relation to Ms Jacqueline Williams and Ms Hermina Danvers. What I
have to put to you is that that was effectively to undermine the decision of the
Governor and to bring further condemnation of the Chief Justice after the
Governor had drawn a line under the matter?
A. No, the Governor had not drawn a line under the matter. The Governor had
decided he was going to take no action. There was a huge rumpus going on about
lack of information, and there was a submission at that the Governor's statement
was too brief, and gave impressions that were open to misinterpretation by
others. The Government did nothing more than put the facts in the public domain
without any form of judgmental comment. This incident is not an incident of the
Government demonstrating hostility to the Chief Justice. It is an incident of
the Government demonstrating that it did not wish to get involved in the Chief
Justice's behaviour at that time. Because these are both ordinances, both of
these are ordinances, both the income tax ordinance and the Social Security
ordinance, where actually the decision to initiate a prosecution is vested in
administrative people. The Collector of Income Tax and the Director of Social
Security regardless of the Governor's decisions formally under the Constitution,
could easily have taken the view that a prosecution was warranted, chose not to
do so, and the Government took no steps whatsoever at ministerial or political
level to interest them in doing so.
Q. Did you in fact have the permission of those two individuals to put the facts
of their tax positions in the public domain?
A. Why should I need their permission?
Q. Isn't there a provision?
A. Are you asking me? There is not a provision. You have completely, in your
opening submissions, misstated the law. There is no law in Gibraltar. There is a
law section 4 of the Income Tax Act which prevents anybody employed in the
administration of the Income Tax Ordinal Act, which is not me, from putting into
the public domain details about taxpayers' income levels only, and this
statement does not --
Q. So you got the permission of the Income Tax Commissioner, did you?
A. I don't need the permission of the income tax Commissioner. I honestly do
think that if you are going to make submissions based on a legal underpinning,
you should take care that the law that you are quoting is correct. There is no
legal provision in Gibraltar that prevents a Government from saying this, and
even if the Government had said in this people's income tax statements --
people's level of income, which is what section 4 of the Income Tax Act
prevents, the Commissioner of income tax could not have put that in the public
domain, but actually I would have been free to do so. You are without impugn.
Q. Without permission, that is your submission?
A. It is not a view. It is not a submission. It is a fact.
Q. Well, you seem to say that everything you say is the law, whatever anybody
else says, and that we all just have to accept it?
A. Can I read you section 4?
Q. By all means.
A. Do you have it available to you?
Q. I do have it.
A. Perhaps you can read it, lest anybody should think we are having a debate
about some ambiguous provision of the law. I have it. This is section 4:
"Official Secrecy." The Income Tax Act has nothing to do with social Insurance.
So your point, if it were good, which it isn't, is limited only to the tax
point: "Every person having any official duty or being employed in the
administration of this Act, shall regard and deal with as secret and
confidential all information relating to the income or items of income of any
taxpayer."
Q. You are saying nothing of that sort is disclosed?
A. You think there is?
Q. Of course. There is the reference to levels of duly registered --
A. No, where is the reference in that statement to income or levels of income?
Q. Well, there is a reference to no record of tax having been paid --
A. Sorry, are you putting to me that that is a reference to a level of income?
Because if you are, I disagree.
Q. I am obliged and I will deal with it in legal submissions if the point is --
you say that this was 1, not undermining the decision of the Governor, and 2
perfectly in order to make this statement. Is that your evidence?
A. Well, I do. And of course there is nothing to prevent a government from
undermining the position of the Governor. The Governor's position, as you call
it, was simply that he did not think that he was justified in invoking whatever
powers he had under the Constitution. The administration of the acts is not the
business of the Governor. It is the business of the Government, and this
Government, which you say this statement is evidence of hounding -- this is your
third item of hounding out of office -- far from hounding him out of office,
looked the other way when a prosecution, which is nothing to do with what the
Governor had decided, could easily have ensued by administrative decision. So
far from this being the third instance of hounding the Chief Justice out of
office, it is the second instance of the Government just playing the matter down
and not pressing the buttons that it could have pressed if it had been hounding
the Chief Justice out of office.
Q. Would you accept this then? After full investigation of the matter by the
income tax commissioner, a decision was taken, as you seem to have indicated,
not to prosecute?
A. Correct.
Q. And now that decision is being --
A. A decision was taken not to prosecute.
Q. After full investigation?
A. A decision -- look, if I were you, I would leave it just at that. A decision
was taken not to prosecute either for the dual breaches of infractions under the
income tax ordinance, nor for dual infringements -- "dual" meaning in respect of
two successive employees, in both cases under the Social Security Act. That is
evidence of favourable treatment, not evidence of unfavourable treatment, and I
would leave it at that.
Q. I will leave it at that and move on to the fourth --
LORD CULLEN: Mr Fitzgerald, I am not trying to stop you, but I am wondering how
long you are going to be.
MR FITZGERALD: I think it is right that I should put the seven --
LORD CULLEN: I am not trying to stop you. I just want to know where we are going
to in terms of --
MR FITZGERALD: My Lord, I think I can conclude this with the Chief Justice
within a relatively reasonable time. But I think it is right that I should put
these matters. As to the fourth point, as to the 2002 one-year appointment, are
you saying you had nothing to do with --
A. Absolutely nothing.
Q. The fifth point is the failure to consult with the Chief Justice over the
2006 Constitution, that is to say to get back to him. Do you accept that you
should have done that?
A. Sorry, are you asking that in the context of the fifth item of your hounding
out of office?
Q. Yes, this is freezing him out of the discussions.
A. I see. Well, no, for the following reasons. Because if I am hounding him out
of office by what you consider as insufficient consultation, the UK Government
was hounding him out of office too, were they? Because they didn't consult him
and it was their legislative instrument that was being investigated, not mine.
The Constitution of Gibraltar is a piece of United Kingdom legislation, not a
piece of Gibraltar legislation.
Q. You have used the words "hounding out of office". What I put to you was: was
there reasonable cause for him to suspect that pressure was being put on him to
resign? That is what I am asking you.
A. No. Mr Fitzgerald, despite him ignoring the Gibraltar side of this
negotiating process for the new Constitution, despite him sitting on his hands
for four years and refusing to take part in the House of Assembly's process,
despite waiting until after Gibraltar had settled its position and started the
formal negotiations with the United Kingdom, he then addresses not to Gibraltar,
but to the United Kingdom, his very first attempts to input, and despite that
fact, I decide that because he is the Chief Justice his views should be taken
into account, even though he has left it so late in the day. We take his views
into account, and those with which we agree, we incorporate and succeed in
persuading the UK on. That is the opposite of the use that you are taking to
make of this point.
Q. The sixth point is the Judicial Services Act designed to reduce his status
and his role in the judicial system in Gibraltar. Do you accept that that was to
put pressure on him to resign?
A. Why should he resign? What was the pressure? There was no alteration in his
functions. He was being given, for the first time ever -- if I had wanted him to
resign, why would we have given him for the first time ever the right to
petition Parliament directly, to bypass the ogre Chief Minister, to appeal by
statutory right directly to Parliament over my head? Why would I arm with that
new right somebody whom you say by that same instrument I am trying to provoke
the resignation of?
Q. Because you are trying to preserve the point that the Chief Justice, whoever
he may be, whether it's Derek Schofield or his successor, has been replaced by
an external short-term judge as the person to present the views of the judiciary
--
A. He has not been replaced.
Q. -- to the legislature.
A. His views -- nobody in the judiciary had the statutory right to present their
views to the legislature. The right was created for the first time in this piece
of legislation, and it was given both to the president of the courts and
separately in his own right to the Chief Justice.
Q. Just two more matters. Your interview we have already dealt with on the GBC.
Do you accept that that was publicly critical of the Chief Justice in May 2006?
A. I think it was much less critical than he deserved, and I think it was an
example of the Government trying to exercise responsibility, but not willing to
give a man a clean bill of health who did not deserve one.
Q. Then in volume 10, is this right, we have your New Year's speech at tab -- if
you have volume 10 --
A. I recall the speech.
Q. You recall the speech, where -- volume 10, tab 122 -- whilst this matter was
pending before the tribunal, you referred to the Chief Justice and you said --
it is at page 3683, my Lord. You said, page 3683, tab 122, about halfway down:
"During the last year there has been much disruption and controversy relating to
the Chief Justice." And then you stated: "Much harm has been unnecessarily,
undeservedly and unjustifiably caused to Gibraltar in the name of the supposed
defence of the independence of the judiciary, which independence no one has
challenged and which no other present judge or judiciary feels has or is being
challenged. The situation that has developed was wholly unacceptable." Now, do
you think that was an appropriate thing to say at a time when this tribunal was
considering the matter and at a time when the Government hadn't even made
representations to the tribunal?
A. Well, I do believe that it's a wholly proper statement. I have a public duty
to comment -- that is what New Year speeches are for -- on matters of public
importance. This is a cause celebre in Gibraltar. It would have been
extraordinary if I had not commented on the referral of this matter to a
tribunal. The tribunal was not then seized of it in the sense of any meaningful
step having been taken at the commencement of the hearing, and I think that
those are very measured words and they reflect the views to which the Government
had already come, which is that the Chief Justice had crossed lines from which
in our view there was no coming back. By this stage we had had the recusals. We
had had his statement in the Judicial Services Act. We had had all of that. The
Government by this stage was already of the view that the public interest of
Gibraltar was best served by the Chief Justice no longer being Chief Justice of
Gibraltar, and in fact this is a statement which does not even go so far as to
say that and, frankly, for me to say that a huge amount of harm had
unnecessarily been done to the jurisdiction of Gibraltar over quite a long
period of time, I think, is an incontrovertible fact.
MR FITZGERALD: Chief Minister, those are the only questions I have of you. My
Lord, that concludes --
A. Thank you for your courtesy, Mr Fitzgerald.
LORD CULLEN: Mr Otty, anything further?
MR OTTY: Very briefly, my Lord.
Re-examination by MR OTTY
MR OTTY: Chief Minister, going back to 1999, if I may, one of the two instances
which the Chief Justice was referring to in his speech at the opening of the
legal year, that relating to the appointment of the temporary magistrates, did I
understand you correctly this morning to say that part of the delay arose out of
the Chief Justice's request that he be involved in the selection of individuals
to go forward.
A. I think I said more than that; that he wanted to be the sole gatekeeper of
who could go forward.
Q. Yes. I just had two questions in relation to that, and I think we also may be
able to identify the document that you refer to in your evidence?
A. It is in the bundle then?
Q. I think it is, but I will show it to you in a second. Could I ask you,
please, first, to look at the press release that the Government put out in
relation to these two matters again. So core bundle 1.
A. Yes.
Q. Pages 44 to 45.
A. Yes. I am with you.
Q. Now, the second instance which is the one I am talking about is addressed in
the last paragraph at page 44, and then in the first two paragraphs of page 45.
A. Yes.
Q. Now, it doesn't appear there to be suggested that the problem giving rise to
delay arose out of any request by the Chief Justice to be gatekeeper, as you put
it, in relation to --
A. Can I just --
Q. By all means read that paragraph.
A. I will be a few seconds just to read this. (Pause). Yes. It is alluded to in
the negative. Clearly the Government's statement is not designed to engage the
Chief Justice in public debates. I mean --
Q. Where is it alluded to?
A. Well, it's alluded to in the negative sense at the bottom of page 44: "The
previous day in which the Chief Secretary sought to ensure prior to the
implementation of the Chief Justice's proposal that the selection and
recruitment of these temporary magistrates and the eventual recruitment of one
permanent magistrate to succeed Mr Mockett would be carried out in accordance
with long-established practice in Gibraltar in the matter of judicial
appointments. That confirmation was received after some inevitable delay due to
the appointment of the new Deputy Governor in December 1998, thus enabling the
proposal to be implemented. In the event, the Chief Justice decided not to
proceed." And that is accurate. The Government's position was accepted certainly
by the Governor, and when the Chief Justice was told this, he said, well, I
don't want to proceed, or I am not saying in those words he lost interest in the
proposal, and went back to the traditional method. So it is true that in the
usual style of which I am perhaps being too boastful, but the Government does
not use outlandish and provocative and inflammatory language where it can be
avoided. There is no accusation of the manner and the sense in which the Chief
Justice didn't want or wanted the old system to be departed from.
Q. Let me just assist you and see if this helps your recollection by looking at
bundle 10?
A. I recall this was a letter that I was referring to this morning.
Q. Yes, let's look at that. I will show you first of all the letter you looked
at this morning with Mr Fitzgerald, or this afternoon, I am not sure, which is
tab 87.
A. Yes, that is the one from Mr Montado.
Q. And that is 15 July, Mr Montado giving the approval and indicating
contentment with the Chief Justice's suggestion.
A. Yes.
Q. Then in the penultimate paragraph of that letter: "In order to speed up the
process, it would be helpful if you would ask the Chief Justice [this is a
letter to the Registrar] to identify a list of suitable candidates to be
submitted." So at the end of the process the Registrar is actually being asked
to ask the Chief Justice to actually put forward names. If we go back to tab 18
--
A. It had always been part of the system of appointing lay justices that the
Chief Justice would make proposals. That is all right. That is fine. He was free
to put up proposals. The Government was simply of the view that he should not be
the -- in other words, that he should not preselect; in other words that by all
means he should put up ideas of his own of who would be suitable, but that his
fiat were not a prerequirement for somebody being able to be considered by the
appointment board advising --
Q. Let me help you with the correspondence, Mr Caruana. You will see that
reference is made in that letter that we were looking at, the one of 15 May, if
you go back to tab 82 in this bundle, I think this is the first letter which
raises this issue, and I wonder if you could look at that and see if that was
the letter you were referring to.
A. Yes: "The Chief Justice tells me that he has had a verbal go-ahead from the
Chief Minister regarding a suggestion that perhaps three or perhaps four local
members of the Bar identified by the Chief Justice ..." That is correct.
Q. Is that the letter you were referring to earlier on in your evidence?
A. Yes, and the Government's position was that the selection process --
Q. Well, let's just follow through the correspondence because it may help you
with your recollection. It was, after all, ten years ago. The next item is a
chasing letter from the Registrar?
A. Yes.
Q. Because she hadn't apparently had a response to that. Then tab 84, further
chasing letter, at the end of May, the Chief Justice very keen to progress this.
A. Yes, during all this time what I think was happening was that the Chief
Secretary and the Deputy Governor were in discussion with each other about the
methodology, the whole consultation process with the Government, and was raised
by this issue.
Q. Then a further chaser at tab 85, further chaser, tab 86?
A. Yes.
Q. Then we get the substantive reply on at tab 87 which we are just looking at?
A. Yes.
Q. I just wonder in the light of that run of correspondence, is it right that
the Chief Justice's role or request rather, that he identify individual
candidate was the cause of the day, or is it really for accurate to say that the
cause of the delay arose out of discussion about the extent of Government
consultation?
A. I think it's the same point, just articulated in a different way. The delay
was because the Chief Justice wanted to put up names to the Governor, and that
the Governor should appoint whoever the Chief Justice was suggesting without
even a process of consultation. So this raises the original point, the original
consultation point, and it all merged into one. The Government's position was
that it was perfectly happy to fund the Chief Justice's model provided that the
traditional process for both recruitment and consultation were adhered by.
Q. Yes --
A. In other words, the Government was not agreeing to fund a departure from the
past except this novelty of the equivalent in Gibraltar magistrates as you have
in the UK with recorders. They were perfectly happy to provide money for lawyers
from the private sector to sit occasionally --
Q. Yes, I understand that --
A. That is the funding point. The rest was model points.
Q. One other matter of a general nature. I wonder if you could just assist on
the timing of elections and the Constitutional referenda. The elections over the
period with which we are concerned, I don't think it is all controversial, were
held on 10 February 2000, 27 November 2003 and 11 October last year. Under the
Gibraltar system, how far in advance is the election date fixed?
A. There has to be at least 30 days' notice.
Q. Thank you. As far as the referendum is concerned, we know that was held on 30
November 2006. Are you able to assist on when that date was fixed?
A. It's in the Government's statement. I don't recall --
Q. I am sorry?
A. But it is in the Government's main statement, the paragraph there.
Q. Thank you. We will find that.
A. But it was some time between his speech at the opening of the legal year and
the publication of the opinion in between those two dates. But it's quoted in
the statement.
MR OTTY: My Lord, I don't have any more questions.
LORD CULLEN: Thank you very much.
A. I am obliged, my Lord.
LORD CULLEN: Perhaps you can say something about tomorrow before we break up.
MR OTTY: My Lord, yes.
LORD CULLEN: What comes next?
MR OTTY: What comes next is either the continuation of Mr Neish, who as you
recall I have already examined and Mr Fitzgerald was due to cross-examine, or
the evidence of Mr Rhoda. I would like to just confirm their respective
availability. It will be one of those two at o'clock. Because of the early
start, my Lord, as you identified earlier, it will be necessary to have more
breaks than usual in the morning. So let's propose those be between 10.15 and
10.30, and 11.45 and 12.
LORD CULLEN: And the usual break in the afternoon, slightly later.
MR OTTY: Yes. I will discuss with my learned friend Mr Fitzgerald as to whether
it is going to be practical to have all the witnesses currently identified for
tomorrow, including Mr Neish tomorrow or whether it is necessary perhaps to move
Mr Triay to next week.
LORD CULLEN: Yes. Thank you very much. Tomorrow at?
MR OTTY: Tomorrow at 9 o'clock. (5.07 pm) (Hearing adjourned until 9.00 am on
Tuesday, 15 June 2008)
Day seven of the Schofield Tribunal:
Tuesday, 15 July 2008 (8.59 am)
MR OTTY: Good morning, my Lord. Before we resume with Mr Neish, can I mention
one or two procedural matters? Firstly, as far as the order of witnesses today
is concerned, as you see, Mr Neish will go first. Thereafter, the Attorney
General, Mr Rhoda, and then in an order which will be determined according to
their convenience how far we have got, Miss Schofield, Mr Barton and Mr Bossano.
Mr JE Triay QC was on the list for today, but Mr Fitzgerald has indicated that
he would like to consider whether it is in fact necessary to the Chief Justice's
case that he attend before the tribunal, and so he has been stood down for
today. The second matter, my Lord, relates to the letter from Bindmans received
yesterday evening and the question of the maids issue. As to that, I only have
two preliminary observations to make. First, it does raise an issue of some
importance and potential difficulty at least relating to Mr White's ability to
cross-examine in circumstances where it appears the Chief Justice has not yet
had sight of the privileged file relating to the maids issue in the possession
of Triay Stagnetto & Neish who are of course one of the Signatories. As to how
this matter should be dealt with, what I would propose at this stage is that the
Chief Justice have immediate provision to him of the file relating to Ms
Williams and the maids issue so that he and Mr Fitzgerald can consider it, and
that the interested parties and myself put in written submissions on how this
matter should be dealt with by 10.00 am on Friday, if that is acceptable to the
tribunal.
LORD CULLEN: Yes. Are we here on Friday?
MR OTTY: No, my Lord.
LORD CULLEN: Can you make arrangements for that to be transmitted on Friday?
MR OTTY: Yes, we will make arrangements to get it to you by Friday, wherefore
you are, whether by email or otherwise. The third matter, my Lord, relates to Mr
Montado, who after Mr Garcia's evidence at least appeared to be a potentially
relevant witness. Both Mr Fitzgerald and I are of the view that in the light of
the full evidence the tribunal heard yesterday, it is not necessary for Mr
Montado to appear before the tribunal.
LORD CULLEN: I think I can understand that.
MR OTTY: My Lord, in that case I will turn back to Mr Neish, if I may.
LORD CULLEN: Mr Neish, you are still on oath.
MR JAMES NEISH (continued) Examination-in-chief by
MR OTTY (continued)
MR OTTY: My Lord, I just wanted to address very briefly the documentation that
you may recall Mr Neish provided to Clifford Chance at the end of my questioning
of him last Thursday. That related to two matters, one particular matter, but
there's also been a further development I need to address with him. Mr Neish, if
you would like to turn to core bundle 1, the particular matter that this
correspondence related to is the date upon which you received a copy of Mr
Gomez's attendance note of the hearing of 16 April 2007. You will see in the
bundle, core bundle 1, at page 554.001 a letter from Triay & Triay who are
acting for you in the libel proceedings; that is right, isn't it?
A. Yes.
Q. We see it is marked "Confidential, not for public publication". As we will
see from the run of correspondence, it was not treated by Mr Gomez as without
prejudice, and you clearly in disclosing it have waived any question in relation
to that. For present purposes --
A. I think the "Confidential, not for publication" means publication by Vox,
rather than publication for the tribunal.
Q. That is as may be. We see over the page in the last paragraph, those acting
for you say, this is 554.002: "We note that an ex parte application was made to
the Chief Justice on April 16 although from the application notice in our hands
..." So you have already at that point received the application notice itself
which is at 538 to 539? If you just want to look at that.
A. Yes.
Q. You received a copy of the application notice and the letter goes on to say:
"It would appear that no relief was sought, which seems an extraordinary state
of affairs. Could you explain the precise purpose of this application, why this
was conducted in the absence of the defendant. Please also provide us by return
with a typescript of counsel's notes of that date which we shall await as a
matter of urgency." Do you recall when and from whom either you or those acting
for you received a copy of the application notice at 538 to 539?
A. No, as I said when I appeared on Thursday, I think I had of the application
notice from Mr Vasquez -- I think it was after this letter was written.
Q. I see.
A. But I can't be certain on that point.
Q. Thank you. Further on, we see on the next page, at page 544.004, Mr Gomez
writing to you and as we see from the last sentence there, he is enclosing a
copy of his attendance note of the appointment with the Chief Justice, and that
appears on the following page.
A. Yes.
Q. Just to complete the run of correspondence and illustrating that Mr Gomez did
not consider that correspondence to be without prejudice, at page 566.001 we
have his letter of 3 May?
A. Sorry?
Q. Sorry, 566.001?
A. Yes.
Q. His letter of 3 May, and in the penultimate paragraph on that page in the
last sentence: "We are writing to you in open correspondence since your letter
under reply was not marked without prejudice." You will see he is referring from
the first line to Triay & Triay's letter of the 25th. So that's the chronology
in relation to receipt of the attendance note. The other matter I just wanted to
ask you about to see if you could shed any further light on related to the
extent or otherwise of instructions provided by Mrs Bossino in relation to the
Bossino recusal application?
A. Yes.
Q. Bundle E, which is the bundle with your representations and statement in,
should be in front of you.
A. Yes.
Q. You will find there at tab 8.1, which is just before 8A, I believe, a letter
signed by Mr Dumas and Ms Guzman. Do you see that?
A. No, I am afraid I've got tab 8 -- I've got tab 801, and ... Yes. It is the --
Q. Letter dated 10 July?
A. Yes.
Q. 2008, signed by Mr Dumas. I think it is signed -- is that Mr Dumas?
A. That is Mr Dumas's signature, 10 July.
Q. Yes. And you see the question of the Bossino recusal application addressed in
paragraphs 4 to 6.
A. Yes.
Q. And it is said by Mr Dumas the Bossino allocation hearing was the first case
listed following the events of 13 April 2007. It describes your appearance
before the Chief Justice. It says it presented you with the opportunity to
inform the Chief Justice of the recusal application, and then at paragraph 5 Mrs
Bossino is contacted very shortly after the hearing --
A. Yes.
Q. -- that morning. So it is correct, is it, that when you appeared before the
Chief Justice on the morning of April, you had not at that point obtained Mrs
Bossino's instructions?
A. I have never spoken to Mrs Bossino. I appeared as counsel. I was counsel and
Chairman of the Bar Council really, rather than --
Q. You appeared both as Chairman of the Bar Council, on behalf of the Bar
Council, but also as leading counsel for Mrs Bossino?
A. Yes.
Q. And so far as you were aware at that point, and this appears to be what Mr
Dumas is indicating, at that point no instructions from Mrs Bossino had been
taken to pursue the recusal application?
A. I was not aware that no instructions had been taken.
Q. I see. Well, you will see paragraph 5, Mr Dumas is saying that: "Mrs Bossino
was contacted very shortly after the hearing that morning. She was appraised
both by telephone and also in conference of the events which had transpired and
the decision of the four law firms. Her instructions were that we should proceed
as we saw fit in the circumstances."
A. Yes.
Q. Are you able to assist at all in relation to the instructions that is Mr
Bossino gave --
A. No.
Q. -- after that hearing on 16 April?
A. Why he yes.
MR OTTY: Thank you, Mr Neish. I do not have any for questions for you.
Cross-examination by MR FITZGERALD
MR FITZGERALD: If I can just go through your statement and put to you some
questions. The first issue arises in relation to paragraph 10.
