CASE SUMMARIES

ADMINISTRATIVE LAW

JUDICIAL REVIEW

Acturus Properties Limited and others v Att. Gen. Royal Ct: (Birt, Deputy Bailiff and Jurats Querée and Allo) July 17th, 2000, unreported.

P.C. Sinel for the applicants; J.A. Clyde Smith for the respondent.

The applicants sought leave to apply for judicial review in relation to a notice issued by the Attorney General under Article 2 of the Investigation of Fraud (Jersey) Law 1991 (“the 1991 Law”). The application was made pursuant to Rule 12 A/2 of the Royal Court Rules 1992 (“the 1992 Rules”).

The Attorney General argued by way of a preliminary issue that Part 12A of the 1992 Rules only applied to applications for judicial review in the context of civil proceedings, and that as proceedings for judicial review of a decision of the Attorney General under the 1991 Law were not civil proceedings, the applicants could not proceed under Rule 12/A(2).

Held, (1) applying McMahon v Attorney General[1] proceedings for judicial review of a decision of the Attorney General under the 1991 were not “a civil cause or matter”, and leave to bring the present application within Rule 12A of the Rules would therefore be refused;

(2) the applicants would however be granted leave to present a representation under the inherent jurisdiction of the Court.

Per curiam: The Court commented that, free from authority, it might have been attracted by the argument that a decision as to the validity of the exercise of a power was a civil matter, even if the power itself was exercised in the context of criminal proceedings. The Court also noted a decision of the Guernsey Court of Appeal in the case of Bassington v H.M Procureur[2],in which the Guernsey Court of Appeal had distinguished the case of McMahon, and had held that proceedings to challenge the exercise of the Attorney General’s power in relation to the Guernsey equivalent of the 1991 Law were civil proceedings.

CIVIL PROCEDURE

CASE MANAGEMENT

In Re the Esteem Settlement CA: Southwell, Nutting and Vaughan JJA) July 27th, 2000 unreported.

J.A. Clyde Smith for the trustee; N.F. Journeaux for the plaintiff; P.C. Sinel for the second and third defendants; A.P. Begg for the fourth defendant; M.St. J. O’Connell for the fifth defendant.

This case concerned an appeal by the plaintiff against the orders of the Royal Court that certain paragraphs of the plaintiff’s particulars of claim be struck out, and that the trustee’s application for directions be adjourned sine die, pending the conclusion of certain other proceedings.

Held, (1) that in striking out certain parts of the particulars of claim, the Royal Court had adopted an erroneous approach. The parts struck out should therefore be restored;

(2) that the Royal Court had also erred in its approach to the exercise of its discretion in granting an adjournment of the trustee’s application for directions. In particular, the Royal Court had failed to take into account the way in which civil actions have now to be managed. The Court therefore ordered that the trustee’s application be no longer stayed, and be taken to a full hearing, subject to appropriate directions being given.

Per curiam: the Court of Appeal also strongly criticised counsel and the Royal Court for the way in which the proceedings had been managed to date. Southwell J.A, presiding, commented as follows:

“There is apparently as yet no appreciation that the time when it was acceptable for advocates to play interlocutory games, passing from the Royal Court to the Court of Appeal and back again several times before pleadings were closed, and perhaps more times before the stage of trial was reached, has gone. Such conduct of civil proceedings is unacceptable in the 21st century, because usually the only the beneficiaries of such procedures are the lawyers, and not their clients. Indeed it seems to have been assumed that whatever happens the trust fund will bear the costs of all the lawyers. That assumption should no longer apply.

From now on it has to be appreciated by all who are involved in civil proceedings in the Royal Court that their objective has to be to progress those proceedings to trial in accordance with an agreed or ordered timetable, at a reasonable level of cost, and within a reasonably short time.

Consistently with that objective, the correct function of pleadings needs to be kept in mind. The function of pleadings is to set out the material facts on which the parties will rely at trial to establish their causes of action or defences, and which the parties will seek at trial to establish by relevant and admissible evidence. It is no part of the function of advocates to seek to persuade the Royal Court to strike out the whole or part of a pleading which contains plainly arguable causes of action, or to edit a pleading whether so as to improve it or to make it less effective. It is no part of the function of the Royal Court to lend itself to any such endeavours on the part of advocates. Formal pleading is an art, not a science, and to seek to achieve some abstract level of perfection in pleadings is not consistent with the objective I have stated, or of value in terms of time, effort or expense.

It is essential that there is now a change to new ways of practice consistent with that objective, because if there is no such change Advocates may find themselves either being ordered themselves to pay the costs of the opposing party, or being denied the ability to charge their own client for the work of supererogation they have performed”.

In fairness to counsel and to the Royal Court, it is to be noted that the Court of Appeal did not seek to be addressed on the reason for the delays.

COSTS

Drake v Gouveia and another Royal Ct: (Bailhache, Bailiff and Jurats Tibbo and Allo) December 1st, 2000 unreported.

P.S. Landick for the appellant; J.C. Martin for the respondent; M.E. Whittaker for the party convened.

The appellant appealed against the refusal of the Master to convene and to make a costs order against a firm of advocates (“the firm”) following a successful application by the respondent to strike out an action on the ground of inordinate and inexcusable delay. The firm had acted for the appellant between 1994 and March 2000 in an action for damages following a traffic accident. The Master found that the inactivity of the firm between July 1997 and March 2000 justified the striking out of the appellant’s actions, but he doubted his jurisdiction to make a costs order against the firm. The appellant relied upon Article 2 (1) of the Civil Proceedings (Jersey) Law 1956 which provided-

“……. the costs of and incidental to all proceedings in the Royal Court shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are paid”

Held, allowing the appeal and ordering the costs of the action to be paid by the firm, that the words “by whom” were wide enough to embrace the former legal advisers of a party, and that the Master had had jurisdiction to convene the firm and to order them to pay the costs.

TAXATION

Boyd v Pickersgill & Le Cornu Royal Ct: (Wheeler, Greffier Substitute) September 14th, 2000 unreported.

The plaintiff in person; R.J. Michel for the defendant; P. de C. Mourant for the plaintiff’s former legal advisers.

The defendant had been ordered to pay the plaintiff’s costs to be taxed by the Judicial Greffier on the standard basis. By consent of the parties, the defendant issued a summons to show cause why taxation of the plaintiff’s bill of costs should not be refused. It was agreed that the Court’s decision would be restricted to the following questions of principle:-

(1) whether the “indemnity principle” applies to costs in civil proceedings in Jersey?

(2) If so, how does the principle operate?

(3) whether decisions of the English Courts are of assistance in considering the questions raised in (a) and (b) above?

(4) whether the decision in the case of Santos-Costa v Attorney General[3] (a decision relating to costs in criminal proceedings) has any bearing on the issue to be determined?

(5) Whether the fact that the receiving party has been granted legal aid gives rise to any particular considerations which should be taken into account?

Held, having regard to Rule 9A of the Royal Court Rules 1992, as amended:

(1) The indemnity principle does apply to costs in Jersey and, in the absence of Jersey authority, it has the meaning attributed to it by the English cases of Gundry v Sainsbury[4], and General of Berne Insurance Co v Jardine Reinsurance Management Ltd[5].

