In 2009 the then Deputy of
St. Martins Bob Hill B.E.M tabled a proposition
P.5/2009 to review the role of the unelected members of the States (Jersey's parliament). The proposition called for ALL unelected members Roles to be reviewed which includes Lieutenant-Governor, the Bailiff, the Attorney General, Solicitor General and
THE DEAN.
After a successful amendment lodged by the Privileges and Procedures Committee (PPC) the Review was NOT to include the Lieutenant-Governor or the Dean. A Panel was subsequently appointed and headed up by Lord Carswell.
The Panel asked for submissions from all islanders, to include States Members, Law Officers, members of the public and anyone with a point of view regarding the role of the unelected Members (Bailiff, SG and AG.)
A good number of submissions were received by the panel, who's Report was published in 2010
HERE.
Reproduced, in this posting, is the submission made by local Advocate Philip Sinel, who it is rumoured, is a "target" of Jersey's (what has been described as) politicised and corrupt judicial system. (Hopefully more will be revealed in an upcoming Posting)
Regular readers will be aware of a number of high profile court cases where, among others, former opposition politicians, Stuart Syvret and Trevor and Shona Pitman have claimed they did not receive an
ARTICLE 6 COMPLIANT Hearing. Indeed the three former politicians have called for the UK government to fulfil its constitutional obligation to restore good governance, and the rule of law, in the Crown Dependency of Jersey. Most recently
HERE.
Of course there are a great number of less high profile Jersey residents who claim to be victims of Jersey's so-called "Justice" System as reported
HERE.
Advocate Sinel's submission to Carswell (below) explains how Jersey appears to be incapable of convening an article 6 compliant court/tribunal at all.
review of the roles of the crown officers
Lord Carswell (Chairman)
Mrs Marie-Louise Backhurst
Mr Geoffrey Crill
Dr Sandra Mountford
Mr Ian Strang
Project Manager: William
Millow
ADVOCATE SINEL’S SUBMISSIONS AS TO THE INCOMPATIBILITY BETWEEN ARTICLE 6
OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
AND THE CONSTITUTION OF THE ISLAND OF JERSEY
1.
I have as requested now prepared and submitted a set of submissions
relative to the deliberations of the panel.
I had and indeed still have doubts as to the efficacy of the process in
question. I will explain why under
separate head.
2.
Simply holding the views that I do, has I believe had a direct cost to
me of over £100,000; there will doubtless be further repercussions involving
direct and indirect abuses of power by those whose position would be threatened
most by the radical constitutional reform which this Island both needs and
deserves. I will expand upon the above
points under separate head.
3.
These submissions deal with the Island’s constitution from a lawyer’s
perspective. I have endeavoured not to
point the finger in relation to individuals but rather to deal with the obvious
structural flaws in the constitution as it stands.
4.
For the reasons following I believe that:
4.1.
Jersey’s legal system is, in its entirety, fundamentally incompatible
with the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”);
4.2.
The attitude of Jersey’s authorities, in relation to the non compliance
by the Island with the Convention is one of calculated defiance;
4.3 The Appellate procedure,
for residents of the Island of Jersey, is insufficient, unsatisfactory and
fundamentally tainted by the unlawful nature of the process below. Additionally there are in existence a number
of additional aggravating factors in relation to the composition and
appointment of the Court of Appeal such as render its process unlawful;
4.4 There are also defects in
the methodology adopted by the Privy Council in entertaining appeals from Jersey’s
Court of Appeal, which mean that the Privy Council consequently acts in breach
of Article 6 of the Convention;
4.5 The consequence of points
4.1 to 4.4 above being almost inevitable denials of justice.
4.6 There are no advantages
but many disadvantages to the Island from the present constitution.
§ The Incompatibility of Jersey’s Constitution and Legal
System with the Convention
5.
The fundamental problem is that the judiciary, executive and legislature
are deeply entwined. This subject is
expanded upon in the paragraphs below.
For the present purposes it should be noted that the Head of the
Island’s Judiciary, the Bailiff, is also the Civic Head of the Executive and
Head of the Legislature. The Bailiff is
also president of the Court of Appeal.
6.
