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Colonial Cases

Tourmaline Case, 1898

[smuggling]

The Tourmaline Case

R. v. Spilsbury

Consular Court, Tangiers
Judicial Committee of the Privy Council
1898, 1899

 

Source: The Brisbane Courier (Queensland, Australia), 5 July 1898

THE TOURMALINE EXPEDITION.

LONDON, July 8.

The four members of the Tourmaline expedition, who some time ago landed on the coast of Morocco, and were made prisoners on the ground that they had introduced arms and ammunition into the country, have been tried before the British Consular Court at Tangier on the charge of smuggling, and sentenced to terms of imprisonment ranging from three to twelve weeks.

  The "Home News" of 13th May says: - The Tourmaline prisoners, with the exception of Mr. Gray, have been released on bail.  Mr. A. Charles Beyerle, a German subject, was liberated through the intercession of the German Minister at Tangier. The Tourmaline expedition left England early in December last for Morocco under the command of Major Spilsbury.  A landing was effected at Arksis, or Erkais, in the territory of Sus.  The landing party were immediately captured by Kaid Said, of the Gilooly tribe, acting under instructions form the Moorish authorities. That occurred on the 19th January last.  In all eighteen men were chained together.  On one occasion they were kept for forty hours without water, and their only food for three weeks consisted of boiled barley, given at irregular intervals.  The statement as to the prisoners being "chained to the neck, shackled, robbed, and spat upon," says Mr. Beyerle, is true to the letter.

Source: The Times, 4 May 1898

HOUSE OF COMMONS, May 3.

THE TOURMALINE

In reply to Mr. HEDDERWICK (Wick Burghs).

Mr. BALFOUR said, - The action of the crew of the Tourmaline is regarded by the Moorish Government as one not of smuggling, but of an attempt to introduce arms and ammunition into the country for the purpose of raising an insurrection among the Sus tribes.  The accused persons have been brought for a considerable distance overland by the Moorish authorities, and have been handed over, in accordance with the treaty, to her Majesty's Minister at Tangier.  They will be charged before her Majesty's Consular Court at that place under Article 107 of the Morocco Order in Council, 1889, with smuggling arms and ammunition into the dominions of the Sultan of Morocco.  Her Majesty's Minister has from the start exerted himself to procure the early surrender and trial of the prisoners, and has been throughout in constant communication with her Majesty's Government on the subject.

Source: The Times, 10 May 1898

IN THE HOUSE OF LORDS YESTERDAY.

In the House of Commons.

Answering a question from Mr. Hedderwick in regard to the Tourmaline prisoners, Mr. CURZON said that after the statement made by one of the prisoners in the Consular Court on April 30 with reference to the ill-treatment they had suffered SIR ARTHUR NICOLSON addressed a strong remonstrance to the Moorish Government.  He stated his belief that the Moorish Government were anxious that the prisoners should be well-treated, but that in the early stages of their incarceration the officer in charge behaved with great harshness until he received strict orders to treat them well.  Their treatment had improved and they reached Tangier in good health.  SIR A. NICOLSON proposed to demand the punishment of this official, and HER MAJESTY'S Government would support the demand.

THE TOURMALINE CREW IN MOROCCO.

Mr. A. Charles Beyerle, whose name has been mentioned so prominently in connection with the imprisoned crew of the Tourmaline in Morocco, has arrived in London.  Being a German subject, he was liberated through the intercession of the German Minister at Tangier, ...  [Long account of the matter.]

Source: The Times, 24 May 1898

House of Commons.

Questions about the Tourmaline case and possible redress for maltreatment.

 

Source: The Times, 2 July 1898

THE TOURMALINE CASE.

TANGIER, JULY  1.

The trial of Mr. Gray and the other members of the Tourmaline expedition on the charge of illegally landing arms on the coast of Sus was concluded at the consular Court here today.  All the prisoners were convicted of smuggling, but sentence was deferred until to-morrow. - Reuter

Source: The Times, 4 July 1898

THE TOURMALINE TRIAL.

TANGIER, JULY 2.

