Unlike the system in many other European countries, those who aspire to be judges in Gibraltar have first to be lawyers, either solicitors or barristers. To be considered for appointment as a judge applicants must be citizens of Gibraltar, the United Kingdom, the Republic of Ireland or a Commonwealth country and have practised as a lawyer for a minimum period of time as specified by law for each type of judicial post. For the positions of Chief Justice of Gibraltar, a Justice of Appeal or the President of the Court of Appeal, the applicant must have practised as an advocate for a period of not less than ten years. In practice, however, judges who are appointed tend to have been lawyers for about twenty years. Lawyers tend to become judges in their mid (to late) career, therefore.
For the positions of Chief Justice, President of the Court of Appeal or a Justice of Appeal, the applicant is also required to be, or have been a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or in the Republic of Ireland, or of a court having jurisdiction in appeals from any such court. For the position of Additional Judge at the Supreme Court of Gibraltar, less stringent conditions may apply, although extensive experience of civil and criminal law is required.
Under the Gibraltar Constitution Order, judges are appointed by the Governor of Gibraltar. Any vacancies are normally advertised. Due to the size of the jurisdiction, there is currently only one position of Additional Judge, in addition to that of Chief Justice.
Judicial independence requires that judges decide cases according to their own judgment without any outside influence. In particular, the interests of justice require that in their work, judges remain independent of, and not subject to, the views or control of the Government. No judge can be a director of a commercial company nor must they be influenced by pressure from individuals or groups with an interest in the outcome of a case. In each case a judge must administer justice in accordance with the law and according to the circumstances of the case, whether his or her decision is popular or not.
Judicial independence does not, however, just mean independence from outside influence, but also that of one judge from another. No judge, however eminent, is entitled to tell another judge how to exercise his or her judgment in any individual case. Judges can seek advice from fellow judges and will take account of views expressed by other judges in other cases. They must, however, take note of judgments given by higher courts which are binding.
People who are dissatisfied with the decisions or conduct of judges are normally able to appeal to a higher court.
For the position of Additional Judge of the Supreme Court of Gibraltar, the current salary is £72,091 gross per annum. For the position of Chief Justice of Gibraltar, the current salary is £78,528 gross per annum.
The different types of courts in Gibraltar are described in "Organisation of justice - Gibraltar".
The President of the Court of Appeal for Gibraltar – presides over the Court of Appeal in Gibraltar in both its criminal and civil jurisdiction.
The Justices of Appeal – form part of the Court of Appeal for Gibraltar. There are two Justices of Appeal who sit on the Court of Appeal, together with the President.
The Chief Justice of the Supreme Court of Gibraltar – is the senior professional judge in Gibraltar and presides over all the various jurisdictions of the Supreme Court. He is also an ex officio member of the Court of Appeal for Gibraltar.
Additional Judge – can preside over all the various jurisdictions of the Supreme Court. In the absence of the Chief Justice, the Additional Judge also discharges the duties of Chief Justice.
Stipendiary Magistrate - sits in the Magistrates’ court and deals with the same types of cases that are dealt with by lay magistrates (see below) but they can assist in particular by hearing the lengthier and more complex matters.
Registrar of the Supreme Court – Applications are invited when a vacancy occurs. Applicants must be barristers or solicitors with no less than five years experience. The Registrar performs the duties of Master, Registrar and Costs Judge. Additionally, the Registrar is a Commissioner for Oaths, Registrar of the Court of Appeal for Gibraltar, Sheriff of Gibraltar, Admiralty Marshal, Deputy Coroner and Administrator General.
In addition to the courts, there are other tribunals in Gibraltar that deal with varied subjects such as mental health, social security, welfare benefits, transport and employment. Members of tribunals can include non-legal specialists or experts, such as doctors, and lay people, although the chairman is almost always legally qualified.
In Gibraltar, lay magistrates, also known as Justices of the Peace or JPs, deal with more minor cases, such as traffic offences. They do not have to be legally qualified and are unpaid.