(2) Costs as between party and party are given by the law as an indemnity to the person entitled to them; they are not imposed as a punishment on the party who pays them, nor given as a bonus to the party who receives them. The fact that a third party has agreed to underwrite costs does not preclude the recovery of costs from the other side in accordance with the operation of the indemnity principle. Only where it has been agreed between a client and his lawyer that in no circumstances shall the client be liable for costs will such costs cease to be incurred by the client, and in the absence of any such agreement the recovery of such costs will not infringe the indemnity principle;

(3) In the absence of Jersey case law, English decisions are of assistance in considering the customary or common law principles of the indemnity principle;

(4) The Santos-Costa decision related to costs in criminal proceedings, and the interpretation of the Costs in Criminal Cases (Jersey) Law 1961. It was not therefore directly on the point.

(5) The application of the indemnity principle is the same whether or not a party to civil litigation is legally aided.

TRIAL OF PRELIMINARY ISSUE

Berry and others v B.T. Trustees (Jersey) Limited and others Royal Ct: (Birt, Deputy Bailiff) and Jurats Le Breton and Allo September 11th, 2000 unreported.

P. Landick for the plaintiffs; R.J. Michel for the first defendant; M. Preston for the second defendant/first third party and for the third defendant/second third party.

Some five and a half years after the institution of proceedings against the defendants for breach of contract, the plaintiffs made an application for an order that there be a trial of the following preliminary issues:

(i) whether the provisions of Article 28(1) of the Trusts (Jersey) Law 1984 (as amended) were available to protect the first and/or second defendants against claims made by the plaintiffs under a contract made between the said defendants and the plaintiffs and governed by English law;

(ii) If so, on what date was the “trust property” to be ascertained for the purposes of Article 28(1).

Article 28 (1) provides –

“Where in any transaction or matter affecting a trust a trustee informs a third party that he is acting as trustee, a claim by such third party in relation thereto shall extend only to the trust property”.

Held, refusing the application:

(1) the principles to be applied by the Court in considering whether to order the trial of a preliminary issue were as laid down in the cases of Purdie & Anor v Bailhache & Bailhache[6], Maynard v Public Services Committee[7] and Richards v Naum[8].These authorities established the principle that, in general, all matters should be resolved at trial, and it was only in exceptional circumstances that the case should be broken down into separate issues. This was particularly so where the facts were in issue, as the Court should not decide legal issues on the basis of what may turn out to be erroneous or hypothetical facts;

(2) on the facts of this case, there was a real possibility that the preliminary issue would be decided on a false factual basis, or one which was not admitted. Furthermore, the preliminary issue would not be decisive and the proceedings had already been delayed for too long.

COMPANIES

DIRECTORS: DISQUALIFICATION

In the matter of Dimsey CA (Calcutt, Southwell and Smith JJA) October 25th,2000 unreported.

The appellant on his own behalf; P.Matthews, Crown Advocate, for the Crown.

This case concerned an appeal against an order of the Royal Court under Article 78 of the Companies (Jersey) Law 1991, that the appellant should not be a director or in any way concerned in the management of a company for a period of three years.

The appellant had been convicted in England in 1980 for conspiracy to defraud, and again in 1997 for conspiring to cheat the Public Revenue. On July 16th, 1999, the Attorney General presented a representation to the Royal Court applying for a disqualification order under Article 78. The order was made on October 18th, 1999.

The grounds of the appeal were as follows: first, that no consideration had been given to the fact that the conviction in 1997 was subject to an appeal to the House of Lords; secondly, that as the appellant had been convicted under English law, the reliance by the Attorney General upon precedents based upon Jersey law was misconceived; thirdly, that under the provisions of the Rehabilitation of Offenders Act 1974, the 1980 conviction was spent; and fourthly that the disqualification constituted a breach of Article 7(1) of the European Convention on Human Rights, which prohibits the imposition of a heavier penalty than that which was applicable at the time the criminal offence was committed.

Held, rejecting the appeal and confirming the three year disqualification order:

(1) that a person may only be liable to disqualification under Article 78 in respect of conduct relating to a company registered under the Companies (Jersey) Law 1991, or the Companies (Jersey) Laws 1861 to 1968. The charge giving rise to the appellant’s 1980 conviction did not involve a Jersey company, and could not therefore have resulted in the disqualification of the appellant; however, the charge on which the Appellant was convicted in 1997 did involve a Jersey company, and could so result;

(2) that a conviction does not necessarily provide, and is not necessary to provide, the basis for a disqualification, and the power to disqualify does not therefore depend on a conviction in Jersey or elsewhere. Adopting the dicta of Dillon LJ in Re Sevenoaks Stationers (Retail) Limited[9], the test laid down is whether the person’s conduct makes him unfit to be concerned in the management of a company. These are ordinary words and should be simple to apply in most cases;

(3) that notwithstanding the possibility of a successful appeal on a technicality against the 1997 conviction, the judgement of the English Court of Appeal revealed ample material upon which the Royal Court was entitled to be satisfied that the appellant had been guilty of conduct justifying the making of an order under Article 78;

(4) The European Convention does not form part of the domestic law of Jersey and therefore has no direct effect, applying R v DPP[10]. In any event, a disqualification order would not come within the scope of Article 7 (1) as the objective of Article 78 is not punishment, but the protection of the public;

(5) The appellant’s complaint as to the use of Jersey authorities was misconceived;

(6) Having considered afresh the question as to the appropriate period of disqualification, the Court was satisfied that a three year period of disqualification was appropriate as the case involved dishonesty.

COURTS

RECUSATION

Barra Hotel Limited v Att. Gen. CA: (Calcutt, Southwell and Smith JJA) October 26th, 2000 unreported.

B. Shelton, a director of the appellant; A.R. Binnington, Crown Advocate, for the Crown.

The appellant was carrying on in September, 1999 the business of a hotel. The appellant was charged with three counts of contravening Article 5(3) of the Fire Precautions (Jersey) Law, 1977 on September 5th, 1999 by failing to comply with conditions specified in a fire certificate. The breaches of the conditions involved obstruction of emergency exits from the Barra Hotel, St. Helier. The Royal Court convicted the Company on all three counts and it was fined a total of £10,000 and ordered to pay £5,000 costs. The appellant applied for leave to appeal to the Court of Appeal against conviction and sentence.

The appellant argued, inter alia, that given that the Bailiff and Attorney General were related, being brothers, this criminal prosecution should not have been brought before the Royal Court presided over by the Bailiff. The appellant further submitted that the Bailiff was wrong in refusing to recuse himself from the proceedings.

