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The Jersey Law Review - October 2004

MISCELLANY

SITE VISITS IN PLANNING APPEALS

1       An interesting question arises from the judgment delivered by the Court of Appeal in Trump Holdings Limited v Planning and Environment Committee[1] as to whether an appellate court should accede to a request for a site visit.  Although the question only arose obiter, two members of the Court expressed provisional views which may be surprising to members of the Royal Court accustomed to view the locus in quo without too much reflection.  Smith J A, who delivered the leading judgment in Trump, stated –

“… I have to confess to a degree of disquiet about the Royal Court making its own qualitative or aesthetic judgments on the basis of what it sees which is, after all, beyond the knowledge of and scope of challenge by the parties.  It is true that, as in this case, its reactions are recorded in the judgment of the Royal Court, but this Court is hardly an appropriate forum for such challenge.  While I would endorse a view directed solely to enabling the Court to understand the issues, I wish to reserve my position on the question of whether a view may legitimately go further until such time as this Court has the advantage of full argument.”

2       Southwell J A was more forthright.  He referred to the test to be applied by the Royal Court as set out in Token Limited v Planning and Environment Committee[2] and continued –

“The test is one to be applied in relation to the circumstances prevailing at the time when the Committee makes its decision to grant or to refuse planning consent.  It is not to be applied in relation to later circumstances.  If such later circumstances are to be considered, they should be the subject of a fresh application to the Committee.  So one part of the task of the Royal Court and the Court of Appeal is to avoid taking into account factual or opinion evidence which was not before the Committee.  That seems to me to be one reason why the Courts should abstain from forming their own subjective views by means of a vue de justice.[3]  Probably the only justification for a vue de justice in this type of case is where such a view is necessary to enable the Court to understand the issues raised in the appeal.”

3       Mantell JA expressed no view on this point. 

4       The matter remains open, although in future the Royal Court may now consider it appropriate to explain why it undertook a site visit even if both counsel agreed that such a visit was appropriate.  In Sunier v Planning and Environment Committee[4] the Court’s site visit enabled it to reach the conclusion that the reasons relied upon by the Committee to justify the issue of an enforcement notice were based upon false factual premises.  The Committee itself had not visited the property, but had relied upon photographs and drawings which were shown in the event to be misleading.  That case might well have been an example of a visit which was ‘necessary to enable the Court to understand the issues raised in the appeal’.  But how is the Royal Court to appreciate whether it is such a case without making the visit?  Perhaps the thrust of what the Court of Appeal was saying was really no more than that the Royal Court should not allow a site visit to seduce it into substituting too readily its own aesthetic judgment for that of the Committee.

SENTENCING AS AN ART

5       In Att. Gen. v Harrison[5] the Royal Court, in accepting the submissions of the Crown Advocate as to the possible confusion that would result from the adoption of starting points in cases of grave and criminal assault, declined to take a starting point and sentenced the defendant to imprisonment, stating –

“Sentencing is an art and not a science”.

6       The defendant appealed and his appeal was heard, in view of the important point of principle involved, by a five man court. The comprehensive judgment of the Court of Appeal[6] has settled an uncertainty which had pervaded the sentencing of non-drug offenders since its decision in Att.Gen. v Mallet.[7]

7       In Mallet the Court of Appeal had underlined “the desirability of any court imposing a sentence identifying as a starting point the sentence it would have imposed on the basis that the defendant had pleaded not guilty, was not of good character and offered no excuse nor valid mitigation”.[8] At the same time the Court had suggested that guidance as to sentence for grave and criminal assault could be obtained from sentencing bands for analogous offences in England where, as a general rule, starting points are not employed. The message about starting points was  repeated in Le Monnier v Att. Gen.[9] and Kelly v Att. Gen.[10] where the Court of Appeal stated  that in cases of grave and criminal assault “it is desirable for the sentencing court first to identify the appropriate starting point”.[11]

8       In Harris v Att. Gen. the Court of Appeal expressed itself more forcefully; in that case the Royal Court had failed to take a starting point in a case of manslaughter. On appeal the Court stated that-

“in order to decide what sentence to impose on any defendant, the sentencing court must determine the appropriate starting point for the offence and then reduce it in the light of all the available mitigation.   Unless that is done it is not possible to determine the extent to which the court has reduced the sentence that would otherwise have been imposed and whether that reduction was too little or too much.”[12]

9       In Rimmer and others v Att. Gen.[13] the Court of Appeal returned to the issue in reminding the Royal Court that the full reasoning of the court needed to be set out in all cases. In context that meant the starting point selected by the Court and the discount allowed for the mitigating factors.

