Court of Appeal
(Jersey) Law 1961
A LAW to constitute a Court of
Appeal, to amend the law relating to appeals in civil and criminal cases, and
to provide for matters ancillary thereto
Commencement
[see endnotes]
PART 1
THE COURT OF APPEAL
1 Court
of Appeal
There shall be a Court of Appeal with such jurisdiction as is
conferred upon it by this Law.
2 Judges of Court of Appeal
The Judges of the Court of Appeal shall be the Bailiff, the Deputy
Bailiff and such persons as may be appointed by Her Majesty to be ordinary judges
of the Court of Appeal, being persons who –
(a) hold
or have held judicial office in the Commonwealth;
(b) have
been at least 10 years in practice at the Bar in Jersey, whether as a Law
Officer of the Crown or otherwise; or
(c) have
been at least 10 years in practice at the Bar in England and Wales, Scotland,
Northern Ireland, Guernsey or the Isle of Man.
3 Tenure of office of ordinary judges
An ordinary judge of the Court of Appeal shall hold office during
good behaviour.
4 Restriction on practising
No ordinary judge of the Court of Appeal shall, during the
judge’s continuance in office, practise at the Bar in Jersey or be
concerned directly or indirectly, whether within or without Jersey, as counsel,
solicitor, arbitrator or referee in any matter arising within Jersey.
5 Oath of office of ordinary judges
Every ordinary judge of the Court of Appeal shall, upon taking
office, take oath in the Royal Court in the form set out in Schedule 1.[1]
6 Remuneration and expenses of ordinary judges
(1) The
ordinary judges of the Court of Appeal shall receive such remuneration as may
be determined by the Minister for Treasury and Resources and shall be entitled
to reimbursement of all travelling and other expenses incurred by them in the
discharge of their functions under this Law.[2]
(2) [3]
(3) [4]
7 Officers of Court of Appeal
(1) Subject
to rules of court, the Viscount shall, for all purposes of and incidental to
the hearing of appeals by the Court of Appeal, and the execution and
enforcement of any judgment or order made thereon, discharge duties analogous
to those discharged by the Viscount in relation to proceedings in the Royal
Court.
(2) Subject
to rules of court, the Judicial Greffier shall, for all purposes of and
incidental to the hearing of appeals by the Court of Appeal, discharge duties
analogous to those discharged by the Judicial Greffier in relation to
proceedings in the Royal Court.
8 Right to practise in Court of Appeal
(1) Subject
to the provisions of paragraph (3), as respects any appeal or reference to
the Court of Appeal and any proceedings preliminary or incidental to such an
appeal or reference, the right to practise in the Court of Appeal shall be
restricted to the Attorney General, the Solicitor General, advocates of the
Royal Court and solicitors of the Royal Court:
Provided that no solicitor of the Royal Court shall have any right
of audience either before the Court or before any single judge of the Court
upon any such appeal or proceedings.[5]
(2) For
the purposes of this Article, the word “practise” shall include the
doing in any office which is connected with the Court of Appeal or in which any
business connected with the Court is conducted and the transacting with any
officer who is attached to the Court or with any judge of the Court of any act
or thing required or necessary to be done in connection with any such appeals,
references or proceedings.[6]
(3) Subject
as provided by rules of court, it shall be lawful for a party to an appeal
under Part 2 or for an appellant under Part 3, notwithstanding the foregoing
provisions of this Article, to address the Court of Appeal or any single judge
thereof both on the hearing of the appeal and in any proceedings preliminary or
incidental to the appeal and to do in any such office or to transact with any
such officer as is mentioned in paragraph (2) any act or thing required or
necessary to be done in connection with any such appeal or proceedings.
9 Convening and constitution of Court of Appeal
(1) The
Court of Appeal shall be convened by the Bailiff or, in the absence of the
Bailiff, by the Deputy Bailiff.[7]
(1A) The Court of
Appeal shall be duly constituted if it consists of an uneven number of judges,
but not less than 3.[8]
(1B) However, no
judge of the Court of Appeal shall sit on –
(a) the
hearing of an appeal or reference from or relating to a judgment, order,
conviction or sentence pronounced, made or passed by any court of which the
judge was a member; or
(b) the
hearing of any proceedings preliminary or incidental to any such appeal or
reference.[9]
(2) Subject
to paragraph (3), the Bailiff shall be the President of the Court of
Appeal.[10]
(3) At
any sitting of the Court of Appeal –
(a) if
the Bailiff is unable to act, the Deputy Bailiff shall preside; and
(b) if
the Bailiff and the Deputy Bailiff are unable to act, the ordinary member of
the Court who has the longest service as such a member shall preside, unless
the members of the Court at the sitting decide otherwise.[11]
(4) The
Bailiff or the Deputy Bailiff may decline to preside in any case in which the
Bailiff or Deputy Bailiff thinks it undesirable or inconvenient that he or she
should do so, and in any such case the provisions of this Article shall have
effect as if the Bailiff or Deputy Bailiff were unable to act.
10 Decisions of Court of Appeal
The determination of any question before the Court of Appeal under
this Law shall be according to the opinion of the majority of the judges
constituting the Court.
11 Powers of single judge exercisable outside Jersey
Where, under this Law, the powers of the Court of Appeal may be
exercised by a single judge of the Court, such powers may be exercised in any
place whether within or without Jersey.
PART 2
APPEALS IN CIVIL CAUSES AND MATTERS
12 Jurisdiction
(1) [12]
(2) Subject
as otherwise provided in this Law or in any other enactment, the Court of
Appeal shall have jurisdiction to hear and determine appeals from any judgment
or order of the Royal Court (not being an order or decision of the Judicial
Greffier) when exercising jurisdiction in any civil cause or matter.[13]
(3) For
all purposes of and incidental to the hearing and determination of any appeal,
and the amendment, execution and enforcement of any judgment or order made
thereon, the Court of Appeal shall have all the power, authority and
jurisdiction of the Royal Court, and shall have power, if it appears to the
Court that a new trial or hearing ought to be had, to order that the verdict
and judgment be set aside and that a new trial or hearing be had.[14]
(4) The
Court of Appeal shall exercise such additional appellate jurisdiction as may be
conferred upon the Court by any enactment passed by the States and confirmed by
Order of Her Majesty in Council.
