Thursday 2 September 2010

Judicial Conduct in the Cayman Islands

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.

53 comments:

  1. Qué tipo de la democracia ¿tiene en Gibraltar?


    La democracia Liberal Gran Bretaña, así como una democracia representativa, también ha sido calificado una democracia liberal. Históricamente hay cinco puntos detrás la democracia liberal : el gobierno debería ser limitado en su impacto sobre la persona y el gobierno no deberían disfrutar poder arbitrario. Elecciones deben ser libres y justas. el gobierno debe hacer todo lo posible para eliminar los obstáculos limitar el bienestar de la población. Esto incluye todos los grupos con ninguno excluidos. la participación del gobierno en el mercado económico de un país debe ser mínimo. el gobierno debe estar allí para tratar los problemas cuando necesitan el derecho de voto debe extenderse a todos (ya no se aplica a Gran Bretaña). Un país que afirma ser una "democracia liberal", abarca toda la cuestión de las libertades civiles. Libertad de expresión, libertad de pensamiento, libertad de reunión libertad de religión, etc. (Dentro de los confines de la ley) son de suma importancia. En Gran Bretaña esas han sido seguro custodiados por lo que se denomina "imperio de la ley". Esto garantiza alguien igualdad ante la ley y que también asegura que los poderes de los de gobierno puede reducirse por leyes que son aplicables en los tribunales. Este ha sido desarrollado por el crecimiento de los efectos de la Corte Europea, que puede actuar como un «comprobar y equilibrio» contra los gobiernos de los estados miembros.

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  2. So every judge has to control his or her character moods temper and language?

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  3. RLLW

    Interesting article on Judges Code of conduct applicable in Gibraltar, and ask are there any similar codes of conduct in Gibraltar applicable to, Attorney General, Commissioner of police, lawyers, Barristers, QC’s, Ministers including Chief Minister? and there are please let us have a write up of the codes.

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  4. The conduct of lawyers, which includes the Attorney General, is governed by the relevant codes applicable to barristers and solicitors in England and Wales with some local rules, as I have said in past blogs. There are also codes of conduct for prosecutors, which would apply to the Attorney General.

    I know of no ministerial codes in Gibraltar but their behaviour is certainly governed by certain rules of Parliament and the general law, including the Common Law.

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  5. Why then are top lawyers like Robert Vasquez Keith Azopardi and Nick Cruz not silks

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  6. The question of silks in Gib for me is a bit of a joke. I was under the impression that you become a silk once you have practiced for a certain amount of time, that you have represented many IN COURT (emphasis). Then if this is so and I would appreciate if RV can tell us what is needed to become a silk, how on earth can some one who is NOT practicing get a silk? Please enlighten me.

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  7. Anonymous at 11.58 is referring to Peter Caruana who was made a QC after he had stopped practicing to become Chief Minister. Caruana is certainly one of the most able lawyers that we have ever had but he was made a silk as part of the colonial tradition of conferring honours on native politicians. In UK this does not happen and so we see that Tony Blair who is also a barrister by profession was never made a QC. Most serious lawyers that I know think that the system of appointing silks in Gibraltar relies on the friendly disposition of lawyers to the government. One exception is James Levy QC who was made a QC late when his quality as a lawyer could just not be ignored by the Establishment. I would be very surprised indeed if any of the few lawyers who regularly act against Government will ever be made QCs whilst the present Government is in power. This is a shame because until this happens our judicial system will continue to resemble a 3rd world affair.

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  8. The thorny issue of silks has been brought up. This blog was not intended to raise that issue.

    The criteria for appointments of silk that came into force in 1986 does not restrict appointments to those who appear in court. It does say that appointments are restricted to 10% of lawyers. The fact that it is not restricted to court lawyers is exemplified because the change in 1986 was made to permit the appointment of the then AG, Ken Harris QC, who was a solicitor. This was well before the change in England and Wales permitting solicitors to be appointed QC. Appointment was achieved, at that time, only on recommendation to the FCO supported by both the Governor and the Chief Justice.

    It is convention that MP's who are barristers in England are entitled to an honorary silk. I do not know if this convention is followed in Gibraltar.

