Saturday, September 17, 2005

Chief Justice hammers home case for enshrined judicial independence

Dominique Searle reports

Gibraltar's Supreme Court celebrates its 175th anniversaryOne hundred and seventy five years of Gibraltar’s formal civilian justice system was marked with spectacular ceremony and sober pomp yesterday in an exceptional Ceremonial Opening of the Legal Year.

But the white wigs, ruffs, black gowns and occasional winged collar did not muffle Chief Justice Derek Schofield’s accented reiteration that the independence of the judiciary should not be left “down to the fortitude of an individual Chief Justice or judge.”

As the Constitutional Talks continued on the east side of the Rock in the roomy comfort of the Caleta Hotel, lawyers packed like rich sardines into the courtroom and their colleagues listening to a novel sound system in the courtyard. They were told that the opportunity should be seized to “strengthen the institutional independence of the Judiciary.”

Guests present included Lord Justice Kennedy representing Lord Wolff the Lord Chief Justice of England and Wales, members of the Gibraltar Court of Appeal, the Governor Sir Francis Richards, Sierra Leone UN Special Court prosecutor Desmond da Silva, Judge Joseph Butler Sloss and his wife Dame Elizabeth, recently retired as president of the English Family Division of the of the High Court, and senior lawyer Harvey MacGregor.

Pointing to the evolution of the local administration of justice, the Chief Justice told the session how it had been with the establishment of the Supreme Court in 1830 that appeals started to go to the Privy Council instead of the Governor. He related how Sir George Don had presided over the positive development of the civilian institutions although Sir Robert Gardiner, appointed in 1848, had wanted to do away with the court and dispense justice himself. He was resisted and defeated.
Since then judges had developed the law and earned the respect of the population.

Gibraltar law follows Britain’s but, said the judge, it was appropriate that local legislation and local procedures be adapted to local circumstances. On the constitutional reform he said that the Judiciary has put forward preliminary recommendations which include the creation of an independent judicial appointments commission.

“An open and transparent constitutional and legal framework should be created dealing with judicial appointments, funding and salaries. This is my tenth Opening of the Legal Year and I make no apology for repeating my mantra of judicial independence,” said Mr Justice Schofield.

Judges, he said, must operate in an environment where they do not feel pressures from public authority or from those with private strength. “The Judiciary trusts that when the Constitutional proposals become more advanced we will have further opportunities to make representations.”

On an issue raised by both the Attorney General Ricky Rhoda QC and Bar Council Chairman James Neish QC, the Chief Justice confirmed that Government has agreed that a Criminal Law Review Committee is to advise on what aspects of UK law should be locally adopted.

Mr Rhoda had earlier called for consideration to be given to the formation of a standing law commission to keep all aspects of the law under review and recommend changes in the law to Government. He highlighted the fast pace of change in criminal law including sexual offences and fraud.

Grab Assets

The Attorney General is keen that consideration should be given to civil asset forfeiture as another means of depriving criminals of their profits – an idea, he said, that goes back to the days of Al Capone.

The proposals he is recommending would mean that the Crown would have to prove, on a balance of probabilities, in the normal courts that money or property is the proceeds of crime so that it can be forfeited, obviously with safeguards.

Staff Crisis

Whilst Mr Justice Schofield announced the provision of much needed extra court accommodation, it was Mr Rhoda who made clear that his staff was insufficient to cope with the extra demands of a second magistrates’ court.

“There is no way we could possibly staff (a second magistrates court) with our current compliment of Crown Counsel,” said Mr Rhoda.

He went on to recognise the success of the move away from police prosecutions to Crown Counsel prosecuting and highlighted the importance of the separation of these roles. He paid tribute to the police on their role in this. “It is very difficult for a police officer who is part of a police force investigating a crime to take a step back and take an objective view about prosecution,” he said.

Lawyers Abound

But there is no shortage of lawyers. Mr Neish told the court that there are now 142 lawyers in private practice alone. Of these 30 were called in the 1980s and 96 since 1990. There are at least 12 more barristers pending call and 57 law students in the pipeline, this, without including EU lawyers who can establish here.

The Government scholarship system has, he said, given rise to a large meritocratic element in the modern bar. Between 1892 and 1926 only nine local barristers were called. Today the finance centre plays an important part in this, he said.

Optimistic, Mr Neish said that there is no reason why Gibraltar will not win the EU tax case and that in any event Gibraltar had always moved forward in the face of adversity.

Local Chief Justice

Mr Neish paid tribute to the line of local judges that have and do serve the Rock and said that “no doubt in the fullness of time the Chief Justice will be appointed from the ranks of the Gibraltar Bar.”

He urged a revision of the laws which is long overdue.

Mr Neish said that this growth means more formal regulation is required including vigilance on lawyers coming in from other jurisdiction and being registered without being called to the local bar.

He called for membership of the Bar Council to be made compulsory either through statute or in the Council’s own constitution.


Post a Comment

<< Home