(5) This
Part shall apply to causes mixtes as it applies
to civil causes and matters.
13 Limitation on appeals
(1) No
appeal shall lie under this Part –
(a) from
any decision which, by virtue of any enactment, is final;
(b) from
a final order for the dissolution or nullity of marriage or civil partnership,
by any party who, having had time and opportunity to appeal from the decree on
which the final order was founded, has not appealed from that decree;
(c) without
the leave of the court making the order, from any order –
(i) made with the
consent of the parties, or
(ii) as to costs only
which by law are left to its discretion;
(d)
(e) without
the leave of the court whose decision is sought to be appealed from, or of the
Court of Appeal, from any interlocutory order or interlocutory judgment,
except –
(i) where the liberty
of the subject or the custody of minors is concerned,
(ii) in the case of a
decree in a matrimonial cause or a judgment or order in an admiralty action
determining liability,
(iii) in such other cases of
the nature of final decisions as may be prescribed.[15] [16]
(2) An
application to the Court of Appeal for leave pursuant to paragraph (1)(e)
shall be made to a single judge of that Court.[17]
(3) Subject
to paragraph (4), the single judge’s decision on the application
shall be final.[18]
(4) The
single judge may at any stage refer the application to the full Court of Appeal
for decision.[19]
14 Appeals from the decisions of Court of Appeal[20]
(1) No
appeal shall lie from a decision of the Court of Appeal under this Part without
the leave of the Court or the special leave of Her Majesty in Council.
(2) No
appeal shall lie from a decision of the Court of Appeal to grant, or to refuse
to grant, leave to appeal.
15 Procedure and practice
The jurisdiction vested in the Court of Appeal under this Part
shall, so far as regards procedure and practice, be exercised in the manner
provided by this Law or by rules of court, and, where no special provision is
contained in this Law or in rules of court with reference thereto, any such
jurisdiction shall be exercised in such manner as the Court of Appeal considers
just and convenient.[21]
16 Costs
The costs of and incidental to all proceedings in the Court of
Appeal under this Part 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 to
be paid.
17 References to experts
(1) Subject
to rules of court, the Court of Appeal may refer to any person or persons
selected by the Court for inquiry and report any question arising in any appeal
under this Part.
(2) In
all cases of reference under paragraph (1), the person or persons selected
by the Court of Appeal shall be deemed to be an officer or officers of the
Court, and, subject to rules of court, shall have such authority and shall
conduct the reference in such manner as the Court may direct.
(3) The
remuneration to be paid to any person or persons to whom any matter is referred
under an order of the Court of Appeal shall be determined by the Court and
shall be recoverable costs of the proceedings.
18 Powers which may be exercised by a single judge of Court of Appeal
(1) In
any appeal pending before the Court of Appeal under this Part, any matter
incidental thereto not involving the decision of the appeal may be decided by a
single judge of the Court, and a single judge may at any time make any interim
order to prevent prejudice to the claims of any parties pending an appeal, as
the judge may think fit.
(2) Every
order made by a single judge of the Court of Appeal in pursuance of this
Article may be discharged or varied by any judges of the Court having power to
hear and determine the appeal.
(3) For
the purposes of paragraph (1), an appeal is pending if –
(a) an
application has been made to the Court of Appeal for leave to appeal, but has
not been determined;
(b) an
application has been made to that Court for an order authorizing (by whatever
means) service of a notice of appeal, but has not been determined; or
(c) an
appeal has been brought, but has not been determined.[22]
19 Rules of court under Part 2[23]
(1) Rules
of court may be made by the Court of Appeal –
(a) for
regulating and prescribing the procedure (including the method of pleading) and
the practice to be followed in the Court in all appeals under this
Part (including the procedure and practice to be followed in the office of
the Judicial Greffier) and any matters incidental to or relating to any such
procedure or practice, including (but without prejudice to the generality of
the foregoing provision) the manner in which, and the time within which, any
applications which under this Part or any enactment are to be made to the Court
shall be made;
(b) for
regulating the sittings of the Court and of the judges thereof whether sitting
in court or elsewhere;
(c) for
regulating any matters relating to the costs of proceedings in the Court;
(d) for
repealing any enactments which related to matters with respect to which rules
are made under this Article;
(e) for
regulating the means by which particular facts may be proved, and the mode in
which evidence thereof may be given, in any proceedings or on any application
in connection with or at any stage of any proceedings;
(f) for
regulating or making provision with respect to any other matters which may
require to be regulated or with respect to which provision may require to be
made under this Part.
(2) The
power to make rules of court under this Article shall include power to make
rules as to proceedings by or against the Crown.
20 Fees and percentages
(1) The
Court of Appeal shall by rules of court fix the fees and percentages to be
taken under this Part in the Court or in any office which is connected with the
Court or in which any business connected with the Court is conducted or by any
officer paid wholly or partly out of public funds who is attached to the Court
or to any judge of the Court, and shall determine the manner of collection of
such fees and percentages.
(2) Fees
and percentages taken under this Article shall be paid into the General
Revenues of the States.
21 Shorthand note and transcript of proceedings in court of first
instance
(1) In
any proceedings in which an appeal lies to the Court of Appeal under this Part,
a shorthand note of the proceedings shall be taken, and on any appeal or
application to the Court of Appeal a transcript of the note, or of so much
thereof as the Court of Appeal or the court whose decision is appealed from or
sought to be appealed from shall direct, shall be made for the use of the Court
of Appeal.