A. Sorry, where can I find my statement?
Q. I am terribly sorry. It is paragraph 13. It is tab 13, yes. 13B I think it
is. It is your representations in fact. SIR PETER GIBSON: It is bundle E.
A. I thought you said bundle B. I am sorry.
MR FITZGERALD: Bundle E, yes.
A. Yes.
Q. Paragraph 10?
A. Tab?
Q. It's at tab 13, your representations. 13B.
A. 13B, because 13 is Mr Mendez. Yes.
Q. Are you on paragraph 10?
A. Yes.
Q. You refer there, is this right, to the Hermina Danvers matter?
A. If you could --
Q. It is page 1446 -- paragraph 10, page 5 of the internal pagination?
A. Yes.
Q. Now, you refer there to the minimum wage allegation that had been made. You
are not suggesting, are you, that Hermina Danvers was not paid the minimum wage?
A. No, I am not suggesting that. I wasn't aware whether she was or she wasn't.
Q. It is just your remark --
A. She could have been paid £30 a week for two hours' work. I don't know. But
£30 a week is still £30 a week.
Q. You are not suggesting she was not paid the minimum wage?
A. No, I am saying she was paid £30 a week.
Q. You are aware what the allegation was in relation to -- she lived in a single
room for which she paid £30. You are not saying --
A. For which she paid £30 a week.
Q. So you are not saying she was paid £30 a week?
A. No. I don't know what she was paid.
Q. So would you accept this, that the allegation was simply an allegation of
failing to deduct PAYE and Social Security contributions, that was the
allegation?
A. Yes.
Q. In those circumstances, you also know that Guy Stagnetto, who I think is a
partner in your firm?
A. Yes.
Q. Acted for the Chief Justice in relation to that?
A. Yes.
Q. You are aware?
A. I was aware of it before our firms merged.
Q. Yes, but the fact is presumably he is a partner in your firm, the file --
A. He is now a consultant.
Q. I see. But the file in relation to this matter will be located with your
firm?
A. It would be located with Stagnetto & Co's files.
Q. Right. I see. Have you discussed this matter with Mr Stagnetto?
A. No.
Q. Never?
A. Well --
Q. Have you discussed the question of whether you should pursue an allegation in
respect of Ms Williams with Mr Stagnetto?
A. Well, I have pursued --
Q. You are one of the representatives --
A. Yes.
Q. -- of the complainant lawyers, if I can put it that way?
A. Yes.
Q. Mr Stagnetto has associated himself with that group; is that right?
A. Of course.
Q. He acted for the Chief Justice in respect of the Williams and Danvers matter,
didn't he?
A. I think so, yes.
Q. Have you discussed with him the question of whether the Williams and Danvers
allegations should form part of the complaint?
A. I have not discussed the Williams and Danvers facts with Mr Stagnetto. Mr
Stagnetto has preserved the confidentiality, the client confidentiality. Mr
Stagnetto is aware of my statement, and he is obviously a signatory to the
memorandum.
Q. And he has never sought to dissociate himself from the complaint?
A. He has not said one way or the other, no.
Q. Either he is in or he is not in. Does he subscribe to the complaint in
respect of Ms Danvers and Ms Williams?
A. He subscribed to the memorandum.
Q. And that includes an allegation in respect of -- the only allegation pursued
at this stage was of reputational damage, wasn't it?
A. Yes.
Q. Did you jointly decide to pursue a further allegation, that is to say that
there had been misleading information provided to the Governor?
A. I haven't subscribed to that.
Q. So you don't actually support the allegation --
A. What allegation are you referring to specifically?
Q. Your counsel has pursued a complaint that misleading information was provided
to the Governor in respect of Ms Williams, okay?
A. Yes.
Q. Was that with your agreement?
A. Let me put it another way, Mr Fitzgerald. The actions which have given rise
to this tribunal was prompted by a simultaneous reaction, and different
Signatories to the memorandum had different -- have different points of focus as
far as the complaints are concerned.
Q. Do you support the action taken by your counsel, which is to say that
misleading information has been provided about Ms Williams to be Governor? MR
WHITE: I am slightly concerned that I am mischaracterised. What I suggested on
Day 1 -- I looked at the transcript again last night -- was that the matter
required investigation. It had recently emerged that the Governor had written a
letter to the Chief Justice saying: you did not provide me with full information
as requested, therefore I have to rely on your assurance. And what I suggested
on Day 1, and I understood to be the basis of your ruling that I might
cross-examine, was that the Williams matter now required proper investigation
which it didn't receive at the time. I have not made a specific allegation that
false information was provided. But what I have said is that if, as the Chief
Justice now claims, Ms Williams only worked 15 hours a week, then it would
appear that the two documents we have now got in core bundle 1 provided to the
Government did contain false information. But my suggestion was simply that the
matter be properly investigated.
LORD CULLEN: We are slightly straying into the matter Mr Otty addressed this
morning, and I am wondering where we are. Mr Otty, what is your position about
this?
MR OTTY: My Lord, it is perhaps helpful to go through the full chronology, if Mr
Fitzgerald is going to go down this line of questioning, which may itself take
some time. It's not right, for example, to say, as I understood Mr Fitzgerald to
say at the outset, that the Signatories' initial memoranda raised the issue of
Ms Williams. It did not. It raised the issue of Ms Danvers alone. It was only
when the Government's submissions were received on 26 February that a potential
issue relating to Ms Williams arose, and that was then the subject of further
debate and consideration in the submissions advanced before the tribunal on 8
April.
LORD CULLEN: Is it quite clearly a focus as yet what are the issues in regard to
Ms Williams?
MR OTTY: That is one of the issues that is raised by Bindmans' letter.
LORD CULLEN: That is why I am concerned about getting launched into this now if
there is a doubt as to what is in issue.
MR FITZGERALD: What I was seeking to establish with this witness was whether he
supported the application to cross-examine on the Williams matter, and I just
wanted to establish that with him. I would like to know whether he does support
that application to cross-examine in relation to the Williams matter.
LORD CULLEN: The question is whether you want to go on further in view of the
fact that there is some need to clarify matters.
MR FITZGERALD: My Lord, in that case, I think the witness has answered some of
the questions. That is to say in relation to Mr Stagnetto who is laying the
foundation. I will not pursue it further.
LORD CULLEN: I was wondering whether this matter could otherwise stand over for
the time being.
MR FITZGERALD: My Lord, yes. Paragraph 14, you deal with the QCs' memorandum,
and you have dealt with it in your evidence I think it was last Thursday, was
it?
A. Yes.
Q. In relation to that matter, the position, as I understand it, is that the
memorandum that was submitted, your evidence was that it was simply saying that
it is in the interests of justice that there be a swift decision.
A. Yes.
Q. By all means look at pages 84 to 85 of the core bundle.
A. Sorry -- Mr Fitzgerald, I haven't quite got the hang of these bundles yet.
Q. Yes.
A. Is it core bundle 1?
Q. It will have core bundle, I hope, written on it.
A. I've got core 1.
Q. Core 1, yes.
A. Yes.
Q. What you said was at that stage your position was that you did not wish to
condemn the Chief Justice without being in possession of the full facts?
A. Yes.
Q. That's right, is it?
A. Yes.
Q. Your position was that a decision should be reached by the Governor?
A. Yes.
Q. Was it your position that the decision then reached by the Governor should be
abided by?
A. Yes.
Q. Should be accepted. Just so that we get the line-up of signatures, there's
Louis Triay and JE Triay. Are they in the same firm?
A. No, they are different firms.
Q. I see.
A. They are partners in different firms.
Q. And yourself, who are you a partner?
A. Louis Triay.
Q. So you were a partner of Louis Triay. As for Mr Serfaty, and Mr Budhrani,
were they partners in any of the firms?
A. Yes, they are.
Q. Which firms?
A. Triay & Triay.
Q. So Triay & Triay accounted for four of the Signatories; is that right?
A. Yes, there are four QCs in Triay & Triay.
Q. Right. So this was a Triay & Triay plus one other; is that right?
A. Not really, it was five QCs.
Q. Yes, but I am just trying to establish, four of them worked in the firm of
Triay & Triay; is that right?
A. Yes. But I am sure that they were all of independent mind and persons able to
reach their own independent views.
Q. Yes. Some of the views were that it is a storm in a teacup which we see at
the top of page 85, and some had the view that it might impact on the quality
and integrity of the administration of justice. Were views divided as between
the five of you on that matter?
A. Yes.
Q. I see. So the position is that at that stage it was simply saying look --
A. I think the reference to in the meantime the delay has resulted in division
between those views and those who regard the allegations as a storm in a teacup,
I think that division doesn't necessarily refer to the five Signatories of the
memorandum. It refers to others outside -- or within the profession outside in
Gibraltar.
Q. But even amongst yourselves --
A. Even amongst ourselves there was a difference of emphasis. I felt that the
Governor wasn't in possession of the facts and he was the one that should
decide.
Q. And clearly from that statement there was a substantial section of the Bar
who just said: this is a storm in a teacup, what is all the fuss about?
A. I am not sure whether there was a substantial section of the Bar. There were
obviously some who were not too concerned about it.
Q. Yes, but there were some who regarded it as a storm in a teacup?
A. Yes, there were still some who would support the Chief Justice and think his
position is untenable. You had Mr Hughes in court, for example.
Q. Yes, but we are now talking about here --
A. I am doing it by which of comparison. I am sorry, Mr Fitzgerald. I am just
doing it by way of ...
Q. Yes. Paragraph 16 of your statement, you deal with the fact that the Governor
then issued a statement?
A. Yes.
Q. And that it was obvious that the payments had been paid late --
A. Yes.
Q. -- at paragraph 17. But that was the extent of the finding that there had
been a delay in making payments of tax and social insurance contributions; is
that right?
A. Yes. Well, what that actually said is that matters were not regularised at an
earlier stage. I have accepted that the Chief Justice did not deliberately seek
to avoid his obligations.
Q. Yes. Is this right, that thereafter there was a conscious decision to return
to normal in respect of that matter, and to work with the Chief Justice?
A. Generally, yes.
Q. Yes. Now, you have referred to the MOT matter at paragraphs 21 of your
statement. I don't know when you wrote that you had actually seen page 93 of the
core bundle. Can I just invite you to have a look at that?
A. Page 93?
Q. Are you in core bundle 1?
A. Core bundle 1. 90.
Q. It is mainly core bundle 1 and 2 that we will be on, Mr Neish. Page 93. Just
looking at that, one sees three paragraphs from the bottom, the last sentence,
that the Deputy Registrar is there telling the Chief Justice that the
Superintendent's office had said that he would be able to continue to use the
car until the MOT appointment. Now, when you made your representations, were you
in fact aware of that fact?
A. No. And in fact my complaint in relation to the MOT is not the fact that the
MOT had expired because I think if we are all realistic we would say: but for
the grace of God there go I.
Q. I am grateful for that. You accept that there was some considerable confusion
at the time because I think they had said you had to have a new MOT every year,
and there were real problems about getting a new MOT every year. There was a
backlog?
A. And I accept that there but for the grace of God go I. My concern was not the
fact that the MOT had expired and obviously an offence had been technically
committed, but everything that followed.
Q. Yes, but?
LORD CULLEN: Sorry?
A. Everything that followed, the calling of international observers, a very high
profile Magistrates' Court action, involving very eminent counsel, if I may say
so.
Q. I won't dissent from that.
A. I am glad to be of some assistance.
Q. I am very grateful. Can I put that in context? It surely was appropriate in
the circumstances, with all the difficulties of having someone briefed who was
outside the community of lawyers?
A. Yes, but Mr Edward Fitzgerald QC in the Magistrates Court on an MOT matter.
Q. It is whoever is prepared to act for the Chief Justice without fee at that
particular time. I don't see why there is a criticism of 1 going to outside
counsel, outside the local Bar, or --
A. I have no criticism of that at all. I sometimes brief counsel from London on
matters beyond my competency or experience.
Q. If you look at that, this question of if you have been given an assurance,
whether that raises issues of law as to whether it is proper to prosecute, would
you accept that that is actually a serious point?
A. My view is that there has to be a balance. If I get a parking ticket, I just
pay up and accept it, and even if I feel it may be wrong, you try and save the
jurisdiction embarrassment and you try and save colleagues embarrassment. You
certainly don't bring outside observers to watch over the Magistrates, as if you
were about to have the matter tried in a kangaroo court.
Q. You see, again, would you accept this: international observers can be brought
in either because there's concern about the court, or because there's concern
about the propriety of the prosecution itself? I mean, one can have situations
where there is confidence in the court, but there's concern about the propriety
of the prosecution, and international observers sometimes in those circumstances
are invited in. You would accept that?
A. I would accept it, but I don't think there should be any concern if there is
confidence in the propriety of the courts, no matter how ill-motivated the
prosecution might be. I would place a confidence in the stipendary within my own
bailiwick.
Q. And of course you are not expressing a factual view as to who invited the
international observers to come in, whether it was the Chief Justice or his
wife. You are simply saying it shouldn't have happened?
A. It shouldn't have happened, but going from the statements, Mrs Schofield said
in one of her statements that it was she who invited the international observers
and her husband knew nothing about that.
Q. Yes.
A. In one of the statements of the Chief Justice, he states that he didn't
invite the international observers and he only learned that they had been
invited to come from his wife. Now, if I am the person on trial, and my wife
invites international observers and I am the Chief Justice, I think my reaction
would have been to write to international observers and said: please don't come,
there is no need for you to be here at all.
Q. Well, do you put it rather more strongly than that at paragraph 22. You said:
"I would sooner believe in fairies."
A. Yes.
Q. Is that your position or is that just an extravagance of language?
A. It is an extravagance of language, but it is also reflective of my position.
It is a matter --
Q. Are you really saying that it is not possible for a wife to act in their own
regard?
A. Of course I am saying it is possible. I am just saying I don't believe it.
But what I am saying is, even if my belief is wrong, and you lower the
threshold, surely the person who is on trial for a particular offence, once he
learns that international observers have been invited to his own bailiwick,
would be able to write to them and say: look, please don't come, there is no
need. We have a judiciary which has integrity, and I am sure the right decision
will be taken.
Q. And I think you've dealt with the Commonwealth Magistrates and Judges'
Association. Nobody came from them anyway. There wasn't an observer from the --
A. There was Lord Hacking and --
Q. But he wasn't from the Commonwealth?
A. He was from the International Bar.
Q. Yes, that's right.
A. The Commonwealth Magistrates Association were brought into the picture on
different occasions.
Q. Well, I think they were notified of the fact that this was taking place.
A. Put up a red flag and say: look, we have a problem here, a Chief Justice is
being persecuted.
Q. If you go to paragraph 27, do you think it is fair to say that the Chief
Justice obviously does not trust the judicial integrity or his brother judge, Mr
Justice Dudley? Is that something you are basing on the fact that international
observers were invited in by his wife?
A. Yes. Principally.
Q. But, you see, for example, take a situation -- I am not in the least bit
making a comparison?
A. Yes.
Q. But take a situation like apartheid Africa, international observers sometimes
went in when there was respect for the local judiciary, but there was concern at
whether some of the prosecutions were properly brought. Indeed, the judiciary
often behaved impeccably. So it isn't necessarily a reflection at all on the
judge. But if you think a promise has been made: you can drive, no problem, off
you go, and then the next day you find yourself prosecuted, you say well,
something dodgy is going on here. Why is that a reflection on Mr Justice Dudley?
A. Because he was judging the case. I suppose dodgy things go on in many
prosecutions, as we are all aware. We don't bring in international observers
every time there is a dodgy prosecution. You bring in international observers if
you think the system lacks the necessary integrity to ensure there is a fail
trial.
Q. If it involves a judge it has a particular sensitivity. You accept that?
A. Yes.
Q. Now, you then deal with --
A. It depends who escalates matters to that extent. The judge chose to contest
the charge, and then he says on facing --
Q. It's perfectly permissible for anybody, is it not, to say: I have been made a
promise, it appears that the promise has been broken, that's not on.
A. Yes, it is permissible, of course. But whether it is the right course to take
is a different matter.
LORD CULLEN: Mr Neish, do you understand that question of promise to have been
raised at the trial?
A. What I understand Mr Fitzgerald to be getting at was that the Chief Justice
was promised, was told that he would not be prosecuted.
MR FITZGERALD: Yes. He was told that he was going to be dealt with by way of a
caution. Indeed, I can show you the passage where the judge himself said that he
accepted that it could be construed as a promise.
A. My understanding is that cautions in Gibraltar, and I think the position is
the same in England, are an acceptance of guilt.
MR OTTY: My Lord, if it is of assistance, I think there may be two promises.
LORD CULLEN: Yes, I am concerned with something else.
MR OTTY: There is promise 1 which is said to arise out of page 93.
LORD CULLEN: That is what I am asking about.
MR OTTY: I think the Chief Justice has said in his evidence that he did not
pursue this point because he did not want to put Mr Mendez in the embarrassing
position of becoming a witness in the trial.
LORD CULLEN: Yes.
MR OTTY: Promise 2 is what could be made out of the police caution.
LORD CULLEN: That is very helpful. So the answer to my question must be no, the
point was not raised at the trial.
MR OTTY: I think that's right.
MR FITZGERALD: My Lord, it was referred to but it wasn't the principal basis. I
think I can assist you, Mr Neish, if you go to page 201 of the judge's judgment.
A. Yes.
Q. Do you see the judgment of Mr Dudley as he then was, Mr Justice Dudley now?
A. Yes.
Q. "Notwithstanding the intent of the Commissioner or the officer on a strict
interpretation of the letter, the defendant was entitled to refuse to indicate
his acceptance and to treat the letter as a promise or representation that the
matter had been dealt with and no proceedings would be issued against him."
LORD CULLEN: Which promise is that now, Mr Fitzgerald?
MR FITZGERALD: That is the promise it would be dealt with by way of a caution.
LORD CULLEN: Exactly, thank you.
MR FITZGERALD: The other promise is referred to in the judgment, but it is this
was the principal basis.
SIR PETER GIBSON: Elsewhere?
MR FITZGERALD: Yes. I think we have page 190 at the bottom is a reference to
"difficult to accept the caution if you feel it is inappropriate" and -- yes. I
am so sorry. It is in the argument at page 180. The defence not asking you to
decide if it is within the period of grace, at the time of driving he had an
appointment. So not just flaunting law on that issue.
SIR PETER GIBSON: Whereabouts are you?
MR FITZGERALD: Page 180. SIR PETER GIBSON: Whereabouts?
MR FITZGERALD: The fourth paragraph in, defence: "Not asking you to decide
within the period of grace. At the time he was driving, he had an appointment,
so he was not just flouting the law. Powerful reason was appropriate for a
caution." In other words, the reason why he was cautioned was because of the
matters at page 93. But that's the reason why it was dealt with by way of a
caution, because there was this confusion.
SIR PETER GIBSON: It doesn't say anything at all about that.
MR FITZGERALD: Well, my Lord, it says: "At the time he was driving, he had an
appointment. So not just flouting the law. Powerful reason that all that was
appropriate was a caution." In other words, it is linked to the fact that it was
opinion a period of grace, that that is why it was appropriate that it be dealt
with by way of a caution. My Lord, maybe I should address your Lordships on that
in submissions rather than with this witness. But Mr Neish, would you accept
that there was an issue of law -- that is to say the issue of law that my Lord
Lord Cullen has identified there -- as to whether he had been promised that this
would be dealt with by way of a caution and in those circumstances it was
wrongly prosecuted. That it is an issue of law --
A. It is an issue of law, but the question is whether you make it an issue and
bring international observers and the most eminent counsel from London to fight
the case. It is not whether it is an issue of law. There is an issue of law in
virtually everything that goes before the courts.
Q. And you have suggested that that was in some way a reflection on the judge
trying the issue, that is to say Mr Justice Dudley. Is that a fair way to put
it?
A. Yes, that is the way I have interpreted it, and that remains my
interpretation, despite your point about prosecutions, international observers
being able to observe whether a prosecution is properly conducted.
Q. Was anything at any stage said to justify your remark at paragraph 28 that
the Chief Justice was saying he could not expect a fair trial before his own
stipendary magistrate. Was anything said by his counsel at all during that
hearing to suggest in any way he was saying: I don't think I can get a fair
trial before you?
A. In my view, it was implicit.
Q. Well, if you can point me to anything that was said by his counsel in the
course of that hearing which in any way suggested that the Chief Justice was
saying to that magistrate, "I don't think I can get a fair trial before you"?
A. It is nothing that was said. It is implicit in the action of bringing
international observers.
Q. You have also said that there was a recusal application at paragraph 32?
A. Yes.
Q. Isn't this right, that the decision that the matter should -- the recusal
application in respect of Mrs Schofield -- that is something separate -- that
the recusal application in respect of the Judicial Services Act, there was
agreement in relation to that?
A. Yes, there was.
Q. So both sides agreed --
A. The matter was -- the recusal issue was raised and the other side accepted.
Q. So it was agreed by both parties?
A. Yes, but the point is, Mr Fitzgerald, in a small place like Gibraltar, you
often appear before the judge and you say: I have just had tea with so and so,
or so and so is a friend of mine, or so and so's children are friends with my
children, do you have any objection to my hearing the case? And normally you
trust the integrity of one of the two judges, and we only have two judges in
Gibraltar and we say yes, we have no difficulty with that.
Q. I don't think there was ever actually a formal application to the judge.
There was simply a letter saying both parties had agreed that he should recuse
himself; is that right?
A. I am not aware of the intricacies because I wasn't involved in the judicial
review matter. What I can say is from what I know, the issue of recusal was
made.
Q. I understand that there had been a letter. You say that both parties agreed?
A. Yes.
Q. And the judge felt there should be a recusal application; is that right?
A. Yes. Obviously if somebody says: you are to recuse yourself, the safer course
of action is to do so. Especially in the circumstances that we all know about
this in this case.
Q. But the judge of course had been intimately involved in the background
circumstances, writing letters himself about the Judicial Services Act, and
about the fact that it meant that no Gibraltarian judge could be Chief Justice.
He had made representations to that effect.
A. I don't know what representations the --
Q. Well, in those circumstances, wouldn't you accept it might have been
appropriate in any event for him not to be trying the issue in respect of an Act
where he had expressed views himself about the Act. He had been involved in the
whole narrative?
A. Again, we are dealing with Gibraltar, not London, and in Gibraltar there is
only a few of us and most of us have consulted or expressed views on one matter
or another. If that is going to be a disqualifying issue, I don't think we would
be able to get on with any work.
Q. You see, what I have to put to you is it really isn't fair to say that the
Chief Justice has at any stage called into the question the impartiality or the
integrity of Mr Justice Dudley.
A. I think everybody's impartiality has been brought into question.
Q. I am sorry?
A. I think everybody's impartiality has been brought into question in this case.
Q. In which place?
A. In this whole situation, everybody's impartiality is brought into question,
and my view is that Mr Justice Dudley's impartiality was definitely brought into
question.
Q. Paragraph 47, you obviously had no personal experience of the threat to
suspend all sittings?
A. My only experience was that I was a member of the Bar Council at the time,
and Mr Provasoli was the Chairman, and I remember that Mr Provasoli reported
back to the Bar Council through what had occurred.
Q. Now, as to the cancellation of the opening, I think you know that the Chief
Justice has accepted that with the benefit of hindsight, he acted
inappropriately in relation to that.
A. Yes. Well, I wasn't aware of that, no.
Q. He has accepted that in his fifth witness statement. And that he would have
handled it differently if he had more time to think that through. The 2006
Constitution, can you just help us on this. Is this right, that he had a point
about section 57, and indeed the Bar Council supported him?
A. Yes, we agreed with him on that. That is why I found it so surprising we that
we should be subjected to an onslaught when we were consulted on the Judicial
Services Bill because we agreed with the Chief Justice on section 57.3. We just
took a different view as to what the next step was after the governments of
Gibraltar and the UK had come to a position.
Q. Yes, but insofar as there's any criticism voiced in relation to the 2006
Constitution, you deal with the background at paragraphs 54 really right on
through until paragraph 58. But would you accept that the Chief Justice had
legitimate concerns about section 57.3 and that he took them up and obtained --
first, he had legitimate concerns about section 57.3?
A. Yes, we shared those concerns, and we said so to the Governor, to the Chief
Justice and to the Chief Minister.
Q. What the Chief Justice then did was to take that matter up and to obtain the
explanatory note?
A. Before that, we had obtained a letter of assurance from the Governor and the
Chief Minister.
Q. I think it is right to say there was going to be an explanatory note in any
event. What was included in the explanatory note was a reference to the
circumstances in which that power of veto would be used?