In anticipation of judgment being pronounced to-day in the Tourmaline case, the Consular Court was crowded to overflowing with British subjects, Jews, and Moors.  After the speech for the defence, made by Mr. Ellis Griffith, M.P., the Judge delivered sentence.  Gray and Sabbah were condemned to four months' and De Reya and Last to three weeks' imprisonment each, all being treated as first-class misdemeanants.  The Judge added - "I do not take into consideration your sufferings, with respect to which you may subsequently have to make a claim against the Moorish Government."

Source: The Times, 6 August 1898

QUEEN'S BENCH DIVISION.

REG. v. SPILSBURY.

This was an application for bail; and also for a writ of habeas corpus on behalf of Major Spilsbury, against whom Mr. Lushington, the police magistrate in Bow-street, had made on August 1 an order directing him to be sent to Tangier to be tried at the Consular Court there on a charge brought against him - namely, that he, bring a British subject, did, on or about January 13, 1898, on the Sus coast, within the territorial waters of the Empire of Morocco, in the steamship Tourmaline, with others to the number of three or more, unlawfully and riotously assemble, and riotously make an assault upon certain soldiers of the Sultan of Morocco by firing on the Sultan's ship named Hassanie, an\d participating in an assault on the boats belonging thereto and at the time manned by such soldiers.  The hearing before Mr. Lushington was reported in The Times of August 2.  An application to Mr. Justice Wright and Mr. Justice Kennedy was made yesterday for bail, but the matter was adjourned for hearing before a special Court to-day upon its being stated that there was an intention to apply also for a writ of habeas corpus with a view to quashing the order altogether.

Mr. Cohen, Q.C., with Mr. Ellis Griffith, M.P., appeared for the defendant; the Attorney-General with Mr. H. Sutton and Mr. Bodkin, for the Crown.

It was proposed on behalf of the defendant that the trial, if any, should be directed to take place at Gibraltar instead of at Tangier.  The Attorney-General desired to put in an affidavit as to this proposal, and the matter was adjourned till; Monday to enable this to be done.

The LORD CHIEF JUSTICE intimated that the Court would be glad to learn that the authorities had no objection to the trial's taking place at Gibraltar.

The case occupied the greater part of the day.

Source: The Times, 9 August 1898

HIGH COURT OF JUSTICE.

REG. v. SPILSBURY.

This was an application for bail and also a writ of habeas corpus in  behalf of Major Spilsbury, against whom the police magistrate at Bow-street had made on August 1 an order directing him to be sent to Tangier to be tried at the Consular Court there on the charge that he, being a British subject, did, on or about January 123, 1898, on the Sus coast, within the territorial waters of the Empire of Morocco, in the steamship Tourmaline, with others to the numbed of three or four, unlawfully and riotously assemble, and riotously make an assault upon certain soldiers of the Sultan of Morocco by firing on the Sultan's ship Hassanie, and participating in an assault on the boats belonging thereto and at the same time manner by such soldiers.

Mr. Cohen, Q.C., and Mr. Ellis Griffith, appeared for the defendant; the Attorney-General, Mr. H. Sutton and Mr. Bodkin for the Crown.

The same question arose in this case as in Reg. v. Hole - namely, whether the Court had power to grant bail after an order had been made under the Fugitive Offenders Act, 1881.  Major Spilsbury, a resident of London, at the time of the committal of the alleged offence was engaged by the Globe Venture Syndicate, and went in charge of the Tourmaline to the coast of Sus.  To this place the Sultan's warship Hassanie also went, with the object of preventing the Tourmaline carrying on communications with the natives.  The Sultan's army also came on the scene and some fighting between the tribes and the soldiers took place.  The evidence brought before the magistrate comprised some depositions by the captain of, and other persons on board, the Hassanie, a letter from Major Spilsbury to the syndicate of January 19, 1888, and one witness.  A full account appeared in The Times of August, and the broad facts appear in the judgment of the Court.