Jersey’s constitution has yet to be considered by the Court in
Strasbourg, however there have been a number of analogous European and indeed
English cases dealing with the Bailiwick of Guernsey and the Island of
Sark.
7.
In McGonnell v United Kingdom
(App. No. 28488/95) [2000] ECHR 28488/95 (“the McGonnell case”)
the complaint concerned the dual function of Guernsey’s Deputy Bailiff as both
Legislator and Judge. The former was
found by the Court in Strasbourg to make the Deputy Bailiff’s role as a Judge
untenable. Guernsey has a materially
identical constitution to that of Jersey.
8.
It is interesting to note that in that case, which examined in some
detail the dual functions of the Bailiff of Guernsey, the mere fact that the
Deputy Bailiff had presided over the States of Deliberation (Guernsey’s
equivalent of our legislative assembly) when the relevant statute was adopted
in 1990, was capable of casting doubt upon his impartiality when subsequently
sitting as sole judge of the law in a case concerning the Applicant’s planning
appeal. The Applicant in that case was
found to have had legitimate grounds to contend that the Deputy Bailiff may
have been influenced by his prior participation in the adoption of the statute
in question. It was held:
“…That doubt in itself, however slight its
justification, was sufficient to vitiate the impartiality of the royal court,
and it was therefore unnecessary for the Court to look into the other aspects
of the complaint.”
9.
It is perhaps unfortunate that that case did not go on to analyse the
wider arguments arising from Guernsey’s constitution.
10.
The Bailiff and Deputy Bailiff in Jersey play almost identical roles in
relation to the adoption of legislation to those played by their counterparts
in Guernsey.
11.
The case of The Queen on the
application of Barclay & Ors v The Secretary of State for Justice & Ors
[2008] EWCA Civ 1319, (“the Barclay case”) is of great relevance. It is not a Strasbourg case but a decision of
the English Court of Appeal in relation to the obligations of that country
under the Convention. The matter then
went on to the House of Lords but on a different point that is not relevant for
today’s purposes. In relation to the
fundamental incompatibility between the constitution of Sark and the
obligations of the United Kingdom under the Convention, there was no
appeal. The matter was decided against
the Secretary of State for Justice by the Court of Appeal and no further appeal
was brought by the Secretary of State for Justice.
12.
In the aforementioned case, the Court concluded that Sark’s judicial
system which is headed by the Seneschal, who was the ex officio President of
the Chief Pleas (Sark’s legislative assembly) and the Chief Judge fulfilled a
number of legislative and executive posts as well as judicial functions, which
meant that the exercise of his judicial function breached Article 6 of the
Convention. It is noteworthy that Sark’s
“new constitution”, which was the subject of the challenge in that case, is
considerably more advanced than that of Jersey.
13.
In the Barclay case the Court said this:
“52. Article
6(1) of the Convention provides, in so far as is material:
"In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing … by an independent and impartial tribunal established
by law."
The Seneschal's position as Chief Judge must be
seen in the context of his duties in Chief Pleas and also the existence of the
power to make other judicial appointments for Sark.
…..
55. The need to ensure impartial and independent adjudication, and
to preserve the appearance of it, is heightened in a small community such as
that of Sark, it is submitted by the appellants…
56. The Seneschal is protected, in judicial terms, it is submitted
by the respondents, because his appointment, formerly for 3 years, is now for
life and he may be removed from office only by the direction of the Lieutenant
Governor and "for good cause" (section 6(2)). The appellants submit that, in the circumstances,
the life appointment has made the position worse. The Seneschal's multiplicity of roles enjoyed
without limit of time, make it impossible for him also to be Chief Judge.
57. Whatever the outcome of ground 1, it is submitted that the
Seneschal's position as judge is inconsistent, in article 6 terms, with his
legislative and executive duties. His
influential political position, it is submitted, will inevitably and
legitimately arouse in litigants appearing before him fears about his
independence and impartiality.
…..