A. Yes.
Q. But that hadn't been included in the explanatory note until the Chief Justice
took the matter up?
A. We considered that the letter of assurance given to us by the Governor and
the Chief Minister was sufficient. We understood this was a red line drawn by
the UK Government on the issue, and it was our view that there was nothing to be
gained by taking the matter further. In any case, we did not consider it to be
an issue which required that manning of barricades.
Q. I think going for a meeting with the Foreign Office and obtaining an
assurance in the explanatory note is not exactly manning the barricades, is it?
A. No, but the manner of going about it was of concern, and the one thing we
have to remember is we are a small jurisdiction which has been under close
political scrutiny from a hostile neighbour. We rely on the reputation and
integrity of our judicial system to be able to prosper as a finance centre. We
need the users of Gibraltar to have confidence in the judiciary, and to suggest
that there was some fundamental flaw in the Constitution that was being proposed
which would affect the integrity of the judicial system was in my view a totally
disproportionate and damaging line to take.
Q. Well, would you accept this, that the rule of law has to be one of the
principal concerns in relation to the integrity retaining the integrity and
autonomy of Gibraltar?
A. Of course.
Q. And therefore someone who is insisting on the highest standards in relation
to the rule of law could be seen as contributing to the case for the autonomy of
Gibraltar, rather than detracting from it?
A. Well, it could be seen like that, but the point is that this was not an issue
which would undermine in any view the rule of law in Gibraltar, conversely, the
attitude being taken was hugely damaging to the reputation of Gibraltar. I mean,
and --
Q. Was it -- where do you see that concern about section 5.3, which was then
addressed in the statutory note, causing damage to the reputation of Gibraltar
in relation to --
A. The way it was presented was as if this would undermine the judicial
integrity of Gibraltar, and the judicial integrity of Gibraltar if one takes it
at its most basic level is politicians interfering with judges as to the
decisions that they make. If you take it at the highest purest level, it is
having a state-of-the-art Constitution, a cutting edge Constitution. If you
can't have a cutting edge Constitution but you have one which is perfectly
acceptable, where is the advantage of damaging the reputation and standing of
the jurisdiction?
Q. Isn't it you who is slightly overreacting here by saying that any criticism
at all is damaging to the international reputation, so you had better not have
any criticism?
A. No, I am not saying that at all. We raised issues. If there are issues to be
discussed, I am sure it can be discussed other than through the public media or
through public statement. That is the way it has always happened before. As far
as the Constitution is concerned, the Select Committee, as far as I am aware,
accepted the provisions of the Constitution. The Constitution is an advance on
what we had before. This was accepted by the three wise men who advised -- I
don't say three wise men derogatively, by the way. It is just that they are
three wise men that advise the Chief Justice. That was their opening statement.
There is no doubt that this is an advance on the previous Constitution. What was
being proposed was not state-of-the-art. It was not the best. But it was
something which in our view went to the integrity of the judicial system in
Gibraltar.
Q. Now, under the heading "Interference with the Bar" you have dealt at page 25
to page 29 with the actions of Mrs Schofield?
A. Yes.
Q. And is this right, that if one looks at your paragraph 74, the essence of
your case is that the actions of his wife have to be attributed to him or he has
to have responsibility for them? Just look at your paragraph 74 --
A. Yes, I wouldn't put it as narrowly as that. The way I would put it is that
the actions of Mrs Schofield impact upon the ability of the Chief Justice to
discharge his duties as Chief Justice.
Q. Now --
A. Whether one takes it at a higher level and one states there were acting in
concert, or whether one takes it as the Chief Justice just abides quietly and
allows his wife to get on with it because she is an independent person entitled
to make they are own independent representations, and that sort of thing, that
in my view nonetheless still impacts upon his ability. It is purely my view, it
may be worth nothing, Mr Fitzgerald. It certainly is my view.
Q. I am sure you are perfectly entitled to express it. But the one specific
complaint that you make in relation to the actual actions of the Chief Justice
is at paragraph 68 where you refer to the Chief Justice -- sorry.
A. Chief Minister?
Q. Yes. Chief Justice showing it to Mrs Schofield?
A. Yes.
Q. At least in relation to section 6?
A. Yes.
Q. Well, in relation to that, would you accept that it's very common for someone
to show a document at least to their wife?
A. I think it goes further because if one looks at Vox of February -- perhaps we
should be referred to that, the bundle.
Q. Yes. It has been referred to.
A. Could I --
Q. Sorry, you mean --
A. Could I refer to it?
Q. Yes. It will be page 198 of G.
A. 198. Yes. If one looks at that article, half of it deals with the Chief
Justice's position. It is something which appears to be sourced beyond a mere
exchange over the breakfast table in relation to section 6. This says: "In a
remarkable move seen by local Chief Justice Derek Schofield, seen as a covert
attack on Gibraltar's legislation to demote the Chief Justice's position in the
judiciary, replacing his role as head of the local judiciary with a part-time
judge, whose short-term appointment would be largely in the gift in the Minister
for Justice. A post which in terms of the new Constitution is held by Caruana."
Then the next sentence says: "A leaked draft of the proposed Judicial Service
Act proposes radical changes for the judicial pegging order and the way that
judges and other senior court officials are appointed." This goes beyond section
6 surely: "This was seen by Chief Justice Schofield who immediately sought a
meeting with the Governor ..." We are not talking about Mrs Schofield in section
6. We are talking about the Chief Justice meeting the Governor: "... on
Wednesday to express his concerns about aspects of the draft Vox has learnt."
Then it goes on: "The Chief Justice was considering his position in the light of
what would appear to be his demotion if the legislation was adopted as drafted,
particularly in the light of the stand which he took last year when he expressed
fears that the independence of the judiciary was fettered by aspects of what was
then still the proposed new Constitution."
Q. Would you accept this, that those concerns have all focused on section 6,
that is to say the terms of section 6?
A. No, section 6 deals with the --
Q. Yes --
A. How we refer to section 6?
Q. Section 6 is the provision which demotes the Chief Justice, which nominates
the --
A. I am not sure it is a demotion of the Chief Justice in much the same way as
the Constitutional chambers of the UK demote the Lord Chancellor. It is a change
in the Constitution, and it is a change in the legislation flowing from the
Constitution, and what was proposed was that the president of the Court of
Appeal should be the president of the courts.
Q. While we are on that, I think you were Chairman of the Bar at the time of the
Bar Council actually recommended in respect of the 2006 Constitution that the
Constitution should contain a provision recognising that the Chief Justice as
head of the judiciary?
A. That was -- I believe that was in February 2006.
Q. That's right. Certainly in 2006.
A. That -- yes, and that flowed -- that comment was made because the Chief
Justice called me in to talk about -- I think to mention this, and he raised the
issue which had arisen in 2002.
Q. Yes.
A. When the Attorney General had apparently made a statement that the -- because
the Chief Justice threatened to suspend all sittings and the attorney Had made a
statement to the effect that the head of the judiciary was in fact the Governor.
And in our view that was ludicrous. I am sure that cannot have been the way it
was meant, but the thought of having a military Governor sitting on the bench in
judgment, and we supported the Chief Justice on that point.
Q. Your specific proposal was that the Chief Justice should be acknowledged as
the head of the judiciary, and you made that in submissions to the Chief
Minister?
A. Yes. Yes, we did.
Q. You didn't say then the head of the judiciary is not and always has been the
head of the Court of Appeal. You said it should be acknowledged that the head of
the judiciary is the Chief Justice?
A. Yes, because -- and I will make two points in relation to that. Firstly, the
comment was specific to the situation which had arisen in 2002. Secondly, at the
time that we wrote that letter, we didn't have any inkling whatsoever of how the
Government was thinking in relation to the Judicial Services Act or the
presidency of the courts or who should be the -- so at the time that we wrote
that, we assumed that the senior judge would be the Chief Justice. The Court of
Appeal at the time was a visiting Court of Appeal. Come the Judicial Services
Act, the Government took a different view and felt that it was in keeping with
their notions of the development of Gibraltar's autonomy that there should be a
Court of Appeal for Gibraltar, and that in those circumstances, the senior judge
should be the president of the courts. Even then, in our response to the Chief
Minister on that point, we did take objection to section 6.2.
Q. Yes.
A. Which had originally placed control of the courts with the president.
Q. Yes, the original proposal was that?
A. The original proposal was that, and we wrote to the Chief Minister, and in
our response, and that was changed. I don't know whether our contribution had
any impact on that or whether there were other parties or entities who raised
the same point, but the fact is that the Chief Justice has the day to day
running of the Supreme Court of Gibraltar.
Q. Now, just one further matter in relation to the alleged interference of the
Bar. You make complaint -- I think it is right -- that the Chief Justice didn't
circulate the membership through the Bar Council, but directly sent the copies
of the new Act and invited comments of the membership themselves; is that right?
A. Yes.
Q. I don't know whether you have seen the points that have been made in relation
to that by Mr Hughes, but he said that in fact the membership had not had copies
of the Constitution or of the draft Constitution, or of the Judicial Services
Bill sent to them -- is that right -- by the Bar Council?
A. Yes.
Q. And he says: "I do not remember the wider membership being consulted on the
Judicial Services Bill or on the draft Constitution." Is that right?
A. Yes, that's right.
Q. So in those circumstances is it a reasonable criticism that the Chief Justice
in order to get the views of the Bar as a whole circulated individual members to
make sure that individual members could if they wished respond?
A. Yes, it is a perfectly reasonable criticism and I will say why. On the
Constitution, when we were consulted on the Constitution, we were consulted by
the Chief Justice who wrote to the vice chairman, because I was away on holiday,
on 15 August 2006, and he asked for the Bar Council's views. He asked for the
general membership of the Bar Council's views. And it was a Bar Council who
responded, and I can't see that there can be any criticism of our response
because we responded in terms which on certain issues that supported at Chief
Justice and certain issues we did not support the Chief Justice. For example, we
didn't support the Chief Justice on the disciplining of junior members of the
judiciary, because we felt it would be far fairer for a junior member of the
judiciary to come under the powers of the Judicial Services Commission than
under a single person. As far as the Judicial Services Bill was concerned, the
list of consultees was quite restricted, although if you look at the
consultation paper you may see that I was specifically authorised to consult
with the Bar Council; in other words, not the general membership of the Bar, but
the Bar Council. The other thing which I have tried to do as Chairman of the Bar
Council is to make it as inclusive as possible to as many people and as broad
representation as possible, but in any event we dealt with the matters as we
were in fact requested to do.
Q. Yes.
A. Thirdly, the most important point, Mr Fitzgerald, is that I do not accept
that the Chief Justice circulated it to members of the Bar -- to the general
membership of the Bar just to make sure that everybody could have a say, because
it appears from Vox -- I can tell you which edition it was.
Q. Page 208.
A. Yes. Thank you very much. Where it says: "Judge Schofield's decision to
bypass the Bar Council ..." So it is not a question of making sure everybody is
consulted and so forth. It is a decision to bypass the Bar Council: "... and to
write personally to the Rock's lawyers will raise legal eyebrows. Traditionally,
judges communicate with the legal profession through the Council; however, the
Chief Justice doubts the Bar Council's impartiality, according to sources close
to him. He -- and some of his fellow lawyers -- believe that several members of
the 12-strong Bar Council are partisan, and support Caruana -- whatever
dictatorial or other steps the Chief Minister may take." That is a reason which
Vox, which seems to have a good insight into what was going on, attributed, and
this was a far more comprehensive reason than I got from the Registrar who said
she didn't have a clue as to why she was asked to write that letter.
Q. We will obviously have to deal with Vox when we come to Mr Schirmer's
statement at a later stage. Can I come on to the events of 3 April, and
essentially we have the email exchange between the Bar Council with you as Chair
and Mrs Schofield, and then if I could take you in the core bundle 1 to page
485, where you write to the Chief Justice. You accept of course that he had been
away for a substantial period whilst this correspondence had been going on?
A. Yes, I do.
Q. Up until 14 March?
A. Yes, I do.
Q. Then you write at page 485 to the Chief Justice --
A. Sorry, 485?
Q. 485, 3 April 2007: "Dear Chief Justice, "I am writing to inform you that the
Bar Council has taken a very serious view of the emails addressed to it by Mrs
Schofield. Accordingly, I have decided to send copies of the emails exchanged to
the Attorney General as the leader of the Bar in Gibraltar for the matter to be
pursued as appropriate. Mrs Schofield is not an ordinary member of the public
..." What you say in respect of him is: "We note that you have not distanced
yourself from those emails."
A. Yes.
Q. You weren't actually calling on him to do anything this particular. You were
simply noting he hadn't distanced himself; is that right?
A. Mr Fitzgerald, if my wife had written the sort of emails that Mrs Schofield
wrote to us, and those emails firstly -- I think the primary objective was to
bully the Bar Council into the decision that she thought appropriate, to
disqualify members of the Bar Council from participating in the consultation
process, and then to do so as she did so under threat, whatever that threat
might have been, of going to the press. If my wife had done that, what I would
have done is I would have rung whoever was at the receiving end, and said I am
sorry this has happened, please don't take the views expressed by my wife about
you as being my views. Those are my wife's views and you can be assured that
when you appear before me, you will be looked at objectively and you will not be
looked at as if you had done anything wrong or as if you were not lawyers of
integrity. That is what I would have expected. As far as I am concerned, if that
had happened, it would have put a different complexion.
Q. So what you were expecting was some private correspondence with yourself?
A. I would have expected some assurance that the Chief Justice was not behind
this or that he did not agree with this. It would just have taken a phone call
or a simple note. If that is not forthcoming, it just reinforce the view,
because if one looks at Mrs Schofield's emails, one can see it is not just
section 6 she was privy to and she was going a little bit further than that. I
would have expected that to have that sort of assurance because at the end of
the day, if you have a barrister who has been accused by the Chief Justice's
wife -- or barristers because it was the Bar Council as a whole -- of not having
sufficient integrity to be able to advise Government objectively and impartially
on the consultation paper, and that is what Vox says about us, and it is the
clear influence from Mrs Schofield, at least one would have expected the Chief
Justice to assure you that when you appeared next before him, he wasn't going to
think that you were not somebody who would be believed or could not be trusted.
Because at the end of the day, especially in a small place like Gibraltar, trust
between the Bar and the bench is hugely important.
Q. Can I just try and follow through the chronology?
A. Yes.
Q. All you are doing there is saying we note that you have not distanced
yourself from those emails?
A. Yes.
Q. So is this the position, that you did not at that stage take the view that
the mere fact that Mrs Schofield had written those emails was a ground for the
Chief Justice to disqualify himself?
A. We had submitted the papers to the Attorney General.
Q. Yes.
A. The clear inference of that is that there was something that needed to be
looked at very seriously.
Q. But you did not yourselves take the view that the mere fact that she had
written those emails meant that the Chief Justice should disqualify himself?
A. It was not that we had not taken the view. We had not taken the step of
asking for the Chief Justice, but we had certainly taken the view as to the
impact -- as to the impact of what Mrs Schofield was doing on the Chief
Justice's ability to continue in office.
Q. Are you prepared to accept that it was not your position then that merely
because she has written those emails, the Chief Justice cannot try any matter
involving the firm's involved in the Bar Council. That wasn't your position?
A. We had not taken that position at that stage. But we were certainly very
concerned about the Chief Justice's position given the emails and his ability to
continue in office. Why else would we refer the matter to the Attorney General?
We wrote to the Chief Justice as well and told them.
Q. If we go on from there, we know that then Mr Hughes refers to the fact that
there was a meeting of the Bar Council. Is this right, that there was a letter
before action which was sent to the Bar Council itself?
A. Yes.
Q. And to you as the Chairman of the Bar Council?
A. Perhaps we can refer to it because I am not -- I think it was --
LORD CULLEN: If we are going to get on to another topic I wonder if it would be
a good point to take the break now?
MR FITZGERALD: We are just nearing the end of matters, it is just the factual
matters, my Lord, yes.
LORD CULLEN: We will resume in quarter of an hour's time.
A. My Lord, can I speak to anybody present or should I just keep to myself? Are
we proceeding as if --
LORD CULLEN: Because you are on oath, it is better that you keep to yourself.
A. I just wanted clarity, my Lord. (10.12 am) (A short break) (10.31 am)
LORD CULLEN: Yes.
MR FITZGERALD: Mr Neish, you have helped us that the letter before action was
received, I think it is at page 491, from Charles Gomez & Company, and that's on
10 April, that it is sent, and your response is at page 493, that we regard the
statements that you have made as defamatory and we give you no undertaking not
to repeat the complaints about your client. That is a fair summary of the
position on 12 April?
A. Yes.
Q. Is this right, that we then have the Bar Council meeting which is at bundle
A, page 300.327?
A. We have the Bar Council meeting between Mr Gomez's letter and my response.
Q. I see. It is dated the 10th but I had understood that the meeting is actually
the 12th?
A. Yes.
Q. I refer to --
A. In sequence, it was -- the Bar Council meeting was held before the letter
was.
Q. I see. The letter was sent later in the year.
A. It is as a result of the resolution taken by the Bar Council.
Q. So 5.30 pm is the meeting and then the letter is sent after that.
A. Typed by the secretary.
Q. The problem is that the date of the meeting at 327 is -- so that is 12 April
and it is a Thursday. Is that right?
A. I think so.
Q. Because we know that, as it were, Friday is the day of the libel written, and
then the following Monday is the th?
A. That's right.
Q. So there's there the resolution that if proceedings were issued, the Chief
Justice should be asked to recuse from all matters in which the respective firms
were involved?
A. Yes.
Q. At that stage there was an anticipation that the proceedings might be issued
against the Bar Council members in general.
A. Well, against the governing body of the Bar.
Q. Yes, and --
A. Well, yes, on the basis of the letter before action.
Q. Yes, because it was directed towards the whole council?
A. In fact when I replied, you will see it is written Bar Council headed paper.
SIR JONATHAN PARKER: Mr Fitzgerald, just to be clear about this then, the 10
April on 327, is that wrong?
MR FITZGERALD: Yes, it should be Thursday, 12 April, my Lord, yes. Thursday 12
April, so the chronology is that the letter before action is sent on the 10th,
the meeting takes place at 5.30 pm on Thursday, the 12th.
SIR JONATHAN PARKER: Yes.
MR FITZGERALD: And just dealing with that, isn't this the situation, the only
reason that had triggered you into action was the fact that there had been a
threatened libel suit by Mrs Schofield.
A. Sorry, prompted into what action?
Q. Well, the thing that had led the Bar Council to resolve that the Chief
Justice would be asked to recuse himself was the threat of legal proceedings by
Mrs Schofield against the Bar Council?
A. Yes.
Q. Yes. You see, that was as it were the causa belli.
A. It wasn't the causa belli. That was the last straw. It was the last drop for
the cup to overflow.
Q. But if she hadn't issued legal proceedings, you would not have asked him to
recuse himself?
A. We would not have done so, no.
Q. So if she and her solicitor issued legal proceedings, we will ask him to
recuse himself. If she doesn't, it must follow you wouldn't have asked him to
recuse himself?
A. Yes.
Q. So it wasn't enough that there had been the emails to justify asking him to
recuse himself?
A. Well, it was enough for us to write to the Attorney General as far as the
emails were concerned. As far as a libel action against the Council as a whole,
that would have taken the matter on to a different level. It wasn't that we were
asking the Chief Justice to recuse himself in retaliation for his wife issuing
libel proceedings against the Bar. That is not the way we focused it. We focused
it on the basis that here is the wife of the Chief Justice suing publicly, or
threatening to sue in a public way, the Bar as a whole. We can't possibly appear
before the Chief Justice now. That was our reason. Whether it was mistaken or
not, that was our reasoning. What I must emphasise is that contrary to this
proposition that is being bandied about that we asked the Chief Justice to
recuse himself in retaliation for his wife's issue of proceedings is simply not
the case.
Q. Well, you would accept that as a matter of history, that was what triggered
your application, not the earlier emails. The threat of legal proceedings was
what triggered the resolution.
A. It was the final straw in a sequence of actions.
Q. And if we go on from there, we know that the then libel suit was received by
yourself named personally at page 494 of the core bundle.
A. Yes.
Q. The person therefore who is being sued is you personally?
A. Yes, that is the position. It was not clear, as I stated in my
evidence-in-chief on the particulars of claim, because it described me as
Chairman of the Bar Council, but I was the only defendant, and there was nothing
to indicate that I was being sued as Chairman of the Bar Council.
Q. And that is at page 494 to 495?
A. Yes.
Q. At that stage there is a suit by Mrs Schofield against yourself for
statements made in a letter about her, rightly or wrongly, that was the
complaint, that you had libelled her?
A. Yes.
Q. Now, was there any further meeting of the Bar Council to discuss whether in
the light of that it was justifiable to seek the recusal of the Chief Justice
against all the law firms?
A. No.
Q. There was no further --
A. No, no, no.
Q. Was there any further discussion?
A. Of course.
Q. Over the weekend?
A. Of course. How else would we have come to that position? The view was taken
that even though the libel action was brought against me personally, that must
have been for some sort of strategic or tactical purposes best known to Mrs
Schofield and Mr Gomez, but that in fact it was an action being brought against
the Bar Council, against whom such action had been threatened.
Q. What basis had you to think that any client of yours would be prejudiced in
the sense that the Chief Justice would be biased against your client?
A. Well, if the Chief Justice is biased against the individual barristers, and
if he has the same low opinion of individual barristers as were expressed by his
wife, I would certainly be most concerned that my client would be prejudiced.
Q. I am talking about you personally, your own concern. So you were concerned?
A. I think it was a concern of every member. Let me say something, Mr
Fitzgerald. It was not my suggestion at the Bar Council meeting that the Chief
Justice be asked to recuse himself. This was somebody else's suggestion.
Q. Would it be fair to say that you took a leading role in this?
A. No, as far as the suggestion is concerned, I am not trying to diminish my
responsibility because I was the Chairman of the Bar Council and I accept that
fully, and I stand by that decision, but I merely make the point to dispel any
inference that there was any motivation on my part against the Chief Justice or
any disposition against the Chief Justice on my part.
Q. Now, we know that then a recusal application was made which we have at page
519, where, if you can just have a look at that, you act for the Bar Council.
What was the role of the Bar Council in Sonia Bossino v The Attorney General?
A. Well, technically, I suppose there was none, technically.
Q. So it was just --
A. But it was flagging an issue that was going to arise in all cases which were
going to involve members of the four firms, and the Chief Justice.
Q. I mean, is it intervening as an interested party in some way?
A. Well, it's flagging an issue. Quite apart from what appeared in an individual
case, it was flagging an issue to the Chief Justice. We have a problem. This was
the first time that the situation arose because the libel claim was served on
the Friday afternoon, and this was on Monday, at 10 o'clock in the morning.
Q. Either the Bar Council had some business in the Sonia Bossino case or it
didn't. What business did the Bar Council have in the Sonia Bossino case?
A. In the Sonia Bossino case, none.
Q. So the only justification would be that intervening is some form of
interested party.
A. Apart from appearing in the Sonia Bossino matter, which was the first case of
Mrs Guzman, a member of the Bar Council had to appear before the Chief Justice.
Q. If we then look on, Mr James Neish QC with Ms Gillian Guzman instructed by
Hassans for the claimant.
A. Yes.
Q. We now know that there had in fact been no instructions at that stage from
Sonia Bossino that you should take over the representation of her and make this
application; you accept that?
A. At the time, yes.
Q. Yes.
A. I wasn't aware of it at the time.
Q. You were using these proceedings of Sonia Bossino against the Attorney
General as a mechanism for airing your complaints against the Chief Justice,
weren't you?
A. No. No, certainly not.
Q. And you had no basis to think that the Chief Justice would be in the least
bit biased against Sonia Bossino, suing the Attorney General.
A. I had ever reason to think that the Chief Justice might be biased or
perceived to be biased against any of the lawyers represented on the Bar
Council.
Q. The lawyer in question is Gillian Guzman?
A. Yes, she is a member of the Bar Council.
Q. So what basis are you saying that her client would not be treated fairly by
the Chief Justice?
A. Because obviously the view that a Chief Justice takes of counsel must have an
impact on the view that it takes of the case.
Q. Is that a fair point to take, that you simply say to a judge I don't think
you like me, and therefore my client can't get a fair trial, therefore recuse
yourself?
A. Yes.
Q. Would you accept that the law in relation to bias is the law in relation to
bias against the parties, not against their lawyers?
A. Yes.
Q. The lawyers can look after themselves?
A. Believe me, Mr Fitzgerald, we have had lots of opinions on law on bias and
recusals in the past six months.
