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Editorial Miscellany
A CHALLENGING TIME FOR SELECTING JURIES
In Jones v Attorney General[1] the Court of Appeal decided that the Royal Court had no inherent jurisdiction to allow a trial to continue with eleven jurors in circumstances where, after the jury had been empanelled, a juror had been discharged on the ground of possible bias. In that case one of the jurors had disclosed, after the Crown opening but before any substantive evidence had been heard, that she worked in the same firm as the alleged victim of a grave and criminal assault. She did not know him well, but she knew of him. She had been discharged but the Bailiff had refused to discharge the jury and had directed that the trial continue. The Court of Appeal found that the Bailiff had had no statutory power to take that course of action and that he had been wrong to invoke an inherent jurisdiction to do so. In England a trial judge had that power, but it had been conferred by section 16 of the Juries Act 1974.
The States have acted quickly to close the gap. The Loi (2000) (Amendement No. 8) réglant la procédure criminelle was adopted by the States on October 24th, 2000 and now awaits Royal Sanction. The amended Article 56 of the 1864 Law would read:-
“Si durant les débats un membre de l’enquête meurt ou est atteint d’une maladie ou d’une imposition qui l’empêche de continuer ses fonctions, ou est déchargé par la Cour pour aucune autre cause légitime, mais le nombre des membres de l’enquête n’est pas réduit au dessous de dix, l’enquête sera censée être dûment constituée, et le procès continuera et un Verdict pourra être rendu à l’avenant.”
But the decision of the Court of Appeal in Jones continues to cast a shadow over the selection of juries. The problems stem from the Court’s finding that -
“It is important to note not only the mandatory nature of the requirements for the summons and composition of the jury but the limited circumstances in which a juror can be exempted, excused or discharged.”[2]
This narrow interpretation casts doubt on some procedural practices of the Royal Court hallowed by age, and indeed appears to inhibit pragmatic solutions to similar problems which occur from time to time.
An example of the former is the practice of reviewing, on the application of a prospective juror, the decision of the Viscount to refuse exemption. Article 32A of the Loi (1864) réglant la procédure criminelle confers a discretionary power upon the Viscount to exempt a person from jury service. The statutory power is framed in wide terms. Apart from certain statutory reasons the Viscount may exempt “pour tout autre motif qu’il estime suffisant pour justifier l’exemption”. The 1864 Law confers no right of review upon the Royal Court but it has been the practice to exercise such a right for as long as most practitioners can remember. Should this practice be discontinued?
An example of the latter arose in a recent trial where, after the jury had been sworn and the billet containing the indictment had been distributed and read out, one member of the jury informed the Viscount’s officer that she was very friendly with one of the principal witnesses for the prosecution. Defence counsel applied for the jury member to be discharged. The application was granted and a replacement was called forward and subsequently sworn. Neither counsel took the point but on a strict interpretation of the Law the Court had no power to accede to the application nor to call forward another juror. Was the Court again asserting an inherent jurisdiction which does not exist? But even in the circumstances of the Jones case, there was no statutory power to discharge the juror, nor indeed the jury. It is true that in Jones it would no doubt have been arguable that to discharge the member of the jury or the jury itself was justifiable under an inherent jurisdiction invoked of necessity to do justice in the case.
There are numerous circumstances where the replacement of a juror in practice occurs although the 1864 Law does not make specific provision for such an eventuality. Assume the facts of Jones. The 1864 Law confers upon the accused the right peremptorily and without giving any reason to challenge two jurors. Assume that right had been exhausted. The Law then allows a limited right of récusation spéciale. But that right allows a challenge in this context only of parens et alliés de l’accusé (relatives and relations-in-law of the accused). The juror in Jones did not fall within this category. So strictly no-one had a right to challenge her. If therefore the relationship had emerged before the jury had been sworn, what could have been done? There was no statutory right of challenge. Presumably the right course of action would have been to discharge the jury and start again, notwithstanding the presence of additional jurors in the back of the Court ready and willing to serve. This might be appropriate in London where another jury can be empanelled in short order without difficulty, but in Jersey it is likely to cause not only inconvenience and extra expense but also delay.
