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The Jersey Law Review - October 2003
POSTSCRIPT
FLOATING IN JERSEY
Matthew Jowitt
1 “Mr Ja’art,” my clerk phoned me at 5pm, (barristers’ clerks can’t pronounce their ‘w’s), “you’re doing another twial tomorrow,” (unless its in place of an ‘r’), “floating at Leicester.”
2 It was Tuesday evening, and this my third Crown Court twial of the week. The other two, at Lincoln and St Albans respectively, had not got on. They’re called ‘floating trials’ in England – our criminal legal system’s equivalent of the football subs’ bench. Floating trials allow civil servants to tick a box saying that a case has been listed for hearing within a given date, even though it is obvious there will never be enough court time for the case to be heard on the day it’s listed. In England, red tape doesn’t just go around our briefs.
3 Off I floated to Leicester the next morning. Five hours and far too many cigarettes later, I floated home again. Three days, three late nights, three early mornings, hundreds of miles’ travel, hours of prep, and I hadn’t once got on the pitch.
4 I was taking an early bath that evening when the phone rang. “Mr Ja’art, fancy going to Jersey?”.
“As long as I’m not floating, I’ll go to Mars.”
A short silence ensued.
“Yeah, but do you fancy going to Jersey?”
5 And so, at a ridiculously early hour, I found myself peering out of the aircraft window at the Cotentin peninsula sprawling beneath; but it was better than taking the train to Luton – by far.
6 Since that sunny day last summer, I have been fortunate indeed – returning to Jersey to work for the Attorney General on an increasingly regular basis. They say you can grow used to anything, but I still think you are some of the luckiest lawyers in the world. Interesting work, and a lovely island in which to do it.
7 To an English lawyer wearied by Government performance targets and fatuous attempts to apply the ‘user friendly’ culture of fast-food restaurants to a criminal justice system, Jersey’s dignified adherence to its legal past is refreshing, if not a little off-putting at times.
8 The most immediate aspect, because the most obvious, is the Island’s apparent love for arcane titles. In England we used to have all manner of exotic legal creatures: stipendiaries, serjeants, assistant recorders, Lord Chancellors – even silks. All sadly extinct, or about to become so. In our brave new legal world the colour of history and tradition is being bleached away. Titles now are prosaic: district judge, list officer, minister of justice – like quick-dry paint, they do exactly what it says on the tin.
9 For some time I thought ‘Judicial Greffe’ was pronounced ‘judicial grief’ – and assumed that must be what advocates received in the Court of Appeal. I suspected that a ‘Bâtonnier’ was a type of French gateau, probably with marzipan. Bailiff, Deputy Bailiff, Lieutenant Bailiff, Acting Deputy Lieutenant Bailiff (second class) – what is the newly-arrived Englishman to make of this? When I first heard a lawyer talking about ‘the Jurats’ I assumed he meant an island chain somewhere off the coast of Norway.
10 But the differences between our two criminal legal systems are more than skin-deep, no matter how familiar much of Jersey criminal law and practice is to the English barrister. In the Island I am repeatedly struck by how involved the prosecution are with matters which, in England, the prosecution not only do not trespass upon, but it is felt should have nothing to do with as a matter of sacrosanct principle.
11 In Lincoln Crown Court you would not only never hear a prosecutor giving the judge his opinion on what the sentence should be. If he were to do so the judge would come down on him like a ton of bricks. An English judge may well ask a prosecutor what his sentencing powers are as a matter of law, but anything more than that and defence counsel – rightly – would be jumping to his feet to object. In England it is considered somehow unseemly for the Crown to be seen demanding its pound of flesh.
12 This ethos works its way through to the English Court of Appeal. With the exception of Attorney General’s references, (where a sentence is felt to be dangerously light), in appeals against sentence from the Crown Court I have never seen or heard of the Crown being instructed to attend, much less to defend the sentence which was imposed.
13 In Jersey things are very different. A Crown Advocate is required, through his submissions, to recommend to the Court a particular conclusion, and give relevant indications from case law about sentencing practice and tariffs. Custody thresholds and starting points are debated at length. (For a measured discussion of the rôle see Aide Mémoire to a Crown Advocate, by Sir Philip Bailhache.)
14 I wonder, without knowing, whether this function enables Jersey counsel, on occasion, to have an informed dialogue leading to sensible and timely guilty pleas which, in other circumstances, might not have ensued. If so, then the prosecution’s special role in the sentencing procedure has the potential to benefit not only the parties themselves, but the process of criminal justice as a whole.
15 Other aspects of Jersey practice are harder for the English lawyer to understand. In England it is accepted without being said that the tribunal which sentences an offender should be the tribunal which tried him. There are good reasons for that: the trial judge will have heard the evidence, assessed each and every witness, formed a view as to where the truth lies, or whether certain aggravating features, notwithstanding a guilty verdict, were sufficiently proved to be reflected in sentence. Chiefly, the trial judge will have been able to assess the defendant himself, if he gave evidence, (and in England the fact that an adverse inference cannot be drawn from a defendant’s failure to give evidence means that most do). I have often heard a sentencing judge express his opinion as to a defendant’s character on the strength of his earlier performance in the witness box. Any English judge asked to sentence a man following his trial before another judge would – unless that judge were seriously ill or dead – decline to deal with it, and send it back to the trial judge.