Q. You see, what I have to put to you is that this was really a set-up in which
you were using the proceedings of someone who didn't even know they were being
used for that purpose to put the Chief Justice in an embarrassing situation
where he couldn't hear matters.
A. No.
Q. You didn't proceed on a case-by-case basis, saying let's decide whether it's
really in the interests of this client or not to make an objection that the
Chief Justice won't give her or him a fair trial, did you?
A. This was the first case that arose, Mr Fitzgerald, and to suggest that this
was a set-up on our part is to ignore the history of what had gone on, the
emails and the libel action.
Q. As far as you were concerned --
A. How can we set up something when we were purely at the receiving end of Mrs
Schofield and her actions?
Q. On what basis did you think Sonia Bossino would not be fairly tried in
proceedings involving Sonia Bossino v The Attorney General?
A. In the credibility of her counsel is impugned, would that not impact upon the
view that the judge might take of anything that Ms Guzman might have said to the
judge or any actions that she might have taken in the course of the proceedings?
Q. There had been a dispute between the Chief Justice's wife and certain members
of the Bar Council. That is to say she had written a letter which you thought
reflected adversely on certain members of the Bar Council?
A. No, on all members of the Bar Council. The allegations were to the Bar
Council, obviously they excluded persons like Mr Hughes, the ones probably not
intended to cover him.
Q. Now, you didn't at any stage during this application refer to the interests
of Mrs Bossino, did you? It was all about the breakdown of your relationships?
A. Yes.
Q. So you were using this as a vehicle to air your grievances with the Chief
Justice, weren't you?
A. No.
Q. Let's just look at it. Page 520?
A. Yes.
Q. "My Lord, those emails affect you and I am not prepared to argue the matter
fully because of the turn of events where there is obviously a clear breakdown
in relations."
A. It just shows that it wasn't just us reacting to emails from Mrs Schofield.
We actually told the Chief Justice that we thought this impacted on his position
in judging matters involving members of the Bar Council.
Q. You weren't at that stage prepared to argue the matter. That is the case?
A. Yes.
Q. And then you say that at the top of page 521: "... any matters involving any
of those four law firms, until we have had a proper hearing involved in this
matter."
SIR JONATHAN PARKER: Mr Neish, what was the turn of events that you were
referring to there: " ... because of the turn of events where there is obviously
a clear breakdown in relations."
A. The turn of events were the emails culminating with the libel action.
SIR JONATHAN PARKER: Okay.
A. And course with the parallel reporting of everything that was going on in Vox
which was obviously -- which obviously had a inside track on what was going on.
MR FITZGERALD: You have referred in the passage my Lord referred you to to
firstly those emails affect you. Then you say the turn of events. The turn of
events can only be something subsequent to these emails.
A. Yes.
Q. So you were relying on the fact of the issue of libel proceedings against
yourself as justifying the recusal of the Chief Justice in all matters affecting
all those legal firms?
A. Yes, I have told you, Mr Fitzgerald, the view that was taken by the various
members was that, although I was being sued personally, it was in effect an
action against the Bar Council.
Q. And this was designed, was it not, to produce a situation in which the Chief
Justice's position was untenable?
A. No.
Q. You wanted to ensure that any case, whatever the merits of it, whatever the
position of the client, simply couldn't go ahead because the Chief Justice's
position would be untenable?
A. No, the Chief Justice's position had been made untenable by his wife and the
position that he had taken. That is what made the Chief Justice's position
untenable, not our actions. Let me say, Mr Fitzgerald, as far as I am concerned,
appearing before this tribunal is the most distasteful experience in my life. I
wish the Chief Justice had been able to continue and retire at 67 and we had all
gone on peacefully. Instead, this was a situation that which was provoked and in
respect of which everybody was cornered into this situation. I make that quite
clear. Why would I want to get rid of the Chief Justice or make his position
untenable? Did I get out of bed in the morning and think: let's get rid of the
Chief Justice, it sounds like a jolly good idea?
Q. No, but what I am putting to you is this was an overreaction in retaliation
to the actions of his wife in suing you for libel?
A. No, it was not an overreaction. It was not an overreaction to the actions of
his wife. We perceived that the actions of his wife at least impacted on the
position of the Chief Justice and it was not in retaliation for anything. It was
a natural consequence of what had gone on. We might have been mistaken. But I
have to make the point, Mr Fitzgerald, because the way you are putting it seems
to imply that we had some malicious or ulterior motives for making the Chief
Justice's position untenable. Let me say that Matthew(?) would have loved
nothing more than to have been able to have avoided that situation.
Q. Can I just ask you this? Why did you drop the recusal application on 24 April
if you really thought that none of your clients could get a fair trial before
the Chief Justice?
A. Well, Mr Fitzgerald, these actions had the effect of doing something which I
don't think anybody could have achieved, and that is of making not just four
different law firms take a joint approach on anything. So it just shows you the
strength of feeling.
Q. No, there is a specific question which I don't think you are answering. What
was it -- if you are right --
A. I am leading to that. The answer was that everybody after the reaction over
the weekend, and -- there was a dawning realisation: look, this can't go on. The
Chief Justice's position is now untenable. It has to be -- this has to be
addressed, in a different way. There has to be a matter which has to be -- this
is a matter which has to be referred to the Governor.
Q. But you see, the recusal application, you say, was made on the basis that the
Chief Justice couldn't give a fair trial to any of your clients?
A. Yes.
Q. That's right?
A. Yes.
Q. Well, how had that position altered on 24 April when you abandoned --
A. We were saying the Chief Justice's position has become untenable, and as far
as I was concerned, I think I only appeared before the Chief Justice on one or
two occasions and half concluded business.
Q. So you continued to appear before him?
A. On one or two occasions, yes.
Q. So you obviously didn't take the view that he couldn't fairly try the issues
between your client and the opposing party in those matters?
A. Well, there was Mr Dumas on the other side and he was a Signatory from
Hassans.
Q. Doesn't that show that this was not out of concern for the interests of your
client, but as a mechanism to get rid of him?
A. No.
Q. And that you had then found an alternative mechanism to get rid of him, which
was reporting him to the Governor?
A. No.
Q. I ask again --
A. Certainly not.
Q. What did you consider to be the position of your clients when you abandoned
the recusal application on 24 April? Did you think it was any longer necessary
for your clients that he should recuse himself?
A. Yes, and we decided that if there was a recusal application to be made, it
would be on an individual basis. But in any event, that wasn't necessary because
from what I know, I think that matters were listed before the Chief Justice with
a certain degree of discretion after that.
Q. In other words, that's what could have happened all along, is that on a
case-by-case basis considering the individual interests of your clients, and the
individual position of individual members of those law firms, it could have been
decided, is it appropriate to make a recusal application in this case or not?
That could have happened all along, couldn't it?
A. Yes, it could have happened, but it didn't. The fact that it didn't is not
because we were trying to use the recusal application as a device to make the
Chief Justice's position untenable.
Q. The only thing that had changed between the 16th and the th was that you had
made a complaint to the Governor in the hopes of activating the mechanism of
removal?
A. Yes. That was the whole object of writing the memorandum.
Q. Therefore, having found another way --
A. No.
Q. -- of removing him, you abandoned the recusal application which had nothing
to do with the interests of your clients in the first place?
A. No, Mr Fitzgerald that is not the case.
LORD CULLEN: Mr Neish, can you tell me, is there any practice -- I am talking
about over years -- of the Chairman of the Bar Council appearing in court in a
matter that he is not personally involved in, but appearing as Chairman of the
Bar Council.
A. Well, yes --
LORD CULLEN: For example -- this is hypothetical -- supposing a judge is giving
a bad hearing to counsel and is overstepping the mark, or so it is perceived,
for example, might the Chairman appear in order to give a bit of backing if
counsel was having a rough time, to put it loosely? Is there any practice of
that or not?
A. No, my Lord, I am not aware of that happening. As far as I can recall, my
predecessor, Mr Provasoli, was called in relation to the Chief Justice's
position in when the renewal of his contract was offered for a year only. I
think that the Chief Justice asked Mr Provasoli to attend.
LORD CULLEN: I asked that question because I come from a jurisdiction where
there is indeed a practice of the Dean of Faculty appearing to support counsel
who is being unfairly treated. But I wanted to know as a matter of curiosity
whether there was any history of that in Gibraltar.
A. In fact, my Lord, we are at present in unchartered waters. There was a quick
turn of events. We were all rather bewildered and shocked.
LORD CULLEN: So you are really saying it was, as far as you were concerned, a
novelty.
A. It was. The way we felt was this was our genuine concern. We cannot possibly
-- how can we possibly appear before the Chief Justice when all these things --
it must impact on our clients. Whether we took the right view or not, it is not
for me to say. But that is genuinely what we felt. It is was not out of
vindictiveness: let's get rid of the Chief Justice. Let's make his position
untenable, let's do this, let's do that, that wasn't the case at all. As far as
I am concerned, the Chief Justice could have remained in office until he
retired. I had no gripe with the Chief Justice.
MR FITZGERALD: Is this right, you did continue to appear before the Chief
Justice after 24 April?
A. I appeared before him on a part heard case because I appeared for the
Ministry of Defence in the Renville(?) v Secretary of State for Defence, which
was a case that the Chief Justice delivered judgment shortly before he left for
Argentina in February 2007. It was a complicated sort of case, there weren't
obvious orders he could make, and when it came back, we had to appear before him
in order to, and I remember the Chief Justice calling us up to his chambers and
asking: we are not going to have any public row over this, are we? We all said
no. Just the interests of our clients require that we carry on and dispose of
this matter.
Q. Mr Neish, I have already put my criticisms to you. Can I clarify some facts.
Was it you or another member of the Bar Council that notified the press about
the application on 16 April?
A. I have never spoken to the press, Mr Fitzgerald. In fact, I find that -- that
is one of the most galling suggestions which I have faced, that we have been
inspiring press leaks. I would invite you to ask every single member of the
Gibraltar press what they think about me, and they all think that I am press
unfriendly because I never comment on cases, I never inspire leaks, I never talk
to them and I keep them at arm's length.
Q. Can I just establish there --
A. In fact --
Q. The press did attend, is that right, on 16 April?
A. I can't recall -- I think they did.
Q. Somebody from the Gibraltar Chronicle?
A. I think they did. I can't recall. Certainly I have never spoken -- and please
call every single editor and every single newspaper reporter.
Q. They wouldn't normally turn up, would they, to an application which was an
application in what was essentially a case management conference?
A. Well, I don't know. It depends. Sometimes there are reporters hanging around
because there might be something in the Magistrates' Court, and then they hear
that there is something else going on somewhere so they go on to another
courtroom. I don't know. All I can say is that I have not on this or any other
issue on or anybody with my knowledge, on this or any other issue, contacted the
press.
Q. Did you expect the press to attend?
A. No. I never expect the press to attend, in fact.
Q. Were you surprised when they attended?
A. Yes. Sometimes the press is there. Sometimes it isn't. I think we were so
concerned with what was going on, and we were so worried, it was a hugely
unpleasant and worrying time for us. And the press is the last people I would
think of, to be quite honest, with all due respect to them.
Q. Well, can I just ask you to assist us on this? Were you present at the
further recusal application? I think there was one on the 17th and then another
on the 24th?
A. I can't remember. I don't think so. I can't remember. I think I went to one
further.
Q. I think it is at page 536. I just want to deal with one matter of fact.
A. Yes, I was there.
Q. Page 536?
A. Yes.
Q. I am obliged. You see there that there is a reference to Mr Charles Gomez's
presence?
A. Yes.
Q. You didn't object to the presence of Mr Charles Gomez, did you?
A. No. I simply did not understand what Mr Charles Gomez was doing at that
hearing. I did not understand what the libel action had to do with this matter.
For some reason, they have tried to make out that the libel action has been
manipulated by us ...
Q. You see there, you were there on behalf of the Bar Council?
A. Yes.
Q. And Mr Stephen Catania was there on behalf of Attias & Levy, Mr Ramon Triay
for Triay & Triay, and Mr Charles Gomez presumably for Mrs Schofield. So a lot
of people were there who weren't actually parties to the case?
A. Yes.
Q. So no one objected to Mr Charles Gomez being there representing an interested
party?
A. No, we didn't object formally.
Q. Any more than anyone objected you to being there on behalf of the Bar Council
or Stephen Catania for Attias & Levy?
A. I don't think there was any formal objection, taken, no.
Q. In relation to 24 April --
A. I don't think I was there.
Q. Sorry. SIR JONATHAN PARKER: 544.
MR FITZGERALD: I am obliged, my Lord. 544.
A. Yes, I was.
Q. You were there?
A. Yes, I was.
Q. Again, Mr Neish, you were there on behalf of the Bar Council, so again not on
behalf of Sonia Bossino?
A. Yes.
Q. And doesn't really look as if anybody is representing her, because Mr Dumas
is there for Hassans, and the Attorney General is represented -- just looking at
that, it doesn't appear that anybody is representing Sonia Bossino at that
hearing, from the appearances at the top.
A. Yes.
Q. It looks like a bit of a situation where everybody involved has gone along to
attend because not much is going to happen other than that it is going to be
abandoned.
A. But I think everybody was going to attend -- as I say, we were on unchartered
waters, and everybody was --
Q. This was really unchartered waters. It wasn't really a hearing of an
application involving a real determination of anything?
A. No. No. No, definitely not.
Q. It was almost like anybody who has anything to say about this, turn up, and
that is what happened, and nobody objected to one of the people turning up who
had something to say about it being Mr Gomez.
A. Well, Mr Gomez at page 546 states the reason why he was there. He says: "My
Lord, may I ask to remain in this application, because as you know I represent
Mrs Schofield and there is a claim in the case against Mr Neish and I am very
concerned that all this flurry of applications is actually meant to put pressure
on Mrs Schofield in these proceedings and it is for to that reason that, if you
don't mind, I would like to stay." The judge says: "Absolutely."
Q. Is this right, Mr Neish? No one said: "You shouldn't be here, this is the
case of Sonia Bossino. We are actually going to decide something here"?
A. No.
Q. Because everybody pitched up?
A. It was a broader case.
Q. Everybody pitched up who had something to do with the complaint?
A. We didn't understand what Mr Gomez was doing there but I agree with you as
far as the other bit is concerned.
Q. One might say, if one was Sonia Bossino, that she didn't know what you were
doing there on behalf of the Bar Council.
A. We might have explained it to her, if she had asked. But in any event, Mr
Dumas's evidence is that she was told immediately afterwards.
Q. Just so we get it into context, all that was being done at that hearing was
that the recusal application was withdrawn, is that right, on 24 April?
A. On the 24th? I need to refresh my memory.
Q. I think the judge says: "There is no need --" SIR JONATHAN PARKER: I think Mr
Neish says that at the outset, doesn't at the, page --
MR FITZGERALD: I am obliged. So you were saying that this is being withdrawn?
A. Yes. I think that was really the reason --
Q. And the reason that you gave for that was following developments during the
course of the past week?
A. Yes.
Q. Now, those developments were the memorandum?
A. Well, I have actually said so in open court in my settlements ventures.
Q. So the reason you are abandoning your recusal was because you were now
pursuing your complaint by way of a memorandum for his removal; that's right?
A. We were withdrawing our complaints because we -- but not quite the way that
you put it, Mr Fitzgerald. The objective of the whole exercise was not to get
rid of the Chief Justice and if we can't did it one way, we are going to do it
another way. Our recusal applications were based on genuine concern. In the
course of discussion everybody said: well, this is a serious situation, just
can't go on. The Chief Justice's position has become untenable.
Q. Well, those --
A. And in the light of -- and we filed the memorandum, but there was a
reservation as to the position of respective recusal applications.
Q. Those concerns that you had had on the 16th went away once you had filed the
memorandum and you were no longer asking for recusal?
A. The concerns were the same. We had just refined our thinking on the matter.
Mr Fitzgerald, we were virtually shell-shocked by the events. We were
shell-shocked.
Q. You would accept that this was an unusual situation triggered by your general
recusal application. That is unusual situation?
A. Yes, of course. It is unique, and I hope I never have to go through it again.
Q. And everybody was coping, the Chief Justice, yourselves, with a novel
situation in which there wasn't much guidance as to how one would proceed?
A. Yes.
Q. Therefore if you turn up at intervening in the Sonia Bossino case, acting not
for her but for the Bar Council and Mr Dumas intervenes, acting not for her but
for Hassans and Mr Charles Gomez intervenes, appearing not for Sonia Bossino or
anybody else, there is nothing to be criticised in that, is there?
A. Mr Charles Gomez pitching up?
Q. None of you were representing Sonia Bossino, but you all felt it perfectly
appropriate to turn up?
A. The original application for recusal was made in the Sonia Bossino matter.
The progression of the applications was felt to be dealt with in the Sonia
Bossino matter. There was no suggestion we were dealing with these specifically
after the initial -- we had mentioned the question of the recusal at the first
appearance before the Chief Justice on the Monday, and these other appearances
followed from that.
Q. I see. I think although it says David Dumas QC, counsel for Hassans, is it
right that he was also representing Sonia Bossino?
A. He was representing Sonia Bossino. But even though Mr Dumas was representing
Sonia Bossino, one can see from the tenor of the transcript that matters had
moved on to a more general plane, and Mrs Bossino's application, although it was
still the action which the matter had arisen, was to some extent not being
determined as you yourself put to me in question.
Q. Mr Neish, I think we are probably agreed on that matter?
A. Yes.
Q. But you have dealt very fairly with your own position after that. Is it right
that other members of those four law firms also continued to appear before the
Chief Justice after that date?
A. I don't know but I would assume so. And I don't know at what level or what
type of cases they appeared in, but I would assume so.
Q. And you would accept there would be a wide range of cases in which, for
example, if the two participants were members of the four law firms, there would
be no problem about appearing before the Chief Justice?
A. This was the case with the MOD. But quite apart from that, we felt that there
was an overriding interest in that particular case because the case had been
dragging on for a long time, and the defendants were represented by Mr Dumas and
had succeeded, should in fact not be deprived any longer of the fruits of their
success.
Q. So was there no necessary --
A. And as far as we were concerned, we wanted to know what the orders were in
order we would consider on appeal.
Q. Mr Neish, I am not criticising you in the least. I am just saying that the
decision that was taken was that there was nothing contrary to the
administration of justice in any member of your four law firms continuing to
represent your clients to the best of your ability before this Chief Justice?
A. No, but it was a hugely awkward situation.
Q. Awkward but manageable?
A. Manageable when there was no other choice, but it was certainly not the -- it
was certainly not a normal situation, and certainly not a situation that could
persist indefinitely.
MR FITZGERALD: I have no further questions. Thank you.
A. Thank you.
LORD CULLEN: Mr Otty, any further questions? Re-examination by MR OTTY
MR OTTY: Just one question, if I may, just to clarify, Mr Neish, the chronology
relating the recusal application of the Bossino case. Can you turn to page 532
in core bundle 1? This is a letter signed by you and written from the Chief
Justice dated 16 April which is the same day as you appear before the Chief
Justice on the recusal application for the fist time.
A. Yes.
Q. And in that you refer to the issue of proceedings, and you refer to the Bar
Council meeting of 12 April. The decision taken then, and you say: "That
decision holds good and has been confirmed, notwithstanding that the claim has
been issued against me personally."
A. Yes.
Q. Are you able to assist on when this letter was actually delivered to the
Chief Justice, and in particular, whether it was before or after the appearance
you made before him on 16 April?
A. I cannot recall. I suspect it may have been after, but I cannot recall.
MR OTTY: Thank you, Mr Neish. My Lord, I do not have any further questions.
LORD CULLEN: Thank you very much, Mr Neish.
A. Thank you, my Lord. (The witness withdrew)
MR OTTY: Can I ask Mr Rhoda to come forward, my Lord?
MR REGINALD RHODA (sworn) Examination-in-chief
by MR OTTY
MR OTTY: Mr Rhoda, if you would like to sit down, you will find open on the
table in front of you bundle E, and at tab 14 is a witness statement in your
name. Do you have that.
A. Yes, I do.
Q. Can you confirm that the contents of it are accurate?
A. Yes, they are.
Q. One or two questions in relation to the matter it covers, if I may. Paragraph
12 of the witness statement refers to a conversation with Mr Justice Schofield
at around the time of the maids issue.
A. Yes.
Q. It says it took place prior to your involvement with the maids issue, as we
see from the top of page 3, at a time that it was in the press. So after court
one day Mr Justice Schofield said to you that Mrs Schofield had said to him that
he could not be involved in a public controversy but she could get down into the
gutter and fight. You go on to say this conversation always stuck in your mind
as an articulation of the joint enterprise between the Chief Justice and Mr
Schofield in those matters. Now, was that exchange a meeting in chambers or just
outside court?
A. I think that was a meeting in chambers. I think it was in chambers.
Q. We know from the press reporting that the maids issue was in the press
between May and October 2000. Are you able to be any more specific than you have
been in your statement in dating this exchange?
A. I am afraid I can't. I think it was around the time when I was dealing with a
trial of drug trafficking, a trial called Chapri (?). But I can't be specific as
to the timing. It was certainly the maids issue was in the press. I had not
become officially involved in it at that stage.
Q. What was your reaction when the Chief Justice said this to you?
A. I don't think I had any immediate reaction at the time. I think it was later
as things unfolded.
Q. Did you ask him what he meant by it?
A. No. I think it was as things unfolded later, and Mrs Schofield would say take
a stance and go public on something, I think then it would trigger that
conversation and I would regard that as what had been said going into practice.
Q. Now, the Chief Justice has commented on your recollection of this exchange in
his fifth witness statement, if you would like to turn to bundle C which may be
in the rack or it may be in front of you. If you turn in that to tab 5,
paragraph 13. He says he has no -- do you have that, I am sorry?
A. Yes.
Q. Paragraph 13, at the top of that page: "So far as my conversation with the
Attorney General is concerned, I have no clear recollection of it save that it
did stick it my mind that he told me that if I put the responsibility for the
delay in payments on my wife, I would have avoided criticism. The language the
Attorney General attributes to me is not my language." Do you recall first of
all suggesting to the Chief Justice that if he put the responsibility on his
wife he would have avoided criticism?
A. I don't recall having said that. I am not saying it is impossible that I
would have said it, but I don't recall having said it.
Q. He says the language that you attribute to him is not his, and you have said
that it's a matter that's always stuck in your mind?
A. Yes.
Q. I just wanted to clarify with you why it doesn't appear that you refer to it
in your original representations to the tribunal. I will just show you those, if
I may. They are in the main bundle 1 --
A. That is core bundle 1?
Q. No, it is not core bundle 1, it is main bundle 1, which is probably in the
rack to your right?
A. Yes.
Q. You find your representations beginning at page 34, which is tab 4. They are
dated 22 February. I don't know whether you have had a chance to read these more
recently?
A. Yes, I have.
Q. You have. You deal with the maids question to some extent on page 2 in the
second paragraph. Unless I have missed it, it doesn't appear that anywhere in
this document you refer to that conversation. I just wanted --
A. I think you are probably right.
Q. In light of that, how clear are you in your recollection that it did in fact
occur in the way you have described in your witness statement?
A. I am absolutely certain of it. I was asked by Clifford Chance to make
representations. I did make representations. I then made my witness statement
when I was in London and I think perhaps I went into more detail, and clearly it
is an issue I have thought of since then. But there was no question but that
that conversation had been something that had been in my mind ever since it had
been said. And it is something I have raised on other occasions in other fora.
Q. Where have you raised it on other occasions?
A. I think one of the places I raised it was the Judicial Services Commission. I
think I am precluded from going into what was said there --
Q. Yes, you are.
A. It is not something that suddenly sprung into my mind when I was in London.
Q. I see. Now, the next matter in the chronology that I wanted to ask you about
relates to the substance of exchanges between yourself and now Sir Desmond de
Silva, and between yourself and Mr Picardo in respectively August 2000 and
January 2001?
A. Yes.
Q. Now, dealing first of all with Sir Desmond de Silva, if you turn to core
bundle 1, and have your witness statement to hand as well, you will see at core
bundle 1 we have a letter from Sir Desmond to the Chief Justice at page 308 and
309, dated 4 September 2002. You deal with this matter at paragraph 49 of your
witness statement.
A. Yes.
Q. I just wanted to clarify the true extent of disagreement between you and the
Sir Desmond in this regard. Following through from the terms of his letter,
first of all, is it possible you visited Sir Desmond at his villa in August
2000?
A. Yes, quite possible. I mean, I do remember Sir Desmond would take a villa in
Sotogrande for the summer, and I think he did it several times. We have a house
in Sotogrande, and I think we have met more than once on social occasions. Yes,
absolutely, quite possible.