10     In a number of subsequent cases the Royal Court found it impossible, impractical or undesirable to give effect to these requests or mandates of the Court of Appeal. In Att. Gen. v Dias[14] the concern of the Royal Court as to the use of starting points in cases of grave and criminal assault came to a head. Birt, Deputy Bailiff, stated–

“In view of the fact that the Royal Court has, on several occasions, made clear that it has considerable difficulty in applying the concept of a starting point in non-drug cases, we very much hope that a suitable case can be taken before the Court of Appeal at which the matter can be thoroughly ventilated, the Crown can have the opportunity of putting forward its submissions and an authoritative view can be obtained.”

11     In the event that case was Harrison. The Attorney General submitted that  in drug cases the use of starting points was of great assistance in that the nature and quantity of the drug involved were usually a fair indicator of the extent to which the offender was engaged in drug trafficking and thus of the gravity of the offence. In other cases starting points were more difficult to establish having regard to the greater number of variable factors. The arguments for and against the adoption of starting points as a general rule of sentencing practice will not be rehearsed in any detail here. They are set out fully and clearly in the Court’s judgment. As a matter of logic however it is difficult to counter the proposition that, if some deduction is to be made for the defendant’s plea and other mitigating factors, one must first know the point from which the deduction is coming. Put another way, if a guilty plea is worth a 25 percent discount, one needs to know the gross figure from which the discount is being made. On the other hand the application of this logic to the practicalities of every case gives rise to numerous difficulties. What does one do, for example, where there are a multiplicity of different offences on the indictment? Is a starting point to be taken for each offence, or a generic starting point for the totality of the offending? If the answer to that question is a generic starting point, how does that work in the context of consecutive sentences?

12     The conclusion of the Court of Appeal was that it was desirable for the Royal Court to identify a starting point, but not essential. The Court agreed with the Attorney General that the absence of a starting point did not prevent the Court from carrying out its functions under the Court of Appeal (Jersey) Law 1961. Provided that the reasoning of the Royal Court was clear, there would be no inherent difficulty for the Court of Appeal, nor would there be any breach of article 6 of the ECHR. To that extent, therefore, the decisions in Harris, Channing and other cases were to be disregarded.

13     This wise decision of the Court of Appeal is greatly to be welcomed. The Court has recognised the important, indeed crucial, role played by the Jurats in the sentencing process, and the differences between the procedures in England and Jersey particularly in relation to the functions of the Crown. The discretion has been left with the Royal Court, notwithstanding a fairly clear indicator that starting points should be adopted in appropriate cases.

14     How has this definitive ruling been applied by the Royal Court? In Att. Gen. v Capuano[15] the Superior Number of the Royal Court had the opportunity to consider the judgment in Harrison for the first time. Capuano had pleaded guilty to a number of different offences, including robbery and grave and criminal assault. The Superior Number expressed its reservations about the use of starting points in non-drug cases but stated that, in deference to the views of the Court of Appeal, it “should attempt to fix upon a starting point in non-drug cases which come before it at first instance where it thinks that can reasonably be achieved”. In the case before it, the Superior Number solved the multiple-offence problem by taking a different starting point for each of the offences of robbery and grave and criminal assault (because consecutive sentences were imposed) and by ignoring the minor offences for starting point purposes.

15     The Royal Court did however indicate that there would be cases where the adoption of a starting point would be difficult and artificial, and/or unseemly and inappropriate. That view must have been taken by the Inferior Number (presided over by Tucker, Commissioner) in Att. Gen.v Figueira[16] which was decided shortly before Capuano. In that case the defendant, a masseur, was sentenced for a number of different offences involving indecent assaults upon his customers. The offences involved differing degrees of indecency. The Court observed –

“in cases of indecent assault the factors and circumstances are so variable that it is difficult if not impossible to arrive at a starting point which would be of any assistance in future cases. Each case depends upon the seriousness      and frequency of the offending, the status of the offender, the number of victims involved and the impact upon each individual victim, both at the time and in the long term.”

16     The Court might have added that the justification of different starting points for each offence would have involved highly invidious descriptions of the indecency practised upon each victim.