65. … I do, however, see the combination in Sark of the judicial
with the other functions of the Seneschal as inconsistent with the article 6
requirement to establish by law an independent and impartial tribunal. Subject to the limitations noted, Sark is a
separate jurisdiction. …
66. … A judge independent of the legislature and executive is in
my judgment required even for the comparatively modest litigation described in
the Seneschal’s diary…. (emphasis supplied)
67. … The same people and issues with which he is likely to be
dealing when presiding at Chief pleas, including issues arising from the Reform
Law itself and the Guernsey Human Rights Law, may be the subject of litigation
in his court. My conclusion on this
aspect of the appeal in no way impugns the good faith or competence of the
present Seneschal.
68. The law must provide a structure in which those who do, or who
may, come before the court can be confident in the independence and
impartiality of the judge. Given the Seneschal's
position provided by section 5 of the Reform Law, provision in the law for the
appointment of Deputies and Lieutenants, giving the Seneschal the power to
recuse himself, though constructive and advantageous in itself, does not
rectify the situation. The position of
the Seneschal, sitting alone, as constituting the sole court of justice in Sark
(section 5) in my view falls on the wrong side of the line of what is
Convention compliant.
…..
69. Unlike the Bailiff in McGonnell,
the Seneschal cannot vote on legislation or rules in Chief Pleas but his close
involvement in all proceedings there, which may well give rise to litigation,
makes a concurrent role as Chief Judge on the Island inappropriate...
…..
162. The infringements of the Convention I have
mentioned would be avoided if the Seneschal ceased to have any functions as
President of the Chief Pleas, including the requirement to give his consent for
extraordinary meetings. That would still
leave him with an impressive variety of public functions. In particular, in addition to being the senior
Judge on Sark, he would remain one of the four trustees in relation to property
of the Chief Pleas and the Returning Officer for the purposes of elections held
under the Reform Law. Those remaining
functions, as a group, have a coherence in reflecting the kind of public
service for which judicial independence and integrity are desirable.”
14.
I turn now to the differences between Sark and Jersey. Mention is made at paragraph 66 of the
aforementioned judgment of the size of Sark, with a population of some 600
people, giving rise to relatively limited amounts of litigation. Jersey has 90,000 people, it has a thriving
finance industry and highly active civil and criminal courts. The Seneschal’s mixed roles, in so far as was
found relevant to his ability to fulfil a judicial capacity, was that as
speaker in the Chief Pleas, non-voting, a position which he holds for
life. The position of the Bailiff in
Jersey is far worse.
15.
The position of the Bailiff and that of the Deputy Bailiff in Jersey are
almost identical. Accordingly it is
convenient to deal with them together.
They are the Chief Judges in Jersey, as such they preside over the
majority of trials, both civil and criminal.
They also control the appointment of other members of the judiciary,
“the Commissioners” and are highly influential in the appointment of Jersey’s
lay assessors of fact “the Jurats”, as well as presiding over and controlling
appointments to the Court of Appeal.
16.
Jersey operates a bugginses turn system of promotion. Ascension from Solicitor General to Attorney
General, from Attorney General to Deputy Bailiff and then from Deputy Bailiff
to Bailiff, being all but automatic.
This system is not based on merit and a man ideally suited to being
Attorney General may not be well suited to a judicial role and vice versa. These are not appointments made from within
Jersey, the “appointments” in question are made by Her Majesty which is a
euphemism for the English Minister for Justice.
The appointments are effectively for life, expiring at the age of
70. In practice nobody at Whitehall has
any real interest in the proper discharge or function by any Crown Officer in
Jersey, provided that they do not provide too much embarrassment for those at
Whitehall. In other words, they are
without regulation, there are no checks and balances or quality control. No guidance is given internally or externally
as to the proper discharge of their functions.
17.
Both the present Bailiff and Deputy Bailiff were formerly the Attorney
General of the Island of Jersey, during which period they had of necessity to
become inured to the conflicts of interest inherent within their office, of
equal necessity they formed what could only be termed wholly inappropriate relationships
with the Island’s politicians, civil servants and law enforcers. Given their antecedents and bearing in mind
the comments made at paragraphs 57 and 67 of the Barclay case it is helpful to
look further at what happens before the Bailiff assumes judicial office as well
as examining the office itself.
18.