(2) The
cost of the transcript of such shorthand note, in accordance with the scales of
payment fixed for the time being by rules of court, shall be included in the
recoverable costs of the proceedings.
(3) In
any case in which an appeal lies to Her Majesty in Council, the evidence of the
witness in the original proceedings shall be transcribed from the shorthand
note of those proceedings taken in pursuance of this Article.
(4) A
transcript of the shorthand note taken in pursuance of this Article shall be
furnished to any party to the proceedings upon payment of such charges as are
fixed for the time being by rules of court.
(5) Rules
of court for the purposes of this Article shall be made by the Superior Number
of the Royal Court.
PART 3
APPEALS IN CRIMINAL AND QUASI-CRIMINAL MATTERS
22 Appellate jurisdiction of superior number of Royal Court
The appellate jurisdiction of the Superior Number of the Royal Court
in criminal and quasi-criminal matters shall be that conferred upon it by this
Part.
23 Constitution of superior number of Royal Court
For the purposes of this Part, the Superior Number of the Royal
Court shall be duly constituted only if it consists of the Bailiff, the Deputy
Bailiff or an ordinary judge of the Court of Appeal and not less than 5 Jurats:
Provided that no person shall sit on the hearing of an appeal to the
Superior Number of the Royal Court under this Part from a sentence passed by
any court of which the person was a member or on the hearing of any proceedings
preliminary or incidental to any such appeal.[24]
24 Right of appeal
(1) A
person convicted on indictment by the Royal Court, whether sitting with or
without a jury, may appeal under this Part to the Court of Appeal –
(a) against
the person’s conviction, on any ground of appeal which involves a
question of law alone;
(b) with
the leave of the Court of Appeal, or upon the certificate of the judge who
presided at the person’s trial that it is a fit case for appeal, against
the person’s conviction, on any ground of appeal which involves a
question of fact alone, or a question of mixed law and fact, or on any other
ground which appears to the Court to be a sufficient ground of appeal; and
(c) with
the leave of the Court of Appeal, against any sentence passed on the person for
the offence (whether passed on his or her conviction or in subsequent
proceedings), unless the sentence is one fixed by law:
Provided that where the appellant was –
(i) convicted
and sentenced by the Inferior Number of the Royal Court, or
(ii) sentenced
by that court in pursuance of powers conferred by any enactment mentioned in
Article 25,
and the person’s appeal is solely against sentence, such
appeal shall lie to the Superior Number of the Royal Court and, accordingly, in
relation to such an appeal references in this Part, other than Articles 29
and 43, to the Court of Appeal, shall, unless the context otherwise requires,
be construed as references to the Superior Number of the Royal Court.[25]
(2) The
reference in paragraph (1)(c) to a sentence fixed by law shall not be
taken to include a reference to an order imposed under Article 10 of the
Criminal Justice (Life Sentences) (Jersey) Law 2014[26].[27]
(3) [28]
25 Right of appeal in cases where there has not been a conviction on
indictment[29]
(1) Where,
in pursuance of Article 1(1) of the Criminal
Justice (Probation Orders) (Jersey) Law 1986[30] or Article 7(3) of the Criminal Justice (Community Service Orders)
(Jersey) Law 2001,[31] a person has been dealt with
by the Royal Court, the person may appeal under this Part to the Court of
Appeal notwithstanding that the person is not a person convicted on indictment
by the Royal Court.
(2) Where,
in pursuance of any of the provisions mentioned in paragraph (1) or
Article 8(2) or (4) of the Criminal
Justice (Community Service Orders) (Jersey) Law 2001, a person has
been sentenced by the Royal Court, the person may appeal against the sentence
under this Part to the Court of Appeal notwithstanding that the person is not a
person convicted on indictment.
26 Determination of appeals in ordinary cases
(1) Subject
to the following provisions of this Part, on any appeal against conviction, the
Court of Appeal shall allow the appeal if it thinks that the verdict should be
set aside on the ground that it is unreasonable or cannot be supported having
regard to the evidence, or that the judgment of the court before which the
appellant was convicted should be set aside on the ground of a wrong decision
of any question of law or that, on any ground, there was a miscarriage of
justice, and in any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that it is of opinion
that the point raised in the appeal might be decided in favour of the
appellant, dismiss the appeal if it considers that no substantial miscarriage
of justice has actually occurred.[32]
(2) Subject
to the following provisions of this Part, the Court of Appeal shall, if it
allows an appeal against conviction, quash the conviction, and direct a
judgment and verdict of acquittal to be entered.[33]
(3) On
any appeal against sentence, the Court of Appeal shall, if it thinks that a
different sentence should have been passed on the appellant in the proceedings
from which the appeal is brought, quash the sentence and pass such other
sentence warranted in law by the verdict (whether more or less severe) in
substitution therefor as it thinks ought to have been passed, and in any other
case shall dismiss the appeal.
(4) Subject
to the provisions of Article 37, the term of any sentence passed under
this Part in substitution for a sentence passed on the appellant in the
proceedings from which the appeal is brought shall, unless the Court of Appeal
otherwise directs, begin to run from the time when it would have begun to run
if passed in those proceedings, and references in the said Article 37 to
any sentence to which an appellant is for the time being subject shall be
construed accordingly.
27 Powers of court in special cases
(1) If
it appears to the Court of Appeal that an appellant, though not properly
convicted on some count or part of the indictment, has been properly convicted
on some other count or part of the indictment, the Court may either affirm the
sentence passed on the appellant as a result of the trial, or pass such
sentence in substitution therefor as it thinks proper and as may be warranted
in law by the verdict on the count or part of the indictment on which the Court
considers that the appellant has been properly convicted.
(2) Where
an appellant could, on the indictment, have been found guilty of an offence
other than that of which the appellant was convicted and it appears to the
Court of Appeal that the jury must have been satisfied of facts which proved
the appellant guilty of that other offence, the Court may, instead of allowing
or dismissing the appeal, substitute for the verdict appealed from a verdict of
guilty of that other offence and pass such sentence in substitution for the
sentence passed as the result of the trial as may be warranted in law for that
other offence, not being a sentence of greater severity.