16 In Jersey it is difficult for the English barrister to see the point of Inferior and Superior numbers. One manifestation of the Royal Court, with the power to sentence to any length of imprisonment, ought to suffice as it does in the English Crown Court. One manifestation of the Royal Court both to try and sentence the same defendant would be a simpler, more elegant solution than that which pertains as present.
17 It may be that I have missed point, but it does strike me that this procedural complexity is exacerbated by Jersey’s peculiar dual system of trial by judge and jury for customary law offences, and trial by judge and jurats for statutory offences.
18 In theory, at least, it might give rise to unwieldy results. Take as an example a case where a man is charged with murder/manslaughter on the basis that he drives a car on to a pavement at high speed intending to run down his pedestrian victim. As a customary law offence, the charge must be tried by a jury. But suppose the prosecution see potential for a jury to find any form of homicide unproved. In England, where common law and statutory offences – if indictable – can be tried by the same jury on the same indictment – the solution is simple: add an alternative, statutory offence of causing death by dangerous driving – easier, perhaps, to prove than gross negligence manslaughter. One jury tries both matters at the same time. Witnesses give evidence just the once. Counsel rehearse their arguments just the once. There is one summing up and one set of verdicts.
19 In Jersey, if a jury acquitted of homicide, there would then be a second trial before judge and jurats. Duplication costs time and money. It may be all the more arduous where deeply traumatised witnesses have to relive the ordeal not once, but twice, or, worse, they find the unsuccessful first trail such an ordeal that they flatly refuse to repeat the process.
20 It is a system which has the potential too for wide-reaching constitutional problems. English common law offences grow few and far between: violence, dishonesty, drugs and sex are all now, for the most part, codified in statute. Statutes have a distinct advantage over customary law: subject to construction, and some interpretative case law, their meaning is clear and fixed. To an English lawyer, Jersey’s customary law is a particular headache – varied in origin, not always clear in substance. The molly-coddled London counsel, used to turning up statute to discover what an offence involves, can be tempted to conclude that Jersey customary law is no move than a misnomer for a piecemeal assortment of ad hoc decisions by different people at different times over a course of ages.
21 In this new age of human rights law the principle that law should be clear, consistent and unambiguous grows more important that ever. The law should say what it means, and mean what it says. Similarly, defence lawyers will grow ever more astute to argue against changes which detract from those rights – chief amongst them, perhaps, the hallowed right to jury trial. Here lies the seed of conflict: on the one hand the potential need to clarify customary law through codification, on the other the erosion of trial by jury which such a course would entail. Short of abolishing the dual system of juries and jurats, it is not immediately obvious how such problems would resolve themselves.
22 Much of the work I have done in Jersey has an international flavour. Money laundering is big business, and growing. Policing it is challenging and rewarding. It is in this field that the trial-weary English criminal hack can find the most pleasurable difference between practice in Jersey and practice at home.
23 It is often more a question of degree, however, than substance. I am often struck in this job by the way in which adults revert to childhood when caught doing wrong. “It wasn’t me,” is the first tack. “It was him”, the second. “It was me, but he made me,” the third. And “I can’t remember” the fourth and most desperate.
24 One would naturally suppose that a figure of international stature seeking to launder several hundred million dollars stolen from public coffers might have some pretty sophisticated lies up his sleeve to conceal the true origin of the cash. It may be that in dishonesty there is little new in this world – but I have heard only slightly less compelling explanations from eighteen-year-olds caught with a stolen CD player.
25 In this field the question of public interest carries elements which are entirely novel. In England barristers rarely advise on whether prosecution is in the public interest – someone else has usually made the decision and, anyway, if there is sufficient evidence that a crime has been committed, and the crime is more than merely technical, the public interest usually lies in proceeding. In a jurisdiction with limited money to spend on prosecutions, and whose economic well-being depends so significantly on the finance industry, I suspect that the line between policing effectively and frightening the industry away altogether, is a very fine and often quite delicate one.
26 Jersey law and Jerseypractice, still very new to me, are absorbing. Of course, once the working days is done, there’s Jerseyitself to absorb – beautiful beaches, rugged cliffs, an interior as pretty as a picture. The English barrister, weary of motorway jams, crowded trains and night-before returns, might take an evening walk along the coastal paths, drive out to St. Aubin for a meal, or maybe take a boat out for an hour or two.
27 In the Island, small though it is, it is much easier to escape from work than it is in the frenetic atmosphere of the English Bar.
So, floating in Luton, Mr Ja’art? Or floating in Jersey?
As Perry Mason never says: ‘no contest, Your Honour.’
Matthew Jowitt is a member of chambers at 7 Bedford Row, London.
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