The Attorney General acts as Chief Law Officer of the Island of
Jersey. What this means in practice is
that he is the legal advisor to the Crown, to the States Assembly, to the
Ministers, and to the Scrutiny Panels, which should properly scrutinise the
Ministers, and to all other public bodies, the latter two functions being
clearly mutually incompatible. He is
also expected to assist individual States members in the exercise of their
public functions.
19.
In short, the Attorney General is the Government’s lawyer. In that capacity, he defends the Government
from criticism and attack.
20.
Further, the Attorney General controls the States Privileges and
Procedures Committee, which can discipline States Members and he is also the
Head of the Honorary Police in Jersey (Jersey having 12 Honorary Police
Forces), which is distinct from the professional Police Force. It is noteworthy that the Honorary Police
Force have the powers to charge people with arrestable offences, however, as
the Head of the said Police Force the Attorney General can direct whether
charges should be made or not. In his
policing role, the Attorney General has under his control 12 Parish Constables,
each representing the 12 Parishes of Jersey, who have ex-officio voting seats
in the States Assembly and retain some policing powers. They are answerable to the Attorney General
and arguably they are also influenced by him.
21.
The Attorney General is a non voting member of the States of Jersey. He attends most if not all of the meetings of
the States, the Solicitor General attending in his absence, he speaks in the
States of Jersey and influences the outcome of debates accordingly. There are no statutory or constitutional
restraints upon the Attorney General who is free to give speeches and advice
that are politically rather than legally motivated.
22.
The Attorney General is responsible for all prosecutions in the Island
of Jersey. It is impossible to bring a
private prosecution in Jersey as they are forbidden by statute.
23.
Thus we have the impossible position, for example in relation to the
ongoing child abuse scandal where the Attorney General is responsible for the
proper function of the organs of state, he defends their reputation and defends
them from attack, be it civil or criminal.
Additionally, he advises the Crown in relation to claims against it for
compensation by abused children.
Simultaneously, he is responsible for the prosecution of child abusers.
24.
To add to the difficulties inherent in the above mentioned positions, as
stated above the Attorney General is also Head of the Island’s Honorary
Police. In Jersey, all charges are laid
and all prosecutions are brought by the Honorary Police, the paid/professional
Police not having the ability to do this.
Therefore there is an inherent conflict in the role of the Attorney
General being the Chief Prosecutor as well as the Head of the Police Force.
25.
By the time the Attorney General reaches the position of his all but
automatic ascension to the position of Bailiff he will have spent many years
fulfilling simultaneously an unelected political role while simultaneously
functioning as the government’s lawyer, as noted he also heads up and manages
the Island’s prosecution team in the shape of its police and Crown
Officers. He has also built up a number
of intimate relationships with the Island’s politicians and senior civil
servants, as well as playing a pivotal role in promoting legislation. Thus he cannot bring either the appearance or
actuality of distance or impartiality to the discharge of any judicial
function.
26.
One of the primary functions of a judge in a functioning democracy is to
act as arbiter between the State on the one hand and the individual on the
other. The Bailiffs’ prior role as
Attorney General makes any incumbent uniquely unsuitable for that
position. For the reasons set out below
the position worsens upon appointment as Bailiff/Deputy Bailiff. Looking back for one moment to the McGonnell
case, one of the functions of the Bailiff being to interpret and adjudicate
upon the self same legislation which he has promulgated as Attorney General.
27.
As already observed the Bailiff holds office until the age of 70. He is appointed by Whitehall and there are no
theoretical let alone practical mechanisms for his supervision. There are as stated no operational checks and
balances either locally or abroad, given that the job is by definition an
impossible one that is most unfortunate.
28.
No mechanism exists for chastisement, criticism or censure of the
Bailiff in Jersey, theoretically that power rests with those in Whitehall who
are in practice almost wholly disinterested in the wellbeing of the Island.
29.
The Bailiff is also President of the States Assembly. That is to say that he convenes all meeting
of the States and presides over all sittings.
He controls the debates and in particular controls the contents of
questions which can be asked of the Government.
30.
In practice the position as President of the States is one of enormous political
power. He controls what questions may be
asked in the States, he is able to refuse to table questions such as might
embarrass the Government, which he heads, himself or his supporters.
31.
The Bailiff is by virtue of his position as President of the States of
Jersey the Island’s Chief Citizen. He
represents the Island at home and abroad.