Lay magistrates sit part-time, normally as one of a “bench” of three, one of whom is trained to act as the chairman and who helps to guide the bench through its business and speaks for it. A bench is assisted by a clerk to advise on law and procedure. They consider the evidence in each case and reach a verdict. If a defendant is found guilty, or pleads guilty, they decide on the most appropriate sentence. Magistrates deal with the relatively less serious criminal cases such as minor theft, criminal damage, public disorder and motoring offences. Magistrates can also deal with a range of issues affecting families and children or licensing applications from bars, pubs, night clubs and gaming establishments.
The Attorney General’s Chambers is responsible for reviewing and, where appropriate, prosecuting criminal cases in Gibraltar following investigation by the police. They also advise the police on matters relating to criminal cases. In addition to the Attorney General, there is currently one Senior Crown Counsel and six Crown Counsel. All prosecutions are conducted in the name of the Attorney General.
Crown Counsel are classed as civil servants. To be eligible for employment applicants must be a barrister called to the Bar of England and Wales or a solicitor admitted in England and Wales. It will also be necessary to be called to the Bar in Gibraltar before practising. They must also be a citizen of the European Union or Commonwealth.
Although the Code for Crown Prosecutors in England and Wales does not strictly apply to Gibraltar, the Attorney General’s Chambers tend to follow the guidelines set out there when making case decisions.
The decision on whether or not to go ahead with the prosecution of a case is based on two tests; the evidential test and public interest test.
The Attorney General must be satisfied that there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge. He must consider what the defence case may be, and how that is likely to affect the prosecution case. A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged.
When deciding whether there is enough evidence to prosecute, the Attorney General must consider whether the evidence can be used and is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears. The Attorney General must consider whether the evidence can be used in court – for example some evidence will be excluded because of the way in which it was gathered or because of the rule against using hearsay as evidence. He must also decide whether the evidence is reliable.
The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. Although there may be public interest factors against prosecution in a particular case, often the prosecution will go ahead with those factors being put to the court for consideration when sentence is being passed.
The Attorney General must balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect. Some factors may increase the need to prosecute but others may suggest that another course of action would be better.
Vacancies for Crown Counsel are normally advertised in the local press Applicants are expected to complete an application form, providing evidence of the key competencies or criteria for the post. The candidates who best meet these criteria are invited to attend an interview where their suitability for appointment is tested further.
In addition to Crown Counsel, there is one Senior Crown Counsel. The Attorney General of Gibraltar is, under the terms of the Gibraltar Constitution, in charge of all prosecutions. The Senior Crown Counsel and Crown Counsel can represent the Attorney General in all prosecutions. In some cases, the Attorney General may himself appear.
The current salary ranges for Crown Counsel are from £26,012 to £35,333.
The clerks and other staff in the Gibraltar courts are non-legally trained civil servants that deal with administrative matters. Clerks ensure that judges have the correct papers to enable them to preside over the cases before the court and provide any other administrative support the judges require.
Other court staff has specific functions assigned to them. Some deal with the listing or scheduling of cases, others handle the processing of the paperwork while others liaise with court users. While court staff can advise court users about court procedures they cannot give legal advice nor recommend what action litigants should take.
As civil servants all court staff are employed by the Government of Gibraltar, although they are subject to any orders they may receive from the Chief Justice of Gibraltar.
As stated above, the sheriff is one of the responsibilities of the Registrar of the Supreme Court.
The Sheriff executes Supreme Court writs of fieri facias (a writ of execution to enforce the payment of a debt when judgment has been entered against the debtor) and also writs for possession and return of goods. Where Supreme Court judgments require enforcement by way of execution, sheriffs enforce them.
The Sheriff of Gibraltar can also appoint deputies to act on his behalf.