    In 2009 there was a consultation, which emanated from the Judicial Services Commission, on the criteria for appointment to the rank of QC. A draft of the criteria was circulated and comments made by the Bar Council and others, including me. Nothing has been heard since, so one does not know whether or not that criteria was adopted. One speculates that it has not, as if it had, it would have been circulated and publicised within the legal profession. One of the proposed changes was that the recommendation for appointment would come, not from the Chief Justice, but rather from the Judicial Services Commission as well as needing the support of the Governor.

    What is not acceptable is that such a rank should exist and that no appointments should have been made since 2003, despite the enormous growth in numbers of lawyers. This omission is anti-competitive and monopolistic. It gives an unfair advantage to a disproportionally small number of lawyers. Irrespective of who might or might not be appointed, the situation must change. One problem: the Bar Council, despite being the representative body of lawyers, shows no teeth. Why? Possibly because, if it did, one repercussion might be that the chances of appointment of its individual members might be diminished or be rendered non-existent ... Need I say more? I was the Chairman of the Bar who showed displeasure at the behaviour of Schofield CJ by not making a speech at the Ceremony of the Opening of the Legal Year in 2000.

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  9. LWRV, said: "One problem: the Bar Council, despite being the representative body of lawyers, shows no teeth. Why? Possibly because, if it did, one repercussion might be that the chances of appointment of its individual members might be diminished or be rendered non-existent". Are you saying that they are afraid? What other repercussions might they suffer? Is the implication that the legal process in Gibraltar is not as impartial as your Blog implied? If lawyers live in fear of repercussions what hope is there for the rest of us? Let's stop messing about and let's start talking clearly; please!

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  10. I have speculated a possible reason not limited to the Bar Council as presently constituted but as constituted over many year ... let others react.

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  11. I cannot possibly imagine that distinguished Court of Appeal judges who form part of the JSC can be suseptible to that kind of influence or nonsense. Before the JSC, the CJ was pivotal. My understanding of the guidelines circulated among lawyers as to the new system to be introduced is that it's a committee chaired by a leading English Court of Appeal judge who judges in Gib. To suggest otherwise is a slur on the integrity of men who have devoted their lives to the judiciary and are incorruptible. The system that we had in place before was lacking in transparency and suseptible to influence because much depended on one man's (CJ) advice to the Governor. Now, hopefully, it will be made on merit not influence. There have been some dodgy appointments in the past. People who were never distinguished enough as court lawyers or even finance centre lawyers have got it in the past and no doubt doing the cocktail circuit helped them. So Robert is right if his comments are directed at the old system. They are not right if directed at it's intended replacement and I don't think he meant it as such.

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  12. Anon @ 18.26 is bang on target. Could it be that some aspiring QCs are sore that the old cocktail circuit is no longer the key to obtaining silk? The problem is that the old cocktailing class has now moved to being the governmant's lackeys and when even that has not worked they are furious. We have in Daniel Feetham a minister of justice who can bring some dignity back to the legal profession.

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  13. My comments are certainly NOT directed at or critical of the JSC or anyone involved in the appointments system. I am just saying that appointments should be made.

    I do not and have never criticised any appointments made in the past. My observation is of perceptions formed by members of our profession in the past that may have inhibited comment on the issue of appointments; no more than that.

    I have re-read my post and cannot see how anyone can form the opinion that I am being in any way critical of any judge. I am most certainly not critical of any judge and certainly not of any Court of Appeal Judge. I have nothing but respect for the judiciary. If anything I have said is indicative of the contrary please identify it and I will re-write immediately.

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  14. I don't think that Robert has criticised the judiciary but hey, we live in a democracy and there is nothing inherently wrong with criticising judges. Tranquilo hombre!

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  15. Enough about QCs. What are the required qualifications to be a Judge in Gibraltar? How do they compare with the requirements in UK?

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  16. The qualifying requirement is 10 years practice as a lawyer, which is the same as in England and Wales. The qualities required for appointment as a judge are the same in Gibraltar as they are in England.

