The Origin Of The Jersey Court Of Appeal
Terry Sowden QC
From time to time reference is made to the “Channel Islands
Court of Appeal”. That court did once exist, but its life was short and
inglorious. Its history goes back to 1946.
The story starts when, by resolutions dated January 23rd,
1946, the States of Guernsey adopted proposals relating to the reform of the
States of Guernsey, which resolutions were transmitted in order that the
pleasure of His Majesty might be ascertained on the reforms therein envisaged.
By Act of the States of Jersey dated January 31st, 1946,
when the States of Jersey were considering the question of their reforms, the
Assembly asked the Royal Court to consider its own reform.
The Report of the Royal Court in relation to judicial
reform was presented to the States by the Bailiff and lodged au Greffe
on January 31st, 1946.
By an Act dated March 14th, 1946, the
States of Jersey charged their President (the Bailiff) to transmit to the
Lieutenant Governor an Act and Report of the States relating to reform of the
States of Jersey, in order that the pleasure of His Majesty might be ascertained
on the reforms therein envisaged.
A supplementary report of the Royal Court was presented to
the States by the Bailiff on April 2nd, 1946.
By Order in Council dated June 4th,
1946, His Majesty appointed a Committee to inquire into the proposed reforms in
the constitution and procedure of the States of Jersey and of Guernsey and into
proposed judicial reform. The Committee of the Privy Council
so appointed to advise His Majesty comprised the Rt. Hon. James Chuter Ede, The
Home Secretary, (chairman), the Viscount Samuel, the Lord Ammon, the Rt. Hon.
Richard Austen Butler and the Rt. Hon. Sir John Beaumont.
The Committee stayed in Jersey between September 15th and
September 21st, and in Guernsey from September 21st to September 29th, 1946,
and received evidence.
Sir Alexander Coutanche, Bailiff of Jersey, gave the
following evidence to the Committee:-
“If I might just return from one moment to the criminal
side…….so far as the Superior Number is concerned, where there is the
unsatisfactory factor of an appeal to the same body as has determined the
matter in first instance, or to a body which can contain those persons who have
assisted in the formulation of the first judgment, it is proposed to make a
…….there have been consultations between this Bailiwick and
the Bailiwick of Guernsey, and the proposals for the constitution of that
Channel Islands Court, which are before your Lordships, are approved in
……I should like to stress, if I may, what appears to me to
be a very important factor in this new proposal, and that is that for the first
time in the history of this Island – I speak not of the others – there will be
an appeal in criminal matters. At the present moment, as your Lordships
know, there is no right of appeal from a decision of the Royal Court of Jersey
in a criminal matter; anyone who feels himself aggrieved by a sentence
pronounced by this Court or by the finding of a jury, any person who is
critical of the conduct of the proceedings or of the summing-up of the
presiding judge, may apply to Your Lordships’ Board for special leave to
appeal. There is no appeal as of right from this Court, and, speaking as
the person who for the last 11 years has been charged with the duty of administering
the criminal justice in this place, I yearn for the day when there
will be a Court of Appeal readily accessible to rectify such errors as may
The Bailiff was later questioned by the chairman on the
procedure following committals to the Royal Court from the Police Court.
“A…the papers are then sent to the Attorney, who drafts an
indictment and presents the prisoner at this Bar. The prisoner then says
‘Guilty’ or ‘Not Guilty’. If he says ‘Guilty’, he is dealt with by the
Court right away, unless he is sent to the Superior Number to receive
sentence. If he pleads ‘Not Guilty’, then either he is sent to Assizes to
be tried by a jury or he is tried by the Inferior Number without a jury as his
Q. And there is no appeal at
all? – A. There is no appeal at all.
Q. Because the Judicial
Committee of the Privy Council is not really a Court of Criminal Appeal? – we
have said that over and over again; we only interfere if there has been some
gross miscarriage of justice.
A. It is for that reason, My
Lord, that I venture to think this Channel Islands Court of Appeal is very
necessary in order that the prisoner shall have ready access to a Court of
Appeal and not to a Body which only grants special leave to appeal if there has
been a miscarriage of justice."
