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The Jersey Law Review - February 2002
EDITORIAL MISCELLANY
THE ART OF SENTENCING
How much detailed reasoning must a judge include when pronouncing sentence against an accused person? Long gone are the days when it was sufficient for a judge to fix the prisoner with a baleful glare and intone “Smith, you will go to prison for ten years”. Now that the Human Rights (Jersey) Law 2000 is almost upon us, a judge must have regard to the European Convention on Human Rights, article 6(1) of which provides -
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly .....”.[1]
However, there are limits to the reasoning required. In Ruiz Toinja v Spain[2] the European Court of Human Rights stated at paragraph 29 -
“The Court reiterates that Article 6(1) obliges the courts to give reasons for their judgment, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision”.
Thank heavens for that. If a court were obliged to reiterate every argument on each side that had led to its conclusion, including the weight attributed to each factor, and to explain the penalogical justification for the sentence to be passed, the prisoner would have died of boredom before learning that his fate was three months’ imprisonment.
Three appellate courts have considered the question in the past nine months. In the first case, Rimmer v Attorney General,[3] Southwell JA stated at paragraph 47 -
“The imminent coming into force of the Human Rights (Jersey) Law 2000 leads us to remind the Royal Court that in all sentencing the reasoning of the Royal Court needs to be set out fully. The defendant is entitled to full reasons, and full reasons are needed by the Court of Appeal when considering sentencing appeals and applications for leave”.
It is to be noted that the Court of Appeal in Rimmer advanced the “reasons” of Ruiz Toinja to “full reasons”.
In the second case, Channing v Attorney General,[4] at paragraph 9 Smith JA[5] elaborated on the above passage. It meant “stating the starting point selected by the Royal Court and the discount allowed for mitigating factors. It meant identifying the other cases taken into account and such cases should only have been taken into account after the Royal Court had afforded the applicant’s advocate an opportunity to comment upon them. Furthermore, it was essential not only that the Royal Court should explain in its judgment why it had decided to impose a sentence in excess of the Crown’s conclusions, but also that the Royal Court indicate to the applicant’s advocate, at the appropriate stage, that it was considering that course of action and why, so as to afford an opportunity for representations before the decision was finally made”.
This passage raises a number of issues. One would not quarrel with the point that any sentence (whether or not in excess of the Crown’s conclusions) should be explained clearly. This seems to be the minimum requirement of Convention jurisprudence. But is it always necessary to give an indication to defence counsel that the conclusions might be increased? Traditionally the Royal Court has indeed indicated to defence counsel if it was considering a custodial sentence when the Crown had moved for a non-custodial sentence; such an indication would usually be given by the President before retiring after consultation with the senior Jurat, or after informal consultation with the other members of the court before the sitting, in order that the accused, in particular, should not be taken by surprise. But suppose the President is unaware that other members of the Court consider that the conclusions are too lenient. Everyone knows that it is open to the Court to impose a sentence either above or below the conclusions, but how is the Court always to know in a particular case that it is going to increase the conclusions before it has discussed them? What is the Court to do if, having retired to consider all the arguments on both sides, it decides collectively that the proper sentence is two years and not eighteen months? Must it then return to Court and advise counsel that it is “considering that course of action” and invite further submissions, which are likely only to be a repetition of what it has already heard? This seems excessively cautious. Surely defence counsel, unless notified to the contrary, can assume that there is at least a possibility that the conclusions might be increased, and mitigate accordingly.
The third case was Kirkland v Attorney General[6] where the appellant appealed to the Superior Number against a sentence of nine months’ imprisonment imposed for conspiracy to defraud. One of the grounds of appeal was that insufficient reasons had been given by the sentencing court; in particular the court had failed to deal in sufficient detail with the various factors set out in the leading English case of R v Barrick,[7] the principles of which had been adopted in this jurisdiction. Birt, Deputy Bailiff, giving the judgment of the Superior Number, held that sentencing at first instance did not require a lengthy judgment dealing with every point of mitigation made by defence counsel. All that was needed was that the court should make clear the general grounds for its decision.
