YOU BE THE JUDGE

In his allegations against the opposition leader Fabian Picardo laid out on official government letterhead by Peter Caruana the chief minister described Mr Justice Peter Smith who was the judge in the Noble matter as “a senior UK judge” adding: “When the case came to the UK High Court the judge made several damning findings about Mr Picardo’s actions and conduct.”

The chief minister argues that because of these events in Picardo’s business life as a lawyer he is not fit to hold the post to which he aspires as leader of the GSLP. Peter Caruana, a fellow lawyer, makes great play of the statements by Mr Justice Peter Smith as proof against the opposition leader’s character and suitability as chief minister.

In his rebuttal of Peter Caruana’s invoking of the judge against him Fabian Picardo stated: “(he is) the only English High Court Judge ever to have been referred by the Lord Chief Justice of England and Wales for behaviour described by the Court of Appeal as "intemperate" and "somewhat extraordinary" to the Office of Judicial Complaints, which found that he had misconducted himself in Court; and as a result, the only English High Court Judge that the prestigious Times and the Telegraph newspapers have said has lost his judgment and should stand down.”

So who is Mr Justice Peter Smith and should we be wary of his statements and judgements? He is a Judge of the High Court of Justice in England and Wales and was appointed to that office in April 2002 assigned to the Chancery Division. He is perhaps best known to the general public as the judge who sat in The Da Vinci Code case and rejected claims by the authors of The Holy Blood and the Holy Grail that Dan Brown had violated their copyright. However the judge was criticized for including a coded section in his judgement. The Appeal Court stated: “It might have been preferable for him to have allowed himself more time for the preparation, checking and revision of the judgment.”

So when Peter Caruana describes him as “a senior UK judge” he is right but in 2003, just a year after his appointment, he was voted most unpopular chancery judge in a survey by Legal Business magazine. He seemingly went truly off the rails in 2007. It may be that his erratic judicial behaviour is due to ill health but he remains a judge and in January of this year he was removed from a case by the Appeal Court.

In 2007 the judge spent some months in communication with London solicitor’s firm, Addleshaw Goddard, in the hope of being employed by them. The discussions came to nothing but in July, about a month after the conclusion of those negotiations, the judge refused to stand down from hearing a heavily contested case (Howell v Lees Millais & Others) involving a partner in the same firm in his capacity as a trustee. On appeal from that decision, the Court of Appeal criticised the judge for his attitude and behaviour during the hearing when he was asked to step down and allowed the appeal, with the effect of removing him from the case. In its unanimous judgments of 4 July 2007, the Court of Appeal described the judge’s behaviour in part as Fabian Picardo has stated as “intemperate” and “somewhat extraordinary”.

The judge himself then issued a press release on the topic. On13 July 2007 the respected legal journalist Joshua Rozenburg wrote in the Daily Telegraph: “The time has surely come for Mr Justice Peter Smith to leave the Bench. A judge is nothing if he or she lacks judgment. But this is precisely the attribute that Sir Peter Winston Smith, 55, has recently failed to demonstrate.” Days later Frances Gibb in The Times also suggested it was time for the judge to go and both alluded to his ill health.

On January 25 of this year ‘The Lawyer’ reported the Court of Appeal had told Mr Justice Peter Smith to stand down from presiding over a professional negligence claim brought against Mills & Reeve after he expressed views unfavourable to the firm. The case revolves around alleged negligent advice the firm gave to a company chief executive that allegedly resulted in the businessman’s daughters paying a £1.3m inheritance tax bill.

On February 1 of this year Joshua Rozenburg wrote in Standpoint about this latest Court of Appeal decision: “I am grateful to Legal Week for alerting me to this decision delivered by the Court of Appeal on 20 January...It turned out that Mr Justice Peter Smith ‘had personal direct experience of a procedure which was either the same as or very similar to that which [the businessman] underwent’...The judge has expressed strong views as to the prospects of that claim, as I have mentioned above. He has also expressed strong views unfavourable to the defendants, though not in relation to this aspect of the case. In those circumstances it seems to me plain that when the trial starts again, it should be heard by a different judge. This is not the first time that Mr Justice Peter Smith has expressed strong views about a law firm. In 2007, I argued that Mr Justice Peter Smith had lost his judgment and should leave the bench. I stand by what I said then.”