    The qualities required can be found at:

    http://www.judicialappointments.gov.uk/application-process/112.htm

    They are:

    QUALITIES AND ABILITIES - GENERIC

    1. Intellectual capacity

    High level of expertise in your chosen area or profession
    Ability quickly to absorb and analyse information
    Appropriate knowledge of the law and its underlying principles, or the ability to acquire this knowledge where necessary
    2. Personal qualities

    Integrity and independence of mind
    Sound judgement
    Decisiveness
    Objectivity
    Ability and willingness to learn and develop professionally
    3. An ability to understand and deal fairly

    Ability to treat everyone with respect and sensitivity whatever their background
    Willingness to listen with patience and courtesy
    4. Authority and communication skills

    Ability to explain the procedure and any decisions reached clearly and succinctly to all those involved
    Ability to inspire respect and confidence
    Ability to maintain authority when challenged
    5. Efficiency

    Ability to work at speed and under pressure
    Ability to organise time effectively and produce clear reasoned judgments expeditiously
    Ability to work constructively with others (including leadership and managerial skills where appropriate)
    The precise qualities and abilities for each post will be published in the information pack for each exercise.

    QUALITIES AND ABILITIES - LEADERSHIP AND MANAGEMENT

    1. Intellectual Capacity

    High level of expertise in your chosen area or profession
    Ability quickly to absorb and analyse information
    Appropriate knowledge of the law and its underlying principles, or the ability to acquire this knowledge where necessary.

    2. Personal Qualities

    Integrity and independence of mind
    Sound judgement
    Decisiveness
    Objectivity
    Ability and willingness to learn and develop professionally
    Ability to work constructively with others.

    3. An ability to understand and deal fairly

    Ability to treat everyone with respect and sensitivity whatever their background
    Willingness to listen with patience and courtesy.

    4. Authority and Communication Skills

    Ability to explain the procedure and any decisions reached clearly and succinctly to all those involved
    Ability to inspire respect and confidence
    Ability to maintain authority when challenged.

    5. Efficiency

    Ability to work at speed and under pressure
    Ability to organise time effectively and produce clear reasoned judgements expeditiously.

    6. Leadership and Management Skills

    Ability to form strategic objectives and to provide leadership to implement them effectively
    Ability to motivate, support and encourage the professional development for whom you are responsible
    Ability to engage constructively with judicial colleagues and the administration, and to manage change effectively
    Ability to organise own and others time and manage available resources.
    The precise qualities and abilities for each post are published in the information pack for each appointment.

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  17. Mark A, Independent Commentator4 September 2010 at 19:28

    Anon: "Why then are top lawyers like Robert Vasquez Keith Azopardi and Nick Cruz not silks"

    You a PDP supporter?

    LWRV: "In 2009 there was a consultation, which emanated from the Judicial Services Commission, on the criteria for appointment to the rank of QC. A draft of the criteria was circulated and comments made by the Bar Council and others, including me. Nothing has been heard since..."

    That's because it's on the Chief Minister's desk, of course, like everything else in Gibraltar that requires attention or approval - unless it's in one of the many piles of green files strewn all over the floor of his office as can often be seen on Newswatch during press briefings or interviews.


    "What is not acceptable is that such a rank should exist and that no appointments should have been made since 2003, despite the enormous growth in numbers of lawyers."

    That's on the CM's desk (or floor) too and he's in no hurry to swell the ranks of QCs, particularly as he's likely to be back in private practice next year.

    "I was the Chairman of the Bar who showed displeasure at the behaviour of Schofield CJ by not making a speech at the Ceremony of the Opening of the Legal Year in 2000."

    Yes, and the CM repaid you by shunning you now, so was it worth it?

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  18. I am not a member of the PDP or any other party.

    I have no reason to believe that the CM is stopping appointments or shunning me. I am sure that those charged with making appointments would have said as much were the CM to be stopping appointments.

    Was it worth it? Absolutely YES, I was true to myself, which is far more important than any accolade, assuming that I have been prejudiced at all by my actions. I have my views on that issue based on past statements made to me but those are not for publication here.

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  19. I was not suggesting Robert had criticised any member of the JSC oin his earlier post but there is also no doubt that his run in with the previous CJ cost him. Others played the game and the rest is history.

