It was not until 1738, however, that legislators attempted to extend civil jurisdiction to criminal prosecutions. This was caused by the case of Conning v Sabine (1732).17
In this, Steven Conning, after finding his wife in bed with a British officer was, to add insult to injury, accused himself of pushing the British officer and subsequently being charged with assault resulting receiving a sentence of twenty days imprisonment, 300 lashes and deportation for his pains. Conning, as a British subject, wrote to the King complaining on the treatment received at the hands of the prejudiced military tribunal, irritating Governor Sabine and forcing him to counter such accusations by writing a report on the situation. In a further measure, Conning was banished from Gibraltar, with appeals made to the Privy Council being rejected. Conning then decided to sue Governor Sabine directly, with the case eventually being heard by the Lord Chief Justice, resulting in Sabine defaulting. The courts in England decreed that civilians could not be tried by martial law and it was made clear to both the Colonial Office and Courts of Gibraltar that:
“a great many inconveniences have arisen and hereafter arise within said town for the want of jurisdiction for the trial of criminal cases.18
This incident was important, not only because it gave Conning some sense of justice to paper over his personal humiliation, but because the outcome led directly to the establishment of the Second Charter of Justice of Gibraltar in 1739.19
The Court of Civil Pleas was now restructured to include a criminal court consisting of one person ‘learned in the laws of England’ and two other ‘inhabitants of Gibraltar’. Under this charter, the court`s jurisdiction was expanded greatly, covering real property disputes and criminal cases within the civil population (distinct from ‘Court Martial’ proceedings). This was now led by a Chief Judge who presided over, and was appointed by other judges of the new Court of Criminal Jurisdiction. This new court was charged to:
“… hear and determine according to the Laws of England, all Murders, Felonies, Trespasses and other Crimes of what nature and kind soever (treason excepted) arising within the Town of Gibraltar.20
Moreover, English law now became the law of the land, incorporated by the inclusion within the Charter of the declaration “we will that the laws of England be the measure of Justice between the Parties.21
Following the adoption of this new Charter, Robert Robinson was appointed as the first Chief Judge of Gibraltar. The Governor and Chief Justice`s leave was still required for capital cases, with the Privy Council settling any disagreements. A “Court of Appeals” consisting of the Chief Judge of the Court of Civil Pleas and four other appointments was also confirmed.22
All of these courts were all to be housed within the same building.
However, these plans came to naught because of the bizarre conduct of the newly appointed Chief Justice himself. For some reason, possibly due to outstanding debts, Robinson prevaricated in making the journey to Gibraltar.23
In 1744, four years after his appointed, Robinson was still in London but enjoying a Chief Judge`s salary of £500 a year in lieu of his appointment. When the Treasury exasperated by his prevarication retained his salary, Robinson reacted by publishing a book ‘The Case of the Chief Justice of Gibraltar, Truly and impartially stated.24
Incredibly, Robinson defended his actions by inferring that the fact that he had not travelled to Gibraltar was just an excuse not to pay his salary, claiming that the Treasury’s conduct suggested they did not want the commission of the court to come into effect.
After much contention, the Secretary of the Treasury proposed that Robinson`s salary would be paid on the Chief Judges arrival to Gibraltar. Robinson, however, never had the intention of taking up his post as he never ever made the effort to travel to Gibraltar. With no new judges appointed, the new courts (with their expanded jurisdiction) could not be activated and the old system continued as before, with the Judge Advocate running the Court of Civil Pleas. As such, the Rock continued to be ruled by the impractical articles of war, with civilians not having proper status or representation, allowing Gibraltar’s military Governors to continue running Gibraltar as a fortress.25
For example, no one was allowed to leave the garrison without written permission from the Governor nor was there a proper system to own land, all of which was held on sufferance by the Governor.
This improper state of affairs continued until 1749, when the home office finally grew impatient over the distinct lack of civil magistrates in Gibraltar. Doubtful that judicial responsibility was falling on overworked and untrained Governors (and in light of allegations that the Governor had repossessed property unlawfully), Lieutenant-General Bland was charged to carry out an investigation into the housing situation in Gibraltar.26
Bland`s inquiry suggested that the authority of the courts of Gibraltar should be extended to allow Civil Justices to preside over “Frauds, Pilfery, Personal Assaults and Abuses and other branches of the peace, not extending to life and member.”27
This proposal was debated by the Privy Council of Gibraltar and the Solicitor General. These discussions formed the basis the 3rd Charter of Justice granted in 1752.28
This created the ‘Court of Common Pleas’, vested with the power to deal with criminal cases and disputes concerning ‘real property’. It included “houses, lands, testaments and all other real pleas within the town of Gibraltar and the territories belonging, and all kinds of terms, leases, estimates and interests there in.”29 The court was also given control over Grants of Probate and the administration of estates. However, protection from wrongful deprivation of property and inheritance was still only provided to protestant inhabitants and not to Jews or Catholics.
Nevertheless, the second charter created the first civil courts with criminal jurisdiction in Gibraltar, as well as the first jury system. This gave Justices in Gibraltar the same power as those in England. For the first time private citizens were involved in the enforcement of the law. However, this also brought new powers to the Governor. For the first time “Sessions of the Pease” (a pre-curser to the ‘Magistrate`s Court’) would be conducted by ‘Justices of the Peace’, of which the Governor was one.
From 1753 onwards the court`s workload naturally increased as the population of Gibraltar continued to expand during the later eighteenth century.30
By 1810, the population numbered around 14,000 civilians. This growing population required a much more effective judicial system. The lack of judicial independence from the military also remained a big concern. This reared its head in 1811 when one of the civilian judges, Richard Jepson, protested the Governors authority, believing that accepting the Governor`s overriding executive authority (especially in cases concerning civilians) trespassed on his responsibilities as an impartial judge.31
Subsequently, reforms were recommended to placate this problem and the burgeoning population. These reforms (known as the Fourth Charter of Justice of Gibraltar) were granted on the 11th of May 1817. This charter revoked the previous three charters and re-established the ‘Court of Civil Pleas’ but with a civilian judge and not the Governor presiding over it. The first Judge appointed was William Toye.