Q. And you agree that there was a conversation between you and Sir Desmond in
which the Chief Justice was referred to?
A. Yes.
Q. Sir Desmond's letter says that -- and this is the fifth line: "Mr Rhoda
visited me one afternoon shortly after my arrival and the conversation turned to
you." Now, it is not entirely clear from this letter what Sir Desmond is saying
about who initiated the conversation, are you able to recall who made the first
reference to the Chief Justice?
A. I can't. In fact, I can't -- I think I had been at that villa more than once,
and I would really have -- I mean, I am accepting his dates for the moment, that
this was the first week of August. This isn't an independent recollection of
mine.
Q. No.
A. But I certainly recollect a conversation, and I recollect a conversation
about the Chief Justice, but I wouldn't put a time to it or a date to it, and I
couldn't say who raised the subject of the Chief Justice.
Q. And you also accept, I think, that the conversation involved discussion of
whether there was any possibility that the Chief Justice could be found a post
elsewhere?
A. Yes, I think the background to this is that Sir Desmond had been involved in
the maids issue at one stage. I don't think he was ever involved in the MOT
issue, but I refer in my witness statement to a conversation where he had phoned
me, and I think that is paragraph.
Q. 48, I think it is. Is it 48?
A. No.
Q. You deal with the MOT issue at paragraphs 30 through to ?
A. Sorry, if you just give me a moment. Is it 29?
Q. Yes, sorry.
A. Yes, paragraph 29. I know that Sir Desmond was involved in some capacity at
some stage in the maids issue, advising the Chief Justice. I had had that
telephone conversation with him. It perhaps wasn't that surprising that given
his involvement in the maids issue, that the issue of the maids came up again.
Q. Now, the question I was asking was I think you agree that the conversation
you had with Sir Desmond involved discussion at least of whether there was a
possibility that the Chief Justice could be found a post elsewhere?
A. Yes, my recollection of it is, as I think I have put it in my witness
statement, that Sir Desmond was effectively saying that things were not going
terribly well in Gibraltar for the Chief Justice, couldn't something be found
for him somewhere else? And my recollection is that I said I thought that would
be a good idea, but there was nothing I could do about that. But you say what
issues do I take with this letter? I think the first issue I would take is the
timing of it because what Sir Desmond says is that were this matter not to be
contested, and dealt with with the minimum of fuss, no doubt we would receive
every assistance and help. This was the beginning of August. At the beginning of
August, there was no question of a trial. My understanding at the beginning of
August was that the Chief Justice had been stopped on 28 July. The first thing
that happened after that was that the police gave him what effectively was the
first caution. That was a caution which turned out not to be an effective
caution because it didn't call for an admission of guilt. But at that stage by
the beginning of August that was all that had happened. There hadn't been, as it
were, any involvement by me. There had been no second caution which called for
an admission of guilt, and there had certainly been no question of a trial. All
that had happened is that the police had, as I understand it, gone round, and
indicated that a caution would be appropriate, wrongly, I think, for two
matters, for the MOT and for the driving licence.
Q. We will come to that. But leaving aside the question --
A. No question of a trial at that stage. There was nothing for the Chief Justice
to contest or not to contest.
Q. Leaving aside the question of timing as to precisely when your conversation
with Sir Desmond occurred, as you see, in that paragraph, the second paragraph,
he suggests that you told him that were the matter which must be the MOT matter,
not to be contested, and dealt with with the minimum of fuss, then no doubt the
Chief Justice would receive every assistance and help in seeking a judicial
position in England or elsewhere. Is it possible that you expressed that view to
Sir Desmond?
A. No, because I would have actually -- the suggestion there is that in some way
I would be able to do or somebody would be able to do something to assist him to
get a position. I was in no position to deliver any position. That would be a
matter for the Lord Chancellor's department.
Q. Leaving aside any question of you undertaking to bring that about, is it
possible that you expressed the view that that might be the result?
A. I certainly expressed a view that I thought it would be a good idea if he
could be found something somewhere else. I don't recall that I ever said that
assistance would be given to him, and what I do not like in this letter is the
suggestion that there is a quid pro quo, that if he doesn't contest it, he will
be helped but certainly that didn't occur.
Q. As I understand it, it was your recollection that it was Sir Desmond who
first raised you issue?
A. That was my recollection, yes.
Q. Now, moving on to the second exchange that I mentioned, and/or several
exchanges, that related to Mr Picardo in January 2002 --
A. Yes.
Q. -- in core bundle 1, you will find those reflected at pages 209 to 211. We
have 209, the letter from Mr Picardo. Do you have that?
A. Yes, I do.
Q. Then at the foot of page 20, it is said: "You asked me to tell my client, the
Chief Justice, that if in the course of discussions with the Governor my client
were to raise the possibility of withdrawing his appeal, it might be that other
job opportunities from other jurisdictions in the Commonwealth might be put to
him as an alternative to or after the renewal date." Then we have your reply at
page 211. You deal in particular with that matter in the last paragraph, in the
last substantive paragraph: "In response to your statement, your client was
concerned that withdrawal of his appeal might noticeably influence the question
of renewal of his contract and what I made clear was a personal opinion. I gave
my view that such a withdrawal was not likely to have my repercussions one way
or the other on the question of a contract. Likewise, in answer to your question
as to whether there might be other job opportunities elsewhere in the
Commonwealth, I made clear that this was a matter which your client would have
to raise directly with His Excellency the Governor." Then Mr Picardo responds on
23 January which you have at 211.001, and he says in the last substantive
paragraph: "My recollection is that it was you, not me, who raised the
possibility of job opportunities elsewhere in the Commonwealth which might arise
in the event that my client were himself to raise this directly with the
Governor." There is clearly a difference of recollection between you and Mr
Picardo?
A. Yes.
Q. How confident are you that you did not raise this matter with Mr Picardo
first?
A. Well, I get the letter from Mr Picardo, his letter of the 9th. I immediately
reply to it, and I think there is a genuine difference of opinion. I have spoken
to Mr Picardo about that since then. I think we have a different recollection of
what was said. Mr Picardo's last letter seems to leave out -- in the first
letter he is saying that -- sorry, just give me a moment. The first letter seems
to suggest that if the Chief Justice says he would be quite happy to withdraw
his appeal and give an undertaking to do so --
Q. It says "you asked me to tell my client", and then there is a reference to a
possibility of withdrawing the appeal, and then there is a reference to job
opportunities from other jurisdictions --
A. Yes.
Q. -- which might be put to him as an alternative. It's all in the course of --
A. Yes.
Q. -- discussions with the Governor.
A. My recollection is that I was not suggesting there might be other job
opportunities, that the question of him going somewhere else was raised and my
recollection is it was raised by Mr Picardo. I had said there that is something
you need to raise with the Governor.
SIR JONATHAN PARKER: There is just in the previous paragraph, Mr Rhoda, a
reference to withdrawing the appeal and giving an undertaking in the last two
lines. I don't know if that is what you had in mind, page 209.
A. I am obliged to you, my Lord.
SIR JONATHAN PARKER: It is the end of the second paragraph.
A. My Lord, yes.
MR OTTY: As I understand it, you accept that there was reference to the
possibility of other job opportunities for the Chief Justice, and the dispute
between you and Mr Picardo--
A. This is who raised it, yes. Yes, I accept that when the issue was raised, I
said to Mr Picardo: that is a matter that your client will have to raise with
the Governor, and it wasn't linked in any way to if you withdraw the appeal. And
the "if you withdraw the appeal" seems to have gone from Mr Picardo's last
letter, because what I was looking for was in the first letter suggestion by Mr
Picardo, and I am going to the third paragraph on page 209: "Furthermore, you
asked me to tell my client in any event if in the course of discussions with the
Governor, my client were to raise the possibility of withdrawing his appeal, it
might be that other job opportunities ..." There seems to be a linkage between
the withdrawing of the appeal and other job opportunities.
Q. I see.
A. That doesn't seem to replicate itself in the last letter from Mr Picardo. To
be fair, he is simply saying who raised the issue. But certainly my recollection
is there was no question of other job opportunities being related to withdrawing
of appeals. Because I had made it clear that whether or not the Chief Justice
withdrew his appeal would have absolutely no effect -- it was a personal opinion
-- on the renewal of his contract.
Q. I see. Thank you. Now, the next matter on the chronology that I wanted to ask
you about is one that you haven't dealt with in your statement, and you may not
be able to assist on it. I don't know. But it's the events of February 2002,
when, as you may recall, there was renewal of the Chief Justice's warrant?
A. Yes.
Q. For only one year, and there is a disputed transcript of a chambers hearing
at around that time at which on one version it is said that the Chief Justice
indicated he might have to suspend the sittings of the Supreme Court?
A. Yes.
Q. You will find that at page 213 to 214 of the core bundle.
A. This is core bundle 1, 213.
Q. 213 to 214?
A. Yes.
Q. It was a case called R v Clinton and others?
A. Yes.
Q. This transcript you see at 213 to 214 is disputed. The hearing runs on at 214
through to 235, and that latter portion is not disputed. Now, we know that as
part of this the consideration that was given to this matter, there was a
suggestion that you go before the court to state your position in respect of the
Chief Justice's renewal limited to a one-year warrant, and the implications it
had or didn't have for his position. Do you recall the events of February 2002?
A. Yes. I recall that Mr Pitto, who is now the acting puisne judge, was Crown
counsel dealing with this matter.
Q. Yes.
A. And he came back from court to tell me what had been going on and also to
tell me about the Chief Justice's request. Normally -- I mean, I would normally
accede to a request from a judge like that and go before the court.
Q. Yes.
A. I didn't on this occasion, and the reason I didn't was because clearly I
talked about this matter quite a lot to Mr Pitto, so it was my decision at the
end of the day, but he and I both felt that there was a little bit of a set-up
in this between Mr Hughes and the Chief Justice because I was aware that over
this period -- I said I had been told over this period, Mr Hughes was spending a
lot of time in and out of the Chief Justice's chambers, and I really had a view
that I was being called in front of the court to embarrass the Governor in some
way, and I didn't want to set myself up to do that. So I didn't go.
Q. Do you recall or are you able to assist from any documents in your
possession, as to the date of your first conversation with Mr Pitto in relation
to that?
A. I am sorry, I can't. I remember Mr Pitto coming back after clearly there had
been this first exchange, coming back to chambers to keep me abreast of what was
going on. But I don't remember dates and I haven't looked at the documentation.
Q. Do you recall any discussion between you and Mr Pitto as to whether there was
any record of the hearing he had just been at?
A. I do not, I don't recall that.
Q. You don't recall --
A. I don't recall any discussion about that.
Q. No. Now, we know from one document that Mr Mendez has exhibited -- and this
is in bundle E, behind his statement --
A. May I find?
Q. Yes, tab 1?
A. I had better find bundle E first.
Q. Bundle E, which was the one with your statement. Sorry, behind tab 13A,
actually, is the second statement of Mr Mendez.
A. Sorry, I've got the Gibraltar law students' AGM at the moment.
Q. I think there are two 13As. So go back to the beginning of the bundle.
A. Yes. I see that.
Q. Earlier on you will find 13A?
A. Yes.
Q. The last page in that section is a memorandum from your chambers, dated 19
February, writing to request a transcript for the proceedings in court on
February 2001, it says, but that is obviously an error. It should be 2002. Do
you have that?
A. I don't have that. This is 13A.
Q. You should find there a statement beginning: "I have had sight of paragraphs
3 to 8"?
A. Yes.
Q. Then if you turn to the end of that tab. Don't go as far as 13B?
A. Yes.
Q. You will find a letter, the last page in at that tab?
A. Yes.
Q. Do you have that?
A. Yes. Yes, I see that. Dated 19 February.
Q. Dated 19 February, seeking a transcript of the proceedings on the 13th, in
court on 13 February. Now, there is no dispute as to the accuracy of the
proceedings -- record of proceedings in court on February.
A. Yes.
Q. I wondered if you were able to assist on whether there was any documentation
in your possession relating to the Clinton matter generally which might show if
an earlier request for a transcript or record was made of the Supreme Court
Registry relating to 12 February?
A. I mean, there might well be documentation in chambers. I haven't been asked
to ask for anything, and clearly as it is a file dating back to 2002, it would
be filed down in the cellars. I could certainly try and find out.
Q. Could you?
A. Yes, of course.
MR OTTY: Thank you very much. Thank you very much, Mr Rhoda.
A. Thank you, Mr Otty.
LORD CULLEN: I see it is 11.40. Would it be a good point to break and then you
could have a fresh start after a quarter of an hour? (11.40 am) (A short break)
(11.57 am) Cross-examination by Mr Fitzgerald
MR FITZGERALD: Mr Attorney, I am going to take you to paragraph 9 to 10 if I may
first of all of your statement.
A. Sorry, I have closed the bundle again. That is at E?
Q. E14, yes.
A. Yes.
Q. You deal with the question of the Chief Justice being perceived as having
entered the political arena, but can you just confirm this, that all public
comments made by the Chief Justice have been concerned with judicial matters,
the funding in 1999, section 57 in 2006, and section 6 of the Judicial Services
Act in particular?
A. Yes.
Q. I don't think he has made any public statement on the last, but the other
matters that he has raised publicly are the funding in 1999, section 57, those
are matters of a judicial nature, and he has never supported or spoken up in
favour of one political side or the other?
A. No, but I think the comments made on the Constitution, I think it is right to
say that the way the referendum fell out was that it almost became a vote of
confidence in the Government. So even though he were making comments on judicial
matters, I think he was perceived, and certainly the press reported, as being
very much part of the no campaign.
Q. Well, would you accept this, that such comments as he made in relation to the
Constitution were made in the opening speech of October 2006.
A. Yes.
Q. That is the limit of it?
A. Yes.
Q. Now, going on from there, at your paragraphs 11 to 12 you deal with the
position of Mrs Schofield always acting as a proxy for Mr Justice Schofield?
A. Yes.
Q. I have to suggest to you that that first of all is just an opinion?
A. Yes.
Q. And secondly, would you accept that Mrs Schofield is an independent person
who would not act as a proxy or under instructions from her husband in any way?
A. The second question, I don't think I can answer because it goes to Mrs
Schofield's personality. The first question, yes, it is my opinion, but it isn't
just a vague opinion I have thrown out. I have thought very carefully about
this. The nearest analogy I can come up with it is rather like a conspiracy
count in a criminal indictment. Unless you have eye witnesses to the conspiracy,
you rely on an overt act, and when you look at the overt acts in this case, I
talk about Mrs Schofield invariably coming into play when the Chief Justice's
interests are involved, like the emails to the Bar, Mrs Schofield writing long
letters to the International Bar Association after the report by the observer,
by Lord Hacking, criticising his report and criticising the verdict in the MOT
trial. These were all issues that involved the Chief Justice.
Q. No --
A. And likewise, when one looks at the Chief Justice's witness statement in the
judicial review, there he is coming out with very much the sentiments that Mrs
Schofield has been coming out with, about an attempt to bundle him out of
office, as it were.
Q. You only give one instance to support this, I think, which is that Mr Justice
Schofield said to me at the time of the maids issue after court one day that he
could not be involved in a public controversy but that she could get down into
the gutter and fight?
A. Yes, but I think if you look in my witness statement elsewhere there is
another example. I don't put it under the joint enterprise.
Q. I am so sorry, can we stop with that and let me put my own constructions on
that?
A. Yes.
Q. The Chief Justice completely denies that he ever said anything of that sort
to you.
A. Well, I repeat that that was said, and it is something that sticks in my
mind, and it was said at a time when up until the time of the maid issue, when I
became involved with the Governor acting as it were on his behalf in the maid
issue in negotiations, relationships between the Chief Justice and myself were
perfectly cordial, and we would often have quite free conversations and I
distinctly remember this. The importance of it is that that always stuck in my
mind when I saw what was happening thereafter, that what was happening
thereafter was putting into practice the very thing that the Chief Justice had
said to me, that Anne said she can get down in the gutter and fight.
Q. I am going to come on later to your reference to maybe having mentioned this
in the JSC?
A. May I --
Q. That involves legal problems which we postpone?
A. May I say one thing? You had asked me initially that I only give one example
of joint --
Q. Yes.
A. And I say no. If you look elsewhere in my statement I refer to an incident
when the Schofields come round and both of them come round to visit me, quite
early on in my time as Attorney General, and I rely on that for independence of
judiciary.
Q. Where --
A. Let me find it.
Q. Paragraph 24?
A. Yes. And here we had an example of the Schofields together coming round to
see me to say: look, this bill is raised in the House. It has been addressed:
Governor, Chief Minister, Chief Justice. This is not right. This interferes with
independence of judiciary. It doesn't give judiciary its right place, and as far
as I was concerned, here was an example of the Schofields acting in concert;
both of them were there together. That was in our flat at Portland House. I was
there on my own. My wife was away at the time, and to me there was a very good
example of both the Schofields were involved in this and at the time, I did
wonder why Mrs Schofield was quite so involved in something that I would have
thought really only concerned the Chief Justice.
Q. Yes, of course Mrs Schofield had been particularly involved because she had
been involved in the revision of the law at this stage?
A. Yes, she had.
Q. And one might say that the issue of protocol was something which she would be
concerned about herself, the issue of the order of receiving.
A. I am not sure why. In a sense, I really wouldn't expect my wife, I think, to
be terribly concerned with my listing in protocol.
Q. Well, I am not going to comment on that. But can I just put this. Do you
accept that you did say something along the lines at that time of the maids
issue about, well, it would all be much simpler if you blamed it all on Anne?
A. I might well have said that.
Q. Paragraphs 16 to 17, you deal with the question of bias against the
Government. I just want to try and put that into some sort of context.
A. Yes.
Q. As respects civil cases, do you accept the figures that we have had, that the
Government is involved in about per cent of civil cases?
A. Yes.
Q. Right. And most of those wouldn't involve any personal involvement of the
Chief Minister. That is to say, he wouldn't be giving a witness statement or his
particular policy or decision being in issue?
A. No, but in the generality of civil cases -- I was obviously thinking about
this issue -- things like landlord and tenant, one does get policy matters
coming into it. One has defences under the European Convention, the right to
family life, inhumane treatment. These issues can arise.
Q. I accept that. If one is dealing with a standard public housing issue or
standard issue of the control of crime, policing or something like that, in a
public law context, it is unlikely that anything involving the minister is going
to arise. The minister personally?
A. Yes.
Q. So on what basis would his bias against the Government, if you say there is
such, really arise on those cases, if the Government is landlord recovering
possession?
A. I don't think it is simply a question of numbers of cases. The most important
cases, the public law cases, the judicial review cases, asylum cases, which
would probably be judicial review, where Government policy is coming into play.
In cases like that, I think there would be a real issue for the Government to
say: we don't feel we would have a level playing field. The mere fact that one
might have a multiplicity of small cases that don't involve anything like that
doesn't detract from the fact that if the Chief Justice weren't able to hear the
most important cases, I think it would make his position extremely difficult.
Q. You yourself have put forward no particular instance of a case in which the
Chief Justice has in any way shown bias against the Government?
A. Right to say that, but at the time we hadn't got as far as having the Chief
Justice's witness statement in the judicial review. I think that is a little bit
of a watershed.
Q. Your representations of May 2008; is that right?
A. Yes.
Q. You don't put forward any instance of --
A. No, I haven't put forward.
Q. You haven't said we put forward this case and it was obvious he was biased
against the Government or anything like that?
A. No, but I think things have moved on quite considerably.
Q. You then refer to the application that you recuse yourself that was made in
relation to the Judicial Services Commission?
A. Yes.
Q. I think that is the only way in which Mr Justice Schofield has been involved
in any objection to yourself; is that right?
A. I refer in my witness statement to an email sent by Mrs Schofield which says
that she will be instructing her solicitors in the future that in any matter
which involves herself or her husband, I should not sit. And I refer to that in
my witness statement.
Q. Yes. You do.
A. Yes.
Q. But what I just want to establish is that so far as the Chief Justice is
concerned, I think it is right there may have been correspondence about your
sitting on the Judicial Services Commission, whether that was appropriate. Is
that what you are referring to in relation to him personally?
A. Yes.
Q. And just this: you have already referred to one situation in which your
intimate knowledge of the background, and your views on it, may have come into
play in the deliberations of the Judicial Services Commission. Now, do you think
that there's anything wrong with saying in the light of that it may be
inappropriate for the Attorney General to sit on the Judicial Services
Commission in deciding in particular issue this particular issue?
A. When the prediction application to recuse me was made, it was clearly
something I thought about very carefully. I discussed -- I don't want to go into
the details of what was said, because I am not able to go into the details of
what was said.
Q. We will come to that later. There is an Act of Parliament in the Constitution
which is superior to that.
A. I don't think there was any reason for me to recuse myself, no.
Q. But that was a very limited application in a particular context where you had
been intimately involved in the narrative which gave rise to the complaint,
hadn't you?
A. Yes.
Q. For example, you had made a recusal application in May.
A. Recusal application in May, it's right to say, had been made in my name, but
I think the Chief Minister made it fairly clear yesterday that that was really a
Government -- a decision of the Government which I was aware of and kept aware
of, but this was not me personally seeking to recuse the Chief Justice, even
though I accept it was made in my name under the Act.
Q. Well, that may be quite important because isn't this really the situation: a
lot of these actions are simply taken with yourself as the name, but it doesn't
involve you personally in any way. Actions for the Government have to in certain
circumstances be taken in the name of the Attorney General?
A. Yes.
Q. So it doesn't involve any implication that you have been personally involved
in any decision-making?
A. Many will not.
Q. No?
A. Some will, and the more serious matters, especially public law matters, I
tend to do personally.
Q. Yes.
A. Perhaps one matter, Mr Fitzgerald, is this. You are saying that only on one
occasion has the Chief Justice asked me to recuse myself, and therefore am I
basing effectively my judgment on that? But I would also say I would be putting
my judgment in part on his witness statement in the judicial review where he
makes it quite clear that he thinks I have been improperly involved as a conduit
-- conduit for whom, I am not sure -- in trying to spur him out of Gibraltar.
That would, I think, give me real concern in appearing in front of him, if I am
appearing in front of a tribunal who think I have been an improper conduit in
something as serious as that on the basis of bias, I think a reasonable man
would be entitled to assume that there would be some bias in that tribunal.
Q. What I am trying to establish with you at this stage is the range of those
civil cases in which it could legitimately be said that the Chief Justice can't
hear this matter because he may be biased against me, the Attorney General
personally, and what I am putting to you is that there are many cases which are
taken in the name of the Attorney General which involve no personal involvement
in terms of decision-making by you whatsoever?
A. I accept that.
Q. So even of that 10 per cent, some involve housing matters, some involve just
the title of the Attorney General because some governmental function is
involved.
A. Mr Fitzgerald, I accept that, but I go back to what I said, that I don't
think it is just a numbers issue. I think there is a question of the more
serious cases, the more high profile cases, will involve me, and I think that is
the same on the criminal side.
Q. Paragraph 15, it is the last sentence of paragraph 14 and the first sentence
of paragraph 15. But you say you undertake five or more major prosecutions here?
A. Yes.
Q. Is that somewhat of an exaggeration? I mean, how many major prosecutions have
you appeared personally in in the last year so far?
A. So far this year, I have done two.
Q. Right.
A. I am due to do a retrial in one of them quite shortly. I would have thought
that -- I have a murder that is stacking up. I would have thought that by the
end of the year I will have done about five.
Q. And you say in the criminal trials, it would be for you to decide whether to
ask Mr Justice Schofield to recuse himself. But in a criminal trial, that is
where issue is between the Crown and the defendant, have you any reason to
believe that the Chief Justice wouldn't do justice as between the Crown and the
defendant irrespective of who was representing the Crown?
A. As a result of what has happened, and particularly the paragraph in the
witness statement, I would now have a concern appearing in front of him that
this is a tribunal who thinks that I have been improperly involved in trying to
get him out of Gibraltar.
Q. But what does that have to do with the issue that is going to be tried on the
evidence, with a jury making a decision on the fact, as to whether there's
evidence to convict a criminal defendant?
A. Well, Mr Fitzgerald, you know certainly as well as I do that a great deal of
a criminal trial will be taken up with submissions between counsel.
Q. Yes.
A. And I would have a worry that perhaps at that stage I would have a worry that
there would not be a level playing field, that I would feel that there could be
bias and that can manifest itself in many ways. I think it would be wrong acting
on behalf of the State for me to commence a prosecution if I had that feeling.
Q. You do you accept this, that it is merely a question of some company that's
owned by the State or something of that nature, there's no need for him to
recuse himself simply because that party is before him?
