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The Jersey Law Review - February 2004

MISCELLANY

THE REQUIREMENT FOR CORROBORATION

1       In Ferreira v Attorney General[1] the Court of Appeal set aside the appellant’s conviction of indecent assault on the ground that the trial judge had not directed the jury as to the danger of convicting in the absence of corroboration of the complaint.  The alleged victim, G, had given evidence that she was lying in bed in the early hours of the morning in her room in the staff quarters of the Moorings Hotel.  She had been watching television while waiting for her boyfriend to return and had dozed off.  When she awoke she found the appellant lying across her kissing her lips, breasts and making sexual advances.  There had been a struggle and eventually the appellant had fallen off the bed.  She had recognised him and he had left the room smirking.  She had immediately phoned a female colleague, and gone to her accommodation where she arrived in an obvious state of distress.  The appellant’s story had been very different.  According to him he had been invited into her room and after they had talked for ten minutes she had kissed him and sexual intimacies had taken place with her consent.  When he got up she told him to go or she would call the police.  The Court of Appeal noted inconsistencies in both accounts with which it is unnecessary to deal here.  The trial judge gave no direction on corroboration.  The Court of Appeal held that this was a fatal flaw in the summing up.  This was perhaps an unsurprising conclusion, given what the Court stated was “the long-standing policy and practice of the Jersey courts that in cases involving alleged sexual offences a corroboration direction must be given”.  The Court referred to decisions in Vibert v Attorney General[2] and Halley v Attorney General.[3]

2       Southwell JA stated that a direction on corroboration ought to have been given on the lines of the standard direction approved by the Judicial Studies Board in 1991 –

“Experience has shown that people who say that sexual offences have been committed against them sometimes, and for a variety of reasons, tell lies.  Such false allegations are easy to make and frequently very difficult to challenge, even by an entirely innocent person.  So it is dangerous to convict on the evidence of the complainant alone unless it is corroborated, that is independently confirmed, by other evidence.”

3       The Court declined the invitation of the Crown Advocate to abolish the requirement for a corroboration direction and to follow changes brought about in England following a report of the Law Commission.[4]  The Court considered that this was a change that should be brought about, if at all, by statute.  

4       It is disappointing that counsel failed to draw the Court’s attention to a very recent decision of the Privy Council on appeal from Grenada in The Queen v Gilbert.[5]  The facts of that case were admittedly rather different from those of the instant case.  Gilbert had been convicted of attempted rape.  The trial judge had not however warned the jury of the danger of convicting on uncorroborated evidence.  Gilbert’s appeal had been allowed by the Eastern Caribbean Court of Appeal applying previous authority in that jurisdiction, and declining to follow changes in England.  The Crown had appealed to the Privy Council.  Lord Hobhouse of Woodborough had referred to the classic explanation of why the corroboration warning was necessary set out in the judgment of Salmon LJ in R v Henry[6] -

“… because human experience has shown that in these Courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute.  Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all.”

Lord Hobhouse observed that this explanation was expressly based upon a suggested special propensity of girls and women to lie.

5       The Privy Council allowed the appeal on the basis that the common law rule of practice was unduly restrictive and had not been conducive to assisting juries to arrive at a safe verdict as part of a fair trial.  A trial judge should have a discretion as to what, if any warning he considered appropriate in respect of a witness making a sexual complaint as in respect of any other witness in whatever type of case.  The Privy Council endorsed the approach of Lord Taylor of Gosforth in R v Makanjuola[7] giving guidance on the application of the trial judge’s discretion following the statutory change brought about in England by the Criminal Justice and Public Order Act 1994.  Makanjuola was also not drawn to the attention of the Court of Appeal in Ferreira.

6       It may be, of course, that these authorities would not have affected the outcome of the appeal in Ferreira.  The Court might well have maintained its view that reform of the well established rule of practice was a matter for the legislature rather than the courts.  But it is a pity that the Court was not given the opportunity to consider them.

800 YEARS OF AUTONOMY

7       This year we commemorate the 800th anniversary of the loss by King John of mainland Normandy to the forces of King Louis-Philippe of France in June 1204, leaving the Channel Islands as dependencies of the English Crown, but with their own laws and customs.  Those separate legal systems are of course the foundation of the political autonomy that the Islands enjoy today.  Without the Royal Courts of Jersey and Guernsey, administering and enforcing the laws and customs by which the Islanders had been bound while part of Normandy, the Islands would long since have been incorporated into the county of Hampshire.  While our Norman cousins may hesitate as to whether this anniversary is a cause for jubilation or sorrow, there is no doubt that for Channel Islanders it is a time for full and unreserved celebration. 

8       It is perhaps as well to reflect upon the importance of maintaining the traditions of our jurisprudence and of preserving a respect for its roots.  Over the centuries Jersey law, and Guernsey law too, have been influenced by other legal systems, but principally by the law of England.  Differing views are expressed in this issue by a learned Judge of Appeal and by the author of a recent substantial work on the law of Guernsey as to the extent to which Channel Island law should draw upon other sources in order to develop and to remain attuned to the needs of their communities. 

9       What cannot be in doubt however is that both Bailiwicks are entitled to take pride in legal systems which have an unbroken history of at least 800 years – much longer if one takes the foundation of Normandy in 911 as the starting point.  It is the duty of all Channel Island lawyers to know their customary laws, to respect the past, and to assist their courts in developing the law to meet the requirements of contemporary society.  It is suggested that this does not mean abandoning traditional concepts and approaches merely because they do not conform to English norms.  What is important is to ensure that existing legal rules are adapted and reformed.  Perhaps the Channel Islands might liaise more closely in matters of law reform than has been the case in the past. 

END OF A SAGA

Whose distant footsteps echo,
Through the corridor of Time[8]

10     On 24th September 2003 the States of Jersey voted by a margin of 26 - 16 to accept a  compromise that settled the claim which had been made by Les Pas Holdings Limited against the States of Jersey and the Crown to ownership of part of the the St. Helier foreshore, as part of the Fief de la Fosse.  The Les Pas case, which had been pending since 1989, remained in high profile until the very end.

11     The litigation has spawned some interesting case law along the way.  Judgments are reported in relation to a lawyer’s conflict of interest (Les Pas Holdings Limited v Receiver General,[9] compulsory purchase by a public body (States Greffier v Les Pas Holdings Limited[10] and States Greffier v Les Pas Holdings Limited[11]and security for costs (Les Pas Holdings Limited v Receiver General).[12]

12     A laudable modern emphasis is for parties to seek a settlement of litigation wherever possible.  However one could be forgiven, from a purely legalistic point of view, for feeling a little disappointed to have missed out on a judgment in the main action that would have dealt with a plethora of interesting and often recondite legal issues.  The documentary evidence in the case dated from as far back as the 12^th century, and academic texts to be referred to dealt with periods even earlier than that.  Analogies as to foreshore ownership were to be drawn not only from nearby Normandy and the rest of France, but also from Ireland, the Orkney Islands and Scandinavia.  The issues, to name but a few, included the legal nature of the feudal holding of land,  the definition of the foreshore, customary rights over the foreshore, and the historical and contemporary use of the foreshore by the Crown, the Church and lay Seigneurs.

13     It is to be hoped that the fruits of counsel’s researches on both sides of the argument might find expression in this Review in due course.

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