Practice and Procedure


PUBLISHED May 1, 2003

Special leave to appeal against a decision of the Gibraltar Magistrates' Court was refused because the petitioner had not exhausted all local remedies.Petition for special leave to appeal against the decision of the Magistrates' Court of Gibraltar dismissing an application by the petitioner ('F') to stay a summary trial on the ground of abuse of process. In November 2001 an information was laid before the magistrates alleging that in August 2001 in Gibraltar F unlawfully assaulted C contrary to s.96 Criminal Offences Ordinance. That followed a complaint that C made to the police that F had assaulted her by pushing her in the chest with an envelope and impeding her passage in Main Street. The incident came about because the parties were in dispute about payment for tiling work which F's husband had carried out for C. A summons was issued in November 2001 and was posted in May 2002 according to the magistrates' court records. It was marked as having been posted in June. F complained that there had been an abuse of process and a violation of her right to a hearing within a reasonable time under s.8(1) Gibraltar Constitution Order and Art.6(1) of the European Convention on Human Rights. The magistrates' court dismissed F's application to stay the proceedings. F lodged a notice of appeal in the Supreme Court of Gibraltar. The Supreme Court registry indicated that the procedure which she should adopt was to apply to the magistrates to state a case or to seek judicial review. F attempted to lodge a notice of appeal against that decision but the Supreme Court refused to accept that notice on the ground that there had been no decision that could be appealed. F applied to the Privy Council for special leave to appeal.HELD: (1) The advice that F received from the Supreme Court registry about the avenues of appeal against the magistrates' court ruling was not a judicial decision against which F was entitled to appeal. Nor was there any violation of F's human rights. (2) An appeal from the magistrates lay to the Supreme Court against conviction or sentence and that procedure did not apply to F since she had not been convicted. The avenues of appeal open to F against the magistrates' ruling that there had been no abuse of process were to apply to the justices to state a case or to seek judicial review of the decision. (3) The practice of the Privy Council was to insist that all local remedies had been exhausted before special leave to appeal could be granted and they had not been exhausted in this case since there had been no determination of the merits of any appeal against the magistrates' decision.Petition dismissed.

[2003] UKPC 35