This approach seems to be in line with the jurisprudence of the European Court of Human Rights but, arguably, to fall short of the test applied by the Court of Appeal in Rimmer and Channing. In Channing the Court of Appeal appeared to be stating that the sentencing court should always disclose its starting point and the discount allowed for mitigating factors. It is perhaps worth recalling how this has come about. Historically sentencing courts in Jersey never articulated a starting point in this way. The concept of the starting point was first introduced in drugs cases in 1991.[8] Subsequently, in Attorney General v Mallet[9] the Superior Number of the Royal Court, whilst accepting the usefulness of starting points in drug cases where the variables were few, expressed considerable reservations about extending the concept of starting points to other offences. Despite this, the Court of Appeal in Mallet[10]stated that it was desirable for the sentencing court to identify a starting point, although no reasons were given. The observations in Mallet were repeated by the Court of Appeal in Harris v Attorney General[11] (manslaughter by the injection of heroin), Kelly v Attorney General[12](grave and criminal assault) and now Channing (obtaining by false pretences).
It is not clear why the Court of Appeal considers that the adoption of a starting point is so desirable. It is not the practice in England. It has never been the practice in Jersey (save for drug offences) and it is apparently not desired by the Royal Court (see Mallet). Indeed it is to be noted that, in Harris, when seeking to assess the appropriate starting point, the Court of Appeal considered the decision of the English Court of Appeal in R v Clarke[13] (where in accordance with normal English practice no starting point was adopted) and had to speculate from the final sentence in that case what the English Court of Appeal must have taken as a starting point.
Furthermore, the use of a starting point in all cases seems impractical. Offences of dishonesty and assault do not admit of categorisation in any meaningful sense; the gravity depends upon too many disparate factors. Sentencing, as indeed the Court of Appeal itself stated in Channing, is not a science but an art. The sentence ultimately reflects the “feel” that the sentencing tribunal has for the case, having taken into consideration all the circumstances of the particular offence and the individual offender. Given that starting points have not been used other than in drug cases, the “feel” of members of the Royal Court will be confined to the final sentence. They will have no “feel” for starting points in relation to non-drug offences. There must be a real risk of the Court continuing to decide on the appropriate final sentence (which after all is what matters to society and the offender) and then working backwards to see what its starting point must have been. It is suggested that this is not a very productive exercise.
Finally, the suggestion in Channing that the Royal Court should identify “other cases taken into account” in its judgment seems to take the principle of explanatory reasoning some way beyond what is required by Convention jurisprudence. If taken to its logical conclusion, it would require the court to reserve most of its sentencing judgments in order to ensure that all relevant jurisprudence had been included. This cannot surely be what the Court of Appeal intended.
PRE-ACTION DISCOVERY COMES TO JERSEY
The process of giving discovery in Jersey is one which generally takes place between the parties to existing legal proceedings, although there are circumstances in which a non-party can be required to do so.[14] Hitherto, however, it has not been possible to obtain discovery before launching the proceedings (so-called “pre-action discovery”), except in the rare case of an Anton Piller order obtained before proceedings are issued. In England, pre-action discovery, limited to cases of intended claims in respect of a death, or for personal injuries, has been permitted by statute since 1970, following the Report of the Committee on Personal Injuries Litigation[15] in 1968. This recommended early disclosure to facilitate settlement in personal injuries cases. Indeed, with the introduction of the Civil Procedure Rules in 1999, the provision was widened, the limitation to death and personal injury being actually removed. Pre-action disclosure may now (as a matter of discretion) be obtained in England in all cases.[16]
In 1999, the Law Reform (Disclosure and Conduct before Action) (Jersey) Law 1999 received royal sanction and was registered in the Royal Court, to come into force on a day to be appointed. This law permits the Royal Court to make a pre-action discovery order in prescribed circumstances, at the instance of a person who appears to be likely to be party to subsequent proceedings in that court which are likely to include a claim in respect of a death or for personal injuries (Article 2(1)). The court must first find it likely that the respondent has or has had in his possession, custody or power documents relevant to an issue arising, or likely to arise, out of that claim, but may then order him (a) to say whether those documents are in his possession, custody or power, and (b) to produce them to the applicant or his legal (or, in some cases, other) advisers (Article 2(1)(a) and (b)). The court must not make the order if it would injure the public interest (Article 2(2)). The respondent will normally be entitled to his legal costs in any event (Article 2(3)).
The Superior Number of the Royal Court has now made rules of court (the Royal Court (Amendment No 18) Rules 2001),[17] and the States have made an Act bringing the 1999 Law into force (the Law Reform (Disclosure and Conduct before Action) (Jersey) Law 1999 (Appointed Day) Act 2001).[18] They came into force on December 1st, 2001.