A. Well, I think one would look at things on a case by case basis.
Q. Well, I just want to ask you about the recusal application that we have. It
is at page 706 to 717 and --
A. That is core bundle --
Q. It is core bundle 2, pages 706 to 717.
SIR JONATHAN PARKER: It is core bundle 1, I think. It is right at the end of 1.
Core bundle 1.
MR FITZGERALD: My Lord, you are absolutely right. I am obliged. It's just at the
back of number 1. Yes, there's the application to recuse himself, Mr Catania for
the claimant, presumably that application was made on your instructions; is that
right?
A. It was made on my instructions insofar as anything -- the case was brought
against me -- sorry, no. The case was brought by me, I was the claimant. I did
not personally give those instructions for recusal.
Q. I just really want to look at the issue. If we look at page 707 at the top,
one sees: "Your Lordship, I am instructed by my client, a Gibraltar commercial
property company. It is a wholly owned Government company by the Government of
Gibraltar which is suing pursuant to section 12. The Attorney General has had no
involvement with this case, merely used pursuant to the ordinance of the party
which had to be the case." Now, doesn't it follow from what you have told me
earlier that in those circumstances there really is no reason to fear any bias
against the party simply because you are named with no involvement in the case
at all as a party?
A. I have had no involvement in it, but certainly the Government has had an
involvement in it. It may be that one has a case where I am not personally
involved in it, but the Government takes the view that some Government policy,
some Government decision is involved, and that they are unhappy because of what
has been voiced by the Chief Justice about his feeling that the Chief Minister
and by implication the Government have tried to hound him out of Gibraltar, that
they will not have a level playing field.
Q. Can I just ask you this: were you consulted before this decision was taken to
make that recusal application?
A. No.
Q. Did you play any part in that decision.
A. No, I played not part.
Q. So I would have to Mr Mr Catania about it?
A. I was aware of it and I was kept aware of it, but I played no part in it.
Q. Are you aware of any reason, apart from the general one of an alleged
animosity with the Chief Minister, why the Government owned Gibraltar company
should not get a fair trial before this Chief Justice?
A. Well, I think it goes back to the issue that you said. The general feeling
that the Chief Justice appears to have the view that the Chief Minister, and by
implication the Government, have been trying to hound him out of Gibraltar.
Q. But what on earth does that have to do with a Gibraltar company in that case?
What possible connection is there between the Chief Minister and this --
A. I have to say, I wasn't involved in this case, and I wasn't involved in the
decision-making of it, and I think it would be better if you asked the question
to whoever was involved in the decision-making.
Q. But apart from he doesn't like the Chief Minister, you can't think of any
reason?
A. I don't think it is just he doesn't like. There are many people one may not
like, but when you have gone as far as articulating in a witness statement that
you have reason to believe that the Chief Minister is set on hounding you out of
Gibraltar, I think that's rather more than not liking.
Q. But it is not the Gibraltar property company that is hounding him out of
Gibraltar?
A. No, I accept that, and I accept it probably would be on a case-by-case basis.
Q. Right. You have seen the skeleton argument of the amicus to the court, volume
2, pages 1119.
A. I have certainly seen it, but if I could refresh my memory. It is core volume
2?
Q. Yes, core volume 2, pages 1119 and onwards.
A. Yes.
Q. Can I just take you to page 1133 at paragraph 33, the first sentence?
A. Yes.
Q. Do you agree with the distinction drawn there between: "The inability to
adjudicate in any case involving either the Chief Minister as a witness or a
decision or policy, and a conclusion by the same fair-minded form, it could not
achieve on any case involving the Government of Gibraltar." There is such a
distinction?
A. Yes, I think I would broadly agree with that observation.
Q. Now, we know of course that the judicial review has now been withdrawn?
A. Yes.
Q. That's right, and it is over?
A. Yes.
Q. And if I can move on from to paragraph 17, you deal there with the position,
the effect of the events of the last few points has meant the credibility of the
Chief Justice has been irreparably damaged. You deal with the Judicial Services
Act challenge, and then you deal with the fact that the Signatories to the
memorandum have initiated the current process?
A. Yes.
Q. Now, I think you really implicitly acknowledge this. It cannot be right, can
it, that just simply because people have made a complaint of misbehaviour, that
then they produce a situation where someone's position is untenable?
A. Yes, I think I have acknowledged that.
Q. And so you would accept there has to be something more than that?
A. Yes.
Q. At paragraphs 23 to 24 you deal with the funding of the judiciary at the
opening of the legal year. You deal with that, and then you deal with the
question of judicial appointments. Then you seem actually to deal with a
slightly different issue at paragraphs 23 to 24.
A. Yes, it doesn't seem to relate to the headnote.
Q. No: "The Governor used me as a messenger on that occasion to go and speak to
the Chief Justice. I can't recall the meeting other than I think it was at the
Supreme Court. I was not well received by the Chief Justice." You agree that
there is a table of precedence, do you?
A. Yes.
Q. And you accept that the Chief Justice is second only to the Governor in that
table of precedence?
A. Yes.
Q. And the legislation in paragraph 24, I think, altered the -- well, it was not
something passed by Parliament, was it, it was done in the course of a revision?
A. Yes.
Q. So what had happened was, without going before Parliament, in the course of a
revision, the normal order of precedence had been changed from the Governor,
Chief Justice, Chief Minister, to the Governor, Chief Minister, Chief Justice?
A. Yes.
Q. And so that wasn't something authorised by the legislature, but something
that, if I can put it that way, slipped in in the course of a revision?
A. Well, it had happened, yes.
Q. So there might be some justifiable concern as to that if there was laid down
a proper procedure?
A. Well, I didn't think that it merited the level of concern. I think this was
an evening where I must have been harangued for at least an hour on why had I
not got up, why had I not intervened in the House about this, the fact that this
interfered with independence of judiciary, and my recollection is that both
parties were vocal, but I think Mrs Schofield was even more vocal than Mr
Schofield, and it struck me as a completely disproportionate response.
Q. What I have to put to you is that his concern was about respect for the place
of the judiciary, that was what he was --
A. My recollection was words about independence of the judiciary were also
introduced into that.
Q. I put that to you, Mr Justice Schofield can deal with that. Can I move on?
You have fairly described the exact nature of the offences which would have been
involved at paragraph 25, and can I just invite you to confirm that the offences
that would have been involved are set out at the last sentence, that is to say
offences concerning non-deduction of tax from Ms Danvers and failure to make the
necessary contribution; that is right, isn't it?
A. I think it is right to say this. There was never an official investigation
reeding to prosecution.
Q. No.
A. Let's suppose there had been. I suppose one couldn't say for sure that the
offences would stop there because if a view were taken that this was
sufficiently serious, I suppose common law cheat could be used. It is a Revenue
offence.
Q. But the concentration by yourself and The Inland Commissioner was on the
question of non-deduction of the tax?
A. Yes.
Q. Just so we get it clear, it was never the allegation that the Chief Justice
had deducted the tax and kept the deduction for himself?
A. No, that was not my concern.
Q. The allegation was that he had failed to deduct it?
A. He failed to deduct it.
Q. And then he was required to pay the residue?
A. Yes.
Q. And you say that you were involved at paragraph 29 in advising Sir David
Durie; is that right?
A. Yes.
Q. Do you accept that the matter was dealt with by David Durie after receiving
advice from you, and after the position had been checked with the Inland Revenue
commission?
A. Yes.
Q. The Revenue commissioner had assessed what was owing?
A. He had assessed what was owing, and he hadn't compounded it, as it were, but
he had accepted a payment, or he was about to accept a payment.
Q. But the matter was gone into, I think, at the time it was gone into with
local lawyers, with Sir Desmond de Silva involved, and with yourself advising
the Governor.
A. Yes.
Q. And it was fully gone into with the availability of the Commissioner's own
records at the time?
A. Yes. I think one has to split it into two.
Q. Yes.
A. The Ms Danvers issue was looked at. I don't think it was looked at perhaps as
fully as it would have been looked at if we got to the situation of looking at a
prosecution. Because at that stage one would have wanted to interview Ms Danvers
and Ms Williams. That never happened. There was an important bit missing from
it. As far as Ms Williams is concerned, I think all that were was the
representations of the Chief Justice that there was no tax owing, and I think
the Governor made it clear that he was dealing with that on the basis that he
had to accept that, but he had no knowledge, I had no knowledge.
Q. And the Revenue Commissioner, who had looked into the matter in relation to
Ms Danvers, never said, hey, hang on, you still have some tax owing --
A. I think that's right.
Q. -- at any stage in the ensuing 11 years; is that right?
A. Yes, I am not aware of the Commissioner having said that.
Q. You deal then with the MOT prosecution, and with the suggestion that it was
blown out of all proportion. I think you were present in court; is that right?
A. I was.
Q. Just in case there's mistaken impression, in fact can I put this to you,
there is a fairly low key hearing -- the hearing itself on a rather boring
issue, if I can put it that way, about legitimate expectation when you have been
cautioned?
A. Not sure. There was certainly no histrionics from counsel, Mr Fitzgerald. I
accept that. But it wasn't low key in the sense that one had effectively a State
trial. One had the Chief Justice represented by a leading Human Rights QC from
London; we had counsel from London over. It was very high profile. One had
international observers. I wouldn't describe it as low key.
Q. The contents of the hearing was, would you accept, you were there, simply
confined to the issue --
A. Yes, confined to legal argument.
Q. Confined to really legal argument and some questions asked about cautioning
policy of Mr Castri(?), and I think his predecessor gave evidence about
cautioning policy and so on?
A. Yes, and then there was an ultra vires argument later.
Q. Yes. But if we can just go through the history very, very shortly at page 94
--
A. Page 94 of?
Q. Sorry, core bundle 1. I think we may have to go a little bit further back to
the actual caution. The main page 94 rather than the satellite 94. So do you see
that one had there the Commissioner of Police has decided to issue a caution?
Under the no valid MOT, no valid road tax, then --
A. Yes.
Q. "... a lenient view has been taken, who has decided to issue you with a
caution. However, if you are reported again, it may be necessary to further the
matter. This caution has been reported." So that is suggesting that a caution
had been issued.
A. Yes. I mean, this was what the whole abuse of process argument was about.
Q. I am trying to set it in context. What happens is that if one looks at page
97 there is a reference to the fact that that caution had been received on 26
August, the Chief Justice received a letter from the police, a copy of which had
been delivered: "As far as I can see, there is nothing like that which allows
the Chief Justice to accept or reject the caution. The letter simply informs my
client that the Commissioner has taken a lenient view and that no further action
will be taken." That was the letter from Mr Stagnetto, and just interposing
between there, at 95 you are saying there, on 25 August: "The matter has been
progressed and my understanding is a formal caution has now been issued by the
Commissioner of Police to the Chief Justice." So saying a caution has been
issued: "Until such time as I know whether or not the Chief Justice is prepared
to accept the decision to caution him, thereby acknowledging the truth of it, it
would not be right for me to comment upon the cause in connection." You see
that?
A. Yes.
Q. So the issue was, had he been cautioned and was that the end of it, or did he
have to do something further and having been cautioned to accept guilt, and that
was the issue before the magistrate?
A. Yes, he was the ex parte dealing with it.
Q. Yes, and you have seen Mr Stagnetto's reply straight away, that this is all
over, and then I think we have a letter from the Governor, and the Governor is
saying that he understands he has been cautioned. I think there are two letters
from the Governor to the effect of him saying: I understand you have been
cautioned. August?
A. Yes, may I just read it? (Pause).
Q. It is really the first paragraph I want you to comment on.
A. Yes.
Q. So the Governor writing and saying: "I have decided the appropriate way to
proceed is by way of advice statement which takes account of the recent caution
you have received." So suggesting he has been cautioned and has received that.
A. This is a reference, is it, to the very first caution?
Q. Yes. That is to say the letter that we see dated August at page 94.
A. I suspect the Governor was in error at that stage in not appreciating that
things had possibly moved on.
Q. So the Governor there, at 98.001, thought he had in fact received a caution,
and his lawyers thought that he had received a caution?
A. Well, what had happened, and this is what the entire argument in court was
about, was that initially the police had given what purported to be a caution
but it was not a caution which meant that you had to accept guilt. Now, caution
policies usually mean that if you accept a caution, you are accepting guilt. The
matter would probably have been left closed had it not been that the Chief
Justice's lawyers wrote back, reopening the issue, and saying that their client
wasn't accepting guilt. At that stage I was consulted by the police. A second
caution, as it were, was issued saying look, here is a caution, but you are
required to accept guilt, and if you accept guilt and accept the caution, that
will be the end of the matter. There was never any acceptance of guilt, and that
was why the summons was issued, and the proceedings in the Magistrates' Court
were all about whether it was an abuse of process to issue the second caution,
and there was a decision by the magistrate saying no, that was not an abuse of
process, and that decision was not appealed, although a notice of appeal was
entered at one stage.
Q. No, what I am trying to establish is just to look at whether this was the
State trial you describe it as, or whether it was simply a point that he was
perfectly entitled to make: look, I have been cautioned, that was the end of it,
that was understood to be the end of it; whether or not the magistrate ruled in
his favour or not, this was a legitimate point to take, and on which the
magistrate made his ruling?
A. In a small jurisdiction where the head of the judiciary, as he was perceived,
was on trial for not having a MOT, which is not the most serious thing not to
have, but where the defence he was taking was an abuse of process, I certainly
found it very odd that when he knew very well that he was driving without an
MOT, that we would have a situation in a small jurisdiction where the most
junior judge was being required to try the issue; as Attorney General, I was
being required to prosecute it, and that we had international observers there.
You were here at the time, Mr Fitzgerald. It was very much the top story. It did
turn into a State trial.
Q. Mr Attorney, can I just underline two further points with you in relation to
that? If I can just refer you to two passages in the hearing itself -- do you
see at the top of page 181, the defence saying -- because it has cropped up in
some of the statements made --
A. Sorry, 181?
Q. 181. It is recorded "defence" in the third paragraph down: "Defence not
asking for special status because he is Chief Justice, but prosecution as
opposed to caution can be graver, could not lead to dismissal but can have
consequences there." So not asking for special status, do you see there?
A. Yes.
Q. Then do you see at page 191, right at the bottom: "Whether or not it was
recorded as immaterial, he was told that it had been recorded. You can take
account caution to prosecution could have affect on him. Of course none exempt
from law except ambassadors. Judges entitled to full protection of law and
whilst have no special treatment so not be punished differently, because others
have written letters have been prosecuted of bounds of probability and you can
find ..." That there is an abuse. Do you accept that those things were said?
A. If this is the record, then I accept it was said.
Q. You were there.
A. I was there, but I can't remember it.
Q. If you just go over, you can see at page 206 the reference to the ICJ
reporter saying: "The International Committee of Jurists has noted the ruling.
The ICJ are satisfied the court procedures conform to international standards of
due process. Trial observer also noted consistent with the principle of all
citizens are equal before the law, neither the prosecution or defence counsel
asserted that the office of the defendant was material to proceedings. This
appears at some variance ..." So that was his recollection.
A. Yes, I mean, my recollection is that the magistrate's ruling was rather
different, and he had recorded something different being said, and there was a
dispute about that.
Q. Yes.
A. I don't think I am in any position to settle that dispute because I did not
make a note of what was said.
Q. But your recollection wouldn't be contrary to the fact that there was said
not seeking special status?
A. I accept if this was what was said in the record. I think there is another
matter on the prosecution, before we leave it, that I have been quite surprised
about, listening to the tribunal, I note it is not something that has been put
to me, and perhaps it is something you were going to put to me, but the question
as to whether or not the Chief Justice -- it's almost been suggested to other
witnesses that the Chief Justice was perfectly in the right because he had been
given an undertaking by police that he could drive until his test came.
Q. I do want just to raise that with you. It's perfectly right, as my Lord Lord
Justice Gibson has pointed out, that that issue was only referred to
tangentially in the hearing. But I just want to establish a chronology?
A. I don't remember it being referred to.
Q. I think there was a background about the period of amnesty being referred to?
A. That was a period of amnesty about the tax disc.
Q. Yes.
A. But on the MOT, I don't recall it being referred to during the proceedings
that the Chief Justice had effectively been told by police that he could drive
without an MOT until his test came.
Q. What I am dealing with is not the question of what was done at the trial, but
the question of the broad justice of this situation, whether the Chief Justice
had reason to feel aggrieved, and I want you to look at page 93 and just
indicate whether you were aware at that time that this was something that Mr
Mendez, the Deputy Registrar, was saying. Had you had that drawn to your
attention?
A. Yes, I had, and I think I had it drawn to my attention probably before you
came on the scene, Mr Fitzgerald, by whoever was acting at the time.
Q. Yes. I think is this right, because it has arisen, if I can interrupt you
briefly there. It's right that Sir Desmond de Silva was involved in the earlier
stages of it?
A. And I think Mr Guy Stagnetto QC was also involved.
Q. Yes, he was involved, and Sir Desmond de Silva we can see was involved in
some discussions about it at the time of the caution being administered in
August?
A. Yes. It was drawn to my attention, and I did what I hope I would be expected
to do, which was to investigate with the police whether they had ever given such
an undertaking.
Q. Yes.
A. Because clearly if the police had told me that they had given an undertaking,
it might well have affected my decision on prosecution. I was told by the police
in no uncertain terms that no such undertaking was given. That is something I am
sure I communicated to defence lawyers. Therefore I am surprised that at the
tribunal that issue is being raised, and certainly I viewed it as a state trial.
If it was a live issue, I have to ask myself why wasn't the issue taken at the
trial?
Q. You have seen that the Chief Justice has said. He didn't want to embarrass Mr
Mendez by having him called and cross-examined in the court, and by calling him
-- well, I don't think there was any police officer who could have given
evidence of that because it was just a negative statement?
A. Well, it would have been Inspector Ravagliatte, I think, who would have given
evidence because he was supposed to have said it and his evidence would have
been that he hadn't said it. I find that an odd statement because there was a
great deal of embarrassment being caused to the jurisdiction by having this
trial, having international observers. I am slightly surprised that the reason
for not running what might have been a main plank of the defence was the fact
that the Chief Justice was worried about embarrassing Mr Mendez, and quite
frankly, I don't accept that.
Q. You have seen that is what the Chief Justice said.
A. I have seen what he said, but I found it very odd that it wasn't raised and I
think the defence -- I don't mean you, Mr Fitzgerald, but people who have been
defending before had been informed of the fact that the police were not
accepting that.
Q. Yes.
A. It would have been a live issue, and we would called the officer.
Q. Yes.
A. But I don't think the defence would have had any chance of success.
Q. You say that, but the tribunal has now had the opportunity to hear from Mr
Mendez himself, that that is exactly what he recalls?
A. Yes.
Q. And as you say, it was not something that was adjudicated at the time?
A. No, that's right.
Q. You are saying you considered it and you considered that it wasn't made out?
A. Yes.
Q. And that the promise had been made?
A. Had I considered that there had been such a promise, then I think my view on
prosecution would have been different.
Q. Now, I think you refer at paragraph 37 to a meeting with the Chief Justice's
lawyers and offer --
A. Yes.
Q. I am not in a position to challenge that. There may well have been a meeting
along those lines. The Chief Justice is not in a position to challenge that
something of that sort was discussed.
A. Yes, I mean, I would have accepted at that stage a caution because I did not
want us to have this full-blown State trial which we had with all the attendant
fallout that comes from something like that.
Q. You deal with the 2006 Constitution, I think. You have accepted that the only
public comment he made was at the opening in October 2006 of the legal year?
A. Yes.
Q. And that the speech itself was solely concerned with legal issues?
A. Yes.
Q. And then if we go on to the question of the Judicial Services Act, again, can
you confirm -- I think you deal with that at paragraphs 42 to 43?
A. Yes.
Q. Well, first of all, will you accept he made no public speech and no statement
to the press himself in relation to the Judicial Services Act?
A. Yes.
Q. He did write to express concerns to the minister on I think at least the
Chief Minister on a number of occasions, at least twice?
A. Yes.
Q. Now, you deal with the judicial review application. You have probably now
seen the advice of Rabinder Singh, have you?
A. I haven't actually seen it, no.
Q. I have taken other people, but would you accept that there was an advice
which suggested that there was merit in the argument that section of was
unconstitutional?
A. Yes, but I don't know, Mr Fitzgerald, if you have seen Sir Michael Turner's
ruling saying that had this matter gone to trial, it would have inevitably
failed.
Q. I have seen that, but it is right that he didn't hear argument on the merits,
did he?
A. No.
Q. He just dealt with a question of costs?
A. That's right, but ex post facto he did deal with the merits and came out and
said that in his view, had this gone to trial, it would have failed.
Q. Well, that may well be the case, but the question is whether there was any
grounds for initiating it in the first place and that is slightly different from
saying it would have failed. There are many applications which --
A. Yes, we were prepared to resist it at permission stage. We felt there was so
little in it we would have resisted it at the permission stage.
Q. Indeed one of the primary arguments advanced was that there was an
alternative remedy, that is availing himself of section 5 of the Judicial
Services Act, to make representations to the Government and that he should have
availed himself of that before resorting to judicial review.
A. Yes. And there was also the argument, I think, that as an incumbent judge it
was inappropriate to challenge legislation in his own court qua Chief Justice,
that that was wholly novel and inappropriate.
Q. Can you just help us on this: the judicial review application was lodged, I
think, on 30 August. You will probably recall he was suspended because you were
party to that decision on 25 September, and you can confirm that was the date?
A. I am accepting your date.
Q. Yes. Then there is an application which was made for an adjournment of
proceedings before Mr Justice Turner on December. Do you recall that?
A. I was at the application. So I would accept from you those were the dates.
Q. I think what happened was that one of the requests was that the judicial
review should be postponed until after the conclusion of these tribunal
proceedings?
A. Yes.
Q. Do you recall that?
A. Yes.
Q. That request that it should be adjourned until that had happened was rejected
by Mr Justice Turner?
A. Yes.
Q. And thereafter the Chief Justice, because it was not being adjourned until
the conclusion of these proceedings, withdrew the judicial review?
A. My understanding for his withdrawal, that I found rather odd, was that he
said -- I think it was via counsel -- he was withdrawing it because as he was no
longer Chief Justice, he could no longer bring it qua Chief Justice, and what
surprised me is that why wait until possibly January until he said that?
Q. No, 13 December, the day after the judge refused to --
A. But he hadn't been Chief Justice since the first date you gave it. So it was
rather a long time to decide that he could no longer pursue it because he wasn't
Chief Justice.
Q. Can I just put this to you? Had the tribunal proceedings concluded and
concluded successfully for him, he would have been the Chief Justice and then
that point about he is a suspended Chief Justice, and therefore cannot take the
name of Chief Justice, wouldn't have been available against him. Do you see the
point?
A. Yes, I take the point.
Q. His thinking was, if I am taking it as Chief Justice, and I have been
suspended, that's in breach of my position as a suspended Chief Justice. But if
I am reinstated, then it would be appropriate to continue, and at that stage of
course he would be able to take it as Chief Justice?
A. And then we could go back to the amicus's point that as you are pursuing a
judicial review against the Attorney General, the Attorney General would be
perfectly entitled to recuse himself in any proceedings involving him in which
the Chief Justice sat.
Q. But the fact is he withdrew and he withdrew on that basis?
A. Mm-hm.
Q. And I am not going to go into the merits of the case, but you accept that
there is an advice from Mr Rabinder Singh?
A. I haven't seen it, but I accept if you tell me there is an advice.
Q. There are just two final areas I need to cover with you. One is the
conversations with Desmond de Silva and Fabian Picardo which my learned friend
has already taken you to, but we have the letter of Desmond de Silva at page 308
to 309 and you would accept that he is saying quite clearly that there had been
a discussion both about the Danvers matter in which he was advising the Chief
Justice -- we have that in the first paragraph at page 308 -- and that then the
matter of the road traffic offence had cropped up on 28 July, and had arisen
just before this?
A. Yes.
Q. And so he was then facing the possibility of something being done in relation
to that, and you were talking to him about the fact, well, there's not just the
Danvers matter, there's also the MOT matter. Does that ring a bell?
A. That area of conversation, yes. That is the general area of conversation. It
was a very short conversation, if I remember it, at a social situation.
Q. Yes. But it does rather suggest, doesn't it, that the MOT matter was being
taken against him as an additional reason why he was in trouble: "Because you
raised it informally that in addition to the Danvers matter in which I was
advising him another matter had cropped up, namely you had been stopped by the
RGP." In other words, you were raising with Sir Desmond de Silva, in addition to
the Danvers matter, he has now been stopped for the MOT?
A. That may well be right.
Q. So you were saying he is in more trouble, weren't you?
A. Well, I would read that, if that the accurate, as me simply saying to him
that in addition to the Danvers matter, there is now an MOT, yes, and his
position is perhaps more difficult.