In his rebuttal to the chief minister’s claims Fabian Picardo wrote of Mr Justice Peter Smith and the Noble case: “In this matter, the Judge showed at the outset of proceedings a predisposition to see the use of trusts and the movement of money through different jurisdictions as the mechanism by which “fraudsters hide money”. In those circumstances, it is possible to see how prejudiced to the Gibraltar professionals the Judge was even before he started to hear any evidence.”

It is clear Mr Justice Peter Smith should never have heard the Noble or any other case. So was the judge biased against Gibraltar? Does he lack judgement? You have read the facts about him for yourself. You be the judge.

A KNOCK OUT BLOW OR PUNCH DRUNK?

Those of us who observe politics in Gibraltar have been waiting for the battle between chief minister Peter Caruana and opposition leader Fabian Picardo to spring to life. Not the phoney war that is a politician’s daily routine but the real thing where blood is drawn, wounds are patched up and the knock out blow can end or set the tone for a would-be leaders future.

Whilst we waited for the off the village that is Gibraltar was already whispering about the various claims made against Fabian Picardo. They were not secret, but not spoken about in the open either. They were known before he was elected leader of the GSLP and hence head honcho of the opposition coalition in Parliament. Indeed he alluded to them here in my article on political corruption.

One question that has to be asked is if the GSLP and more specifically Joe Bossano knew of these allegations, which they did, why did they unanimously acclaim Picardo as their new leader? There had been rumours that Bossano was considering having one more go, not because he was worried by his right hand man’s suitability to be leader and potentially chief minister, but because with the polls in the GSLP’s favour he fancied one more battle. The fact that he didn’t, given he knew what was coming, suggests that Bossano and in turn the GSLP have total faith in their new leader.

Both the chief minister and Fabian Picardo are successful lawyers, peas from similar legal eagle pods albeit picked off different vines. Therefore the battle of claims and counterclaims is in a sense for the purists but does impact on all of Gibraltar’s voters as one of those involved will be the next chief minister.

Which brings me to the timing. Picardo made his opening remarks dragging in Caruana on GBC’s Viewpoint. He may have simply responded to a question or maybe he had deliberately decided to have the battle now and get it over and done with before the election campaign starts. In response the chief minister has answered with a shower of blows. Both Picardo and Caruana now have a major problem.

I have no doubt that Picardo needed to move this issue from whispers to out in the open. That he has certainly done although I have to say it is not the way I would have gone about it. His suitability to be chief minister, not on political issues but based on his career as a lawyer, is now a matter of public debate. Picardo’s way forward is simple; he has to win that debate by refuting the accusations and assuring voters of his good standing.

However the situation facing the chief minister is more complicated. Having made the counter allegations (which were the prime allegations all along) he must make them stick. Furthermore he must answer convincingly any unsavoury claims about his own legal career be they true or false. His biggest gamble is the timing. If he has delivered a knock out blow then Picardo is down and out. However if his shower of blows are those of a punch drunk chief minister, as the opposition claim, he is truly on the ropes. Timing in a boxing match is everything. Timing the knock-out blow. If I had been in his corner I would have shouted in his ear. It remains to be seen whether Caruana has won a knock-out or is down and out on the political canvas.

Voters want an election to be fought on the issues not on personalities. However it is legitimate either for a politician or indeed the media to question a candidate’s suitability for the office to which they aspire on political, business or personal issues. The key is the debate must be on facts and not slurs – the latter like mud having the habit of sticking to the thrower.

Ding! Ding! Seconds away round two! Be prepared it could go the full distance.

CARUANA: DOING GOD

If you are reading this article in the hope I will describe the chief minister as the anti-Christ with a cloven hoof who heats his home with fire and brimstone and chomps on live babies for breakfast you will be sadly disappointed.

This article is going to beg questions and not answer them. The theme started in my mind when recently I asked a GSD activist who has the ear of Peter Caruana when he thought the chief minister should go to the polls. Having answered, in the autumn, he went on to give a ringing endorsement of Caruana ending with these words: “Also, whatever his opponents may say about the way he sometimes comes across (they call it ‘arrogance’) he truly is a religious, caring, and a good person. These qualities are rare for any person, let alone a politician.”

Now the person who passed this comment doesn’t wear religion on his sleeve. He may well be church-going for all I know but I was curious that he should stress that Caruana was truly religious in his description of his vote winning assets.

It is no secret that the chief minister is a religious person, even devout, and it has coloured his views on policy especially concerning the rights of homosexuals. My question is this: should Caruana do God when his God is not shared by all Gibraltarians?