Both the Law and the new rules are based on – though not completely identical to – the equivalent English provisions, and English materials on them (e.g. cases and texts) may accordingly be of some assistance. But care must be taken. The primary UK legislation concerned is contained in s33(2) of the Supreme Court Act 1981 (itself derived from s31 of the Administration of Justice Act 1970). Article 2(1) of the 1999 Law is based on the original version of this provision, before it was amended by article 5 of the Civil Procedure (Modification of Enactments) Order 1998. The former English rules of court were RSC Order 24 r7A(1), (3) – (7), upon which the new Rule 6/16A of the Royal Court Rules 1992[19] (inserted by Rule 1 of the Royal Court (Amendment No 18) Rules 2001)[20] is closely modelled. RSC Order 24 r7A has however now been replaced in England by CPR r31.16, which is in quite different terms, so that the post-CPR English material will be less helpful to the Jersey practitioner. Retaining the 1999 White Book will accordingly be highly desirable.
Finally, it should be noted that the Supreme Court Act 1981, s34(2), and RSC Order 24 r7A(2)-(7), applied to a quite different situation, i.e. where in existing proceedings in respect in respect of death or personal injuries, discovery was sought against a third party. Again r7A has been replaced, this time by CPR r31.17. But Jersey has at present no equivalent to those provisions.
SMALL CLAIMS PILOT PROJECT
On March 1st, 2002 the small claims pilot project in the Petty Debts Court will come into effect. At the first hearing of any disputed claim for £2,500 or less the Magistrate may, at his discretion, direct that the proceedings be referred to a mediation and directions hearing. The date, place and time of the mediation will be fixed immediately by the Court; it is expected that this hearing will generally take place within 10 days.
The mediator will be a Relief Magistrate. His or her purpose will be to endeavour, after due inquiry into the nature of the dispute, to assist the parties to reach an agreement by way of settlement. The hearing will be conducted with a minimum of formality. The process is designed to enable the parties themselves to achieve a settlement without the involvement of legal representatives whose fees will generally be disproportionate to the amount in dispute. No order will accordingly be made for any legal costs incurred in or about the mediation. At the discretion of the mediator, a party may however be represented by a friend. This discretion is likely to be exercised with a view to creating, so far as possible, an equality of arms between the parties.
If a settlement of the dispute is achieved, the mediator will draw up a record of its terms which will be signed by each of the parties. If the settlement involves the payment of money, the mediator will record the date by which it should be paid and will adjourn the proceedings. In the event of failure to comply with the agreement any party will be at liberty to refer the matter back to the court. One advantage of the procedure will be that a deserving defendant, i.e. a defendant who is genuinely ignorant of his obligations, will not, in the event of settlement, have judgment given against him with consequential damage to his reputation and credit-rating.
If no agreed settlement can be achieved, the mediator will forthwith proceed to a directions hearing. He may then give such procedural directions as may be necessary to define the matters in dispute and to ensure that any further appropriate mutual discovery takes place. He will also arrange for an early trial date, the trial to take place before a different magistrate. It will be open to the mediator, if he thinks fit, to prepare a written note for the Magistrate. Copies of any such written note and procedural directions will be made available to the parties.
The pilot project will be subject to continuous evaluation to determine whether it, or any variant of it, should become a permanent procedure. The Jersey Legal Information Board is managing the process of evaluation and any comments or suggestions should be sent by e-mail to m.cavey@gov.je .
JERSEY LEGAL INFORMATION BOARD WEBSITE
Subscribers will be interested to know that the first stage of the JLIB project to place on-line a consolidated and revised database of Jersey’s statute laws has been completed. All the Laws, Regulations and Orders enacted since 1771 and that are still in force have been converted into electronic format. In addition all legislation enacted since January 1st 1949, whether or not it is still in force, has also been converted. In March 2002 JLIB is due to publish the database on its website at www.jerseylegalinfo.je .
The contract for the second stage of consolidating and revising the legislation has recently been signed. The law revision commissioner is Neil Adsett, an Australian lawyer who has successfully completed a number of law revision contracts for small commonwealth jurisdictions. The contract is due to be completed by mid-2004. The commissioner will work in collaboration with the Law Draftsman’s Office and the Law Officers’ Department.
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