Held, in relation to the submission that the Bailiff ought to have recused himself:-

(1) the appropriate test to be applied under Jersey Law where apparent bias is alleged has not yet been decided, having been reserved for later decision by the court of Appeal in In the matter of Sinel[11]. The alternatives are the “real danger (or likelihood) of bias” test as propounded by the House of Lords in R v Gough[12] and the “reasonable suspicion (or apprehension) of bias” test adopted in certain other common law countries. For the purposes of this appeal the Court applied the test most favourable to the appellant, namely the “reasonable suspicion (or apprehension)” test;

(2) the Attorney General is responsible for the conduct of all criminal proceedings in the Island on behalf of the Crown. The appellant’s contention, if correct, would mean that the Bailiff could not sit in any criminal proceedings, whether in the Royal Court or Court of Appeal, so long as his brother remained Attorney General;

(3) the Queen in Council had been advised as to the appointments she should make to the offices of Bailiff and Attorney General in order to secure the best holders available. On such advice she had appointed two brothers;

(4) the fact that they are brothers does not give rise to any “reasonable suspicion or apprehension” where they are simply performing the duties of their offices. The position may be different had the Attorney General been called as a witness or his credibility had been in question;

(5) The Bailiff was correct in not having recused himself. None of the appellant’s further grounds of appeal was sufficient to warrant an appeal, and accordingly leave to appeal against conviction was refused. The appeal against sentence was dismissed: these were serious breaches which, had there been a fire at the hotel, could have led to the deaths of, or serious injury to, guests and staff in the hotel.

CRIMINAL LAW

ROAD TRAFFIC OFFENCES

Milho v Attorney General Royal Ct: (Birt, Deputy Bailiff and Jurats Myles and Le Brocq) October 19th, 2000 unreported.

P. C. Sinel for the appellant; C.M.M. Yates for the Attorney General.

The appellant was convicted of failing without reasonable excuse to provide a specimen when required to do so, contrary to Article 16C(7) of the Road Traffic (Jersey) Law, 1956.

The facts of the case were unusual. The appellant was involved in an altercation with her runaway daughter and a number of other teenagers. When the Police attended at the scene, she was extremely emotional. One of the officers formed the impression that she had been drinking, and when she refused to provide a roadside sample she was arrested. At Police Headquarters the breathalyser procedure was carried out but the appellant was unable to blow sufficiently hard enough for the machine to register.

On appeal against her conviction, emphasis was placed by the appellant on the fact that she was only given one three minute chance to provide a specimen, that she was genuinely unable to do so during that time, that she therefore had a “reasonable excuse”. It was accepted that there had been a failure to provide a specimen and that her emotional state had rendered the appellant incapable of providing the same.

The Court summarised the applicable principles as follows:

(1) It is a question of law as to whether something put forward is capable of being a reasonable excuse. If it is so capable, then it becomes a matter of fact and degree as to whether in the circumstances it amounts to a reasonable excuse[13].

(2) Once the defence of reasonable excuse has been raised, it is for the prosecution to prove to the criminal standard that there was no reasonable excuse[14].

(3) Whilst it has been said that no excuse can be adjudged as a reasonable one unless the person from whom the specimen is required is physically or mentally unable to provide it or its provision would entail substantial risk to health[15], an alternative formulation is that for an excuse to capable of being a reasonable one, it must be one which is relevant to the capacity of the person to supply the specimen, not his belief whether or not he ought to[16].

(4) Emotional distress which renders a person incapable of going through the mental processes contemplated by the breath test is capable of amounting to a reasonable excuse[17];

(5) An inability to understand the breath test procedure caused or contributed to by the defendant’s self-induced intoxication cannot amount to a reasonable excuse[18], although evidence of inebriation combined with a distraught and deeply emotional state, rendering the defendant physically incapable of providing a breath specimen, is capable of amounting to the same[19];

(6) While medical evidence will almost invariably be required, it is not obligatory and the Court, taking care, may rely on the evidence of the defendant alone[20].

Held, allowing the appeal,

(1) there is no duty on the police to give more than one three minute opportunity. If no specimen is provided during that time there is a failure to provide a specimen. However, if following such a failure the police do not give a further opportunity to provide a sample or an alternative of blood or urine, then there is a higher risk of a successful defence of reasonable excuse;

(2) On the facts, and having particular regard to DPP v Pearman[21], the prosecution had not proved beyond reasonable doubt that there was no reasonable excuse.

CRIMINAL PROCEDURE

COSTS

Att.Gen. v Gouveia Royal Ct: (Birt, Deputy Bailiff) September 15th, 2000 unreported.

N.S. Costa, Crown Advocate, for the Crown; S.A. Pearmain for the defendant.

This case concerned an application by the defendant for costs, and raised the issue as to the Court’s jurisdiction to award costs following a decision by the Crown not to proceed with certain counts on an indictment. The defendant had been charged with six counts of cruelty to a child under Article 9(1) of the Children (Jersey) Law, 1969, and had pleaded guilty to one of the six counts. His not guilty pleas to the other counts were accepted by the Crown.

Counsel for the defendant applied for an order for costs in respect of the five counts for which a plea of not guilty had been accepted. Counsel for the Crown opposed the application on two grounds: first, that the Court had no jurisdiction to award costs in the circumstances of this case; and secondly, that even if the Court did have such jurisdiction, it should decline to exercise its discretion in favour of making such an order.

Held, (1) the Court’s jurisdiction to award costs in criminal cases derives from the Costs in Criminal Cases (Jersey) Law 1961(“the 1961 Law”);

(2) Article 2(1)(c) of the 1961 Law confers upon the Court jurisdiction to make an order for costs out of public funds where an accused has been “discharged from the prosecution or acquitted..”, and this provision applies not only where the defendant has been acquitted on all charges, but also where he has been acquitted on any particular charge;

(3) where a not guilty plea is accepted by the Crown, the accused may be said to have been “discharged from the prosecution or acquitted..”, in exactly the same way as if he had been found not guilty at trial;

(4) that on the facts of this case, the Court would nevertheless decline to exercise its discretion in favour of making an order for costs. The Court’s decision was particularly influenced by the fact that the defendant had pleaded not guilty to all counts until the last working day before trial.

HOUSING

SENTENCING

Att. Gen. v Muren and Peters Royal Ct: (Bailhache, Bailiff and Jurats Le Ruez and Le Breton) August 16th, 2000, unreported.

W.J. Bailhache Q.C., Attorney General, for the Crown; A.P. Roscouet for Mrs Muren; A.D. Robinson for Mr Peters.

Both of these cases, which were heard together, raised the issue as to the extent to which the so called “illicit profit” made by a defendant as a result of a breach of the Housing (Jersey) Law 1949 (“the 1949 Law”) should be regarded as relevant to the penalty to be imposed and, if so, how this should be calculated.

Both defendants had been convicted before the Royal Court of breaches of the 1949 Law, Muren on three counts of contravening Article 14(1)(a) and two counts of contravening Article 7(1), and Peters on three counts of contravening Article 14(1)(a) of the law.

Held, (1) where the Court is satisfied that the defendant has made an illicit profit from the unlawful transaction, the Court should take that into account as a factor in the sentencing process;

(2) the exact amount of the gain may be material if it is readily ascertainable. If not, the Court should not estimate the amount and impose a fine which removes that figure and adds some penalty, but should simply take into account, without quantifying it, the fact that there has been some profit from the unlawful activity;

(3) the existence or absence of illicit profit is far from being the only relevant factor in determining sentence. Another significant factor is the length of time over which the offence extends, as this is the period during which the housing market is effectively deprived of a property available for letting to a qualified person.