When making visits on behalf of the Island or indeed receiving visits
from Dignitaries, Politicians, Ministers and related.
32.
When matters arise in relation to the Island and its relationship with
Her Majesty’s Government and it is necessary for a delegation to attend upon
the relevant Minister it is usually the Bailiff who leads that delegation.
33.
The Bailiff acts as the channel of communication between the insular authorities
and Her Majesty’s Government. In the
words of the former Bailiff “In the
absence of a cabinet or central executive committee charged with the
responsibility for governmental relationships with the United Kingdom, the
Bailiff is the universal joint which enables the machinery of government to operate. He is the conduit through which official
correspondence between the Insular Authorities and the Home Office is conducted
[33]. Government by committee will not
function unless some central authority exists.” Although this position has changed somewhat,
as there is now in place a Cabinet and Ministers, Headed by the Chief Minister,
the Bailiff’s role is in reality has not changed and he still acts as the “conduit through which official correspondence
between Insular Authorities and the Home Office is conducted” in
conjunction with the Chief Minister.
34.
The negotiating position of the insular authorities is always expressed
in a formal letter from the Bailiff to the Lieutenant Governor.
35.
The Bailiff exercises the power of control over public entertainment
which may not take place without his permission. Thus an applicant for a permit is required to
satisfy the Bailiff that the Fire Service, Public Health and other relevant
authorities have no reasonable objection to the arrangements. Also it is up to him to assess whether or not
the public entertainment conforms to a reasonable standard of public decency.
36.
All of this is of course completely antithetical, not only to the
democratic ideal but to any notion of judicial independence.
37.
The unsatisfactory position is highlighted by the provisions of the
Royal Court Rules 2004, Part 16. This
Part deals with appeals against decisions of public bodies or authorities. All such appeals lie with the Royal Court. A number of statutes confer a right of
appeal, for example from decisions of the Minister for Housing or the Minister
for Planning and Environment. In other
cases where no such right of appeal has been conferred by statute the
provisions at Part 16 of the Royal Court Rules 2004 apply.
38.
Part 16 of the said Royal Court Rules provides that no application for a
judicial review may be made without obtaining leave from the Bailiff. That is to say the same man who has spent
much of his working life advising the Government and indeed acting for the
Government then becomes the head of the Government supervises the enactment of
legislation and then sits on appeals from decisions of that self same
Government or gives leave in order to do so, i.e., he can deny applicants the
right to challenge decisions of the Government, as well as determining any
appeals he may allow. This is a
nonsensical position.
39.
Insofar as concerns the Court of Appeal, the Bailiff is, by law, the
President of the Court of Appeal. He is
also responsible for convening the Court of Appeal (see articles 9(1), 9(2) and
9(3) of the Court of Appeal (Jersey) Law 1961).
Of equal concern is the fact that applications for membership of the
Court of Appeal are processed through the offices of the Bailiff in
Jersey. Thus it is that although many
Members of the Court of Appeal are ostensibly appointed at Whitehall this is
done upon a recommendation from the Island of Jersey by the Bailiff.
40.
In so far as concerns the Court of Appeal in Jersey the case of Findlay v United Kingdom [1997]
ECHR 22107/93 (“the Findlay case”) is of relevance here, dealing as it does
with the need for a tribunal to be independent.
In this case the convening officer was responsible for the appointment
of the members of the court-martial.
Those appointed were all subordinate in rank to the convening officer
and fell within his chain of command.
The Court here held as follows:
59. The Commission declared the application admissible on 23
February 1995. In its report of 5 September
1995 (art.31), it expressed the unanimous opinion that there had been a
violation of Article 6 para. 1 of the Convention (art. 6-1), in that the
applicant was not given a fair hearing by an independent and impartial
tribunal, and that it was unnecessary to examine the further specific
complaints as to the fairness of the court-martial proceedings and the
subsequent reviews or the reasonableness of the decisions taken against him and
the available sentencing options.
…..
68. The applicant claimed that his trial by court
martial failed to meet the requirements of Article 6 para.1 of the Convention
(art. 6-1), which provides (so far as is relevant):
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law ... ”
The Commission found that there had been a
violation, in that the applicant was not given a fair hearing by an independent
and impartial tribunal, and the Government did not contest this conclusion.
