Jersey & Guernsey Law Review – October 2008

Elementary Constitutional Law

1       Many Jersey lawyers will have been puzzled at the apparent ignorance of the constitutional position of the Channel Islands repeatedly demonstrated by journalists and some English politicians writing and talking about the child abuse investigation being conducted by the police. It has been suggested in an Early Day motion tabled in the House of Commons by Austin Mitchell MP that the Secretary of State for Justice, in his capacity of Privy Councillor with responsibility for the Crown for relations with the Islands, has the power to send over English prosecutors and judges to deal with any cases resulting from the investigation.[1] It has even been reported that the proper refusal of the Secretary of State to seek to intervene is to be the subject of an application in the High Court for judicial review.[2]

2       It is true that, in the context of politics and in particular the power to legislate, there are differences of opinion as to the powers of the UK government and of the Westminster parliament. Some would hold, basing their view upon the 1973 Kilbrandon report on the Constitution,[3] that ultimately the UK Parliament is sovereign and enjoys paramount powers to intervene in the affairs of the Channel Islands. Others, for example Professor Jeffrey Jowell QC, take the view that that approach is “heavily dated” and is unlikely to have survived the incorporation of the European Convention on Human Rights into the domestic law both of the UK and the Channel Islands. That, and the foundational requirements of a democracy, have “dramatically alter[ed] our constitutional landscape ”.[4]

3       But in the context of the courts and the prosecution process, there is no such ambiguity. The Channel Islands enjoy judicial independence. They have their own courts and judges. They have had their own separate systems of law since 1204. The Constitutions of King John empowered the Islanders to choose their own Jurats to keep the pleas.[5] In Professor Le Patourel’s memorable phrase “The Islanders … found judicial autonomy through the liberties of their jurats as custodians of the customary law ”.[6] No advocate can plead before the Jersey courts unless he has been admitted to the Jersey bar. No judge can preside over the Royal Court unless he be the Bailiff, Deputy Bailiff, Lieutenant Bailiff or a Commissioner appointed by the Bailiff pursuant to the Royal Court (Jersey) Law 1948.

4       It is true that Sir Edward Coke[7] purported to qualify the position, when commenting on the failed attempt to bring an action of trespass, committed in Jersey, before the Court of King’s Bench in 1368, by stating “By this it appeareth that albeit the King’s Writ runneth not into these Isles, yet his Commission under the Great Seal doth, but the Commissioners must judge according to the Lawes and Customes of these Isles.”[8] But Coke appears not to have considered the important Royal Charters granted subsequent to 1368 which confirmed the privileges of the Islanders. In particular the Charter of Elizabeth I, granted in 1562, confirmed the exclusive jurisdiction[9] of the Royal Court in all causes criminal and civil arising in the Island.[10] There is no doubt, whatever views may have been expressed in the early 17th century, that today it is not open to the Crown to send commissioners to Jersey to usurp the functions of the Royal Court.

5       So far as the prosecution process is concerned, exclusive responsibility lies with the Law Officers of the Crown. Their oath requires them to “uphold and maintain the laws and usages of this Island” and to “ensure, so far as [they] are able, that all transgressors of the law meet their just deserts”. In Att. Gen. v Devonshire Hotel Ltd.[11] the Court stated –

“The position of the Attorney General in relation to the prosecution of offences is very succinctly put by Charles Le Quesne in A Constitutional History of Jersey, at 23 (1856) :

‘He [the Procureur] is, from his office, public prosecutor. No individual is allowed to prosecute for crime, except the attorney general, on behalf of the Crown. All reports of the police to the Royal Court are to be presented through him, and the accusations against prisoners, in consequence of those written reports, are brought forward by him. He is often consulted by the police in matters of difficulty, and they are guided by his instructions … He is the upholder of public order and can prosecute for all crimes and misdemeanours.’