PAROCHIAL ADMINISTRATION

BIAS

The Planning and Environment Committee v Parish Rate Appeal Board Royal Ct: (Birt, Deputy Bailiff) December 18th, 2000, unreported.

S.C. Nicolle Q.C., Solicitor General, for the Committee; N.L.M. Langlois for the Board.

Article 12(2) of the Parish Rate (Administration) (Jersey) Law, 1946 provides, in effect, that land shall be assessed for rating purposes on the basis of its rental value calculated in accordance with the rules set out in the Second Schedule to the Law. The Second Schedule provides, so far as it is material, that the rental value of land which is not let shall be the amount which it might reasonably be expected to command as rent if let from year to year.

In 1997 the Chairman of the Supervisory Committee issued a statement to the effect that from 1998 onwards building sites would be assessed using the contractor's method, applying a net return of 4%. The contractor's method is a method which had evolved in the United Kingdom as a method for assessing land for which no rental comparables are available. In the United Kingdom it is used for assessing buildings, and is based on the premise that if a building were not available to rent, the land would have to be acquired and the building constructed. The occupier would borrow the capital to construct the building and pay interest on the loan. The formula applied is to estimate the value of the building, apply a notional interest, and equate that annual interest to an annual rent.

In 1998 three sites owned by the public and administered by the Planning and Environment Committee which were intended to be used for building were assessed on a variant of the contractor's method which consisted of estimating the value of the land, including any amount attributable to development potential, and calculating a return by reference to the return which the owner would have made had he invested those funds in other assets. This notional return was then treated as the estimated rental for rating purposes.

The Committee appealed to the Parish Rate Appeal Board which upheld two of the assessments and increased the third. In doing so the Board affirmed the use of the modified contractor's method.

The Committee sought judicial review of the Board's decision, and the Court was asked to determine as a preliminary question of law the method of assessment for rate of land used or intended to be used for the construction of buildings.

Held, (1) the Board was wrong to transpose the use of the contractor's method from a situation dealing with the current use of a building in the United Kingdom to the situation of the possible future use of a plot of land in Jersey. The contractor's method in the United Kingdom attempts to calculate the rental value of the existing building and land on which it is built and not to assess rental value by reference to any possible future use. The capital value is based on the actual value and actual use and any value attributable to development potential is ignored. Valuing land by reference to future use, and assessing rental value using the contractor's method by reference to that future use leads to the rental value of the property being assessed not on actual use but by reference to possible future use, which the 1946 Law neither requires nor permits. Rental value must be assessed by reference to the state, use etc of the land at the material time. The statutory formula requires the assumption of a lease from year to year, which, on the authorities, is terminable on notice. A hypothetical tenant would not agree to pay rent of any significance for the lease of a building plot from year to year. Thus the application of the contractor's method leads a result which is not the amount which the land might reasonably be expected to command as a rent if it were let from year to year.

(2) The correct method for assessing the rental value of land which it is intended to use for construction before construction has begun is on the basis of the rental value which the land might reasonably be expected to command in rent if it were let from year to year as open land, taking into account any permitted use capable of immediate implementation other than the construction of buildings or other structures, with the tenant undertaking to pay the usual tenant's rates and the landlord undertaking to bear the costs of repairs and insurances and any other expenses necessary to maintain the land in a state to command that rent.

(3) The correct method for assessing land after construction has begun is to assess the rental value as the amount which the land might reasonably be expected to command as rent if it were let for year to year. Given that by terminating the lease on notice, the landlord could take all the profit from the buildings constructed and paid for by the tenant, it might be the case that no one would pay any substantial rent for a lease from year to year in such circumstances, in which case the annual rent should be assessed at a nil or a nominal value.

Obiter: Had the Court upheld the adoption of the modified contractor's method, the material date when land should be rated as land used or intended to be used for the construction of buildings would have been the date of commencement of the works of construction, rather than any earlier date such as the date of applications for permission or grants of development permission.

WORDS AND PHRASES

LE CRIMINEL TIENT LE CIVIL EN ETAT

Glazebrook v Housing Committee of the States of Jersey CA: (Southwell J.A.) September 14th, 2000, unreported.

P.C. Sinel for the appellant; A.J. Belhomme for the respondent.

The appellant applied for housing consent under sub-paragraph 1 (1) (g) of the Housing (General Provisions) (Jersey) Regulations 1970. The respondent refused to grant such consent. The appellant appealed to the Royal Court under Article 12 of the Housing (Jersey) Law 1949, but the Court held that no appeal lay under this Article. The Court treated the application as proceedings for judicial review of the respondent’s decision, and dismissed it. The appellant appealed to the Court of Appeal, and the hearing was due to commence on October 23rd, 2000.

On July 28th, 2000, the appellant lodged a supplementary notice of appeal. This contained new evidence obtained since the Royal Court hearing which challenged the oral evidence of two officers of the respondent. As a result, both disciplinary and criminal enquiries were commenced in respect of these two officers.

The respondent applied for a stay of the civil proceedings, on the principle “le criminel tient le civil en etat”, whereby criminal proceedings are not to proceed, in whole or in part, if to do so may give rise to a real risk of prejudice to persons who are might be defendants in criminal proceedings. The respondent also argued that it would face difficulties in obtaining instructions from the officers concerned.

Held, (1) the burden of persuading the court to exercise its discretion to stay proceedings on the basis of the principle “le criminel tient le civil en etat” was on the person seeking such an exercise;

(2) if the same or similar questions of fact have to be decided in the civil and criminal proceedings, it would generally be wrong for the decision to be made first in the civil proceedings, as this carried the real danger of creating prejudice in the criminal trial;

(3) in certain circumstances it might be appropriate for the interlocutory stages of the civil action to take place to minimise delay, and in so far as the civil action can be decided without impinging on the question of fact to be decided in the criminal proceedings, the civil action should be allowed to go to trial;

(4) on the facts of the present case, there was no basis for a complete stay of the proceedings; the court did however propose the taking of various steps to ensure that the fairness of any potential criminal trial would not be prejudiced by any publicity arising out of the civil proceedings.

SUMMARY OF LEGISLATION

1ST SEPTEMBER 2000 - 31ST DECEMBER 2000

____________

1. LAWS ADOPTED BY THE STATES

(a) Social Security (Amendment No. 14) (Jersey) Law 2000 (P.137/2000 - adopted 26.9.2000)

This Law amends the Social Security (Jersey) Law 1974 so as to -

(i) reduce the length of time contributions need to be paid to obtain a full pension whilst offering the opportunity of a reduced old age pension to be taken from the age of 63;

(ii) reform the current system of incapacity benefits to a simpler system, which will remove disincentives to work;

(iii) convert the gender specific widow’s benefits into gender neutral survivor’s benefits;

(iv) allow for the targeting of the States supplementation to those genuinely earning below the earnings ceiling; and

(v) remove the married woman’s option not to pay contributions.

(b) Civil Proceedings (Vexatious Litigants) (Jersey) Law 2000 (P.70/2000 - adopted 10.10.2000)

This Law empowers the Royal Court to order that a person who without reasonable grounds has instituted vexatious legal proceedings before, or who has made vexatious applications to, the Royal Court must seek the leave of the Court before being able to initiate or continue further civil proceedings in the Court.