(3) If
on any appeal it appears that, although the appellant was guilty of the act or
omission charged against the appellant, at the time the act was done or the
omission made, he or she suffered from a mental disorder (within the meaning
given by Article 1 of the Mental Health (Jersey) Law 2016[34]), so as not to be
responsible according to law for the appellant’s actions, the Court of
Appeal may quash the sentence passed as a result of the trial and order the
appellant to be detained during Her Majesty’s pleasure.[35]
28 Power to order retrial[36]
(1) Where
the Court of Appeal allows an appeal against conviction and it appears to the
Court that the interests of justice so require, it may order the appellant to
be retried on a fresh indictment to be brought in the Royal Court within the
period of 2 months of the making of the order or such further period for which
it may give leave for the indictment to be brought.
(2) A
person shall not under this Article be ordered to be retried for any offence
other than –
(a) the
offence of which the person was convicted at the original trial and in respect
of which the person’s appeal is allowed as mentioned in paragraph (1);
(b) an
offence of which the person could have been convicted at the original trial on
an indictment for the first-mentioned offence; or
(c) an
offence charged in an alternative count of the indictment in respect of which
the Jurats or the jury, as the case may be, were discharged from giving a
verdict in consequence of convicting the person of the first-mentioned offence.
(3) The
Court of Appeal may, on ordering a retrial, make such orders as appear to it to
be necessary or expedient –
(a) for the custody or
release on bail of the person ordered to be retried pending the person’s retrial; or
(b) for the retention
pending the retrial of any property or money forfeited, restored or paid by
virtue of the original conviction or any order made on that conviction.
(4) If
the person ordered to be retried was, immediately before the determination of
the person’s appeal, liable to be detained in pursuance of an order or
direction under the Mental Health (Jersey)
Law 2016,[37] that order or direction
shall continue in force pending the retrial as if the appeal had not been
allowed and any order made by the Court of Appeal under this Article for the
person’s custody or release on bail shall have effect subject to the said
order or direction.[38]
(5) Schedule
2 shall have effect with respect to the procedure in the case of a person
ordered to be retried, the sentence which may be passed if the retrial results
in the person’s conviction and the order for costs which may be made if
the person is acquitted.
29 Judgments of Court of Appeal
Unless the Court of Appeal directs to the contrary in cases where,
in the opinion of the Court, the question is a question of law on which it
would be convenient that separate judgments should be pronounced by the members
of the Court, the judgment of the Court shall be pronounced by the President of
the Court or such other member of the Court hearing the case as the President
directs, and no judgment with respect to the determination of any question
shall be separately pronounced by any other member of the Court.
30 General powers of court
The Court of Appeal shall, for the purposes of and subject to the
provisions of this Part, have full power to determine, in accordance with this
Part, any questions necessary to be determined for the purpose of doing justice
in the case before it.
30A Effect of order[39]
Subject to the other provisions of this Part, an order made by the
Court of Appeal or by the Superior Number of the Royal Court on any appeal
under this Part shall have the like effect and be enforced in the like manner
as if it had been made by the court from which the appeal lies.
31 Re-vesting and restitution of property on conviction
(1) The
operation of an order as to the disposal of any property on a conviction on
indictment shall (unless the court before which the conviction takes place
directs to the contrary in any case in which, in its opinion, the title to the
property is not in dispute) be suspended –
(a) in
any case, until the expiration of 10 days after the date of the conviction; and
(b) in
cases where notice of appeal, or notice of application for leave to appeal,
against conviction is given within 10 days after the date of the conviction,
until the determination of the appeal, or, in any case where an application for
leave to appeal is finally refused, of the application,
and, in cases where the operation of any such order is suspended
until the determination of the appeal, the order shall not take effect as to
the property in question if the conviction is quashed on appeal.
(2) Provision
may be made by rules of court for securing the safe custody of any property
during the period of suspension of the operation of any such order as is
referred to in paragraph (1).
(3) The
Court of Appeal may by order annul or vary any order made on a trial for the
disposal of any property although the conviction is not quashed, and the order
if annulled shall not take effect and if varied shall take effect as so varied.
32 Time for appealing
(1) A
person who wishes –
(a) to
appeal under this Part; or
(b) to
obtain leave to appeal under this Part,
shall give notice of appeal or (as the case may be) notice of
application for leave to appeal, in such manner as may be prescribed by rules
of court.[40]
(1A) Notice of
appeal against conviction, or notice of application for leave to appeal against
conviction, shall be given within 28 days of the date of the conviction.[41]
(1B) Notice of
appeal against sentence, or notice of application for leave to appeal against
sentence, shall be given within 28 days of the date on which the sentence
is passed.[42]
(2) Rules
of court made for the purposes of this Article shall enable any convicted
person to present the person’s case and arguments in writing, instead of
by oral argument, if the person so desires, and any case or argument so
presented shall be considered by the Court of Appeal.
(3) The
time within which notice of appeal or notice of an application for leave to
appeal may be given may be extended at any time by the Court of Appeal.[43]
(4) [44]
33 Judge’s report on appeal[45]
(1) This
Article applies in the case of –
(a) an
appeal by a person against conviction;
(b) an
appeal by a person against sentence; or
(c) an
application by a person for leave to appeal against conviction or sentence.
(2) The
President of the court before which the person is convicted, or sentenced, as
the case may be, may furnish to the Court of Appeal a report giving the
President’s opinion upon the case or upon any point arising in the case.
(3) The
President of the court before which the person is convicted, or sentenced, as
the case may be, shall furnish such a report to the Court of Appeal if required
by the Court of Appeal to do so.
(4) Rules
of court may prescribe –
(a) parties
to whom copies of a report furnished under this Article shall be given; and
(b) the
manner in which the copies shall be so given.