Mr. COHEN, for the defendant, urged that the evidence did not support the charge of riot.  The defendant was on the Sus coast for the purpose of trade.  The hostilities took place between the natives and the Sultan's soldiers.  What was feared was that when the defendant should reach Tangier there would be a prosecution against him for the offence if importing arms, in respect of which three of his companions had been convicted already, and not for riot.  It seemed as if the charge of riot was laid against him simply for the purpose of getting the order.  Major Spilsbury had made an affidavit that the feeling in Tangier was so strong against him that he was actually in danger odf his life.  A price had been set on his head and twice had attempts on his life taken place.

The ATTORNEY-GENERAL, interposing, said that there was no intention of trying Major Spilsbury on any other charge than that on which the order was based.  The Chief Justice of Gibraltar would preside at the trial.

Mr. COHEN urged that the trial ought to take place at Gibraltar, where a jury might be called.  That could not be the case at Tangier.

The ATTORNEY-GENERAL contended that the facts were sufficient to raise a "probable presumption that the defendant had committed the offence."  He stated that in March, 1897, Major Spilsbury was informed by her Majesty's Minister at Morocco that his proposed conduct was illegal, and he was warned in respect of the very locality where all this occurred. As to the proposal that the trial should take place at Gibraltar he would wish to put bin some affidavits on the subject.  It would be dangerous to lay down the principle that bail could be granted after the order had been made.  Dealing with the assertion that the defendant could be in danger in Tangier, he pointed out that he would be in English custody all the time till the trial.

The arguments took place on Saturday, and to-day it was stated by the ATTORNEY-GENERAL that since Saturday communications by telegram had taken place with Sir Arthur Nicolson, her Majesty's Consul-General at Tangier, who had replied that he could not imagine that Major Spilsbury would be in any danger, and that it would be difficult, if not impossible, to secure the attendance of witnesses from Tangier at Gibraltar.  For that and other reasons he thought the trial should take place at Tangier before the Chief Justice of Gibraltar.

In the result the COURT refused bail, but ordered that the trial should take place at Gibraltar.

The LORD CHIEF JUSTICE said that this case presented different features to that of Reg. v. Hole. The charge now was one of riotous assembly and riotous assault on the Sultan of Morocco's soldiers.  The Fugitive Offenders Act, 1881, had been made applicable to the Sultan of Morocco's dominions by an Order in Council under section 36 of that Act.  It was admitted that the offence charged was one in respect of which the Act authorized an order for the return of a fugitive offender.  The main ground on which the application to the Court was based was that the evidence did not afford "a strong or probable presumption that the fugitive committed the offence."

Now, it did not appear to him to be desirable, in the interest of the defendant, to enter minutely into the details of the case, but the broad facts were that the defendant was in charge of the Tourmaline, a vessel which was sent to the coast of Morocco by a trading syndicate.  At Antwerp the defendant purchased certain arms.  He claimed to have treaties with certain independent tribes.  These tribes, however, were said to be within the jurisdiction of the Sultan.  The Tourmaline appeared on the coast - not near any commercial port.  Arms and tents of European manufacture were landed.  The tribes met the defendant, and three of his companions who had landed.  The defendant retuned to the vessel, leaving the others on shore.   Presently there appeared a man-of-war belonging to the Sultan, which prevented access from the shore to the Tourmaline and from the Tourmaline to the shore.  Fighting took place on the shore, and certain shots were fired from the Tourmaline.  In the letter from the defendant, which was an important piece of evidence, he stated that he ordered his ship to be cleared for action. 

On these facts there was sufficient to justify the magistrate in making the order.  They raised the "strong or probable presumption" mentioned in the section.  The question of difficulty that then remained was this.  Failing to success of the application to upset the order altogether, could the Court grant the defendant bail? This was apparently the first occasion on which the matter had come up for consideration.  How was the matter to be viewed?  Was it to be considered from the point of view which counsel for the Crown put forward - namely, that the defendant had to show under what section of the statute the power was given to the Court.  In other words, was the onus on the defendant to prove the existence of the power?  He thought not. Apart from any statute the Court had a power to admit to bail.

