Rojas v. Berllaque (Gibraltar)

Rojas v. Berllaque (Gibraltar) [2003] UKPC 76 (10 November 2003)

ADVANCE COPY

Privy Council Appeal No. 100 of 2002

Pilar Aida Rojas Appellant

v.

Brian Berllaque Respondent

Her Majesty's Attorney General for Gibraltar Interveners

FROM

THE COURT OF APPEAL OF GIBRALTAR

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 10th November 2003

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hobhouse of Woodborough

Lord Millett

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

[Majority judgment delivered by Lord Nicholls of Birkenhead]

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The Constitution of Gibraltar guarantees citizens of Gibraltar the right to have a fair trial. In determining their civil rights, and when facing a criminal charge, they are to have a "fair hearing" within a reasonable time by an "independent and impartial" court or authority. That is provided by section 8 of the Constitution. The language of this section is similar to article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Its purpose is the same. Section 8 is one of the fundamental human rights protected by Chapter I of the Constitution.

The question raised by this appeal is whether this constitutional right is infringed in the case of trial by jury when the jurors are chosen from a jury list compiled on a sex discriminatory basis. In Gibraltar jury trials take place regularly in more serious criminal cases. They take place infrequently in civil cases. A jury consists of nine persons. Jurors are chosen at random from a jury list. Despite this, in practice the juries are all-male. This is because men and women are treated differently in the compilation of the jury list. Subject to exemptions and disqualifications, all men between the ages of 18 and 65 are liable to jury service. Jury service is compulsory for them. By way of contrast, women within this age bracket may volunteer for jury service. They are eligible, but service is not compulsory: section 19 of the Supreme Court Ordinance. In practice few women come forward and offer their services. So there are about 6,000 men on the jury list and only 25-30 women. The Chief Justice of Gibraltar, Schofield CJ, cannot recall ever sitting with a jury, either in a criminal or a civil matter, containing even one woman in the last six years.

In the present case the plaintiff is a woman. Pilar Rojas claims damages from Brian Berllaque with whom she used to live. She claims he subjected her to physical violence almost daily over a period of 18 months from May 1999. Additionally he locked the door to their home so she could not go out. She seeks damages for assault and false imprisonment, as well as an injunction. The defendant denies all the allegations of improper behaviour.

By reason of the allegation of false imprisonment Ms Rojas is entitled to have her case tried by a jury. But she objects to the jury being all-male. She seeks a…

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