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  20. Mark, yet again you are incapable of balanced and objective or independent comment.
    The issue of QCs has been held up by the Foreign Office who are refusing to give up control. It has nothing to do with Caruana. My sources tell me that the Minister for Justice was consulted on behalf of the Government and he suggested the FCO should only be able to veto a candidate on the grounds that they are able to veto judges under the constitution but the FCO wanted more control. That was not acceptable because it made no sense to give Whitehall bureaucrats (subject to all sorts of influences) the right to veto people willy nilly after judges themselves are recommending a person. The FCO then vetoed the reforms. The impasse, I think, has now been resolved. In this entire process Caruana has not figured.

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  21. Anonymous 21:18

    Thank you, that is more information than anyone has known until now. I assume you are in a position to know and so speak authoritatively. Why do lawyers and others have to find out these facts, which are of direct concern to them, when a debate ensues on a blog of all places.

    If you knew this why didn't the Bar Council?

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  22. Ask the Chairman of the Bar whether he has been briefed? Don't assume no one knows.

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  23. Which would beg the question ... if he does, which may or may not be the case, why don't all subscribers whom he represents?

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  24. I don't know what has happened since I was told two months ago by someone who authoritatively knows what happened. I think they are all waiting for the end of the summer to announce something.

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  25. Anon 21.18

    Do you expect us to believe that the CM permitted his Minister for Justice to contact the FCO without any involvement on his part? Now come on, get real. You are close to GSD Labour so you should know that no-one is permitted to contact the FCO except via the Chief Secretary to ensure that all such communication is vetted by the CM.

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  26. It was the JSC that consulted the Gov through the MOJ. It's the JSC that was conducting the process. The bar was also consulted. The FCO caused the delay and threatened to derail the process. The proposal of using the constitutional formula for vetos re judges appointments was made by MOJ. I am nothing to do with the Gsd labour or anyone else. I am a lawyer.

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  27. The QC guidelins cited are those applicable in England & Wales. There are different criteria in Gib, to take into account the different legal environment and the different appointment system in Gib.

    To criticise the appointment system, or those involved in it, is not to attribute corruption to those individuals. Individuals, and the systems they work in, can make poor decisions without being corrupt. One simple question should be asked of the silk system in Gib; has there recently, or ever, been an "anti-establishment" lawyer appointed to silk? I think not.

    Two observations on the former convention that members of Parliament in the UK, who are barristers in England & Wales (I do not know if the convention ever applied to Scottish or Northern Irish lawyers) would get silk upon asking; firstly, the award was not "honorary" (honorary silks are styled QC (hon)), although its grant was a formality; secondly, it does not seem to be followed any more (possibly because fewer barristers are continuing to practice after election), a little like the convention that the Attorney and Solicitor General would be knighted also seems to have passed.

    Guiri

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  28. Anon 23.00

    Being a lawyer does not preclude being close to GSD Labour. In fact, most of the budding politicians are lawyers.

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  29. Why would the F&CO want to have a say in the appointment of QCs in Gibraltar? I cannot imagine any reason but if someone can articulate a theory can they share it with us?

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  30. All I said was that simply because I have not agreed with MA's allegation that the QC issue has been held up by Caruana does not make me GSD Labour or anything else. PS I was last called budding several decades ago but thanks.

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  31. I have a very senior job in the public sector that does not make too many demands on my time and so I have just begun a correspondence course in law. I have just read in Allen on Evidence that a person who makes a statement must provide the truth of what he says with hard evidence. Here there are many allegators but very little proof. No wonder those of you who are lawyers don't get QC'd. You must go back to your books and learn the laws. I once sat in a jury and found the lawyers and the judge a bit dull -it is time for a shake up of the legal profession.

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  32. No, but you seem to be privy to information that only sources close to the Minister of Justice or JSC would have access to. You are the only one on this forum who knew why the matter had been held up.

    The FCO wants to have a say because they are QUEEN's Counsels. OK we may want to call her Queen of Gibraltar but in appointing QCs she is acting in her capacity as Queen of England. So the FCO will necessarily have to be involved - via the office of the Queen's representative here, the Governor, whether we like it or not.

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  33. Anon at 19.35: could you repeat waht you just said in English?

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  34. Anon, you said: "I have a very senior job in the public sector that does not make too many demands on my time and so I have just begun a correspondence course in law."