The matter should therefore be approached in this way - did the act expressly or impliedly do away with that power?  He then cited a passage from Chitty's Criminal Law, p. 98, describing in wide terms the power of the Court to grant bail.  Approaching the subject from the point of view that the power existed, was there anything in the statute to take it away? Nothing expressly did so.  If it did there would be the curious result that, though the magistrate might give bail during the whole of the possibly lengthened period of the inquiry and the Court of the country to whom the fugitive was sent might give bail also, yet the High Court could not grant bail  when once the order of return was made.

Applying the best judgment that he could to the point, he had come to the conclusion that unquestionably the Court had the power to grant bail.  Some difficulties had been suggested if bail were granted.  Suppose a man on bail refused to deliver himself up, it was said there was no power to arrest him. Even of that were the case, the answer to the objection was that proceedings might be recommenced against him, and a fresh warrant issued on which he might be arrested.  This would cause delay, but the difficulty was not insuperable.

The learned Chief Justice was of opinion that, though there might be difficulties in working the Act consistently with the power of the Court to grant bail, they were not of a very serious character. It was impossible to suppose that if the Legislature had intended to interfere with the ancient and well-known power of this Court to grant bail that it would have left it to implication only.  The power, however, was one to be exercised with extreme care and caution and consideration of all the facts.  The charge here was one of misdemeanour, but there was no right to demand bail.  The order was a kind of intermediate order, and not like the committal by a magistrate of a prisoner to take his trial at assizes.  It was an order preliminary to that.  The inquiry before the magistrate only began when the fugitive was retuned.

Upon the question whether in the exercise of the Court's discretion bail should be granted or not, he had come to the conclusion, not without considerable doubt however, that in this case the Court ought not to grant bail.  It would largely depend upon the defendant himself how soon he should return.  The Secretary of State had a month, it was true; but doubtless if the defendant applied for an early removal it would be granted to him.

The only remaining point was whether the trial should take place at Gibraltar instead of Tangier.  It was not only within the competence, but also within the duty of the Court, if they saw any reasons which should operate on them judicially for the trial taking place at Gibraltar, to give effect to them.  Were there any such reasons here?  The affidavit of the defendant had not been contradicted.  It was true that there had not been very much time to do it, but the distinct statement that there was no organized police force in Tangier had been telegraphed out there, and that had not been contradicted.  It would have been contradicted if wholly untrue. Then it was said that there would be a difficulty in getting the witnesses to Gibraltar; but the distance was not very great, and, though the Court of her Majesty at Gibraltar had no power to enforce the attendance of witnesses, the Court could not doubt that the Sultan of Morocco, at whose in stance the prosecution was, could find means to secure their attendance if her desired them to be present.  There were, for instance, the captain of the Hassanie and others who could very well be ordered to appear.  It was clear that no jury could be summoned at Tangier.  The defendant should have his chance of securing one at Gibraltar.

The result was that the application to quash the order failed and that for bail must be refused, but the trial should be held at Gibraltar.

MR. JUSTICE WRIGHT concurred.  He would add this - the decision that the Court had power under the Fugitive Offenders Act to grant bail would not apply to the Extradition Acts.  In the present case there was no treaty to be considered.  The Extradition Act merely permitted a mode of carrying out a treaty, and therefore under the Extradition Acts the words of the treaty in each case must be considered.

MR. JUSTICE KENNEDY concurred, though he had had some considerable doubt as to the power to grant bail, owing to the difficulties pointed out.  He agreed, however, that the statute had not taken it away.

Source: The Times, 21 November 1898

LAW REPORT, NOV. 19.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

(Present - The LORD CHANCELLOR, LORD HOBHOUSE, LORD MACNAGHTEN, LORD MORRIS, and SIR RICHARD COUCH.)

SPILSBURY v. THE QUEEN.

This was a petition by Major Spilsbury for special leave to appeal from an order of the Chief Justice of Gibraltar directing that his trial for riotous assembly should take place in the Supreme Court of Gibraltar with or without assessors, but not with a jury.

Mr. Arthur Cohen, Q.C., and Mr. Ellis Griffith were counsel for the petitioner.