34 Supplemental powers of Court
For the purposes of this Part, the Court of Appeal may, if it thinks
it necessary or expedient in the interests of justice–
(a) order
the production of any document, exhibit or other thing connected with the
proceedings if the production thereof appears to be necessary for the
determination of the case;
(b) if
it thinks fit, order any witnesses who would have been compellable witnesses at
the trial to attend and be examined before the Court, whether they were or were
not called at the trial, or order the examination of any such witnesses to be
conducted in the manner provided by rules of court before the Bailiff, the
Deputy Bailiff or an ordinary judge of the Court of Appeal, any officer of the
Court or any other person appointed by the Court for the purpose, and allow the
admission of any depositions so taken as evidence before the Court;
(c) if
it thinks fit, receive any evidence, if tendered, of any witness (including the
appellant) who is a competent but not compellable witness and, if the appellant
makes an application for the purpose, of the husband or wife or civil partner
of the appellant in cases where the evidence of the husband or wife or civil
partner could not have been given at the trial except on such an application;
(d) where
any question arising on the appeal involves prolonged examination of documents
or accounts, or any scientific or local investigation, which cannot in the
opinion of the Court conveniently be conducted before the Court, order the
reference of the question, in manner provided by rules of court, for inquiry
and report to a special commissioner appointed by the Court, and act upon the
report of any such commissioner so far as it thinks fit to adopt it; and
(e) appoint
any person with special expert knowledge to act as assessor to the Court in any
case in which it appears to the Court that such knowledge is required for the
proper determination of the case,
and exercise in relation to the proceedings of the Court any other
powers which may for the time being be exercised by the Court of Appeal on
appeals in civil matters under this Law, and issue any warrants necessary for
enforcing the orders or sentences of the Court:
Provided that in no case shall any sentence be increased by reason
of or in consideration of any evidence which was not given at the trial.[46]
35 Legal assistance to appellant
An appellant shall have the same right to legal aid in an appeal
under this Part and in proceedings preliminary or incidental to such an appeal
as the appellant would have in criminal proceedings instituted against him or
her in the Royal Court.
36 Right of appellant to be present
(1) An
appellant, notwithstanding that he or she is in custody, shall be entitled to
be present (if the appellant desires it) –
(a) on
the hearing of the appeal under this Part; and
(b) on
the hearing of any application for leave to appeal under this Part.[47]
(1A) However, an
appellant shall not be entitled to be present at proceedings preliminary or
incidental to the appeal, except where –
(a) rules
of court provide that he or she shall have the right to be present;
(b) the
Court of Appeal gives the appellant leave to be present; or
(c) he
or she is not legally represented.[48]
(2) The
power of the Court of Appeal to pass any sentence under this Part may be
exercised notwithstanding that the appellant is for any reason not present.
37 Admission of appellant to bail[49]
(1) An
appellant who is not admitted to bail shall, pending the determination of the
appeal, be treated in such manner as may be directed by prison rules.
(2) The
Court of Appeal may, if it thinks fit –
(a) on
the application of the appellant at any stage of the proceedings prior to the
determination of the appeal, grant the appellant bail pending the determination
of the appeal; or
(b) revoke
bail granted to the appellant by any court.[50]
(2A) Paragraph (2)
is without prejudice to Article 28(3).[51]
(3) Where
an appellant is admitted to bail, the time during which the appellant is at
large after being so admitted shall be disregarded in computing the term of any
sentence to which the appellant is for the time being subject.
(4) [52]
37A Time spent in custody pending
appeal[53]
(1) The
time during which an appellant is in custody pending the determination of the
appeal shall, subject to any direction which the Court of Appeal may give to
the contrary, be reckoned as part of the term of any sentence to which the
appellant is for the time being subject.
(2) Where
the Court of Appeal gives a contrary direction under paragraph (1), it
shall state its reasons for doing so.
(3) The
Court of Appeal shall not give such a direction where –
(a) leave
to appeal is granted under this Part; or
(b) any
such certificate as is mentioned in Article 24(1)(b) has been given for
the purposes of the appeal.
38 Suspension of licences and custody of goods pending appeal
Where notice of appeal or of an application for leave to appeal has
been given in respect of a decision which includes –
(a) an
order for the suspension or withdrawal of a licence or other permit, the
Bailiff may, unless it be otherwise provided by the enactment under which the
licence or permit was granted, direct that the order be suspended pending the
disposal of the appeal or application;
(b) an
order for the confiscation of goods, the goods shall be delivered into the
custody of the Judicial Greffier pending the disposal of the appeal or
application.
39 Duties of Judicial Greffier under Part 3[54]
(1) The
Judicial Greffier shall take all necessary steps for obtaining a hearing under
this Part of any appeals or applications notice of which is given to the
Judicial Greffier under this Part and shall obtain and lay before the Court of
Appeal in proper form all documents, exhibits and other things relating to the
proceedings in the court before which the appellant or applicant was tried
which appear necessary for the proper determination of the appeal or
application.
(2) Any
documents, exhibits or other things connected with the proceedings on the trial
on indictment of any person who, if convicted, is entitled or may be authorized
to appeal under this Part shall be kept in the custody of the Judicial
Greffier, for such time as may be provided by rules of court made for the
purpose, and subject to such power as may be given by the rules for the
conditional release of any such documents, exhibits or things from that
custody.
(3) The
Judicial Greffier shall furnish the necessary forms and instructions in
relation to notices of appeal or notices of application under this Part to any
persons who demand the same, to the Governor of the Prison and to such other
officers and persons as the Judicial Greffier thinks fit, and the Governor of
the Prison shall cause such forms and instructions to be placed at the disposal
of prisoners desiring to appeal or to make any application under this Part and
shall cause any such notice given by a prisoner in the Judicial
Greffier’s custody to be forwarded on behalf of the prisoner to the
Judicial Greffier.