The main purpose of this Law is to declare positively that there is no Jersey rule having the same effect as the (now abolished) “year and a day rule” in England.

(d) Finance (No. 2) (Jersey) Law 2000 (P.163/2000 - adopted 10.10.2000)

This Law amends the Customs and Excise (Jersey) Law 1999 on its commencement (1.11.2000) so that the rates of excise duty chargeable under that Law are brought into line with the rates currently applicable under the previous legislation.

(e) Parish Rate (Jersey) Law 2000 (P.170/2000 - adopted 10.10.2000)

This Law authorizes the making and levying of rates in the parishes for years 2001 and 2002.

(f) Loi (2000) (Amendement No. 8) réglant la procédure criminelle (P.89/2000 - adopted 24.10.2000)

This Loi makes miscellaneous amendments of the “Loi (1864) réglant la procédure criminelle” and the “Loi (1912) sur la procédure devant la Cour Royale”.

(g) Criminal Justice (Forfeiture Orders) (Jersey) Law 2000 (P.135/2000 - adopted 24.10.2000)

This Law empowers a court, upon conviction of an offender, to deprive the offender of any property used, or intended for use, for the purposes of the crime of which he has been convicted.

(h) Rehabilitation of Offenders (Jersey) Law 2000 (P.130/2000 - adopted 7.11.2000)

This Law introduces arrangements for the rehabilitation of offenders.

(i) Criminal Justice (Community Service Orders) (Jersey) Law 2000 (P.141/2000 - adopted 7.11.2000)

This Law enables a court to impose a community service order on an offender as an alternative to a custodial sentence.

(j) Competition Regulatory Authority (Jersey) Law 2000 (P.191/2000 - adopted 28.11.2000)

The Law establishes the Jersey Competition Regulatory Authority and makes provision for its membership and functions.

(k) Income Tax (Amendment No. 21) (Jersey) Law 2000 (P.208/2000 - adopted 7.12.2000)

This Law amends the Income Tax (Jersey) Law 1961 with regard to the disclosure of statistical information and introduces new provisions dealing with the assessment of income from employment on a receipts basis.

(l) Subordinate Legislation (Amendment No. 2) (Jersey) Law 2000 (P.205/2000 - adopted 12.12.2000)

The principal purpose of this Law is to remove an anomaly in the powers of the States to annul subordinate legislation.

2. LAWS, ORDERS IN COUNCIL, ETC., REGISTERED IN THE ROYAL COURT

(a) Fire Service (Amendment No. 4) (Jersey) Law 2000

(L.26/2000 - registered 20.10.2000. In force -

(i) with exception of Article 2 - 27.10.2000

(ii) Article 2 - day to be appointed)

(b) Loi (No. 6) (2000) concernant la charge de juge d’instruction

(L.27/2000 - registered 20.10.2000. In force - on registration)

(L.28/2000 - registered 20.10.2000. In force – on registration)

(d) Petty Debts Court (Miscellaneous Provisions) (Jersey) Law 2000

(L.29/2000 - registered 20.10.2000. In force - day to be appointed)

(e) Police Force (Amendment No. 8) (Jersey) Law 2000

(L.30/2000 - registered 20.10.2000. In force - day to be appointed)

(f) Separation and Maintenance Orders (Amendment No. 2) (Jersey) Law 2000

(L.31/2000 - registered 20.10.2000. In force - on registration)

(g) Maintenance Orders (Facilities for Enforcement) (Jersey) Law 2000

(L.32/2000 - registered 20.10.2000. In force - day or days to be appointed)

(h) Matrimonial Causes (Amendment No. 10) (Jersey) Law 2000

(L.33/2000 - registered 20.10.2000. In force - day to be appointed)

(i) Electronic Communications (Jersey) Law 2000

(L.34/2000 - registered 20.10.2000. In force - day or days to be appointed)

(j) Magistrate’s Court (Miscellaneous Provisions) (Amendment No. 8) (Jersey) Law 2000

(L.35/2000 - registered 20.10.2000. In force - 27.10.2000)

(k) Misuse of Drugs (Amendment No. 2) (Jersey) Law 2000

(L.36/2000 - registered 20.10.2000. In force - 27.10.2000)

(l) The Ecclesiastical Offices (Age Limit) (Channel Islands) Order 2000

(L.37/2000 - registered 17.11.2000. In force 1.11.2000)

(m) Food and Drugs (Amendment No. 3) (Jersey) Law 2000

(L.38/2000 - registered 24.11.2000. In force - day to be appointed)

(n) Friendly Societies (Immovable Property) (Jersey) Law 2000

(L.39/2000 - registered 24.11.2000. In force - on registration)

(o) Harbours (Administration) (Amendment No. 5) (Jersey) Law 2000

(L.40/2000 - registered 24.11.2000. In force - 1.12.2000)

(p) Loi (2000) (Amendement No. 4) sur la propriété foncière

(L.41/2000 - registered 24.11.2000. In force –

(i) Articles 1, 3, 8 and 9 - on registration

(ii) Articles 2, 4, 5, 6 and 7 - 24.2.2001)

(q) Social Security (Amendment No. 14) (Jersey) Law 2000

(L.42/2000 - registered 24.11.2000. In force - day or days to be appointed)

(r) Diseases of Animals (Amendment No. 5) (Jersey) Law 2000

(L.43/2000 - registered 1.12.2000. In force - on registration)

(s) HSBC Republic Holdings (C.I.) Limited (Jersey) Law 2000

(L.44/2000 - registered 1.12.2000. In force - day to be appointed)

(t) Royal Bank of Canada (Jersey) Law 2000

(L.45/2000 - registered 1.12.2000. In force - day or days to be appointed)

3. APPOINTED DAY ACTS

(a) Borrowing Control (Amendment No. 5) (Jersey) Law 2000 (Appointed Day) Act 2000

(R & O 87/2000)

Law in force 20.10.2000.

(b) Collective Investment Funds (Amendment No. 2) (Jersey) Law 2000 (Appointed Day) Act 2000

(R & O 88/2000)

Law in force 20.10.2000.

(R & O 89/2000)

Law in force 20.10.2000.

(d) Investment Business (Amendment No. 2) (Jersey) Law 2000 (Appointed Day) Act 2000

(R & O 90/2000)

Law in force 20.10.2000

(e) Registration of Business Names (Amendment No. 2) (Jersey) Law 2000 (Appointed Day) Act 2000

(R & O 91/2000)

Law in force 20.10.2000

(f) Customs and Excise (Jersey) Law 1999 (Appointed Day) Act 2000

(R & O 93/2000)

Law in force 1.11.2000 except for -

(i) Article 19; and

(ii) those parts of Part I of the Fourth Schedule that relate to the repeal of the Import and Export Control (Jersey) Law 1946 and parts of the Finance (Jersey) Law 1998.