Mr. ARTHUR COHEN, Q.C., in support of the petition, said it was one for special leave to appeal from an order of the Chief Justice of Gibraltar, and the question was whether Major Spilsbury was entitled to be tried at Gibraltar by a jury.  It was one of considerable difficulty.

The facts were set out in the petition, which stated that Major Spilsbury was a British subject living in London, and that he was, in his absence, on July 6, 1898, charged  by her Britannic Majesty's Consular Court for Morocco, held at Tangier, for that he did on or about January 13, 1898, in the Sus coast, within the territorial waters of the empire of Morocco, on the steamship Tourmaline with others to the number of three or more, unlawfully and riotously assemble and riotously make an assault upon certain soldiers of the Sultan of Morocco, had fired on the Sultan's  ship Hassanie, and participated in an assault on the boats belonging thereto at the time manned  by the Sultan's soldiers.

A warrant for the arrest of the petitioner was issued by the Consular Court on or about July 6, and was backed on or about July 22 by Sir John Bridge, chief of the magistrates of the metropolis, sitting at Bow-street.  The petitioner was arrested on July 23 in London, and on the same day was brought before Mr. Lushington at Bow-street, and remanded on bail in his own recognizances of L. 100.  On August 1 the petitioner appeared before Mr. Lushington, and an application was made of behalf of the Attorney-General for Gibraltar, the nominal plaintiff in the proceedings before the Consular Court, for an order for the return of the petitioner for trial in the Consular Court.  On or about August 4 an application was made on behalf of the petitioner to the Queen's Bench Division of the High Court of Justice for a writ of habeas corpus and for bail, and an order was made by the Queen's Bench Division that the trial should take place before a jury at Gibraltar, because (Mr. Cohen said) there was no organized system of police in Morocco, and a price of L. 100 had been offered for the head of Major Spilsbury. It was also said there could be no jury at Tangier.

The Secretary of State issued a warrant on  August 10, by which the petitioner was ordered to be removed for trial before the Supreme Court of Gibraltar under the Fugitive Offenders Act, 1881 (44 and 45 Vic., c. 69).  By section 36 it was provided:-

It shall be lawful for her Majesty from time to time by Orders in Council to direct that this Act shall apply as if, subject to the conditions, exemptions, and qualifications (if any) contained in the Order, any place our of her Majesty's dominions in which her Majesty has jurisdiction and which is named in the Order as a British possession, and to provide for carrying into effect such application.

Section 33 of the Morocco Order in Council, 1889, was as follows:-

The Fugitive Offenders Act, 1881, and the Colonial prisoners Removal Act, 1884, shall apply to all such places to which this Order applies as if such places were British possessions and part of her Majesty's dominions, and to all persons (but those only) to whom this Order applied, and for the purposes of Patty II. Of the said Act of 1881 and of this article in relation thereto all the places to which this Order for the time being applies, and Gibraltar and Malta, shall, for the purposes of Part II. Of the said Act of 1881, be deemed to be one group of British possessions, and the Consul-General shall, as regards any place within his jurisdiction, have, for the purposes of either of the said Acts, the powers of a Governor or Superior Court of a British possession.

Section 35 of the Fugitive Offenders Act provided that where a person accused of an offence was in custody in some part of her Majesty's dominions and the offence was one for which a person might be tried in some other part, the Secretary of State or the Governor of a British possession might, if he thought it would be conducive to the interests of justice, direct the removal of the offender to some other part of her Majesty's dominions for trial.  By subsections 16 and 17 of section 4 of the Morocco Order in Council "the Supreme Court of Gibraltar" or "the Supreme Court" meant the Court established by the Order, and also included the Supreme Court or a Judge thereof action in Morocco.  Section 7 of the same Order established her Britannic Majesty's Consular Court for Morocco.  Section 11 provided that for better effectuating the provisions of the Order concerning the power and authority of the Supreme Court of Gibraltar in communication with the Court for Morocco, the Supreme Court should in all criminal matters in which the defendant was a British subject or British protected person have an original jurisdiction  concurrent with that of the Court for Morocco, and any jurisdiction exercisable by the Supreme Court under the Order might be exercised by any Judge of that Court at Gibraltar or at any place within  the limits of the Order.  Section 10 ;provided for the appointment of an assessor in the Court, who should be a competent British subject or British protected person, nominated and summoned by the Court, but who should not have a voice in the decision of the Court, though he could record his dissent and the grounds thereof in the minutes of the proceedings.

