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The Jersey Law Review – February 2004
BOOK REVIEW
LAWS OF GUERNSEY by GORDON DAWES. Hart Publishing, Oxford, 2003. lxxxiv + 789pp, including index. (ISBN 1 84113 396 5)
1 Any attempt to draw together into a single volume the various and diverse threads constituting the full fabric of a legal system deserves great praise. Accordingly, Advocate Dawes’ book has obvious merit. The first paragraph of the Introduction recognises that the work’s coverage is in outline only and it is fair to say that anyone looking for something more detailed and analytical will probably be disappointed. Consequently, this is an example of the danger of judging a book by its cover, because the title promises more than it actually offers, perhaps evoking unwarranted comparisons with Halsbury, when use of some qualification like “Introduction to …” or “Outline of …” would have focussed expectation, and the binding is hardly a traditional Sarnian colour!
2 The order in which the material is presented might have been more logical. For example, it is odd to start with Sources of Guernsey Law and the Force of Precedent (Chapter 1) before tackling The Constitution of the Bailiwick of Guernsey (Chapter 2) from which these derive. Similarly, divorcing some elements of Civil Courts and Procedure (Chapter 18) and Criminal Courts and Procedure (Chapter 21) from the earlier commentary on the Constitution is unhelpful and results in unnecessary repetition. Chapter 22 on Evidence in Civil and Criminal Proceedings in Guernsey would probably be easier to digest if separated into two chapters, treating the rules for criminal practice and other areas distinctly. By including housing control, planning and family law (Chapters 4, 5 and 6) towards the beginning, these are given undue prominence. The overall scheme of the book might be better if it moved from preliminary matters of general or more widespread application to particular aspects of Guernsey’s substantive law, collected under recognisable generic headings, whether criminal and civil (perhaps with commercial as a clear sub-division), public and private law, etc. However, these are minor concerns when set against the clear benefit of having a book of this kind, which has involved a significant amount of work, resulting in a work that offers something to everyone for whom it is intended.
3 Despite the author’s initial “apology” about providing only an outline, there are sections of his book that offer considerable detail and erudition. This usually occurs when the interface with customary law developments is at its greatest. The layman will no doubt be fascinated by the account of what takes place when buying and selling realty, although the notion that a “typical and straightforward bond” (p. 655) secures indebtedness of £1 million may come as a shock. In a similar vein, the account of rules of succession (Chapter 9) is more complete than other areas, with useful references to the origins of the system and the development through subsequent legislation. Guardianship (Chapter 7) is another example combining historical material with an account of what is actually required when making relevant applications in this area to the Court and Chapter 11 on Insolvency provides a very readable, practical account of the domestic oddities (désastre and saisie), although the middle section on the little used 1929 Law relating to Debtors and Renunciation is more extensive than it needs to be. These are, of course, reasonably self-contained areas of law, in which the principles are arguably more settled, although some reforms are acknowledged as being necessary or desirable. These sections are written with a vibrancy and apparent greater enthusiasm that is less noticeable in some of the other sections dealing with technical, statute-based material.
4 The style frequently adopted when dealing with legislation involves almost a section by section description of the provisions. As a result, large tracts of text offer little more than a paraphrasing of the legislation itself. There is nothing inherently wrong in this approach but, instead of taking each measure so discretely, it might have assisted to attempt to concentrate on the more important principles and use the provisions to support an analysis of them. Otherwise, where there is little in the way of added value, reproduction of the measures themselves would serve the same purpose. To that end, the choice of the four measures set out in the Appendices is rather arbitrary and hardly representative of the key measures forming the cornerstones of Guernsey law. For example, a consolidated version of the Reform Laws, perhaps with annotations highlighting where the changes arising from the Review of the Machinery of Government will impact, would probably be appreciated more widely than any of the items selected.
5 When forming an overall impression of the book, one of the most noticeable features is the uneven coverage. Topics of comparatively minor importance, e.g., Employment Law and Health and Safety at Work (Chapters 16 and 17) are covered in greater detail than they strictly merit given the correlation with and reliance on English law principles, whereas Chapter 20 on Conflict of Laws is comparatively brief. Other specialist areas, e.g., aviation, shipping, liquor licensing and road traffic, to name but a few, which are not examined, are notable for their omission. The position of the Bailiwick in relation to the European Union (pp. 39 and 40) is skimmed and this important source of domestic law is largely ignored. No mention is made of the availability of the preliminary reference procedure under Article 234, EC. Money laundering has been tucked away within the chapter on Criminal Courts and Procedure when it probably merits a chapter in its own right. The coverage of customary law criminal offences is virtually non-existent, yet the offences replicating English law statute are described in some detail. Consequently, the balance of the book presents, at least to a degree, as overly subjective, perhaps reflecting the interests and practice of the author, and areas that merit something more than a throw-away passage really should be covered more objectively and dispassionately. Against that, wherever possible, new developments up to and past the notional cut-off date of 6th January, 2003 have been included, which help to make the text as current as possible. The author’s commitment to pursue his researches right up to going to press is very impressive.
6 On a more prosaic level, the Tables are generally comprehensive and helpful aids to navigation. The Table of Laws, Statutes and other Legislative Materials might be better if Guernsey and non-Guernsey materials were separated. It is also annoying to note the omission of the usual comma immediately prior to the year when citing “pure” domestic enactments. Similarly, citations of the Guernsey Law Journal are not in the form directed by the Editorial Committee, e.g., 8.GLJ.13, etc., representing the volume number and the numbered paragraph therein and, if an indicative year is to be added, it ought to appear in round rather than square brackets. The index, however, is poor. For a work of reference of this size, especially when compared with the fairly detailed Contents pages, there are far too few entry points. To take just one example, “legal aid” does not feature. This will certainly hamper the reader who does not know exactly what he is looking for but, if the book were also available as a CD-ROM, this would not pose as great a problem. There is also scope for much more cross-referencing by making better use of the footnotes. Instead of confining the entry to “See the section on …”, the simple addition of a page number would help enormously. Finally, although there is a list of Bailiffs and Deputy Bailiffs immediately before the text starts, identifying judgments by reference to the name of the judge rather than his office would be more useful.
7 As with any new work, identifying perceived shortcomings comes more readily than singing its praises. This is particularly the case when there is no comparator, whether direct or indirect, in the field tackled by the author. The fact that this is the first modern, all-encompassing book on the laws of Guernsey speaks volumes; for the foreseeable future and without any need to elaborate, it is pre-eminent and deservedly so. It was a mammoth task to undertake and generally it has been performed admirably. As is inevitable for a first edition, the book contains some basic errors and misconceptions that can be ironed out for the next edition. This is not a practitioner’s work. It is, however, a very handy, ready sourcebook for an Advocate. It will certainly assist examination candidates on the same basis. It will enable lawyers elsewhere and laymen to get a feel for the Guernsey legal system and introduce its substantive law. It does what it says in its opening paragraph and, as such, is a work with a wide potential readership, from all of which sectors it deserves appropriate attention. Many people will find this book immensely useful, whether as a source into which to dip in order to look for something more detailed or as a readable, general introduction to a particular aspect of Guernsey law and practice. Advocate Dawes is to be congratulated for contributing a welcome addition to Guernsey’s legal materials. This is a book that warrants further development and enhancement within a fairly short period into a timely second edition.
R.J McMahon is a Crown Advocate employed in the Law Officers’ Department, St. James Chambers, Guernsey.
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