40 Rules of court under Part 3[55]
(1) Rules
of court for the purposes of this Part shall be made, subject, so far as the
rules affect the Governor or any other officer of the Prison, to the approval
of the Minister for Home Affairs –
(a) in
relation to appeals to the Superior Number of the Royal Court, by the Superior
Number of the Royal Court; and
(b) in
relation to appeals to the Court of Appeal, by the Court of Appeal:
Provided that rules of court relating to appeals generally may be
made by both Courts sitting together.[56]
(2) Rules
so made may make provision for regulating the sittings of the Courts and of the
Bailiff, the Deputy Bailiff or an ordinary judge of the Court of Appeal,
whether sitting in court or elsewhere, and for any matter for which provision
is to be made under this Part by rules of court, and may regulate generally the
practice and procedure under this Part, and the officers of any court before
which an appellant has been convicted, and the Governor or other officers of
the Prison and any other officers or persons, shall comply with any
requirements of those rules so far as they affect those officers or persons,
and compliance with such rules may be enforced by order of the Court to which
the appeal lies.
41 Powers under Part 3 which may be exercised by a single judge[57]
The powers of the Court of Appeal under this Part to give leave to
appeal, to extend the time within which notice of appeal or of an application
for leave to appeal may be given, to grant or revoke bail or to allow the
appellant to be present at any proceedings in cases where the appellant is not
entitled to be present without leave, and such other powers to determine
matters preliminary or incidental to an appeal as may be prescribed, may be
exercised by any single judge of the Court in the same manner as they may be
exercised by the Court, and subject to the same provisions; but if the judge
refuses an application on behalf of the appellant to exercise any such power
under this Part in the appellant’s favour, the appellant shall be
entitled to have the application determined by the Court as duly constituted
for the hearing and determining of appeals under this Part.[58]
42 Shorthand notes of trial
(1) A
shorthand note shall be taken of the proceedings at the trial on indictment of
any person who has pleaded not guilty and who, if convicted, is entitled or may
be authorized to appeal under this Part, and, on any appeal or application for
leave to appeal, a transcript of the note or any part thereof shall, if the
Judicial Greffier so directs, be made and furnished to the Judicial Greffier
for the use of the Court, of the Attorney General and of the appellant:
Provided that a transcript shall be furnished to any party
interested, upon payment of such charges as may be fixed by rules of court.
(2) The
Bailiff, if so requested by the Secretary of State, shall direct a transcript
of the shorthand note to be made and furnished to the Bailiff for the Secretary
of State.
(3) The
cost of the transcript of any such shorthand note shall be defrayed, in
accordance with scales of payment fixed for the time being by rules of court,
out of the General Revenues of the States, and rules of court may make such
provision as is necessary for securing the accuracy of the note to be taken and
for the verification of the transcript.
(4) Any
moneys received from an interested party under the proviso to
paragraph (1) shall be paid into the consolidated fund.[59]
(5) In
relation to the criminal and quasi-criminal proceedings mentioned in
Article 44(2), a shorthand note shall be taken only in cases in which
there has been a denial of the facts alleged by the Crown.
(6) Any
reference in this Article to a shorthand note includes a reference to a record
of the proceedings by electronic means.[60]
43 Prerogative of mercy
Nothing in this Part shall affect the prerogative of mercy, but, as
respects the conviction of a person on indictment by the Royal Court or the
sentence passed on a person so convicted, being a conviction or sentence
against which an appeal lies under this Part to the Court of Appeal, the
Lieutenant-Governor may, if he or she thinks fit, at any time
either –
(a) refer
the whole case to the Court of Appeal, and the case shall then be heard and
determined by the Court as in the case of an appeal by a person convicted; or
(b) if
the Lieutenant-Governor desires assistance on any point arising in the case,
refer that point to the Court of Appeal for its opinion thereon, and the Court
shall consider the point so referred and furnish the Lieutenant-Governor with
its opinion thereon accordingly.[61]
44 Interpretation and application of Part 3
(1) In
this Part, unless the context otherwise requires –
“appellant” includes a person who has been convicted and
desires to appeal under this Part;
“confiscation order” means a confiscation order as
defined in Article 1(1) of the Proceeds of Crime (Jersey) Law 1999[62];
“prison rules” means rules made under Article 29 of
the Prison (Jersey) Law 1957; [63]
“Prison” has the same meaning as in the Prison (Jersey) Law 1957;
“sentence” includes any order (including an order of
banishment or a confiscation order) made by a court when dealing with the
person convicted, and the power of the Court of Appeal to pass a sentence
includes a power to make any such order.[64]
(2) This
Part shall apply in the case of conviction by the Royal Court in any criminal
or quasi-criminal proceedings, otherwise than by way of indictment, as it
applies in the case of conviction on indictment.
(3) Any
reference in this Part to a jury shall, in relation to a trial conducted before
a court without a jury, be construed as a reference to that court.
PART 4[65]
REFERENCES AND APPEALS BY THE ATTORNEY GENERAL[66]
45 Reference to Court of Appeal of point of law following acquittal[67]
(1) Where
a person tried in the Royal Court on indictment or otherwise has been acquitted
(whether in respect of the whole or part of the indictment or charge) the
Attorney General may, if he or she desires the opinion of the Court of Appeal
on a point of law which has arisen in the case, refer that point to that Court,
and that Court shall, in accordance with this Article consider the point and
give its opinion on it.
(2) For
the purpose of its consideration of a point referred to it under this Article
the Court of Appeal shall hear argument–
(a) by
the Attorney General; and
(b) if
the acquitted person desires to present any argument to the Court, by counsel
on the person’s behalf or, with the leave of the Court, by the acquitted
person himself or herself.