The LORD CHANCELLOR said Mr. Cohen must show what an assessor meant under the Order.

Mr. COHEN referred his Lordship to section 20 of the Order, which provided for the trial of certain offences with assessors unless the accused person consented to trial without assessors.  Those offences were (1) either murder or manslaughter or assault, endangering life, or arson or housebreaking, or (2) where it appeared to the Court that the offence charged, if proved, would not be adequately punished by imprisonment for three months hard labour or a fine of L. 20, or both.

LORD HOBHOUSE asked what the Supreme Court of Gibraltar had done.

Mr. COHEN replied that the petitioner applied to the Chief Justice to be tried before his Lordship and a jury according to the ordinary jurisdiction.  The Chief Justice, however, was of opinion that he could not make any such order and that the Supreme Court of Gibraltar had only jurisdiction to try the case in the same way as the local Court at Tangier p- viz., with or without assessors.

The LORD CHANCELLOR. - In other words, that he could not have a jury?

Mr. COHEN. - Yes, that is the whole point.  Continuing, the learned counsel said that section 11 also provided that concurrent civil jurisdiction of the Supreme Court should not be so exercised as to interfere with the due exercise by the Court for Morocco of its jurisdiction under the Order, nor in criminal matters except at the request of the Consul-General or of the Secretary of State.  The same section further enacted that the Supreme Court and the Court for Morocco should be auxiliary to one another in all particulars relative to the administration of justice, criminal or civil.  By section 13 it was provided that, subject to the provisions of the Order, criminal jurisdiction should as far as circumstances admitted be exercised on the same principles of and in conformity with the statute and other law for the time being in force in England and with the powers vested in the Courts of Justice and justices of the peace in England.

Section 39 gave power in certain cases for an accused person in the Court of Morocco to be sent for trial either to Gibraltar or to a place in some other part of her Majesty's dominions, out of the United Kingdom, the Government of which consented to such removal.  The learned counsel read the judgment of the Chief Justice of Gibraltar, from which leave to appeal was now asked, in which he said that after careful consideration he had come to the conclusion that the method of procedure must be according to the Morocco Order in Council and the rules of procedure made thereunder which applied to the trial of indictable cases where the accused was not sent up for trial in the Supreme Court under the provisions of the Foreign Jurisdiction Acts - that was to say, the trial must be by the Court with or without assessors, and not by the Court and a jury.  The Chief Justice rested his opinion on section 6 of the Foreign Jurisdiction Act, 1890.  Counsel also referred to the Supreme Court of Gibraltar Consolidation Order, 1888. He submitted that the petitioner was not to be tried under the Morocco Order in Council at all, but that he was entitled to be tried at Gibraltar before the Chief Justice and a jury under the Fugitive Offenders Act.

LORD MORRIS said there was the recent case of a Mr. Callan, who was committed from Tangier and tried before the Chief Justice and a jury at Gibraltar.  The Secretary of State by his order in the present case had consented to Major Spilsbury's is being tried at Gibraltar before the Chief Justice and a jury in accordance with the order made by the High Court.

At the conclusion of Mr. Cohen's argument.

The LORD CHANCELLOR stated that their Lordships were of opinion that special leave to appeal ought to be given.

Mr. COHEN asked for an order to stay proceedings.

The LORD CHANCELLOR said the Chief Justice would do that.

Mr. COHEN said he had no doubt the Chief Justice would.  Major Spilsbury was out on bail at Gibraltar.

Source: The Times, 25 March 1899

LAW REPORT, March 24.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

(Present - the LORD CHANCELLOR, LORD WATSON, LORD HOBHOUSE, LORD MACNAGHTEN, and LORD DAVEY.)