    Unless you're merely amusing yourself by winding us all up, in light of the fact that public sector salaries are spiralling out of control with over a dozen civil servants earning over £100,000 and on non-contributory final-salary pension schemes and Ministers now earning close to that amount I don't think you should add any more fuel to the fire by broadcasting the fact that you're paid handsomely to do very little.

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  35. My point is not that I have little work to do - the point is that I carry out quality work and what I earn is none of your business. At least I am making the best of my spare time reading law. It seems me that many lawyers in Gibraltar do not understand the law of Evidence and I recommend that they read Allen on Evidence.

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  36. Anon 19.40

    First part was response to lawyer who is privy to certain very interesting info that he is privy to and that he has made public on Llanito World this weekend.

    Second part was response to "Why would the F&CO want to have a say in the appointment of QCs in Gibraltar? I cannot imagine any reason but if someone can articulate a theory can they share it with us?"

    Confusing with so many Anons, I know, but no-one else will use a pseudonym so I've given up on that too.

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  37. Mark (not the indep one) said;
    it's always been an FCO appointment. Robert can elaborate far better than I can.

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  38. Albert said:
    I come to this debate late but Mark you must profess inside knowledge/evidence that the issue is held up by the CM.

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  39. Public Servant Anon

    What you earn is very much our business because we're paying for you to study law instead of working! Besides, your salary is very much in the public domain and of great interest to the general public. That's why the information is contained in the Estimates of Revenue and Expenditure which is freely available to anyone from the Publications Office for the modest fee of £5.

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  40. Is there any truth in the rumour that in addition to at least one senior civil servant having the time to read law, there is a minister in the GSD government also training to be a "learned friend"? I run a small business and I can't even find the time to read the Chronicle but my taxes apparently pay politicians and civil servants to scratch themselves.

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  41. I demand an apology from the person who suggested that I do very little in my job as a civil servant of many years standing and loayalty to alll my ministers. I feel aggrieved and those lawyers among you will know the meaning of slander and lible. So what if instead of just going to the beach in Spain during summer hours I choose to take a law book with me. I think there are too many people out there who are jealous of civil servants. To them and specially those not on PAYE I say: pay your taxes!!!!!!!!!!!!!!

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  42. Says who? I shall consult my course notes on Slander.

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  43. I am afraid that:

    1. If you hide behind anonymity you cannot be slandered; and

    2. You yourself admit that your position in the Civil Service does not make too many demands on your time.

    You are hung on your own petard.

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  44. OK I found it "Defamation—also called calumny, vilification, slander (for transitory statements), and libel (for written, broadcast, or otherwise published words)—is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image. It is usually a requirement that this claim be false and that the publication is communicated to someone other than the person defamed"

    Prior to reading law I found time to study for a degree in English literature and the expression is "hoist" not "hung" by your own petard - why are you all picking on me?????

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  45. Hoist not hung.

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  46. OK, OK I got it ... HOIST ... it is Sunday evening!

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  47. Anon Public Servant

    Summer hours! Now that opens up a whole new can of worms. You mean a senior public servant like you actually takes advantage of summer hours? I thought the junior people went off to the beach and seasoned senior officials like you stayed in the office later to produce "quality work" undisturbed.

    Besides, you slandered your self by saying: "I have a very senior job in the public sector that does not make too many demands on my time."

    At least you would have, if you had not chosen to remain anonymous, as LWRV rightly says. Oh dear, not a very auspicious start to you legal career, is it.

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  48. Yes but where is my apology? Anyway what about all those civil servants who recently got their MBAs. Are you saying that none of them do any work? How do you think Gibraltar functions?

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  49. El Mark y el abogao lo que han formao!

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  50. Rubbish if you knew any law you would realise that you cannot slander yourself. Allen on evidence page 1. So there. i hope you are not a lawyer anon at 20.37 otherwise you might be done under the Trade Descriptions Act.

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  51. I really do not think this exchange is contributing anything to the blog ... so that is all folks!

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  52. No one including lawyers on this blog has attempted to reply to “Anonymous said on the 3 September 2010 00.30”
    Qué tipo de la democracia ¿tiene en Gibraltar?
    Unbelievable



    Unbelievable

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  53. Estamos de acuerdo con ANON 3 September 2010 00.30 y que?

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