Practice and Procedure


PUBLISHED November 11, 2003

Juries chosen on a discriminatory basis in accordance with s.19 Supreme Court Ordinance could not be said to fulfil the requirement of an "impartial" court or authority in s.8(8) Gibraltar Constitution Order 1969.Appeal from a decision of the Court of Appeal of Gibraltar raising the question of whether the constitutional right, contained in s.8(8) of the Constitution of Gibraltar, to a fair hearing within a reasonable time by an "independent and impartial" court or authority had been infringed when in a jury trial jurors had been chosen from a jury list compiled on a sex discriminatory basis. Gibraltar juries were predominantly all-male as a result of s.19 Supreme Court Ordinance ('the Ordinance') which made jury service compulsory for men but not women. The claimant ('R') was a woman claiming damages from a former partner for alleged domestic assault and false imprisonment as well as an injunction. R was entitled to have her case tried by a jury but objected to the jury being all-male. The Court of Appeal held that R's rights under s.8(8) of the Constitution, which was similar to Art.6(1) of the European Convention on Human Rights, had been infringed. R submitted that: (i) an all-male jury selected from a list drawn up under s.19 of the Ordinance would not be seen to be impartial; (ii) a fair-minded and informed observer would conclude that there would be a real danger of bias; and (iii) the court trying the case would not be regarded as being objectively impartial. The Attorney-General intervened submitting that: (a) the system did not fall foul of s.8 of the Constitution; (b) a requirement of "representativeness" was not part of the natural and ordinary meaning of "impartial"; (c) the focus of impartiality was on the actual jury, not its process of selection; and (d) there was no basis for believing a jury of nine men was incapable of affording a fair trial to R.HELD (Lords Hobhouse and Rodger dissenting): (1) The issue was of general application and R's objection was applicable to all jury trials irrespective of the gender or the nature of the issues. (2) Section 8 contained an open-ended constitutional guarantee of a fair trial, which was one of the most important guarantees in the Constitution and was to be interpreted so as to ensure that citizens of Gibraltar received the full measure of protection this guarantee was intended to provide. (3) The constitutional guarantee of a fair trial applied to jury trials and the method by which the jury was selected. (4) Since juries were chosen at random from jury lists, a non-discriminatory method of compilation of the jury lists was an essential ingredient of a fair trial by an impartial jury. (R v Poongavanam (1998) (Unreported, PC, 6/4/92) considered). Fairness was achieved in the composition of a jury by random selection from a list which was itself fairly constituted. (5) A jury list complied on a basis which, without any objective justification, excluded from jury service virtually one half of the otherwise eligible population could not be said to have been fairly constituted. Trial by a jury derived from such a list did not satisfy the constitutional requirement of s.8(8). The exclusion of women from jury service was a relic from the past, which was an unacceptable discriminatory practice undermining confidence in any system of law that still maintained it. Therefore, s.19 of the Ordinance violated s.8(8) of the Constitution. (6) In compliance with para.2 of the transitional provisions annexed to the Gibraltar Constitution Order 1969, s.19(1) ought to be read as applying to women as well as men and s.19(2) ought to be omitted.Appeal allowed.

[2003] UKPC 76