The Bailiff is a civil servant who deals with enforcement of judgments and/or orders made and registered in both the Supreme Court and the Court of First Instance. As a civil servant, his post is open to all European Union citizens. He enforces warrants of execution, repossesses land with warrants of possession and recovers goods under warrants for return of goods. The procedures for execution are set out in the Civil Procedure Rules. In addition, the bailiff carries out other duties, including personal service of documents and warrants of committal. The Bailiff also executes warrants of arrest in admiralty proceedings.
The legal profession in Gibraltar is made up of two separate types of lawyer - barristers and solicitors. However, the roles of both solicitors and barristers are fused so that in effect, each lawyer practises as a solicitor and a barrister. In the private sector, the legal profession is governed by The General Council of the Bar.
There is no requirement for a person to seek the advice of, or be represented by, a lawyer. In simple cases of debt a litigant may not consider it necessary to consult a lawyer. As a general rule, however, if a claim is for a sum over £5000 and particularly if it includes a claim for compensation (‘damages’) , it is advisable for a litigant to at least seek the advice of a lawyer.
A barrister is a lawyer who has been admitted to "plead at the bar. " That means that he or she has been called to the bar by the "benchers" of one of the four Inns of Court (Middle Temple, Inner Temple, Gray’s Inn and Lincoln's Inn) and is allowed to appear in court to argue a client's case. After graduation from university law school the prospective barrister must attend the Inns of Court School of Law, and pass the "bar final" exams. The one-year pupillage that is obligatory in England and Wales is not necessary in Gibraltar.
Barristers are individual specialist legal advisers and courtroom advocates. They can be self-employed and although in England and Wales, they work in groups in offices known as chambers, in Gibraltar, due to the existence of a fused profession, barristers work in firms as acting solicitors. The normal practice in each firm is for the barrister to contribute towards the cost of the firm.
Barristers are mainly trained in advocacy; in other words, they are trained to represent their clients in all courts. But in Gibraltar, barristers spend most of their time meeting and advising clients, dealing with all aspects of litigation (from pre-action letters to pleadings and court appearances) and researching cases. Depending on a barrister’s chosen field of expertise, he may focus on commercial practice rather than litigation, for example.
Law students in Gibraltar still must pass their Bar exams in England and Wales and be called to the Bar. The Bar Vocational Course (BVC) is the vocational stage that must be completed by those who want to become barristers. It is a one-year, mainly practical course designed to provide training specific to the work of a junior barrister. A two-year, part-time course is currently only available at the Inns of Court Law School. Students are encouraged to participate in a range of activities (including mock trials, debating and extra mini-pupillages) that will help them to develop the necessary skills, the BVC helps prepare for the 12-month pupillage (and beyond). Most of the skills are taught through student participation and role play, producing draft recommendations, negotiating solutions to legal problems, and working through court procedures.
Barristers must be confident and comfortable with speaking in public, be able to think quickly on their feet and have a drive to succeed. The Bar Council states the following requirements are necessary:
Approximately 10% of practising barristers are Queen’s Counsel (or QCs) who, when the monarch is a king, are referred to as King’s Counsel (or KCs). The rank of Queen’s Counsel has traditionally been a mark of distinction as an advocate. Queen’s Counsel deal with the most important and complex cases. Solicitors have been eligible to become Queen’s Counsel since 1996.
Unlike barristers in England and Wales, barristers in Gibraltar normally receive a fixed salary at their firm. This will not be the case where the barrister is working on his own as a sole practitioner. When working in a firm, barristers are normally expected to contribute towards the firm’s running costs; the amount of contribution may vary from firm to firm. A common example is this: a barrister earning a fixed salary per annum is expected to generate three times his salary in legal fees to clients per annum. Where such a barrister exceeds his “target”, he may expect to receive a bonus, which may represent a percentage of the surplus to his “target”.
The European Communities Parliament and Council Directive No 98/5/EC to facilitate practice of the profession of a lawyer on a permanent basis in certain States other than the State in which the professional qualification was obtained, is in effect in Gibraltar.