Q. Yes, and then the conversation then turned to a former Attorney General who
had left Gibraltar, in fact, a large sum of money being paid to him?
A. I don't remember that part of the conversation. I am not saying it didn't
happen, but I don't remember it.
Q. Were you really saying that that conversation, look, he is in trouble, we
will give him every assistance in going elsewhere, the best thing would be for
him to resign?
A. Well, can I ask you this, Mr Fitzgerald? Who is the "we"? Who am I acting on
behalf of?
Q. You may well -- you advise the Governor, don't you?
A. Yes.
Q. Had you discussed the matter with the Governor?
A. At that stage I probably had -- when you say discussed the matter ...
Q. The Danvers matter and now there is in addition the MOT stopping, the Chief
Justice is in trouble?
A. I had certainly discussed the Danvers matter and the Williams matter, and
when the MOT came up -- when the Chief Justice was stopped at first, I discussed
it with the Governor. I discussed it with him until such time as it became a
prosecution. Thereafter I didn't discuss it.
Q. Did you discuss it at any stage with the Chief Minister?
A. No, it would be completely inappropriate because -- I have always been very
keen and made clear in my opening of the new legal year speeches that the DPP
role I take very seriously as being completely independent. I wear a number of
hats. One of them is I act for Government and they are a client. Another is I
advise the Governor. But in the DPP role I answer to nobody under the
Constitution. I would never discuss a prosecution either with the Governor or
with the Chief Minister.
Q. You see, there is Sir Desmond de Silva, very near the time of this
conversation, saying that you had in effect said: he is in trouble, we will find
him a place elsewhere.
A. Well, this is Sir Desmond de Silva, two years after this supposed
conversation, recording it.
Q. Yes.
A. I would have not have been in a position to say something else would be found
for him, certainly not speaking for myself, because if it was a position in
England, that would be the Lord Chancellor's department, it wouldn't be the
Foreign Office. I am not sure the "we" I would be speaking for, and I am not
sure why I would be saying that to Sir Desmond.
Q. Obviously I have only got the letter to go by.
A. Yes.
Q. What I am putting to you is that in the light of that letter you may well
have had a conversation along those lines with Sir Desmond in which, whether or
not you had the go ahead to do it, you were saying: I, through the Governor,
through the Foreign Office if necessary, will see what can be done if he
resigns.
A. It would be very foolish of me to do that because I would be offering
something that I couldn't deliver.
Q. I am not asking you whether it would be foolish or not. I am asking you --
A. I never said that, no.
Q. If we go on from there, we have Mr Fabian Picardo's statement. You accept
that he recollects a similar conversation at a later stage in relation to this
road traffic matter when the issue was being considered of whether the appeal
should be dropped?
A. Well, he recollects that I said to him: if your client raises it with the
Governor, something else might be found for him.
Q. Yes.
A. My recollection is that I am being asked if there's something anywhere else
for him, and I said: you would have to raise that with the Governor.
Q. Well, I just have to put it to you that in fact Mr Picardo again was quite
clear in his letter to you that it was you who raised the matter and it was you
who raised the matter in the context of a resolution of the MOT appeal. That is
to say you were saying: we can sort this out by him resigning and going
elsewhere.
A. The resolution of the MOT appeal, if I remember, was on the basis that the
appeal of the Chief Justice was being withdrawn and our appeal on the costs
issue was being withdrawn.
Q. Yes.
A. There was a concern expressed by Mr Picardo as to whether or not that would
affect the Chief Justice's contract if he withdrew his appeal. My recollection
is, and I think that's recorded in letters to Mr Picardo, that I didn't think it
would have an effect either way on his contract.
Q. Just one matter. It does show that there was concern at the time that the
road traffic matter might have serious implications, but you were reassuring Mr
Picardo that in your view it need not do so?
A. Yes, I made clear it was a personal view. My personal view was that if he
withdrew his appeal, it wouldn't -- I didn't think it would influence his
contract, because I was mindful of the fact that of course under the
Constitution section 60 he was in place until the age of unless there were a
tribunal.
Q. Yes. Do I take it from that that it was not considered at any stage that this
road traffic matter, or indeed the conduct of the road traffic matter, were
reasons to justify any reference to the tribunal?
A. That's right.
Q. Now, just two further matters.
LORD CULLEN: I see it is 1 o'clock.
MR FITZGERALD: I can indicate they are fairly short matters, my Lord, but I will
deal with them after lunch.
LORD CULLEN: 2 o'clock. (1.00 pm)
(The short adjournment)
(2.00 pm)
LORD CULLEN: Yes.
MR FITZGERALD: Just two further matters, Mr Attorney. The first matter is the
2002 hearing of 12 February, and you have seen the transcript of that at pages
213 to of the core bundle, have you?
A. Yes.
Q. You accept that that was faxed through to you by someone from the Registry?
A. I don't remember it now, but if you tell me it was, it probably was.
Q. That is the evidence that we have heard from Mr Mendez?
A. Yes.
Q. And did you take any steps to check the accuracy of that note that we have at
pages 213 to 214 on receiving it? Or can't you recall?
A. No, I don't remember taking any steps to check the accuracy. What I do
remember is that Mr Pitto reported back to me after he had been involved in
this, but I don't recall checking the accuracy of this.
Q. All right. Now, is this right, you told us this morning that you were told
that Mr Hughes at the time was in and out of the Chief Justice's room all the
time at that stage?
A. Yes.
Q. Who told you that?
A. I think that may well be something that I got from Mr Pitto.
Q. Mr Pitto?
A. I may well have heard it from somebody at the Registry staff. But certainly
it was my impression at that time -- it wasn't something I had seen but it was
something I had heard, and it may well be that I heard it from somebody at the
Registry office.
Q. Such as?
A. I suppose it could have been Mr Mendez.
Q. Did you make any note of that?
A. No.
Q. You are the Attorney General, the head of the Bar. If you had heard that
someone was improperly during a trial going on his own in and out of the Chief
Justice's room all the time, wouldn't you have done something about it?
A. I don't think I would have had enough to act on at that stage. I mean,
certainly as far as the admissions and disciplinary part of the Bar are
concerned, I chair that committee, and that committee deals with references
which come from the Chief Justice. So clearly that wouldn't be appropriate.
Q. Did you do anything about it at all? Did you mention it to the Chief Justice?
Did you raise it with counsel?
A. No, I have to say I didn't do anything about it.
Q. Are you sure this isn't something you put in as a matter of prejudice, having
heard the evidence that has been given?
A. Mr Fitzgerald, I haven't come along here to put things in as a matter of
prejudice. If I had come along to do that, I think it would have come out in my
evidence.
Q. You have also dealt with the Judicial Services Commission and the fact that
you were a member of the Judicial Services Commission, and you said that you
didn't consider that there were any grounds for you to disqualify yourself?
A. Yes.
Q. When you went in to play your part in the Judicial Services Commission, did
you have a view as to whether the Chief Justice and his wife were acting in
concert or not?
A. Yes. I think I had had a view for a long time that the Chief Justice and his
wife were acting in concert.
Q. And did you feel free to communicate that view to the other members of the
Judicial Services Commission?
A. I don't think --
MR EADIE: My Lord, one may have to be very careful in this territory because of
section 15.
MR FITZGERALD: I am being very careful. When you took that decision that you
were going to go into the Judicial Services Commission, did you feel free at
that time to communicate your views to the Commission?
A. I don't think I am at liberty to disclose what happened in the Commission,
and I --
Q. Well, you have already done that.
A. There was a question asked to me. I answered that question. I said at the
time I was hesitant about it. But it is quite clear under the Judicial Services
Act that I am not at liberty to disclose what passed in that case.
Q. When you took that decision that it was all right for you to sit on the
Commission, did you at that time feel free to communicate your views to the
Commission?
LORD CULLEN: Mr Fitzgerald, what do you actually mean by "feel free"? Did you
mean did you feel able to do it, or did you mean did you actually do it?
MR FITZGERALD: No.
LORD CULLEN: Which do you mean, one or the other?
MR FITZGERALD: Did you feel firstly able to do it and entitled to do it?
A. I think I can answer that question.
Q. Did you feel entitled to do that?
A. Yes.
Q. I am obliged, my Lord. So you felt entitled to communicate your views based
on your experience as to whether there was a conspiracy between the Chief
Justice and his wife to the other members of the Commission?
A. I would have felt free to do that.
Q. I see. In the light of the decisions you had made about the recusal, had you
reached a decision that the Chief Justice's position was untenable?
A. Well, I think I had not made a decision on the recusal. I think we dealt with
that this morning, that I made it clear that I was aware of the recusal
application, I had not been part of that. I had not made the decision on the
recusal application, but I was clearly aware of it because the case was being
run in my name.
Q. Had you, before you served on the Commission, reached a view as to whether
the Chief Justice's view was untenable?
A. No, I don't think I had, no. I hadn't.
Q. Are you sure about that?
A. Yes.
Q. Does it follow that there was real doubt in your mind, despite all that had
happened, as to whether his position was indeed untenable?
A. I went into the Commission with, I hope, a fairly open mind. Matters were
discussed within that Commission. I did not go in with a predetermination.
Q. Can I ask you this: you are aware of the provisions of section 15 of the
Judicial Services Act 2007. They are at page 794 of volume 2.
A. Yes.
Q. Do you see there that: "No person shall in any legal proceedings be admitted
or compelled to produce or disclose any communication, written or oral, that has
taken place (b) between any persons who are members or the secretary in exercise
of or in connection with the exercise of their functions, unless the Governor
and the minister acting after consultation with the chairman consent in writing
to such production or disclosure." Do you see that?
A. Yes.
Q. Has the Governor and the minister given permission for anything to be
disclosed?
A. No.
Q. How is it then that the fact that this was a unanimous decision is referred
to by the Chief Secretary? Where did he get it from?
A. I think you would have to ask the Chief Secretary. I am not sure.
Q. Well, did he get it from you?
A. Well, the Chief Secretary was there during the proceedings.
Q. Sorry, the Chief Minister has referred to --
A. Sorry, you said the Chief Secretary.
Q. The Chief Minister has referred to the fact it was a unanimous decision.
Where did he get it from?
A. I don't know. You would have to ask the Chief Minister.
Q. Did you disclose it to the Chief Minister?
A. No, I have no discussion with the Chief Minister about anything that
transpired in his commission.
Q. You would accept he would have had to have got it from somebody in that body,
wouldn't he, if it is correct?
A. I am not sure I am able to even go so far as confirming whether it is correct
or not.
Q. Exactly. So we have an assertion made by him that could only have been to the
basis of an unauthorised disclosure by a member of that Commission to a
politician of what the vote was.
A. I think that, first of all, presupposes that what he is saying about the vote
is correct, and I don't think I can either confirm or deny that. I don't think
that would be for me to do, because I think I would be trespassing on section
15. And as to why the Chief Minister said that, I don't know. You would have to
ask the Chief Minister. Certainly it was not as a result of anything I said to
the Chief Minister because I had no discussions with him about anything that
passed in this Commission.
MR FITZGERALD: Thank you, Mr Attorney. I have no further questions.
LORD CULLEN: Do you have any questions?
MR OTTY: I don't have any questions, my Lord. Questions from the Tribunal SIR
JONATHAN PARKER: Mr Rhoda, could I ask you about the practice in Gibraltar in
relation to the appointment of an amicus curiae?
A. Yes, my Lord.
SIR JONATHAN PARKER: If I can refer to the context of that, because Mr
Fitzgerald referred to the instruction given Mr Dingemans in relation to the
recusal applications and I did ask him some questions about that in the course
of his opening, and Mr Fitzgerald told me that he was instructed personally by
the Chief Justice who went to see him in London, to act as amicus curiae in the
recusal applications. He went on to say that normally that would have been done
via the Treasury Solicitor in England, or the Attorney General in Gibraltar, and
he said, and I quote: "There would be an obvious difficulty in this case in
getting the Attorney General to instruct an amicus." Now, could I ask you,
first, what is the practice in Gibraltar in relation to the appointment of an
amicus curiae?
A. My Lord, in the time I have been here, I don't think an amicus had been
appointed prior to this case, or I don't remember one. Certainly subsequent to
this case, Sir Michael Turner wanted an amicus and came to me, or a member of
the Registry staff came to me to ask me to appoint an amicus. I would have
expected that it would be via my chambers.
SIR JONATHAN PARKER: Would you have considered, had you been approached in April
2007, in relation to the appointment of an amicus curiae, would you have thought
it appropriate for you to deal with that?
A. Yes, I think I would, my Lord, because I had not been involved in making the
decision to seek recusal. It had certainly been made on my behalf in the sense
that on the Crown Proceedings Act, cases are brought by me or against me, but as
I had had no personal involvement in it, I don't think I would have felt a
difficulty in contacting an amicus and sending all the papers to the amicus. SIR
JONATHAN PARKER: My last question on this. Are you aware from your own
experience in Gibraltar of any judge personally undertaking the process of
instructing an amicus and attending a conference with the amicus?
A. My Lord, no, and I found it unusual when I heard that had happened.
SIR JONATHAN PARKER: Thank you very much. Further cross-examination by MR
FITZGERALD
MR FITZGERALD: My Lord, could I just clarify, is this right, that in fact Mr
Dingemans advised that he should be instructed through the Attorney General, is
that right?
A. I am not sure if he advised that, but certainly later on, I did send papers
to him.
Q. So in fact the position was that after that initial contact, you did instruct
him.
A. Yes, after that I did send papers to him, that is absolutely right.
Q. And you sent papers to him and he advised on the basis of your instructions.
A. Yes.
MR FITZGERALD: I am happy.
LORD CULLEN: Any further questions?
MR OTTY: No, thank you, my Lord.
LORD CULLEN: Thank you, Mr Attorney. (The witness withdrew)
MR OTTY: My Lord, the next witness will be Mr Barton. Before asking him to come
forward, could I raise one procedural matter which those represented for the
tribunal are aware of, and I have raised with them. Mrs Schofield has this
morning followed up the tribunal's recommendation of last week relating to the
costs of obtaining legal advice on certain matters, and she has asked in
particular that firstly confirmation be provided that she is entitled, pursuant
to that recommendation, to obtain advice as to the impact of what she alleges to
have been a breach of privilege during the course of my questioning of Mr Gomez
as to her participation in the tribunal, the impact of that alleged breach of
privilege as to her participation in the tribunal. Secondly, she has asked for
confirmation that in relation to her solicitor, Mr Bossino, his expenses of
travelling to London for the purposes of meeting counsel to obtain that advice
be met. My Lord, subject to the tribunal's views, it's my proposal to ask
Clifford Chance to respond to Mrs Schofield's request by stating that it is my
view, and that of Clifford Chance, firstly that Mrs Schofield should treat the
recommendation made as extending to embrace advice on the impact of any alleged
breach of privilege during the questioning of Mr Gomez on her participation
before the tribunal. Secondly, that while the tribunal recommendation extends to
her reasonable expenses, she has not demonstrated any reasonable basis as to why
it is necessary for Mr Bossino to travel to London, and why in particular,
telephone or email instructions from him would not be adequate. My Lord, I don't
know whether those represented before the tribunal have any observations to make
on that. It may be that this is an appropriate moment for them to do so. And if
the tribunal were then able to reflect and give any views it had after the next
short adjournment, that might be the appropriate way forward.
LORD CULLEN: Mr Fitzgerald, do you have any comment on that?
MR FITZGERALD: My Lord, we are neutral on this. Obviously anything that ensures
that Mrs Schofield is able to give evidence next Monday, we would wish the
tribunal to expedite so that she can have the advice on the basis of that.
LORD CULLEN: You have heard the two different points that Mr Otty has addressed.
MR FITZGERALD: Yes.
LORD CULLEN: You have nothing to say about either of them, is that right?
MR FITZGERALD: We obviously would like her to have advice from counsel in London
if that is the most appropriate, and that if Mr Bossano can give advice
adequately.
LORD CULLEN: She gives a reason why London is preferred.
MR FITZGERALD: That is to say for face to face briefings with counsel. Yes.
Well, my Lord, that would seem to make sense and hopefully speed things --
LORD CULLEN: You see, she says: "I have no confidence in the privacy of phones
and emails in Gibraltar." Any comment to make about that?
MR FITZGERALD: My Lord, I have no comment to make about that. The only comment
identify to make is that if it would ensure that all the issues were sorted out
face to face, then --
LORD CULLEN: That is the reason she gives for Mr Bossino travelling to London,
as I understand the email.
MR FITZGERALD: Yes. Well, my Lord, the only point -- there is a reference to
face to face briefings. What one doesn't want is a situation where there's some
misunderstanding and the issue isn't then sorted --
LORD CULLEN: That is not what she is saying, Mr Fitzgerald.
MR FITZGERALD: My Lord, I can't assist on that. All I can say is I hope that if
there is a situation where her solicitor can sort it out with counsel, that that
would ensure the tribunal will proceed swiftly, and obviously there is an
obvious advantage of having outside counsel advising on this given that one of
the complaints is the possible problems raised by the involvement in decisions
of local counsel and the conflicts that that has given rise to. My Lord, those
are the points.
LORD CULLEN: Thank you. Mr Eadie? MR EADIE: My Lord, in relation to the first of
the matters that Mr Otty has raised, the Government is content to leave to the
tribunal the question of whether or not it considers that an extension in the
manner indicated by Mr Otty would be appropriate. We take that position of
neutrality in relation to that first issue, despite my clear recollection at
least that Mr Otty was assiduous in asking questions of Mr Gomez not to ask
questions the answers to which might stray into privileged territory, and also
my clear recollection that Mr Gomez himself was thoroughly alive to that issue.
As to the second of the points that Mr Otty has raised, we would, if anything,
urge the tribunal to make it even clearer that the reasonable costs that might
be incurred, if you were to extend, do not include the costs of flying to the
United Kingdom. The sole reason, or the principal reason that is given, is the
one that my Lord has identified. If that is genuinely the reason, and we say
that it's an absurd reason, but if that is genuinely the reason, it could be
solved by a short taxi ride over the border into Spain to send whatever email
she wished to send and whatever faxes she wished to send and to speak on the
telephone any way she wanted. I am slightly firmer in relation to that second
issue, my Lord, and I hope I am wrong about this, but it does seem from the
pattern of emails we have been receiving recently from Mrs Schofield that what
is occurring is now becoming tolerably clear, and the Government at least are
keen to avoid the situation in which future co-operation, including in
particular her turning up to give evidence to this tribunal, is withdrawn by Mrs
Schofield, and either or both of the tribunal or the Government are blamed for
that non-attendance. My Lord, that is what I wish to say.
LORD CULLEN: Thank you, Mr Eadie. Mr White?
MR WHITE: My Lord, I have no submissions to make.
LORD CULLEN: I think this is fairly plain on which the tribunal ought to have
something to say because the thing begins, as it were, with a recommendation. We
will consider what has been said, and we will give our views later this
afternoon.
MR OTTY: Thank you. Could I ask Mr Barton to come forward, please?
MR PHILIP BARTON (sworn) Examination-in-chief by
MR OTTY
MR OTTY: Thank you, Mr Barton. You will find open in front of you bundle E, and
at tab 2 is a statement in your name. Do you find that?
A. Yes.
Q. Have you had a chance to read that recently?
A. Yes.
Q. And can you confirm it to be accurate?
A. Yes.
Q. One or two further questions, Mr Barton, if you may. You have recently
stepped down, I think, as Deputy Governor of Gibraltar. Is that right?
A. I am in the process of handing over my position this week. I step down
formally at the end of the week.
Q. When did you take up the post?
A. March 2005.
Q. Thank you. Now, in paragraphs 4 to 15 of your witness statement, you address
the circumstances surrounding the departure of Sir Francis Richards who was
leaving, as you say, I think, in July 2006. And it's right, is it, that Sir
Robert Fulton was due to take over as Governor in September 2006?
A. That's correct.
Q. The evidence of Mr Mendez to the tribunal has been that where, as was to be
the case in that instance, there was to be an interregnum between the two
governors, the practice was to hold a swearing in of an Acting Governor at the
Convent and for the Chief Justice to go to the Convent for the purpose of that
swearing in. Do you personally have any knowledge as to the practice in terms of
swearing in of an Acting Governor?
A. I have no knowledge as to the location. In terms of whether an Acting
Governor should be sworn in. I think it is clear from the 1969 Constitution that
in the case of an interregnum under section 22.2, it refers back to section 20
requiring those holding the office of Governor to swear an oath in contrast to
occasions when the Governor is away on a temporary absence and there is no
requirement to swear an oath.
Q. That's right. But you have no personal knowledge as to the location where the
swearing in is to take place?
A. No.
Q. Thank you. Could I ask you next about the question of involvement of the
Chief Justice in the 2006 Constitution, which you deal with, beginning at
paragraph 16 of your statement? You will find in front of you a core bundle 1,
which I would be grateful if you could also turn to. There are two references to
a telephone conversation which you appear to have had with the Chief Justice
which I would like to show you and ask if you could give us any assistance with
your further recollection as to that conversation. If you turn first, please, to
page 376, this is a letter from Hassans, acting on behalf of the Chief Justice,
in which they set out what they understand to be the chronology of events
leading up to the publication of the draft Constitution, and the provision of
submissions by the Chief Justice. You will see at paragraph 12 on page 376, on
20 March 2006 the Chief Justice telephoned the Deputy Governor seeking a copy of
the final draft of the Constitution. He was told the draft was complete, and on
the Foreign and Commonwealth secretary's desk, and he would be able to obtain a
draft once it was made public. Then page 395, you have a further reference to
this telephone conversation. This is a letter written by Ms MacMillan, who was
then Assistant Deputy Governor, and you see on page 395, in the third complete
paragraph, when you spoke to the Deputy Governor on March, you asked him about
the status of the Constitution, the you being the Chief Justice, of course. He
said that the text had been agreed between the two delegations and had gone to
the then foreign secretary to be made public thereafter. You did not press him
for a copy. You made no subsequent request for a copy of the text and so forth.
But we see from those two references that it appears the Chief Justice did ask
you on 20 March for a copy of the draft Constitution. If you look at the first
reference in any event, do you recall whether he asked you for a copy of the
Constitution?
A. I do recall, and I recall that he didn't ask, and I think that the intention
behind the letter of September was to make the point that he had not asked for a
copy.
Q. It says you did not press him for a copy; do you recall?
A. My recollection of the conversation was a very short one. The Chief Justice
telephoned me on the Monday morning following the conclusion of the delegation
talks in London. He asked me the status of the Constitution. I explained that
the draft was agreed between the delegation and had been placed on to the
Foreign Secretary's desk for his approval thereafter to be made public. The
conversation was short and he ended it at that point, more or less.
Q. So far as you can recall, he didn't actually ask for a copy of the
Constitution at any stage?
A. No.
Q. The second matter relating to the Chief Justice's involvement in the debate
over the Constitution a little further on in the bundle, you will find the
speech that the Chief Justice gave at the opening of the legal year. That begins
at page 402. Do you have that?
A. Yes.
Q. Then further on at page 407 there is a reference, I think, to you, because
you were at this point still Acting Governor. That is right, isn't it? I am
sorry, in September you were still Acting Governor?
A. Yes.
Q. Early September you were still Acting Governor. At page 407 in the third
paragraph, on that page, you have the Chief Justice saying: "On 8 September, I
received a response to the judiciary's submissions albeit the letters dated 7th.
This was at a time that the Acting Governor knew I was on my way to Canada."
Now, it is not entirely clear, but it appears to be at least a suggestion on the
part of the Chief Justice that you may have deliberately timed your response to
his correspondence for a time when you knew he was on his way to Canada. What do
you say about that?
A. It is not true. The timing of the response was determined by the time it took
to prepare it, and also the fact that the Chief Justice had instructed Hassans
to send myself as Acting Governor and the Chief Minister a very short letter
following up the first letter from Hassans which said that if we hadn't replied
to his earlier letter by, I think it was noon on the 8th, he himself would be
petitioning the Privy Council.
MR OTTY: Thank you, Mr Barton. I don't have any more questions for you.
LORD CULLEN: Mr Fitzgerald? Cross-examination by MR FITZGERALD
MR FITZGERALD: Yes. Mr Barton, I wonder if you could help us about this. If you
could just look at bundle E of the witnesses, and look at the Government's
submissions which I think are at 8A.
LORD CULLEN: 8A.
MR FITZGERALD: I wonder if you could just look to 19.9. It's stated there: "The
Government has been informed that in 2006, Mrs Schofield sought a partnership in
the Gibraltar law firm Hassans. The Government has also been informed the Chief
Justice personally intervened with Hassans to lobby in support of his wife's
partnership application." Were you the source of that information to the
Government?