(g) States of Jersey (Amendment No. 7) (Jersey) Law 2000 (Appointed Day) Act 2000

(R & O 109/2000)

Law in force 15.11.2000

(h) Police (Complaints and Discipline) (Jersey) Law 2000 (Appointed Day) Act 2000

(R & O 111/2000)

Law in force 1.1.2001

(i) Financial Services (Extension) (Jersey) Law 2000 (Appointed Day) Act 2000 (R & O 119/2000)

Law in force -

(i) with exception of Article 3 - 27.11.2000

(ii) Article 3 - 2.2.2001

(j) Fire Service (Amendment No. 4) (Jersey) Law 2000 (Appointed Day) Act 2000

(R & O 120/2000)

Law in force - 1.1.2001

(k) Electronic Communications (Jersey) Law 2000 (Appointed Day) Act 2000

(R & O 136/2000)

Law in force - 1.1.2001

4. REGULATIONS MADE BY THE STATES

(a) Health Insurance (Medical Benefit) (Amendment No. 52) (Jersey) Regulations 2000

(R & O 81/2000 - in force 1.10.2000)

These Regulations increase the standard rate in respect of medical services provided by an approved medical practitioner from £10.50 to £11.00 with effect from 1st October 2000.

(b) Licensing (Licence Fees) (Jersey) Regulations 2000

(R & O 83/2000 - in force 28.9.2000)

These Regulations prescribe the fees for the grant or renewal of licences under the Licensing (Jersey) Law 1974. The effect is to increase all licence fees by approximately 2.5%.

(R & O 110/2000 - in force 1.1.2001)

These Regulations make provision in relation to the conduct and discipline of members of the Honorary Police which supplements Part III of the Police (Complaints and Discipline) (Jersey) Law 1999.

(d) Census (Jersey) Regulations 2000

(R & O 114/2000 - in force 16.11.2000)

These Regulations provide for a census to be taken for the Island on 11th March 2001.

(e) Gambling (Betting) (Amendment No. 11) (Jersey) Regulations 2000

(R & O 117/2000 - in force 1.1.2001)

These Regulations increase the fee payable in respect of the grant of a bookmaker’s occasional licence.

(f) Gambling (Licensing Provisions) (Amendment No. 12) (Jersey) Regulations 2000

(R & O 118/2000 - in force 1.1.2001)

These Regulations increase the fees payable in respect of the grant or renewal of an amusement premises licence, a betting office licence, a bookmaker’s licence and a track licence.

(g) Public Service Vehicles (Fees) (Amendment No. 11) (Jersey) Regulations 2000

(R & O 134/2000 - in force 1.1.2001)

These Regulations increase fees for the examination of vehicles for use as public service vehicles and the fees for applications for licences to drive public service vehicles.

(h) Hire Cars (No. 10) (Jersey) Regulations 2000

(R & O 135/2000 - in force 1.1.2001)

These Regulations increase the annual fee for the licensing of a motor vehicle under the Hire Cars (Jersey) Law 1963.

(i) Harbours (Amendment No. 31) (Jersey) Regulations 2000

(R & O 147/2000 - in force 1.1.2001)

These Regulations increase the fees payable in respect of vehicles and goods overstaying on the harbour.

(j) Boats and Surf-Riding (Control) (Amendment No. 20) (Jersey) Regulations 2000

(R & O 148/2000 - in force 1.1.2001)

The main purpose of these Regulations is to increase the registration fees payable for surf or sail boards and boats and speedboats, and the licence fees for boats or passenger boats plying for hire.

(k) Criminal Justice (Compensation Orders) (Jersey) Regulations 2000

(R & O 149/2000 - in force 14.12.2000)

These Regulations increase the maximum amount which can be ordered by the Magistrate’s Court or the Youth Court against a convicted person from £2000 to £5000.

(l) Family Allowances (Jersey) Regulations 2000

(R & O 150/2000 - in force 2.1.2001)

These Regulations specify the rates and amounts for the purposes of calculating the annual rate of family allowance during the allowance year beginning on 2nd January 2001.

5. OTHER SUBORDINATE LEGISLATION OF NOTE

(a) Community Customs (Wine and Spirits) (Jersey) Order 2000

(R & O 94/2000 - in force 1.11.2000)

This Order provides for certain legislation of the European Communities concerning wines and spirits to have effect in the Island.

(b) Excise Duty (Relief and Drawback) (Jersey) Order 2000

(R & O 95/2000 - in force 1.11.2000)

This Order provides for relief or drawback from excise duty in relation to certain goods otherwise liable to duty in the circumstances specified in the Order.

(c) Community Provisions (Prohibiting the Sale Supply and Export of Certain Equipment to, and Freezing of Funds of Certain Officials of Burma/Myanamar) (Jersey) Order 2000

(R & O 100/2000 - in force 1.11.2000)

This Order gives effect, with modifications, to Council Regulation (EC) No. 108/2000 of 22nd May 2000 prohibiting the sale, supply and export to Burma/Myanamar of equipment which might be used for internal repression or terrorism, and freezing the funds of certain persons related to important government functions in that country.

(d) Financial Services (Trust Company Business (Exemptions)) (Jersey) Order 2000

(R & O 124/2000 - in force 27.11.2000)

This Order grants exemptions under the Financial Services (Jersey) Law 1998 to persons when carrying on trust company business of a type specified in the Order.

(e) Financial Services (Trust Company Business (Accounts Audit and Reports)) (Jersey) Order 2000

(R & O 125/2000 - in force 27.11.2000)

This Order imposes certain duties on persons registered to carry on trust company business under the Financial Services (Jersey) Law 1998 in respect of their own accounts.

(f) Financial Services (Appointment of a Manager) (Jersey) Order 2000

(R & O 126/2000 - in force 27.11.2000)

This Order prescribes the circumstances in which the Jersey Financial Services Commission may apply to the Royal Court for the appointment by that Court of a person to manage the affairs of persons in so far as those affairs relate to the carrying of financial service business.

(g) Financial Services (Amendment) (Jersey) Order 2000

(R & O 127/2000 - in force 27.11.2000)

This Order amends the Financial Services (Jersey) Law 1998 to exempt from its provisions certain trust company business undertaken by entities known in the finance industry as special purpose vehicles.

(h) Rules of the Air (Jersey) Order 2000

(R & O 128/2000 - in force 11.12.2000)

This Order revises and updates the Rules of the Air applicable to flights in Jersey.

(i) Police (Complaints and Discipline Procedure) (Jersey) Order 2000

(R & O 131/2000 - in force 1.1.2001)

This Order makes provision in relation to the conduct and discipline of the States of Jersey Police Force and port control officers which supplements Part II of the Police (Complaints and Discipline) (Jersey) Law 1999.

(j) Financial Services (Extension) (Appointed Day) (Jersey) Order 2000

(R & O 143/2000 - in force 11.12.2000)

The effect of this Order is that persons presently carrying on trust business must, before 2nd February 2001, apply to the Financial Services Commission to be registered under the Financial Services (Jersey) Law 1998 if they wish to carry on their business after that date.

(k) Financial Services (Trust Company Business (Assets - Customer Money)) (Jersey) Order 2000

(R & O 144/2000 - in force 11.12.2000)

This Order prescribes how persons registered to carry on trust company business under the Financial Services (Jersey) Law 1998 must handle customer money that comes into their possession or under their control as a result of carrying on that business.