17     Subsequently the Royal Court has found it “too artificial”[17] and “difficult”[18] to apply starting points in cases where the defendant was charged with fraudulent conversion in circumstances of a breach of trust. In Smith the Crown had produced a table of previous cases where the sentence actually imposed in each case had been grossed up to indicate a likely starting point.  The Court stated –

“If one looks at the Crown’s table and if one takes, for example, the case of AG v Donnelly where they have worked backwards, they have taken a finishing point of 4 years and grossed this up for a one-third guilty plea in mitigation to 6 years. They then assumed, shall we say, 18 months for other mitigation to lead to a starting point of 7½ years. But Harrison made it clear that that the one-third for a guilty plea is to be taken off the starting point. Accordingly, if one were to apply that to a 7½ years’ starting point one would take off one-third to get down to 5 years and allowing 18 months for mitigation would end up at 3½ years. In other words he starting point does not match the finishing sentence because of the way the calculation has been done. That applies to all the other cases”.[19]

18     This is of course true, but it does seem clear from the judgment in Harrison that the Court of Appeal envisaged the building up of a bank of starting points from scratch in much the same way as has happened with drug offences. To that extent it is perhaps unfair to conduct an analysis of previous cases in this way. On the assumption that the sentence of 4 years was right in Donnelly, there must, of necessity, also have been an appropriate sentence absent the guilty plea and mitigating circumstances which led to the sentence actually imposed. That notional sentence would have been the starting point.

19     What is important however is that the Royal Court is now able, subject to the proviso that its reasoning is clear,[20] to concentrate upon the essential task which is the imposition of the fair and appropriate sentence upon the defendant before it.

OBELISK

20     Many the local or visitor may pass the obelisk in Broad Street, St. Helier, without a backward glance. Perhaps it is to do with the unfortunate juxtaposition of the monument and a later neighbour in the form of a public convenience. It is a shame because the monument celebrates the life and contribution to Jersey of Advocate Pierre Le Sueur, five times Constable of St. Helier between 1839 and 1853 when his premature death removed one of the leading political lights of the day.

21     The early departure, by resignation, of Advocate Christopher Lakeman as senator of the States of Jersey in February 2004 leaves the legislature in the unusual position of not including a qualified lawyer. In the last two hundred years, at least, there has been a long association between politics and the Jersey Bar. The present Bailiff served a term as a deputy; and the former Bailiff, Sir Peter Crill, also served both as a deputy and a senator. Jersey écrivains too have graced the benches of the Assembly: in recent times Ken Syvret, Reg Jeune and the late Edgar Becquet. And lest our preconceptions guide us to conclude that the lawyers in the Chamber can be spotted by their sober suits and quiet demeanour, let us be reminded that the advocates, at least, have provided their fair share of populist firebrands. Most recently, a man who remains something of a legend amongst country folk and about whom there are few of our older practitioners who do not possess an amusing anecdote or two, is John James (or 'J.J.') Le Marquand.  He was a deputy and then senator between 1948 and 1960, and between 1966 and 1975, the six year gap accounted for by his decision to change career from that of farmer to lawyer. We await the biography of the man who led the opposition to Insular Insurance, a lobby which culminated with the carrying of a coffin into the Royal Square and, by Jersey standards, something of a riotous assembly. There is room for one anecdote about J.J.; in one case; after submitting to the Magistrate that "all the authorities were with [his] client”, the Magistrate is reported to have asked him to which authorities he referred. "They're too numerous to mention" replied J.J.

22     The nineteenth century predecessor to J.J. Le Marquand was Advocate Francois Godfray, who dominated the right wing of Jersey politics for over thirty years as Constable of St. Helier and St. Martin, and Constable and then Deputy of St. Saviour. From early on in his political life, he led the conservative and anti-reform Laurel Party, at a time when factional (if not party) politics reigned.

23     This brings us back to Pierre Le Sueur: in political terms, if not in other respects, the antithesis of his chief rival, Francois Godfray. There is a picture of Le Sueur in the Town Hall. His austerity is perhaps the result of the monochrome rendering of the artist, but there is no doubt about the intelligence of his eyes and the steely purposefulness of his demeanour. In fact, he bears a striking similarity in looks to one of our own JLR editorial board members. Le Sueur was the darling of moderate reform, the champion of the middle class English immigrants and the local population of a liberal persuasion. He led the Rose Party.  It is no coincidence that the only two nineteenth century biographies of politicians are of Godfray and Le Sueur. Part hagiography, part polemic, these works show how these two lawyers captured the attention of the local population. But it is the obelisk dedicated to Le Sueur which leaves us a permanent reminder of his important contribution to Jersey affairs and which points to the legal profession that a seat in the States (or more than one) awaits.

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