SPILSBURY v. THE QUEEN.

This was an appeal by Major Albert Gybbon Spilsbury from an order of the Supreme Court of Gibraltar on September 5, 1898, whereby it was ordered that the appellant be tried for the offence alleged in the order of the Queen's Bench Division of the High Court of Justice in England of August 8, 1898, at a date to be thereafter fixed by the Supreme Court of Gibraltar at Gibraltar, with or without assessors, in accordance with the provisions of "The Morocco Order in Council, 1889," and the rules thereunder relating to the trial of indictable offences, and not with a jury.

Mr. Arthur Cohen, Q.C., and Mr. Ellis J. Griffith were counsel for the appellant; the Attorney-General and Mr. Sutton for the Queen.

The appellant was in his absence on July 6, 18908, charged before the British Consular Court for Morocco, held at Tangier, for that he did on or about January 13, 1898, on the Sus coast, within the territorial waters of the empire of Morocco, on the steamship Tourmaline with others to the number of three or more, unlawfully and riotously assemble and riotously make an assault upon certain  soldiers of the Sultan of Morocco by firing at the Sultan's ship named the Hassanee, and participating in an assault upon the boats belonging to it manned by the soldiers. A warrant for the arrest of the appellant was issued by the Consular Court on or about July 6, 1898, and it was backed by Sir John Bridge, the chief metropolitan magistrate, at Bow-street, on July 22, 1898. The appellant was arrested on July 23 upon the charge, and was brought before Mr. Lushington at Bow-street, and he was remanded, but admitted to bail in his own recognizances in £100.

The appellant, in pursuance of his recognizances, appeared before Mr. Lushington at Bow-street on August 1, and an application was made on the part of the Attorney-General of Gibraltar, who was the nominal plaintiff in the proceedings before the Consular Court, for an order for the return of the appellant for trial in the Consular Court.  Mr. Lushington made an order for the return of the appellant for trial in the Consular Court, and the appellant was committed to prison on that day and remained in custody until August 22.  On or about August 4 an application was made on behalf of the appellant to the Queen's Bench Division of the High Court of Justice for a writ of habeas corpus and for bail and judgment was delivered by a Divisional Court of that Division on August 8, directing, under the Fugitive Offenders Act, that the appellant should be removed into the jurisdiction of that Court instead of being returned into the jurisdiction of the Consular Court of Morocco.  In pursuance of that order and under a warrant of the Home Secretary, the appellant wass conveyed in custody into the jurisdiction of the Supreme Court of Gibraltar

On September 5, 1898, the Supreme Court, on the application of counsel for the appellant, that he should be tried in that Court according to the provisions of section 38, of "the Supreme Court Consolidation Order (Gibraltar), 2888," (that is, with a jury), and not under the provisions of "the Morocco Order in Council, 2889," made the order now under appeal - viz., that the appellant should be tried by the Supreme Court, with or without assessors, in accordance with the Morocco Order in Council and the rules thereunder relating to the trial of indictable offences, and not with a jury.  The appellant had been admitted to bail by the Supreme Court and had been allowed special leave to appeal from the order.

The question to be determined was whether the appellant should be tried for the alleged offence in the Supreme Court of Gibraltar, according to Article 38 of "the Supreme Court Consolidation Order (Gibraltar), 288" - that was to say, by the Chief Justice and a jury of 12, or by the Supreme Court with or without assessors, in accordance with "the Morocco Order in Council, 1889," without a jury.

Mr. ARTHUR COHEN, Q.C., in arguing the case for the appellant, referred to the terms of Article 38 of the Supreme Court Consolidation Order (Gibraltar), 1888 - viz.

In any criminal case depending before the Supreme Court the trial of any person accused shall be before the Chief Justice and a jury of 12 men, who shall concur in every verdict to be given on the trial of any person accused of any offence. Every such verdict shall be delivered in open Court by the mouth of the foreman of the jury, and shall be thereupon recorded and read over to the jury before they are discharged from attendance on the said Court.