(l) Electronic Communications (Jersey) Order 2000

(R & O 151/2000 - in force 1.1.2000)

This Order establishes a framework for the progressive implementation of Part 3 (requirements under legislation) of the Electronic Communications (Jersey) Law 2000)

(m) Community Provisions (Maintaining a freeze on funds relating to Mr. Milosevic and associated persons) (Jersey) Order 2000

(R & O 155/2000 - in force 21.12.2000)

This Order gives effect to Council Regulation (EC) No. 2488/2000 which maintains a freeze of funds in relation to Slobodan Milosevic and persons associated with him.

INTERNATIONAL COVENTIONS AND AGREEMENTS

EUROPEAN DIRECTIVES

PART 1: NEW ISSUES REFERRED TO THE INSULAR AUTHORITIES BETWEEN 1ST APRIL 2000 AND 30TH SEPTEMBER 2000

1. International Labour Organisation

A. The Island is party to a number of Conventions under the auspices of the International Labour Organisation. These Conventions require reports to be submitted on a regular basis.

The following reports were requested during the six months period -

(1) Seamen’s Articles of Agreement, 1926 (No. 22)

(2) Paid Educational Leave (No. 140)

B. The Island was asked if it wished to have extended two Conventions that the United Kingdom had ratified on 23rd March, 2000.

(1) The Minimum Age for Admission to Employment (No. 138)

(2) The Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No. 182)

Action: The Insular Authorities are currently seeking the Law Officers’ advice.

2. UN Convention on the Suppression of Terrorist Financing

Purpose:	To tackle the issue of global terrorism by targeting the financing of terrorist activity.
Action:	The Insular Authorities have indicated that they would wish to be included in the United Kingdom’s ratification of the Convention once the necessary amendments to the Prevention of Terrorism (Jersey) Law 1996 have been made.

3. Agreement between the United Kingdom and Australia concerning the Investigation, Restraint and Confiscation of the Proceeds and Instruments of Crime

Purpose:

To offer assistance to Australian enforcement agencies.

Action:

The Agreement will not be extended to the Island. The Island has already designated Australia under the Proceeds of Crime (Designated Countries and Territories) (Jersey) Regulations, 1999, and under the equivalent Drug Trafficking Regulations, with the consequence that Jersey is able to give the required assistance to the Australian Authorities in connection with investigation, restraint and confiscation of the proceeds and instruments of crime.

4. Statute of the International Criminal Court (ICC)

Purpose:	The ICC will be a permanent independent forum to investigate and prosecute crimes of the greatest concern to the international community, including war crimes, genocide and crimes against humanity.
Action:	The ICC can only begin its work when 60 countries have ratified the statute. The Insular Authorities have reserved their position until that state has been reached.

5. U.K./Canada Film Co-Production Agreement

Purpose:	The Agreement exists as a formal framework which qualifies films made under its criteria as national films in both the UK and Canada and enables promoters to apply for related film funding. It also enables co-producers to share resources and risk in making films while the work of production benefits both countries’ film industries.
Action:	The Insular Authorities accepted an invitation to attend the Mixed Commission meeting of all representatives, and a pre-meeting of UK and Crown Dependency representatives took place in November, 2000.

PART 2: OUTSTANDING MATTERS WHICH REMAIN UNDER CONSIDERATION

1. Convention on International Trade in Endangered Species of Fauna and Flora (CITES)

Purpose:	To regulate the international trade in wild animals and plant species the survival of which is endangered.
Action:	The Insular Authorities have requested a meeting with Commission Officials to ascertain what needs to be done, regarding controls in endangered species, in order to comply with Regulation 338/97.

2. Convention on the Protection of the Marine Environment in the North East Atlantic (OSPAR)

Purpose:	To merge the Convention for the prevention of marine oil pollution from land based sources (Paris) with the Convention on the prevention of marine pollution by dumping from ships and aircraft (Oslo) including such new concepts as the precautionary principle, best available technology, and best environmental practice.
Action:	The Water Pollution (Jersey) Law 2000, which is the enabling Law for the extension of the Convention to the Island, was registered in the Royal Court on May 26th, 2000.

3. EU Convention on Mutual Assistance in Criminal Matters

Purpose:	To afford mutual assistance between contracting states in proceedings in respect of offences the punishment of which, at the time of request for assistance, falls within the jurisdiction of the judicial authorities of the requesting party.
Action:	The Insular Authorities were asked to comment on the draft provision on territorial scope. They accepted the draft wording but confirmed they would prefer to make it clear to other Member States that, in accordance with Jersey’s constitutional relationship with the United Kingdom, the Convention could only be extended with the Island’s consent.

4. Ramsar Convention on Wetlands of International Importance.

Purpose:

By the conservation and wise use of wetlands to achieve sustainable development throughout the world.

Action:

Having agreed on November 9th, 1999, to establish part of the South East Coast as a Ramsar area, the Insular Authorities were asked for clarification as to the site of the extended swimming pool at Havre des Pas, and general progress towards final designation. The Insular Authorities reported that the appropriate registration documents were being prepared and updated in liaison with the relevant UK Authorities.

5. Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS)

Purpose:	The conservation of small cetaceans of the Baltic and North Sea.
Action:	The Insular Authorities were informed by the DETR that the Conservation of Wildlife (Jersey) Law 2000 will allow the United Kingdom to ratify the ASCOBANS Agreement on the Island’s behalf. The Law came into force on June 12th, 2000.

6. Agreement on the Conservation of Bats in Europe (EUROBATS) - linked to the Bonn Convention on Migratory Species of Wild Animals.

Purpose:	To protect migratory species of wild animals
Action:	The Insular Authorities were informed by the DETR that the Conservation of Wildlife (Jersey) Law 2000 will allow the United Kingdom to ratify the EUROBATS Agreement on the Island’s behalf. The Law came into force on June 12th, 2000. The ratification process has commenced.

7. UN Convention on the Recovery Abroad of Maintenance 1956, and The Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance Orders 1973.

Purpose:

Both Conventions concern the enforcement of various child and other maintenance orders made by courts or tribunals. The UN Convention specifically provides a mechanism for dealing with claims for maintenance against absent defendants; and the Hague Convention deals with the enforcement of existing orders.

Action:

On May 23rd, 2000, the States adopted the Maintenance Orders (Facilities for Enforcement) (Jersey) Law 2000 which was registered in the Royal Court on October 20th, 2000. This Law enables the Island to comply with all the requirements of both Conventions, and the Insular Authorities accordingly requested that the procedure for the extension of the United Kingdom’s ratification of the Conventions to cover Jersey be started.

8. Bern Convention on Wild Fauna and Flora

Purpose:	The conservation of wild fauna and flora.
Action:	The Insular Authorities have clarified with the UK Government specific queries on the Conservation of Wildlife (Jersey) Law 2000 intended to enable the Convention to be ratified on the Island’s behalf.

9. International Covenant on Economic, Social and Cultural Rights (ICESCR)

Purpose:	In accordance with principles proclaimed in the Charter of the United Nations and the Universal Declaration of Human Rights the Covenant seeks to guarantee that all human beings enjoy economic and cultural freedoms.
Action:	The Foreign and Commonwealth Office requested clarification (in the form of headings) on the Fourth Report Jersey had submitted in January 2000.