An Order of the Privy Council of November 23rd, 1751, … declares  -  ‘that the Procureur is the superior Officer [as between himself and the King’s Advocate] and the proper Person to Commence and Carry on all Criminal Prosecutions …’ The Order also recognizes that the Procureur has the right to enter a nolle prosequi in certain cases.”[12]

No person can therefore be prosecuted in Jersey other than by or under the authority of the Attorney General.[13]

6       The notion that the Secretary of State for Justice can intervene in Jersey’s judicial or prosecutorial systems by appointing English judges or prosecutors is bizarre.  Imagine the furore which would erupt if the Secretary of State were to attempt to interfere in the judicial process in England or, Heaven forbid, Scotland.  If a Crown Officer in Jersey can be shown to be corrupt or has been guilty of serious misbehaviour, the Crown can, subject to the appropriate consultation, dismiss him and appoint a replacement. But that is the limit of the Crown’s powers. English MPs who seek to interfere in Jersey’s internal affairs should learn a little constitutional law. Perhaps they should even subscribe to this Review.

CRYING OUT FOR REFORM

1       Writing in the seventeenth century, Jersey's Lieutenant-Bailiff Jean Poingdestre, commented that " La matiere des Prescriptions est fort estendue et difficile".[14] Four centuries later, delivering the judgment at first instance in Gale & Clarke v Rockhampton & Antler[15] the island's present Bailiff, Sir Philip Bailhache, was moved to say that “it is clear that the law of prescription cries out for reform”. Jersey law contains a multitude of prescription periods for different causes of action which must at the very least be confusing for the layman and in particular cases may result in injustice. Even the terminology is unclear: the words "prescription" and "limitation" are used interchangeably by Jersey lawyers, possibly reflecting the mixed origins of our legal system, the former word tending to be used in civil law jurisdictions, the latter in those subject to the common law. Some of the time periods, for example the forty year period for acquisition of title to land, reflect an age where communication was difficult and may no longer be appropriate in an age where communication is virtually instantaneous wherever one is in the world.

2       A rigid time period within which to bring claims can of course cause hardship for claimants but does on the other hand provide certainty for defendants (and no doubt their insurers). Hardship for claimants may be mitigated through the operation of the doctrine of empêchement d’agir, whereby a claimant who is ignorant of the facts giving rise to a claim or is under a practical impossibility of pursuing it may still be allowed to claim notwithstanding the expiration of the relevant period. However unlike the position under English law there is no residual discretion on the part of the Jersey courts to extend the relevant period where it is equitable to do so.

3       Recent publicity in the local media has highlighted some of the difficulties that may face potential claimants in respect of the matters apparently being uncovered in the Haut de la Garenne investigation given the three year prescription period for claims in tort and the fact that the alleged activities took place many years, if not decades, ago. The Jersey Law Commission has recently published a consultation paper on prescription and limitation[16] and has suggested reform by way of a consolidating statute which would simplify and reduce the numerous existing periods. The possibility of introducing some form of judicial discretion to extend the period where it is equitable to do so is also being canvassed.

4       It is to be hoped that once the Law Commission's Final Report is published reform will follow without undue delay. Whilst it may be too late to affect any victims of the alleged abuse at Haut de la Garenne it is nevertheless important that Jersey law in this area provides remedies appropriate for the citizens of the 21st century.

GUERNSEY LAW REPORTS

1       One ought not to allow to pass without comment the inauguration of the long-awaited Guernsey Law Reports which are being published by Law Reports International under the watchful editorship of Dr Alan Milner.  Although this Review had mooted the possibility of publishing the law reports of Jersey and Guernsey in a joint title, what is important is that significant decisions of the Guernsey courts are now accessible both to practitioners and to judges in the Bailiwick.  Congratulations are due to the Bailiff of Guernsey and to all his team on bringing this project to fruition.

2       The first volume of the Reports will embrace the period 2007 -2008 and will be issued in four parts, each covering six months or so.  In time, and subject to financial constraints, it is intended to publish reports retrospectively going back to January 2000 and perhaps further.  All Channel Island lawyers will welcome this new publication.