…..
73. The Court recalls that in order to establish
whether a tribunal can be considered as "independent", regard must be
had, inter alia, to the manner of appointment of its members and their term of
office, the existence of guarantees against outside pressures and the question
whether the body presents an appearance of independence (see the Bryan v United
Kingdom judgment of 22 November 1995, Series A no. 335-A, p.15, para 37).
As to the question of "impartiality",
there are two aspects to this requirement. First, the tribunal must be
subjectively free of personal prejudice or bias. Secondly, it must also be
impartial from an objective viewpoint, that is, it must offer sufficient
guarantees to exclude any legitimate doubt in this respect (see Pulfar v United
Kingdom judgment of 10 June 1996, Reports 1996-111, p.792, para.30).
The concepts of independence and objective
impartiality are closely linked and the Court will consider them together as they
relate to the present case.”
41.
Thus the Court of Appeal is unable to satisfy the criteria of Article 6
for the provision of a fair and independent tribunal. In my view it has consistently failed to
provide the Royal Court with an appropriate level of leadership and correction.
42.
The Privy Council being in relation to the Channel Islands our third
tier Court appeal also fails to act in compliance with Article 6.
43.
No clear definition is available as to when leave to appeal to the Privy
Council or more importantly special leave needs to be obtained. There are some esoteric definitions as to
what is or is not a final decision of the Court, i.e., whether it is on
interlocutory decisions and special leave is needed or whether the appeal may
be brought as of right. The definitions
are arbitrary and incomprehensible to the layman. Indeed I would go further and say that in
many circumstances the procedure to be adopted cannot be ascertained with
certainty notwithstanding the expenditure of considerable quantities of time
and money.
44.
There are no criteria as to when an application for special leave will
be granted, applications for leave are frequently dealt with en masse, i.e., a
large number in one day. The Court
listens to the application and then in nearly all cases simply says that it will
not entertain the appeal. There is no
pretence that the Privy Council is dealing at this stage with appeals on the
basis of merit.
45.
No criteria are published but experience shows that the Privy Council
will deal only with cases which it “deems to be of special interest to Her
Majesty”. This is a euphemism for when
the Court would like to deal with it. As
there are no published criteria, we can therefore only guess at what the
criteria are that are going to be applied to the application before the Court. As it is, a great deal of time and money is
spent by the applicant in applying to the Privy Council not knowing what he has
to show in order to win, often an applicant is not told during let alone prior
to the course of an application for special leave where the goal posts are, in
other words the application can simply be dismissed without further
mention.
46.
In no way is such a system compliant with the word or spirit of Article
6 of the Convention. This is simply not
a fair hearing, it is a lottery and as such has no proper place in a
functioning judicial system.
47.
No further appeal to Strasbourg is possible until the applicant has
bought an expensive lottery ticket in the Privy Council.
48.
It was apparent when the Court in Strasbourg delivered its judgment in
McGonnell that time for the separation of powers was overdue in both of the
Bailiwicks. However the McGonnell
judgment has not had the effect locally which it should have done. The attitude of the authorities has been
simply to explain it away or to circumvent it in some fashion. If McGonnell was the death knell in of the
position of the Bailiff then the Barclay case was its Armageddon.
49.
The Island has a constitution which:
(i) places all incumbents be
they Solicitor General, Attorney General, Deputy Bailiff or Bailiff in an
untenable position; and
(ii)
is as far removed from the democratic and judicial ideals as possible;
and
(iii)
is incapable of rational justification; and
(iv)
is unlawful.
……………………………………..
Advocate P C Sinel (END)
What does this mean to you, the reader, and the residents of Jersey? Unless the Uk Government fulfils its constitutional obligation and ensures/restores good governance and the rule of law in Jersey then it is not only opposition politicians who are subject to what could be described as a Kangaroo court but it applies to everybody.
Can we expect the UK to step in any time soon? Well, not according to Advocate Sinel.
"In practice nobody at Whitehall has any real interest in the proper discharge or function by any Crown Officer in Jersey, provided that they do not provide too much embarrassment for those at Whitehall. "
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