10. UN Convention on the Elimination of Racial Discrimination (ICERD)

Purpose:	To prohibit and prevent all forms of racial discrimination.
Action:	The Insular Authorities were asked for an update on the measures taken to outlaw and prevent racial discrimination in the Island, to be included as part of the United Kingdom’s report. The United Kingdom report was examined in August, 2000, in Geneva.

11. International Convention on Liability and Compensation for Damage in Connection with the Carriage by Sea of Hazardous and Noxious Substances 1996 Protocol (The HNS Convention)

Purpose:	To provide for enhanced compensation and to establish a simplified procedure for updating the limitation of liability for maritime claims.

Action:	The draft Merchant Shipping (Jersey) Law which would give effect to the Protocol to amend the Convention, is expected to be lodged for debate in early 2001.

12. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes.

Purpose:	To limit and control the movement of hazardous and other wastes between countries and provide assistance to developing countries with the movements of such waste.
Action:	The Insular Authorities confirmed to the Home office that the drafting of legislation which will enable the extension of the Convention remains a high priority.

13. Council of Europe Convention relating to Questions on Copyright Law and Neighbouring Rights in the Framework of Transfrontier Broadcasting by Satellite

Purpose:	To co-ordinate certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.
Action:	The Insular Authorities were asked about progress on local legislation to give effect to the Convention. Although much progress has been made, its enactment is still some way off. Preliminary drafts have been prepared and it is intended to request the advice and assistance of the UK Patent Office on these drafts in the near future.

PART THREE: MATTERS RECENTLY RESOLVED

1. UK/South Korea Social Security Convention

Purpose:	Exchange of diplomatic notes to bring this reciprocal agreement into force for Jersey.

Action:	The exchange was made on July 12th, 2000 and the convention is now in force.

2. Protection of the Archaeological Heritage (Revised) - “The Malta Convention”.

Purpose:	To protect the archaeological heritage as a source of the “European collective memory”, and as an instrument for historical and scientific study.

Action:	The Instrument of Ratification extending the Convention to Jersey was deposited on September 19th, 2000.

3. International Rubber Agreement

Purpose:	To achieve a balanced growth between the supply of and demand for natural rubber, and to deliver stable conditions in the natural rubber trade.
Action:	A copy of Resolution 212 has been received, which notifies termination of the Agreement.

LETTER TO THE EDITOR

Dear Sir,

SUR LA COUSTUME DE JERSEY

In the October, 2000, edition of the Jersey Law Review you published Sur la coustume de Jersey,a seventeenth century versification of the customary law, prefaced by an introduction in which Advocate R. A. Falle argued persuasively for an attribution of authorship to Jean Poingdestre.

It would be interesting to know whether this is the same work as the Coutume de Jersey en vers mentioned by Daniel Messervy, the eighteenth century jurat and diarist, whose journal for the years 1769 to 1772 was published by the Société Jersiaise in 1896.

The journal charts the events leading up to and surrounding the passing of the Code of 1771,including thevisit to the Island of Colonel Bentinck, who had been sent to Jersey following the popular disturbances. On July 18th, 1770, Messervy records a visit from one Jean Brohier, who seems to have been assisting Bentinck in some capacity. When Brohier took his leave, Messervy lent him la coutume de Jersey en vers pour la Communiquer au Coll. [Colonel], and showed him some Commentaires toucht. [touchant] Jersey sur Terrien &ca;.

Colonel Bentinck was not slow to respond; on July 19th, Brohier called again on behalf of the Colonel to ask Messervy to lend him the Commentaires. This Messervy did, adding for good measure “un autre livre en follio, dans lequel est les griefes des Habitants en 1607, avec plusieurs Ordannances &ca. de l’Exchiquier, de la Tour de Londre, de la Chancellerie &ca.”.

The folio with the complaints of the inhabitants of 1607 is presumably the commission of Gardiner and Hussey. Less easy to identify are the commentaries on Terrien. They may have been Le Geyt’s Extrait de Terrien,which circulated in manuscript before being published in 1846 in Volume IV of the Constitution, Lois et Usages,but it is impossible to say with certainty.

Colonel Bentinck visited Messervy himself a little while later, on August 2nd, 1770. The discussion turned mainly on the possibility of Messervy’s retirement on the ground of ill health, but as the colonel was leaving Messervy asked him what he thought of the books which he had lent him. The colonel’s reply was that he had seen a work very like the petit en Vers sur la Pratique de Jersey, but that he had seen nothing resembling the two folio works and admired them greatly, tant celui sur la Coutume de Jersey que celuy là où il y a des extraits de differentes cours de Londres tout [sic: probably an error or abreviation for touchant] Jersey.

The works were lent against a promise from Brohier d’en prendre soin & de me les rendre aussy tost que le Coll. les aura leuë, and it is pleasing to note that on the January 7th, 1771, the day of Colonel Bentinck’s departure from the Island, Brohier’s son returned them, for Messervy seems to have been a generous lender of his books, despite being clearly attached to them. Earlier in the journal the entry for the October 8th, 1769, records how the Attorney General, who had been appointed by the States as one of a deputation which was about to depart for England, asked Messervy, who had gone to wish the deputation un heureux voyage et un prompt retour and to offer them a financial contribution, whether he had the Extentes des Revenuës du Roy which had been authenticated.

Messervy had the Extentes of 1660, which was authenticated, and that of 1607. He had already lent both to the Solicitor General, but now offered them to the Attorney General. The entry for the October 9th contains a passage which illustrates the way in which unpublished works were circulated and reproduced in Jersey - in 1742 Messervy had lent the Extentes to the then Receiver General, Monsr. D’Avranche, pour en tirer Copie, while in 1752 he had lent the Extentes of 1660 to the Attorney General for the same purpose.

The Extentes were dispatched on the October 9th, 1769. Je ne scay pour quelle raison on me la demanda, mais je le prestés en bonne intention, pour la ravoir come estant la miene, commented Messervy when he wrote up his journal for that day. One can only hope that the Attorney General was as punctilious in returning the Extentes as Colonel Bentinck later proved to be in returning the Coutume en vers and its companion pieces.

Yours faithfully,

S.C. Nicolle,

Law Officers’ Department,

Jersey.

[1] 1993 JLR 108 CA

[2] December 2nd, 1998 Guernsey unreported

[3] 1996 JLR 87

[4] [1910] 1 KB 645

[5] [1998] 1 W.L.R 1231

[6] 1989 JLR 111 CA

[7] 1996 JLR 343 CA

[8] 1996 3 All ER 812 CA

[9] [1991] Ch. 164 at 176

[10] Ex parte Kebeline [1999] 4 All ER 801

[11] 2000 JLR 18

[12] [1993] A.C. 946

[13] R v John [1974] 1 WLR 624

[14] R v Harling [1970] 3All ER 902

[15] R v Lennard [1973] 2 All ER 831

[16] R v John (see above)

[17] Spalding v Paine [1985] CLR 673 and DPP v Pearman (1992) RTR 407

[18] Spalding v Paine (see above) and DPP v Berry [1995] JPR 707

[19] DPP v Pearman (see above)

[20] DPP v Pearman (see above)

[21] Ibid (1992) RTR 407

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