Peter Caruana is a four-term chief minister and for that he deserves credit. However he has been chief minister not just of GSD voters but of all Gibraltarians regardless of their race, colour or creed. Their God may be Christian, Jewish, Hindu or Islamic with a good smattering of agnostics and atheists thrown in. Therefore is it acceptable to colour your government’s policies on sensitive social issues based on devout Catholic beliefs?

Tony Blair’s spin chief, Alastair Campbell, famously declared “we don’t do God”. Indeed Britons are very suspicious of politicians who are motivated by faith in comparison with US Presidents who bash the bible whilst admitting fornication or invading Iraq.

Cherie Blair is a Catholic and since leaving office Tony Blair caused no surprise when he converted to Catholicism. Yet whilst he was in office his administration passed much social legislation that angered the church. He presided over a secular government and his own personal religious convictions did not infringe on policy or legislation.

This brings us back to Peter Caruana. His devout religious beliefs do him credit and one presumes that a strict moral code comes with them. However as he prepares to bid for a record fifth term in office voters have to ask themselves should doing God be a part of any parties political manifesto? Should their chief minister, whoever he is, do God?

GIBRALTAR ONLY HAS HARBOUR’S WATERS

As tensions heighten over the incursions of Guardia Civil patrol boats and now the Spanish navy into Gibraltar’s territorial waters Spain’s minister for foreign affairs, Trinidad Jiménez, has stated as far as Madrid is concerned the Rock’s only waters are those laid down in the Treaty of Utrecht.

This stance has been that of Spain since the ink first dried on the battered and largely discredited treaty. Whilst even Franco turned a blind eye to its provisions the PSOE government, perhaps with elections in mind, has been upping the pressure in an attempt to outdo the Partido Popular.

Indeed when Jiménez made her statement is was in response to a question from PP Senator Alejandro Muñoz-Alonso on the incident between the Guardia Civil and RGP in Gibraltar’s waters on April 24. At that stage the latest incursion by the Spanish navy’s corvette, Atalaya, had not yet filtered through to Madrid.

None-the-less the foreign minister was adamant that Spain was not going to give more rights to Gibraltar over its waters above what is laid out in the 1713 Treaty of Utrecht. She stressed this gave Gibraltar (and Britain) only jurisdiction over the waters of the port and not the three miles that is claimed under international law, let alone the 12 miles which the UK could claim and which many in Gibraltar argue it should.

Jiménez went on to guarantee that the Spanish Government would “always safeguard this premise” and expressed her “full support” for the work of the Guardia Civil in fighting crime in the waters of what Madrid calls the Bay of Algeciras. She added that Spain would handle the matter with firmness and in a responsible manner.

As on previous occasions Jiménez stated that the problems with the UK over the waters “are absolutely not new” and have been going on with “different intensity for almost 20 years”. She stressed that the position of the socialist government was exactly the same as previous administrations over “the defence of Spanish sovereignty in the waters surrounding Gibraltar”.

The Ministry of Foreign Affairs sent a formal protest note to the British Embassy in Madrid after the April 24 incident voicing its “most firm rejection” of the incident. However the PP in the form of Muñoz-Alonso considered this to be “insufficient, uncouth and sterile”.

Spain has to be credited with one thing: its stance over Gibraltar’s waters and airspace is as clear as can be. The Gibraltar Government is powerless to act other than to protest to Madrid and London in the strongest possible terms.

It is the British Government’s waters that are being violated and it is London that has to respond with appropriate action. Whether the Foreign Office will want to take a stand on this issue, invoking international law, remains to be seen. My guess is that it will not.

The attitude of London and Madrid seems to be that Gibraltar is a shared thorn in their mutual sides and conflict in the bay or off the eastern shore will continue to happen. Spain will wave the Treaty of Utrecht, Britain international law books, but in the meantime it will be business as usual between the two nations.

The challenge for the chief minister, or Fabian Picardo if he succeeds him, is to get the British Government to honour its obligations to the people of Gibraltar and its own interests by defending the Rock’s internationally recognised waters. A failure to do so will see this 200 year old dispute rattling on like a rusty sabre for another 100 years.

(The photo shows part of the waters of Gibraltar’s Harbour that are recognised by Spain. Ironically the harbour water’s described in the Treaty of Utrecht are those of the much smaller Nelson’s Harbour – the present day location didn’t exist in 1713).