Role of a solicitor
A solicitor's role is to give specialist legal advice and help. However, due to the existence of a fused profession in Gibraltar, the work of solicitors and barristers overlap significantly.
Generally, a solicitor's job is to provide clients (members of the public, businesses, voluntary bodies, charities etc. ) with skilled legal advice and representation, including representing them in court. Most solicitors work in private practice, which is a partnership of solicitors and barristers offering services to clients.
Solicitors (or acting solicitors where the lawyer is a barrister) normally provide legal advice to clients. If those clients then require to be represented in the courts of Gibraltar, the solicitor can still appear on their behalf or instruct a barrister to conduct the case in court. A barrister is not always required, since solicitors in Gibraltar have equal rights of audience (that is they are entitled to represent clients) in the higher courts.
There are different areas of practice within the solicitor’s profession:
There are a significant number of legal firms in Gibraltar, consisting of qualified solicitors and barristers (as acting solicitors). A solicitor or acting solicitor is usually the first point of contact for anyone looking for legal advice. Legal firms can vary from a large organisation with ten to fifteen partners, to a small firm consisting of a sole practitioner. Solicitors and acting solicitors normally provide a general practice. They may carry out conveyancing (the buying and selling of houses and land) , investigate claims which arise from injury, advise and represent people in court on their client's behalf in criminal matters or deal with family law and childcare matters and divorces. They also make wills and administer the estates of people who have died.
Solicitors and acting solicitors often advise businesses on such matters as employment law, contracts and company formations.
Some of the larger firms in Gibraltar may have specialised departments who deal with the large corporate and multi-national clients. Some firms may also have representative offices in major financial and business centres around the world.
Many firms have practitioners who are willing to represent clients on a legal assistance (civil litigation) and/or legal aid (criminal litigation) basis – that is the client who cannot normally afford a solicitor's fees. Legal aid and assistance work can be extremely varied, ranging from divorce law and personal injury work to crime.
Not all solicitors work in private practice.
It is possible for solicitors to work as in-house legal advisers to a commercial or industrial organisation, such as banks.
Most solicitors practising in Gibraltar have qualified in the United Kingdom. There, it is the Law Society who makes the rules for the legal education and training required and they are designed to ensure that the trainee receives an education which is both thorough and broad.
It is not necessary for a prospective solicitor to have a law degree. If someone has a degree in a subject other than law they have to complete a one year full-time (or two years part-time) course leading to the Common Professional Examination (CPE) or the post-graduate Diploma in Law. These courses give the basic grounding in law, which are needed for qualification as a solicitor. After successful completion of the law degree, CPE or Diploma in Law, a Legal Practice Course is undertaken which is the professional training for solicitors. This course takes one academic year or two years if studied part-time. The course teaches the practical application of the law to the needs of clients and is offered by a number of different colleges and universities.
Having successfully completed the Legal Practice Course (LPC) , a would-be solicitor has to enter a two year training contract with a firm of solicitors or other approved organisation (such as a local authority or the Crown Prosecution Service) gaining practical experience in a variety of areas of law. At this stage a trainee solicitor receives a salary.
Training is very competitive and anyone intending to become a solicitor has to be aware of the commitment which is required.
Solicitors require good all round communication skills, written, verbal and interpersonal. They will preferably be logical thinkers who are able to research topics carefully and present information in a clear and structured manner.
Salary rates for a trainee solicitor or newly qualified solicitor may range from £12000 to £18000.
Lawyers from other European Union countries practising in Gibraltar
The European Communities Parliament and Council Directive No 98/5/EC to facilitate practice of the profession of a lawyer on a permanent basis in certain States other than the State in which the professional qualification was obtained, is in effect in Gibraltar.
A European lawyer who wishes to pursue professional activities under his home professional title on a permanent basis in
Gibraltar must be registered by the Chief Justice.