(3) Where,
on a point being referred to the Court of Appeal under this Article the
acquitted person appears by counsel for the purpose of presenting any argument
to the Court the person shall be entitled to costs, that is to say to the
payment out of the consolidated fund of such sums as are reasonably sufficient
to compensate the person for expenses properly incurred by the person for the
purpose of being represented on the reference; and any amount recoverable under
this paragraph shall be ascertained, as soon as practicable, by the Judicial
Greffier.[68]
(4) A
reference under this Article shall not affect the trial in relation to which
the reference is made or any acquittal in that trial.
45A Reference
to Court of Appeal for review of sentence[69]
(1) This
Article applies to any case in which sentence is passed on a person
for –
(a) an
offence for which the person is liable to imprisonment for a term of
12 months or longer (whether or not it is one for which he or she is also
liable to any other penalty); or
(b) an
offence to which this Article applies by reason of Regulations made under
paragraph (5).
(2) However,
this Article shall not apply in respect of a confiscation order.
(3) If
it appears to the Attorney General –
(a) that
the sentencing of a person in any proceedings in the Royal Court has been
unduly lenient; and
(b) that
the case is one to which this Article applies,
the Attorney General may, with the leave of the Court of Appeal,
refer the case to the Court of Appeal for it to review the sentencing of that
person.
(4) Without
prejudice to the generality of paragraph (3), the condition specified in
sub-paragraph (a) of that paragraph may be satisfied if it appears to the
Attorney General that the Royal Court –
(a) erred
in law as to its powers of sentencing; or
(b) failed
to impose a sentence which it was required by law to impose.
(5) The
States may by Regulations declare that this Article shall apply to an offence.
45B Court’s powers on reference
under Article 45A by Attorney General[70]
(1) On
a reference under Article 45A, the Court of Appeal may –
(a) quash
any sentence passed on the person for the offence (whether passed on his or her
conviction or in subsequent proceedings); and
(b) in
place of it pass such sentence as the Court thinks appropriate for the case and
as the Royal Court had power to pass when dealing with the person.
(2) In
deciding under paragraph (1) the appropriate sentence to pass on a person
for an offence, the Court of Appeal shall not make any allowance for the fact
that the person is being sentenced for a second time in relation to the
offence.
45C Calculation of sentence passed on
review[71]
(1) The
term of any sentence passed by the Court of Appeal under Article 45B
shall, unless the Court otherwise directs, begin to run from the time when it
would have begun to run if passed in the proceedings in respect of which the
reference was made.
(2) Paragraph (1)
shall not apply to a custodial sentence which is passed in place of a
non-custodial sentence.
(3) The
time during which a person whose case has been referred for review under
Article 45A is in custody pending its review shall be reckoned as part of
the term of any sentence to which he or she is for the time being subject.
45D Appeal by Attorney General in
respect of confiscation order[72]
(1) This
Article applies to any case in which –
(a) sentence
is passed by the Royal Court on a person for an offence; and
(b) in
passing the sentence, the Royal Court has jurisdiction to make a confiscation
order.
(2) If
in a case to which this Article applies the Royal Court makes a confiscation
order, the Attorney General may appeal to the Court of Appeal in respect of the
order.
(3) If
in a case to which this Article applies the Royal Court decides not to make a
confiscation order, the Attorney General may appeal to the Court of Appeal
against the decision.
(4) Paragraphs
(2) and (3) shall not apply to an order or decision made by virtue of any of
Articles 9, 12 and 13 of the 1999 Law.[73]
(5) An
appeal to the Court of Appeal under this Article lies only with the leave of
the Court of Appeal.
45E Court’s powers on appeal by
Attorney General[74]
(1) On
an appeal under Article 45D(2), the Court of Appeal may confirm, quash or
vary the confiscation order.
(2) On
an appeal under Article 45D(3), the Court of Appeal may confirm the
decision, or if it believes that the decision is wrong –
(a) may
itself proceed under paragraphs (3) to (8) (inclusive) of Article 3 of the
1999 Law, as the case may be; or
(b) may
direct the Royal Court to proceed afresh under Article 3 of the 1999 Law,
as the case may be.[75]
(3) In
directing the Royal Court under paragraph (2) to proceed afresh, the Court
of Appeal may also give other directions, and if it does so the Royal Court
shall comply with those directions in proceeding afresh in pursuance of this
Article.
45F Matters to be taken into account on appeal in respect of confiscation order[76]
(1) This
Article applies if –
(a) the
Court of Appeal makes or varies a confiscation order pursuant to
Article 45E; or
(b) the
Royal Court makes or varies a confiscation order in pursuance of a direction
under paragraph (2) of that Article.
(2) The
court, in doing so, shall have regard –
(a) to
any fine imposed on the respondent in respect of the offence (or any of the
offences) concerned;
(b)
(c) in
the case of an order under the 1999 Law, to any order which is specified in
either of clauses (ii) and (iii) of Article 10(1)(a) of that Law and has
been made against the respondent in respect of the offence concerned (or any of
the offences concerned).[77]
(3) However,
the court is not required to have regard to an order to which paragraph (2)
refers where the order has already been taken into account by the Royal Court
in deciding for the purposes of –
(a)
(b) Article 4
of the 1999 Law,
as the case may be, the amount which might be realized.[78]
(4) If,
in a case in which the court is proceeding under the 1999 Law, an order has
been made against the respondent in respect of the offence concerned (or any of
the offences concerned) under Article 2 of the Criminal Justice
(Compensation Orders) (Jersey) Law 1994[79] –
(a) the
court shall have regard to the order; and
(b) Article 3(7)
of the 1999 Law shall not apply.
(5) [80]
(6) In
a case in which the court is proceeding under the 1999 Law, in
Article 5(5) of that Law –
(a) the
assumptions in sub-paragraph (a) of that paragraph do not apply with
regard to property first held by the respondent on or after the relevant date;
(b) the
assumption in sub-paragraph (b) of that paragraph does not apply with
regard to expenditure incurred by the respondent on or after that date; and
(c) the
assumption in sub-paragraph (c) of that paragraph does not apply with
regard to property received (or assumed to have been received) by the
respondent on or after that date.