A. I think I wasn't the source of the Government. Information. The Government
was already aware of that suggestion. As I think you know, the Chief Minister
telephoned me in my office.
Q. Sorry, when did he telephone you?
A. I think he telephoned me either in January or February, some time a few
months ago. He telephoned me in my office. He said he was aware of this
suggestion, and he asked me where I could confirm it or not. I told him --
Q. From your personal experience, had you ever heard anything to that effect
yourself directly; that is to say, had you heard the Chief Justice lobbying for
a partnership?
A. I had not heard the Chief Justice in person lobbying for a partnership, no.
Q. Right. Have you heard anybody saying to you that he had lobbied for a
partnership?
A. Yes.
Q. Who?
A. The then Governor Sir Francis Richards.
Q. And what he said to you was that he was lobbying for a partnership in Hassans?
A. Sorry, you will have to explain the "hes" to me.
Q. Yes, sorry, of course. You are saying what the Governor told you was he had
heard the Chief Justice lobbying for a partnership?
A. No, the Governor told me that the senior partner in Hassans had told him in
confidence that the Chief Justice had lobbied for a partnership for his wife in
Hassans.
Q. So we are now on triple hearsay, are we? So the Chief Minister phoned you.
You told him that the Governor had told you that he had been told by a senior
partner in Hassans -- that is what we are down to, is it?
A. I think that is what I have just said to you, yes.
Q. You had no basis of course for check the accuracy of this at all? That is to
say, of checking the accuracy of whether in fact the Chief Justice had lobbied
for a partnership in Hassans?
A. Sorry, could you repeat the question?
Q. You had no way yourself of checking whether the Chief Justice had in fact
lobbied for a partnership in Hassans?
A. That's correct.
Q. And you are aware of the fact that it has been denied by Hassans that Mrs
Schofield sought a partnership or that the Chief Justice lobbied for a
partnership? You are aware of that?
A. I am aware.
Q. So this is something that you've followed, have you? This issue?
A. Yes, it is. Yes.
Q. Now, if I can go to your paragraphs 4 onwards, you deal with the conduct of
the Chief Justice on the departure of the former Governor, Sir Francis Richards,
in July 2006. Just to put it clearly, there is no great dispute on this. It is
really a matter of detail and emphasis, if I can put it that way, Mr Barton. But
would you accept this, that the procedure adopted on that occasion for the
departure of the Governor was not the procedure that was adopted on previous
occasions on the departures of Sir Hugo White and Sir Richard Luce.
A. That wasn't my understanding at the time and I don't know what the procedure
was at the other Governors' departures.
Q. You don't what that procedure was?
A. I don't know, no. That wasn't my understanding at the time. My understanding
at the time was it followed the procedure of previous governors' departures.
Q. The Chief Justice has no recollection of actually agreeing to go to the
Convent initially. Was that something that was agreed with the Registrar, or was
it something where he was contacted by you directly?
A. Sorry, are you referring to the swearing in?
Q. Yes. That is to say, the swearing in of yourself?
A. I have a clear recollection I knew from the Constitution that I had to be
sworn in as Acting Governor. So I telephoned the Chief Justice personally
because I wanted to make the arrangement myself and make sure there was no issue
with it. I explained to him under the Constitution there was a requirement for
me to be sworn in, and it should be done as soon as possible after Sir Francis
Richards' departure. We discussed a convenient time after that departure. My
recollection is he suggested he come to the Convent and I readily accepted that.
Q. The Chief Justice certainly accepts that he may have queried the necessity
for you being sworn in, but he accepted your view, which was that you needed to
be sworn in; is that right?
A. I have no recollection of him querying it actually, and I explained it. I
don't think it was a matter of debate.
Q. No, after you had explained the basis, he agreed that you needed to be sworn
in. But what he doesn't recollect at all is any agreement that he was going to
go to the Convent. Can you assist on that?
A. I have no very clear recollection, as I have just explained, it was in my
diary. I had a clear recollection of making an arrangement with him personally.
Q. Is this right, that when you phoned up, it was clear that he had been unhappy
at the arrangements for the departure of the Governor, and the protocol that was
followed on that occasion?
A. Sorry, when he phoned up?
Q. Well, there was a discussion -- I think you said: "Ms Desoiza then stated the
Chief Justice was no longer prepared to swear me in as Acting Governor. I
therefore asked for a new time to be sworn in as Acting Governor as soon as
possible, and Ms Desoiza called back later that afternoon. She told me that the
Chief Justice had heard what I said", and you go on to deal with a requirement
that you set out in writing the rationale. But is this right, that the message
was communicated through Ms Desoiza that he was unhappy at the protocol that was
followed?
A. Yes.
Q. And that he did say that he would swear you in the next day at his chambers;
is that right?
A. The sequence was, as I put in my statement, Mrs Desoiza phoned me up shortly
after I got back to the office from the departure of Sir Francis Richards. She,
in a rather aggressive and rude manner on the Chief Justice's behalf, attacked
me over the arrangements made for Sir Francis Richards' departure and she told
me the Chief Justice was no longer prepared to swear me in at o'clock, full
stop. I tried to explain the rationale behind the departure arrangements, I
apologised for any offence caused, and I pointed out to Ms Desoiza that there
was an urgent requirement for somebody to be sworn in as Acting Governor to
exercise the powers of the Governor, not at least in case there was an emergency
situation, and I therefore needed a new time as soon as possible. My
recollection is then an hour or two passed. There was a follow-up phone call
from her to the effect that the Chief Justice would be prepared to swear me in
if I set out in writing what I had explained to her on the telephone about the
rationale for the departure arrangements of Sir Francis Richards and if I was
prepared to go to the Chief Justice's chambers to be sworn in. As neither of
those things seemed to me insurmountable hurdles and I was keen to be sworn in
as soon as possible so there was somebody in Gibraltar with the executive powers
of the Governor, I readily agreed, and made the arrangement for the following
day which was when the Chief Justice said he could first be available.
Q. Is this right, that you then attended the next day and you were sworn in?
A. That's right.
Q. And then after he had sworn you in, as you set out at paragraph 11, he did
raise the complaints you have set outlet about the erosion of the status of the
judiciary; is that right? He was complaining about the erosion of the status of
the judiciary?
A. That's correct.
Q. And said that the order of precedence ought to be maintained?
A. He was claiming that the arrangements did not respect the order of precedence
in his view and it should be maintained.
Q. Just on the question of the orders of precedence, I think we have them in the
core bundle, Mr Barton, at page 399 and 400. Do you see there the table of
precedence for Gibraltar, page 399 to 400? I am sorry. I understand you may be
in the wrong file. It is called core bundle 1. Sorry. It's all a bit confusing.
I see core 1 just on your left. There, yes. So if you can go to page 399. Do you
see there the Chief Justice is second in the order of precedence, after the
Governor?
A. I do.
Q. And you accept that that is the position?
A. I do.
Q. And that therefore on the departure or arrival, he should be second only to
the Governor in the order of precedence; is that correct?
A. I would not accept that, no.
Q. What do you say is the position?
A. As I said in my witness statement, on the departure of Sir Francis Richards,
there was a protocol line up, in protocol order following the table of those
present. The Chief Justice was the head of that line-up, respecting the order of
protocol. There was then a separate grouping, away from the line-up, of myself
and my wife, and the Chief Minister and his wife, for different reasons. So in
terms of the protocol line-up, the protocol order was followed.
Q. So there is a dispute about the protocol where the Chief Justice felt that
not ensuring that he was the last person to say goodbye to the Governor was an
erosion of the position of the judiciary as second to the Governor in the
Constitution. That was his complaint, wasn't it?
A. Yes, although he didn't put it in precisely those terms. SIR JONATHAN PARKER:
I didn't quite hear that, Mr Barton?
A. Yes, it was, yes.
MR FITZGERALD: I am not going to go through the arrival of the new Governor. You
said that you wanted to ensure a smooth transition there. But the next matter
you deal with is the involvement of the Chief Justice in the debate over the
2006 Constitution and it's right -- you may still need your witness statement at
paragraphs 16 to 17. You accept that the Commonwealth Magistrates and Judges'
Association expressed their views, and that they supported the Chief Justice's
concerns about section 57 and particularly the veto power in section 57.3; is
that right?
A. Yes, the Commonwealth Magistrates and Judges Association wrote in very
similar terms to the Chief Justice.
Q. Yes. And there had been some concern voiced not just by them, but also by the
Bar Council at that stage as to the terms of 57.3; is that right?
A. When you say at that stage, what do you mean?
Q. I am talking in August?
A. There was later on in August, yes, after the Chief Justice had raised the
matter.
Q. Yes. Paragraphs 18 and 19, you deal with the involvement of the law firm of
Hassans, and the correspondence in relation to that. At that stage, is this
right, there was only a draft Constitution?
A. That's correct.
Q. And no date at that stage had been set for a referendum?
A. That's correct.
Q. And just if we look at the letter that you refer to, it is at page 377. It
does refer -- the Hassans letter, does it not --
A. Sorry, you will have to tell me which bundle.
Q. Sorry, we are back in core bundle 1 which you were on before. Do you see at
the bottom of page 377?
A. Yes.
Q. "If, however, the two Governments do not agree to consult or to request such
a reference [as to the Privy Council], the Chief Justice is advised by us and by
leading counsel in London ... that he should seek a reference himself on behalf
of the judiciary of Gibraltar." What was being suggested there was -- a
reference to the Privy Council for their advice on the matter; is that right?
A. That was the way I read the letter, yes.
Q. There is a provision in the Judicial Committee acts which refers to any
order, decision judgment or other matter being referred to the Privy Council,
and you recall that, do you?
A. I recall, but I also recall being advised very clearly by Foreign Office
lawyers that there was no provision for individuals to do that. It took us some
time to probe that matter, given the current advice from Lord Lester. Obviously
we took his views very seriously, but the clear advice from the Foreign Office
was there was actually provision for an individual to do that.
Q. I think actually it is the nature of the thing that can be referred having to
be a judgment of a court, rather than an issue.
A. You may be right. I am not a lawyer.
Q. In other words, an individual may take it, but it's got to be a judicial
decision. You can't recall exactly what the problem was, but you know that an
issue was raised as to whether you could refer to the Privy Council?
A. Indeed.
Q. Yes. Then at pages 394 to 396, is this right, that what was suggested that
there was a response to the Chief Justice from the office of the Governor, and
essentially it is says we are not going to seek a reference to the Privy
Council. One sees that at page 396. You also asked that: "... the UK Government
request that the Privy Council refer your concerns to the Judicial Committee
under section 4. The UK Government does not accept that any of the provisions
relating to the judiciary in the draft Constitution run counter to the general
principle of judicial independence. It therefore sees no need for a reference to
the Judicial Committee and does not intend to seek this." Do you see that?
A. I do.
Q. So it is really on the basis of lack of need to do so, rather than look of
jurisdiction that the UK Government is refusing? They are saying there is no
point in doing it?
A. Well, my recollection is, as I said earlier, I thought there was an issue
about whether an individual could. But clearly to the substance that the UK
Government and the Foreign Office legal experts, or at least those who have been
in the business of negotiating the Constitution, were very clear that nothing in
it undermined the principle of judicial independence. They were very clear on
that.
LORD CULLEN: Do you know whether the advice you talked about was after that
letter or before it?
A. My recollection is that on receipt of the Chief Justice's first submission of
11 August, that was looked at by Foreign Office legal advisers, who took that
view, and that was what lay behind a letter sent by the minister for Europe,
Geoff Hoon, in response to the Commonwealth Magistrates and Judges Association,
which was made public in Gibraltar because the CMJA letter had been made public
in Gibraltar which very clearly stated the UK Government's view that the
Constitution did not undermine the principle of judicial independence. So yes,
the advice was given before the letter of September.
LORD CULLEN: Okay.
MR FITZGERALD: So we have then the offer of a meeting on September. Is this
right, that the next event, as far as you are concerned, was the speech on
October 6? The speech made by the Chief Justice?
A. Sorry, I am not sure what you mean by the "next event as far as you are
concerned"?
Q. Well, the next event that you refer to is the fact that there was then a
speech made on October 6 by the Chief Justice, a text of which is in the
possession of the tribunal; is that right?
A. Yes.
Q. Is this right, that just to summarise the events after that, the Chief
Justice did not go to the Privy Council, but he did seek a meeting with the
Foreign Office representatives in London; is that right?
A. It is right.
Q. And that meeting we have at pages 414 to 421 attended by Sir Sydney Kentridge,
the Chief Justice, and representatives of the Foreign Office, is that right,
page 414?
A. Correct.
Q. And the upshot of that was the refinement of the explanatory note to include
words to make clear that this was an exceptional power in section 57.3; is that
right?
A. I think the upshot actually was that none of the Chief Justice's points were
found to have merit, but that there was deemed to be value in making clear again
through the explanatory memorandum that there was no ambiguity that 57.3 was not
an enabling power, and that was the one thing that came out of it. I think the
general upshot was that there was no merit in the other points at all.
Q. You see Mr Hendry is asking if it is a good idea at page 421?
A. The explanatory memorandum.
Q. Yes.
A. Yes.
Q. We have the Chief Justice saying at the bottom of page 419: "If I went from
this room with an explanatory note of dispatch I would take that very
seriously." So there was an agreement reached at that meeting that the best way
to deal with it was by way of putting something in the explanatory note. It was
regarded as a good idea by Mr Hendry, and the Chief Justice was saying that he
would take that very seriously. Is that a fair summary?
A. That is what the record says.
Q. Yes.
A. I wasn't there either.
Q. No.
MR FITZGERALD: Yes, I have no further questions, my Lord.
LORD CULLEN: Mr Otty?
MR OTTY: No, thank you, my Lord.
LORD CULLEN: Thank you very much, Mr Barton.
MR OTTY: Thank you, Mr Barton. (The witness withdrew)
MR OTTY: My Lord, the next witness then is Mr Bossano. Mr Bossano, could you
come forward, please?
MR JOE BOSSANO (affirmed) Examination-in-chief by
MR OTTY
MR OTTY: You will see at tab 3 of the bundle in front of you a statement in your
name. If you would like to turn to that.
A. Yes.
Q. It was made on 28 May of this year. Have you had the chance to read it
recently?
A. Yes.
Q. Yesterday. Good. And you confirm it to be accurate?
A. Yes.
Q. Mr Bossano, one or two questions. Firstly, about the issue of consultation,
in regulation to judicial appointments relation to judicial appointments, am I
right from your statement that the only judge you recall being appointed during
your tenure was the Chief Justice?
A. That's correct.
Q. As far as he was concerned, the Government did have the opportunity for at
least some input into his appointment by virtue of the Chief Secretary's
presence on the Public Services Commission; is that right?
A. Well, as I have explained in my statement, I think Mr Caruana made a point
when he made the statement, and indeed in 1999 when he issued the press
releases, is that the fact that the candidates for that selection visited me was
evidence of consultation. That was not evidence of consultation because in fact
the visit to me did not result in my then saying to the Chief Secretary: I have
seen all the candidates and the one I want you to support is Mr X or Mr Y. So
therefore the position of the Chief Secretary was that he was conscious of the
policy of the Government, which is what I have explained, namely that we were
dealing with five strangers as candidates for Chief Justice, and two of them
were neck and neck, we thought politically that it would be in Gibraltar's best
interests that if one of them had previously served in some form or other in the
public administration of Gibraltar, and there were good reports about him having
stood particularly for the Foreign Office in Gibraltar's interests, that
immediately game him brownie points. That happened to be the case with one
particular candidate, but in fact he was not the one chosen, and I did not seek
to influence the result of that choice, even though it was not the one that the
Chief Secretary had spoken up for.
Q. I see. Thank you. Now, have you had a chance to see the witness statement of
Mr Caruana that has been put before the tribunal? Let me show you it in any
event.
A. Mm-hm.
Q. It is in the same bundle that your statement was in. If you go to tab 5A.
A. Yes.
Q. Do you find a statement in Mr Caruana's name there?
A. Yes.
Q. You see towards the end of that statement, it runs on for six pages?
A. Yes.
Q. Then towards the end of that statement there is some correspondence. Do you
have that?
A. Yes.
Q. That has numbering at the bottom in the centre. I just wanted to show you
this run of documentation to see if it assisted in your recollection of matters
during the time you were Chief Minister. We see at page 11, for example, a
letter addressed to Mr Pizzarello, the stipendary magistrate?
A. Yes.
Q. From the then Deputy Governor, and we see from the second sentence that it
appears that there was some discussion between you as Chief Minister and the
Governor in relation to Mr Pizzarello's request for an extension of service.
Now, it is obviously a long time ago, but looking at that document, is it
possible that you did have some discussion with the Governor to that effect?
A. Let me say I have no problems in remembering what happened in 1990, because
actually I remember what I said in my first public speech in 1972. My memory has
not yet started failing me. But of course I did not know the existence of this
letter. The letter is written by the Deputy Governor and addressed to the
stipendary magistrate, I was not made aware of its content and I have seen it
for the first time and I find it very peculiar, well, not very peculiar, given
that everyone says that Mr Caruana has a finger in every pie, that he should
have access to everyone else's correspondence that I certainly didn't have as
Chief Minister. But I have already cleared this point publicly, let me say,
without knowing that such letters existed in the exchange of press releases that
took place in 1999 when I said that where there was re-employment or
re-engagement or extension of somebody in a judicial appointment, the degree to
which I was involved was in pursuance of the view that we should not do
something for somebody in the judiciary that would be preferential treatment
compared to the treatment of other civil servants. For example, somebody saying
I want to finish my contract, collect my pension and then be re-engaged, and
collect both the pension and the pay. And it was not about the qualities or the
performance, and therefore at no stage does this letter imply that I was
evaluating how good a stipendary magistrate Mr Pizzarello had been and whether
that justified giving him more time in office.
Q. No, I am not suggesting --
A. I do not consider I would have been qualified to do it.
Q. I am not suggesting that, Mr Bossano, I'm just asking you whether you recall,
as Chief Minister, having any sort of discussion with the Governor?
A. And I want to make clear that the discussion had nothing to do with the fact
this was a judicial appointment. It had to do with terms of employment.
Obviously since I am not a lawyer and I spent most of my time as a trade union
representative, I tend to look at things from that perspective, and that was the
only element that I had any input in. So it would otherwise have been treated
that something I had to rubber stamp, but since it might have consequences for
saying, well, what do we do as a matter of policy, if somebody is in an another
job, asks for treated in the same way, we should be clear about that.
Q. About consistency?
A. About consistency, yes.
Q. Then page 12, similarly, there is a document which suggests some sort of
discussion at least in relation to the extension of appointment of the then
Chief Justice, Mr Justice Kneller. Again, some sort of discussion at least
between the Governor and you as Chief Minister prior to the offer of a new
contract being made. Do you recall at least some sort of discussion?
A. Yes, and that would have been a letter to me saying, will it cost more money
to keep him or to have somebody else, and the answer was actually as I recall
that it was cheaper to keep him. So I had no problem being enthusiastic about
it.
Q. I see. Thank you. You will see at page 13, the next page, there is a memo or
minute suggesting that the CM, you, the Chief Minister, has been involved to at
least some extent in clearing a selected list of JPs for appointment. Do you
recall that you would have been involved to at least some extent in such a
clearance?
A. I think in this -- whereas originally Mr Caruana was saying, and certainly in
1999 he was saying that Chief Ministers were involved to the degree of actually
suggesting candidates, I think it is like the statement he mentions that what
took place after he complained. In my view quite legitimately, he heard about it
first on the radio, that is not what I would have expected. The Chief Minister
should discover on the news that somebody had been appointed Chief Justice as if
he was a member of the public.
Q. It was a JP appointment.
A. Sorry, JP. But what he is saying now is he would in the normal course of a
lunch be told by the Governor over the table: look, this is the list. Now, that
level of providing advanced information is not what I would describe as
consultation, and therefore in the exchanges that we have had in the past in
public, we have made it very clear that for me being consulted means being given
an opportunity to change the result, and we certainly never had anything to do
with being invited to remove or add to the list of possible JPs, and it's quite
possible that the level of consultation on this occasion was that in the pile of
papers that I had in front of me, one was this particular list, and I just said
to the guys, look, just go ahead and do it, and I've got other things that are
much more serious and that I have to deal with. I think it needs to be
understood that in taking the line that I took in the eight years that we will
take when we are back in government on the question of the independence of the
judiciary, we are not doing it simply to support the view held by the Chief
Justice but it is because it is a view they hold very strongly. I do not believe
I am qualified to evaluate what would make a good JP or, you know, I think it is
a very serious thing that the people there should be independent and impartial,
and we are totally committed to that view.
Q. I understand. Mr Bossano, you refer to the position as reflected in the
exchanges in 1999 and in fact on the next page you see the Government press
release issued on November 1999 which is also in the core bundle at .
A. Yes.
Q. You can look at it here.
A. Yes.
Q. There is reference in the second paragraph to the participation of a Chief
Secretary and the advisory board, which I think is uncontroversial, and then in
the third paragraph, it's said that it has been the practice for the Governor,
either directly or through the Deputy Governor, to consult the Chief Minister
informally before making his decision. Now, would you disagree with that
summary, namely to the effect that there was at least an informal process of
consultation?
A. Well, only to the extent that we first have to agree on what you mean by
consultation, whether you mean what I do or not. What you mean by consultation
is what I mean by consultation, then the answer is there was not informal -- I
think it is closer to providing advanced information, rather than consultation
because for me consultation means that there should be a real existing
opportunity to change that result.
Q. I see?
A. And I don't think that has ever been there, certainly not in my time. I don't
know if it's been there since. It is not suggested by anything in Mr Caruana's
statement that it's been there since. He claims that in the past, the Chief
Minister, for example, actually altered the list of JPs and added or removed. I
don't know whether that happened or not. I have no information.
Q. But from your point of view, the practice at least involved advance provision
of information?
A. Yes. That is correct. Let me say, we answered that press release by saying so
at the time.
Q. And from your perspective that gave you the opportunity to articulate any
views you had about, for example, the consistency of approach being taken as
compared with other public appointments?
A. Well, only when there was something like re-engagement or extensions of
contracts or payment of pensions, things that involved budgetary concerns. You
know, which might be read across to other senior appointments in the service.
Q. I see. Thank you. The question of attendance of the Supreme Court Registry, I
think, it is certainly a recollection of Mr Mendez that you did not visit during
your time as Chief Minister, and that is what you say in your statement.
A. Yes.
Q. Mr Garcia said that he thought you might have done so possibly once, but that
you generally preferred to visit other public employees?
A. Well, I mean, I came from the Transport and General Workers Union so in the
places I visited first we had all the T&G workshops.
Q. Yes.
A. I also attended normally what I thought was in fact the normal practice which
was that places like the tax office, the post office, there are very small
pockets of offices where there are half a dozen people, and you wouldn't be able
to put them all in between Christmas and New Year's Day. You would have to have
a very extended period to visit them all. But in any case, it may well be, I
thought afterwards about what Katie said, that I could possibly have popped in
to have a drink with her, because we have been friends for a very long time.
Q. I see, because Mrs Dawson --
A. Maybe she thought I was visiting the Registry office --
Q. She did express the view that you had been at the Registry.
A. It may be that she confused --
Q. Confused it with an informal visit by you?
A. To her.
Q. Rather than to the Registry. Could I just clarify, if you can, the
development of your party's position in relation to the Constitution in 2006?
A. Yes.
Q. As I understand it, we know that the draft Constitution was formally
published in July 2006.
A. (Nods).
Q. As I understand it, at that point both the Government and the opposition were
supportive of the Constitution?
A. Yes. Well, I think you need to --
Q. Of the draft Constitution, as it then stood?
A. To understand the degree of support that there was from us on the
Constitution, you need to understand the terms upon which we enter into the
Select Committee which we made public at the time that the House of Assembly
met. There was a position where the Government first produced virtually an
identical Constitution, and took it to London, and the British Government turned
it down, and therefore they decided that in order to have a better chance to
have a second bite of the cherry by roping us in and giving us the opportunity
to have to be involved in the Select Committee, where we did things the way Mr
Caruana wanted, and where 99 per cent of what went into the finished products
which is what he wanted. Our participation in this exercise was on the basis
that we would support practically everything he wanted to have in there on
condition that he supported the demand for decolonisation because for us we were
there to get a reference to the right of self-determination and to the
Constitution being one that decolonised Gibraltar and not simply produced a more
modern relationship. And therefore we put very little -- there was very little
disagreement in that committee on that basis, you know, although there were on
occasions some disagreements and you know, we had to ask for the record to be
taken on tape because