TNAG-1828-FCO40-2596-Hong-Kong-legal-practitioners-and-judiciary-Jury-(Amendment-1988 — Page 100

CONFIDENTIAL STAFF IN CONFIDENCE

006723

MDHIAN 1912

LONG THIS WOULD

CONDITION MIGHT

CONTINUE TO BE SO. THE CJ BELIEVED THAT HIS

WELL DETERIORATE AFTER HIS WIFE'S DEATH.

(III) ALLEGATIONS OF MISCONDUCT

.

THESE CENTRED ON ACCUSATIONS

THAT BARKER HAD TALKED INDISCREETLY ABOUT THE CASE AND HAD

ATTENDED A PARTY HOSTED BY SOLICITORS FOR THE DEFENCE. BARKER

HAD ADMITTED THE SUBSTANCE OF THESE ALLEGATIONS. THE CJ THOUGHT

THAT ALTHOUGH BARKER HAD BEHAVED BADLY AND SHOULD NOT AGAIN BE

EXPOSED TO THE PRESSURE OF A LONG TRIAL, HIS FAILINGS WERE NOT SUCH THAT A TRIBUNAL, IF APPOINTED, WOULD RULE FOR HIS DISMISSAL. THE CJ DESIGNATE THOUGHT THAT BARKER'S CONDUCT WAS SUFFICIENT TO

PUT PRESSURE ON HIM TO RESIGN, BUT NOT SUCH THAT A TRIBUNAL SHOULD BE APPOINTED UNLESS AN ALLEGATION HE HAD RECENTLY HEARD ABOUT

BARKER TALKING OUT OF TURN COULD BE PROVED. IN THAT CASE A TRIBUNAL, HOWEVER UNWELCOME, WOULD BE JUSTIFIED.

4. IN RESPONSE TO MY QUESTIONING ABOUT BARKER'S BEHAVIOUR SINCE

THE TRIAL, THE CJ SAID THAT BARKER WAS NOW BEHAVING NORMALLY. HIS

CONDITION AND BEHAVIOUR WERE HOWEVER LIKELY TO DETERIORATE

FOLLOWING HIS WIFE'S EXPECTED DEATH LATER THIS YEAR. THE CJ

DESIGNATE AGREED GENERALLY BUT THOUGHT AN ADDITIONAL SIGNIFICANT

FACTOR WAS THE FACT THAT BARKER'S FELLOW JUSTICES OF APPEAL HAD

ALL (CJ THOUGHT MOST) MADE IT CLEAR THAT THEY HAD LOST CONFIDENCE

IN HIM AND WERE UNWILLING TO SIT WITH HIM ON APPEAL CASES. ALTHOUGH NOT SUFFICIENT GROUNDS FOR HOLDING A TRIBUNAL, THIS WAS

AN EXTREMELY SERIOUS SITUATION WHICH JUSTIFIED PUTTING PRESSURE ON BARKER TO RESIGN.

5.

WE CONSIDERED RECENT ARTICLES IN THE HONG KONG LAW JOURNAL

WHICH FOUND FAULT WITH BARKER'S HANDLING OF THE CARRIAN CASE AND

HIS JUDGMENT AT THE END OF IT. ALTHOUGH THESE ARTICLES MEANT

THAT THE MATTER NOW HAD A CONTINUING HIGH PROFILE IN THE MEDIA, THEY NEITHER ADDED TO, NOR SUBTRACTED FROM, THE OTHER QUESTIONS ALREADY CONSIDERED.

D

6. IN CONSIDERING WHAT ACTION TO TAKE, BOTH SIR D ROBERTS AND SIR T L YANG (THE FORMER MORE STRONGLY THAN THE LATTER) WERE AGAINST

THE APPOINTMENT OF A TRIBUNAL. AFTER FURTHER DISCUSSION OF THE

CASE, INCLUDING BOTH THE NEED TO MAINTAIN THE REPUTATION OF THE JUDICIARY AND TO DEAL HUMANELY WITH BARKER, BOTH SIR DENYS AND SIR T L AGREED THAT IT WOULD BE RIGHT TO PUT TO MR JUSTICE BARKER

A PROPOSITION IN THE FOLLOWING TERMS:

(I)

HE SHOULD RESIGN AT THE END OF HIS PRESENT AGREEMENT, I^E.

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