(7) In
this Article –
“court” means –
(a) the
Court of Appeal, if that court is itself proceeding under paragraphs (3)
to (8) (inclusive) of Article 3 of the 1999 Law pursuant to
Article 45E(2)(a); or
(b) the
Royal Court, if that court is proceeding afresh that Article, on the direction
of the Court of Appeal pursuant to Article 45E(2)(b);
“relevant date” means the date on which the Royal Court
decided not to make a confiscation order.[81]
46 Right of person to be present[82]
(1) Notwithstanding
that he or she is in custody –
(a) a
person whose sentencing is the subject of a reference to the Court of Appeal
under Article 45A; or
(b) a
respondent in an appeal under Article 45D,
shall be entitled to be present (if he or she desires it) on the
hearing of the matter.
(2) However,
paragraph (1) is subject to paragraphs (3) and (4).
(3) A
person in custody shall not be entitled to be present on any proceedings
preliminary or incidental to a reference under Article 45A or to an appeal
under Article 45D, unless the Court of Appeal gives the person leave to be
present.
(4) The
power of the Court of Appeal to pass sentence on a person under
Article 45B or to make any order under Article 45E may be exercised
although he or she is not present.
46A Time for proceedings under
Part 4[83]
(1) Notice
of –
(a) a
reference to the Court of Appeal under Article 45;
(b) an
application for leave to refer a case to the Court of Appeal under
Article 45A; or
(c) an
application for leave to appeal to the Court of Appeal under Article 45D,
shall be given within 28 days from the day on which the
sentence or the last of the sentences in the case was passed.
(2) The
time during which notice of –
(a) a
reference; or
(b) an
application for leave to refer a case or for leave to appeal,
may be given may be extended at any time by the Court of Appeal.
46B Duties of Judicial Greffier under
Part 4[84]
If the Judicial Greffier is given notice of a reference under
Article 45, an application or reference under Article 45A or an
application or appeal under Article 45D, he or she shall –
(a) take
all necessary steps for obtaining a hearing of the matter; and
(b) obtain
and lay before the Court in proper form all documents, exhibits and other
things which appear necessary for the proper determination of the matter.
46C Powers under Part 4 which may
be exercised by a single judge[85]
(1) In
respect of any application, reference or appeal under this Part –
(a) the
power of the Court of Appeal to give leave to refer a case to it or to appeal
to it;
(b) the
power of the Court under Article 46 to give leave to a person to be
present at any proceedings in any case where the person is not entitled to be
present without leave;
(c) the
power of the Court under Article 46A(2) to extend the time for giving
notice; and
(d) such
other powers to determine matters preliminary or incidental to the reference as
may be prescribed,
may be exercised by any single judge of the Court in the same manner
as they may be exercised by the Court, and subject to the same provisions.
(2) If
the single judge refuses an application to exercise any power to which
paragraph (1) refers, the applicant shall be entitled to have the
application determined by the Court of Appeal as duly constituted for the
hearing and determining of references under either of Articles 45 and 45A or
appeals under Article 45D.
46D Supplementary provisions as to
Part 4[86]
In respect of any application, reference or appeal under this
Part –
(a) Article 29
shall apply to any judgment of the Court of Appeal as that Article applies to a
judgment of the Court under Part 3;
(b) the
Court of Appeal shall, for the purposes of and subject to the provisions of
this Part, have the same powers as are conferred on it by Article 30 for
the purposes of Part 3;
(c) subject
to the provisions of this Part, Article 30A shall apply to any order made
by the Court of Appeal as it applies under Part 3 to an order made by it
on any appeal;
(d) Article 33
shall apply as it applies under Part 3 to an appeal and an application for
leave to appeal;
(e) the
Court of Appeal shall for the purposes of this Part have the same powers as are
conferred on it by Article 34 for the purposes of Part 3;
(f) Article 35
shall apply to an acquitted person to whom Article 45 refers and to a
person to whom Article 45A(1) refers as it applies to an appellant under
Part 3; and
(g) Article 40
shall apply as it applies in relation to appeals under Part 3 to the Court
of Appeal and as it applies to appeals generally under that Part.
46E Interpretation of Part 4[87]
(1) In
this Part –
“1999 Law” means the Proceeds of Crime (Jersey) Law 1999[88];
“respondent” means a person in whose case the making, or
not making, of a confiscation order is the subject of an appeal under
Article 45D.[89]
(2) Expressions
which –
(a) are
used in this Part; and
(b) are
also used in Part 3,
shall have the same respective meanings as they have in Part 3.
(3) Notwithstanding
Articles 45A and 45D, where the person to whose sentencing either of those
Articles refers was –
(a) convicted
and sentenced by the Inferior Number of the Royal Court; or
(b) sentenced
by that court in pursuance of powers conferred by any enactment mentioned in
Article 25,
the reference under Article 45A or the appeal under
Article 45D (as the case may be) shall lie to the Superior Number of the
Royal Court and accordingly, in relation to such a matter, references in this
Part (other than Article 46D(a)) to the Court of Appeal shall, unless the
context otherwise requires, be construed as references to the Superior Number
of the Royal Court.
PART 5
GENERAL
47 Application of Subordinate Legislation Law
The Subordinate Legislation
(Jersey) Law 1960,[90] shall apply to Rules of
Court made under this Law.
48 Saving
Save as provided by Article 14, nothing in this Law shall
affect the prerogative of Her Majesty or the jurisdiction of Her Majesty in
Council.
49 Interpretation
In this Law, unless the context otherwise requires –
“judgment” includes
decree;
“matter” includes ex parte proceedings;
“party” includes
every person served with notice of or attending any proceedings;
“prescribed” means
prescribed by rules of court;
“rules of court”
includes forms.
50 Citation
This Law may be cited as the Court of Appeal (Jersey) Law 1961.