The amendment to the 1864 Law recently adopted by the States would solve many of these problems. Récusations spéciales have been re-defined. Article 38 of the 1864 Law would provide -
“(1) Les récusations spéciales ne seront admises par la Cour que pour cause légitime, c’est à dire, soit à raison de risque de préjudice sensible soit à raison d’inconvenance manifeste ou, autrement, afin de rendre la justice.
(2) La Cour de sa propre initiative pourra en tout temps décharger un membre de l’enquête sur un ou plusieurs des moyens précités à l’alinéa (1) de cet Article”.
We are left nonetheless with the judgment of the Court of Appeal that -
“The statutory power to hold and regulate a criminal trial derives from the Loi (1864) réglant la procédure criminelle”.
Until Jones, all those concerned with the administration of criminal justice have proceeded upon the comfortable, if erroneous, assumption that if the 1864 Law did not prevent it, the Court had a discretion to do it; la Cour est toute puissante. The decision of the Court of Appeal has torpedoed that assumption; the courts will need to be more wary in the future.
PRACTICAL ADVICE TO CANDIDATES SITTING THE JERSEY ADVOCATES AND SOLICITORS EXAMINATIONS
The likelihood is that those sitting the Jersey Advocates’ and Solicitors’ Examinations do so with much previous examination experience. That said, the experience of examiners is that candidates continue to make elementary mistakes in their approach to answering examination papers. It was concluded that it might be helpful if the collective experience of examiners were utilised to set out a number of practical tips for prospective examinees.
Some of that which follows will appear obvious, perhaps axiomatic, for anyone embarking on answering an examination paper. Their importance should nonetheless not be underestimated. The following practices are recommended:
1. Read the instructions carefully before you read the rest of the paper, and follow them scrupulously. If you only have to answer seven questions on an eight question paper, do not answer all eight. If a question is compulsory, do not leave it out. If one question carries more marks that the others, give it proportionately more time than the others.
2. Read all the questions carefully. If you have a choice make a careful deliberation. Set yourself a time for each question, allowing time at the end to check your answers.
3. Read each question you intend to answer carefully, and when you have read it carefully, read it again. Then think about the question (not the answer) before you start writing. Make absolutely sure that you are answering the question which has been set, not the question which you think has been set. Year in, year out, candidates who probably know the relevant law lose marks by reading the question too quickly and not answering to the point. An examiner cannot give marks for an answer, even if it is correct in law, if it does not answer the question which was set.
4. Express yourself with as much precision as possible. One of the most frequent comments examiners make is that the answer is muddled, and that it is not possible to tell whether it is muddled thought, or muddled expression, or both. Do not strive for stylistic effect which may obscure the meaning. Do not put in anything which is superfluous merely because you think that the answer looks a bit terse. An answer which goes straight to the point and stays there is usually more intelligible than one which is decked out with a lot of irrelevant trimmings. Do not pad. It wastes your time and the examiner’s time.
5. Do not bluff. Your examiner is more than likely to be an experienced practitioner in the subject matter under examination and will not be impressed.
6. If you are writing about the provisions of a statute, use the terminology of the statute and do not substitute your own. It is just as easy and shows the examiner that you know what you are talking about and not making a lucky guess. For example, if you are writing about the reciprocal enforcement of maintenance orders, do not write of a final order being confirmed when you mean registered, and do not write about a provisional order being registered when you mean confirmed. If you are writing about customary law, do not confuse one term of art with another. For example, do not say “heir” when you mean “legatee”, or vice versa.
7. Use Jersey expressions not English expressions. For example, refer to movables and immovables, not to personalty and realty, and to a Law not to an Act. Call statutes by their proper name. The majority of examinees will have studied in English Law first, and it is not unusual to find Jersey’s Laws referred to as Acts, and articles of the Laws referred to as sections.
8. Write legibly. Illegible script makes things difficult for an examiner. Even if the examiner tries to read the answer you run the risk that he will misread something that you have written.
9. Allow yourself sufficient time to check your answers. Many is the occasion when a candidate has added minor amendments converting an incorrect answer into a correct one. Time spent checking an answer is never wasted.
10. During the examination, if you are in any doubt as to the meaning of a question or as to what is being sought from you, ask the invigilator.
[1] 2000 JLR 103
[2] Ibid at page 107