## Facts

- Pilar Aida Rojas sued Brian Berllaque in the Supreme Court of Gibraltar for damages for assault and false imprisonment and sought an injunction.
- Rojas alleged frequent physical violence over roughly 18 months and that Berllaque locked her in their home, preventing her from leaving.
- The false-imprisonment claim carried a right to jury trial under Gibraltar law.
- Section 19 of the Supreme Court Ordinance created a jury list that automatically included men aged 18–65 (compulsory service) but included women only if they volunteered.
- Few women volunteered, producing a jury pool of about 6,000 men and only 25–30 women; for six years, juries had contained no women.
- Rojas sought an order requiring a jury drawn from a list compiled on an equal basis for men and women.
- The defendant did not oppose; the Attorney General intervened, arguing that an all-male jury could still be fair and that “impartial” did not require representativeness.

## Issues

1. Whether a jury selected from a list compiled on a sex-discriminatory basis violates the constitutional guarantee of a fair hearing by an independent and impartial tribunal.
2. Whether “impartial” in the constitutional fair-hearing guarantee reaches the method of compiling the jury pool, including discriminatory exclusion of a major segment of the community.
3. Whether the Constitution’s “existing laws” modification clause permits reading the jury-service statute to impose equal liability on men and women and to disregard the offending provision.

## Decision

- The Judicial Committee of the Privy Council allowed the appeal by a 3–2 majority.
- The Court held that compiling jury lists in a manner that substantially excluded women violated the constitutional right to a fair hearing by an independent and impartial tribunal, even without proof of actual bias by jurors.
- The Court ruled that the fair-hearing guarantee applies to jury trials and extends to the method of selecting jurors, including the composition of the permanent list from which jurors are randomly drawn.
- Applying the constitutional modification power, the Court read the statute as imposing jury-service duty equally on men and women and treated the women-only volunteer provision as ineffective.
- The order restoring a constitution-compliant approach to jury selection was reinstated; the dissent would have found no constitutional breach based solely on the list’s discriminatory composition.

## Legal Principles

- A constitutional right to a fair hearing by an “independent and impartial” tribunal can be breached by discriminatory jury-selection structures, even absent demonstrated actual bias in the particular case.
- For jury trials selected randomly from a standing list, fairness requires a non-discriminatory method of compiling the jury pool; systemic exclusion of women undermines the tribunal’s constitutional impartiality.
- Constitutional “existing laws” clauses may authorize courts to modify pre-constitutional statutes to conform to protected fair-hearing rights, including by reading in gender-neutral obligations and disregarding inconsistent provisions.
- The focus of constitutional impartiality may include structural features of the adjudicative body, not only the subjective or case-specific impartiality of individual decisionmakers.

## Conclusion

The Privy Council held that Gibraltar’s sex-discriminatory jury-list regime violated the constitutional guarantee of a fair hearing by an impartial tribunal because the jury pool was compiled in a manner that effectively excluded women, and it remedied the defect by construing the jury-service statute to impose equal jury-service liability on men and women while disregarding the unconstitutional volunteer-only provision for women.


Rojas v. Berllaque (Att’y Gen. for Gibraltar Intervening), 15 B.H.R.C. 404 (Jud. Comm. Privy Council 2003)