He submitted that the Queen's bench Division, in ordering that the appellant should be tried before the Supreme Court of Gibraltar means that he should be entitled to take his trial in the manner prescribed by that article - viz., by the Chief Justice and a jury of 12, and in no other way. There was no procedure applicable to Gibraltar under the Morocco Order in Council, and no mode by which he could be tried in Gibraltar, except by the Chief Justice and a jury. The provision in the Morocco Order in Council referring to criminal trials was that the Supreme Court of Gibraltar, in cases where the defendant was a British subject or British protected person, should have an original jurisdiction concurrent with that of the Court for Morocco to be exercised subject to and in accordance with the provisions of the Order, and any rules of procedure made under it, but in other respects with all the powers and authority which the Supreme Court had.

The fact of the appellant being sent by the Home Secretary's warrant to Gibraltar for trial was, in effect, a request that the Supreme Court there should try him in the usual way before a jury, and not by the mode prescribed for trials in Morocco, where the judge in certain instances was empowered to summon assessors to sit with him.  The Attorney-General had now informed him that the rules had been made under the Morocco Order in Council, and that those rules were in favour of the contention of the appellant.  Mr. Cohen referred in detail to the provisions of the Fugitive Offenders Act, 1881, the Gibraltar and Morocco Orders, and the Foreign Jurisdiction Act, 1890, and submitted that the appellant was entitled to be tried according to the only procedure applicable to criminal trials in Gibraltar - viz., before the Chief Justice and a jury - and that he was not deprived of that right by any of the Acts or Orders to which reference had been made.

The ATTORNEY-GENERAL said, on the part of the Crown, there was no objection in any shape or form to Major Spilsbury being tried by a jury if he could lawfully be so tried, and if their Lordships thought he should be tried by a jury the Crown would be quite satisfied.  He was only anxious to prevent any misunderstanding as to the rights under the Fugitive Offenders Act and the rights under the Foreign Jurisdiction Act.  He could not assent to the argument that, under the Fugitive Offenders Act, jurisdiction could be given to the Court by section  35 to try a defendant, for that section simply gave power to send him for trial at some place where jurisdiction to try him already existed.  The jurisdiction to try the appellant at Gibraltar arose under the Morocco Order in Council, 1888.  The defence alleged in the case was not within the jurisdiction of the Supreme Court of Gibraltar under the Gibraltar Act, nor at all except by virtue of the Morocco Order.

At the conclusion of the Attorney-General's remarks,

The LORD CHANCELLOR said their Lordships would not call on Mr. Cohen for a reply.  Their Lordships were all of opinion that, under those Orders and under those Acts, the appellant was entitled to be tried by a jury.  Their Lordships would give their reasons hereafter.

Mr. COHEN said he supposed that the opinion of their Lordships would be communicated to the authorities.

The ATTORNEY-GENERAL said that certainly it must be, because the trial was fixed for April 4, and the appellant was on bail till then.

The LORD CHANCELLOR said, in cases coming before the Board where similar questions had arisen, a communication was always made to the Colonial Office and to the Secretary of State, and effect was given to the judgment of the Board.

Mr. COHEN said the appellant had deposited £300 as security for costs.

The ATTORNEY-GENERAL said the appellant might have that sum returned to him.

Mr. COHEN asked whether their Lordship's would make any order as to costs.

The LORD CHANCELLOR intimated that they would not.

Source: Camperdown Chronicle (Victoria, Australia), 22 April 1899

In the Supreme Court of Gibraltar to-day the hearing of the case against Major-General Spilsbury and the members of the Tourmaline expedition, who were committed for trial from the Consular Court at Tangier in June, 1898, was concluded, the defendants being acquitted.  The gravamen of the charge was that they had endeavoured to smuggle arms into Sus, in the territory of the Sultan of Morocco.

 

The Bairnsdale Advertiser, Vic., Australia, 22 April 1899

A CONSULAR COURT TRIAL.

London, Thursday. - Major Spitsburg, who was tried by the Consular Court at Gibraltar, for taking part in the Tourmaline expedition, in Morocco, has been acquitted.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School