A Notary is an ancient established profession, a member of the third and oldest branches of the legal profession in the United Kingdom. He or she is usually a lawyer who is appointed by the Archbishop of Canterbury and is subject to regulation by the Court of Faculties, one of the oldest courts of England. In Gibraltar, all Notaries (Public Notaries) are registered by the Registrar of the Supreme Court.
Public Notaries are subject to similar professional rules as solicitors and are required to renew their practising certificates annually. They can only do so if they have complied with the rules. A Notarial appointment is a personal appointment held by each individual Public Notary.
The role of Public Notaries in Gibraltar is expanding. There is more and more demand for their services for both commercial and individual purposes. This is because of increasing European and world wide trade and personal mobility.
Qualification as a Public Notary is open to all, not just lawyers. All prospective Public Notaries must be appointed by the Archbishop of Canterbury before they can be registered by the Registrar of the Supreme Court.
A Notary holds an official seal. Under the signature and official seal of a Notary, acts of a Notary are recognised as evidence of a responsible legal officer in most countries of the world.
Notaries undertake the following duties:
Legal Executives must pass the Institute of Legal Executives (ILEX) Professional Qualification in Law in an area of legal practice to the same level as that required of solicitors. They also have to have at least five years’ experience of working under the supervision of a solicitor in legal practice or the legal department of a private company or local/national government. Fellows are issued with an annual practising certificate, and only Fellows of ILEX may describe themselves as 'Legal Executives'.
ILEX is the professional body which represents Legal Executives and trainee Legal Executives and enhances their role and standing in the legal profession. It is a leading provider of comprehensive legal education and influences law reform. ILEX was established in 1963 with the support of the Law Society. The Managing Clerks' Association, from which ILEX developed, recognised that many non solicitor staff employed in fee earning work and in the management of firms needed and wanted a training route which would improve standards and award recognition for knowledge and skills. The education and training facilities ILEX offers have developed in number and diversity so that ILEX is able to provide a route to a career in law which is open to all.
Specialising in a particular area of law the day-to-day work of Legal Executives is similar to that of a solicitor. They do not have any independent practice rights.
They are fee earners - in private practice their work is charged directly to clients - making a direct contribution to the income of a law firm. This is an important difference between Legal Executives and other types of legal support staff who tend to handle work of a more routine nature.
The names and status of Fellows may appear on the professional notepaper of the solicitors by whom they are employed.
There is a wide range of specialist activities which Fellows of ILEX are trained to undertake.
Currently in Gibraltar, Legal Executives can assist in the preparation of civil, criminal and matrimonial litigation but have no rights of audience as they do in England and Wales.
They can also obtain reports from expert witnesses prepare pleadings, summonses and affidavits during the course of legal proceedings, instruct counsel and collate relevant documents, evidence and information in actions proceeding to trial.
In proceedings before tribunals, in arbitrations and at public inquiries they can make observations on the facts, on the law and on procedure to enable the litigant's case to be put before the court or tribunal.
Professional responsibilities increase with experience and Fellows of ILEX are likely to become one of the main points of contact for clients seeking professional advice on legal matters. Professional rights awarded to Fellows include the following areas:
Legal Executives can give advice and draft documents on the sale or purchase of land, including contracts, conveyances, leases and charges. They can also advise on questions of title, easements, charges, boundaries, drainage rights and rights of way and co-operate with other professional experts, including chartered surveyors and chartered architects.
They can also assist in the preparation of wills and other instruments creating trusts, be experienced in obtaining grants of probate and of representation, and have knowledge of the procedures of the Probate Registries when administering Estates.
Some Legal Executives advise on the incorporation and management of companies, draft the memorandum and articles of association and advise directors, secretaries and others about the duties of management and control. They can also advise on the law relating to the formation and management of partnerships, and on bankruptcy and insolvency.
Others have knowledge of the functions of public authorities or of the law relating to housing, education, planning, public health, welfare and administrative law.
Rates of pay vary according to the type of employer, place of employment, the nature of work and the extent of their ability to work on their own initiative.
Last update: 17-10-2006