Gibraltar is not alone in having had one of its judges removed. A judge of the Cayman Island's Grand Court (equivalent of Gibraltar's Supreme Court) was removed recently. On this last occasion, as was the case on the removal of Schofield CJ, the modern principles upon which a judge will be removed have been established. Principles that have been developed based on modern codes of behaviour and having in mind the defence of judicial independence. The advice in the case of Levers J provides greater certainty because it was a unanimous advice. It generally follows and endorses the views of the majority advice of the Privy Council in the case of Schofield CJ.
On the 29th July 2010 the Judicial Committee of the Privy Council advised that Madam Justice Levers should be removed for misbehaviour. The second judge of this seniority to be removed in quick succesion. The other being Schofield CJ in Gibraltar. Events that had not previously occurred in a British Common Law jurisdiction for over 100 years.
This last case emphasise the need for judges to be of extreme good behaviour. The advice relies on the Bangalore Principles of Judicial Conduct. These principles form one core of the newly published (in Gibraltar) Judicial Code of Conduct and Ethics. This code, coincidentally, came into force on the same date as the Privy Council's advice on Levers J, the 29th July 2010. The Privy Council's view is that the principles contained in such codes are standards that judges need to aspire to meet but that not all failures to meet them will necessariy amount to misconduct.
What then is the test? It is that a judge should not fall " ...so far short of that standard of behaviour as to demonstrate that he or she is not fit to remain in office. The test is whether the confidence in the justice system of those apearing before the judge or the public in general, with knowledge of the material circumstances, will be undermined if the judge continues to sit ... if a judge, by a course of conduct, demonstrates an inability to behave with due propriety misbehaviour can merge into incapacity".
Interestingly, the advice emphasizes the need for appropriate consideration to be given by judges to all appearing before a court; such consideration must be extended not just to lawyers but also to parties, witnesses, court staff and judicial colleagues. Thankfully a consideration that is consistently met by Gibraltar's judiciary but one which was found that Levers J had fallen short of.