The Report of the Committee of the Privy Council was
presented by the Secretary of State for the Home Department to Parliament by
command of His Majesty in March, 1947.
At page 37 of its report the Committee stated:-
“So far as criminal cases are concerned
there is an appeal to the Judicial Committee of the Privy Council by Special
Leave of the Committee. The Judicial Committee cannot, however, be
regarded as a general appeal court to which access is readily available.
In this connection the Lords of the Judicial Committee observed in their
judgment of April 6th, 1936, in Renouf v Attorney General of Jersey:-
‘In the case of misdirection, as in any other case of an
alleged failure in the proper trial of a criminal case, the Board give advice
to His Majesty to intervene only if there is shown to be such a violation of
the principles of justice that grave and substantial injustice has been
done. The Board has repeatedly declined to act as a general Court of
Inter alia, at page 39 of
its report the Committee recommended:-
“1. That a joint
Court of Appeal be constituted for the whole of the Channel Islands to hear
civil and criminal cases, with right of appeal therefrom in civil cases to the
Judicial Committee of the Privy Council under rules to be framed.”
By Order in Council dated March 17th, 1947, it was ordered
that the said Report be transmitted to be registered and published in the
Islands of Jersey and Guernsey, which Order was transmitted to the Bailiff
through the usual channels.
On March 27th, 1947, the Bailiff presented the Order in
Council, together with the Report, to the States. The States thereupon
requested the Bailiff to present the said documents, in original, to the Royal
Court in order that the Order in Council might be registered and published in
the customary manner and that the said Report and accompanying correspondence
might be lodged to form part of the records of the Island.
Thereafter, the Bailiffs and Law
Officers of the two Islands collaborated in preparing a scheme substantially
carrying into effect the recommendations contained in the Report forming part
of the Order in Council. On September 22nd, 1948, the scheme was approved
by the States of Guernsey and a petition was presented praying that His Majesty
in Council might direct that the same should have the force of law in the
Bailiwick of Guernsey.
An Order in Council, embracing the scheme and constituting
the Channel Islands Court of Appeal, entitled “Court of Appeal (Channel
Islands) Order, 1949” was accordingly made on May 31st, 1949 and was registered
in Guernsey on June 18th, 1949, and in Jersey on June 24th, 1949. It
appears that the Order in Council was intended to have the force of law in
Guernsey but curiously not in Jersey. It seems that it was registered in
Jersey more for the information of the inhabitants of Jersey rather than that
they “should govern themselves accordingly”.
There followed some differences of opinion between the
States of Jersey and the States of Guernsey concerning the emoluments of the
Ordinary Judges of the Court of Appeal, but these differences were reconciled
and on October 4th, 1951, His Majesty approved an Act of the States of Guernsey
concerning such emoluments.
As a result of further consideration, it become apparent
that arrangements in connection with the Channel Islands Court of Appeal which
would be convenient in the one Bailiwick, would not be convenient in the other.
The matter was discussed with Sir Frank Newsam and Sir
Austin Strutt of the Home Office, together with delegations of the Royal Court
and States of the respective Islands. Eventually it was agreed that there
should be separate Courts of Appeal for each of the bailiwicks and that draft
legislation in this connection should be submitted for the consideration of the
Home Office by Jersey and Guernsey contemporaneously.
In so far as Jersey is concerned, this led, in the fullness
of time, to the enactment of the Court of Appeal (Jersey) Law, 1961, and to the revocation of the Court of Appeal (Channel Islands)
Order, 1949, which revocation took place by Order in Council dated May 26th,
In the absence of this note it is difficult for the casual
reader of Tome 1961-62 of the Jersey Recueil des Lois to fathom why it
appears that the Channel Islands Court of Appeal never sat to determine appeals
For the sake of completeness the Court of Appeal (Jersey)
Law, 1961, was registered in Jersey on June 17th, 1961.
Terry Sowden QC was Her Majesty’s Solicitor General
between 1986 and 1993. From 1993 until his retirement in July 1999 he was
Juge d’Instruction or Magistrate.
 1946 Rapports et
Correspondance page 10
 1946 Rapports et
Correspondance page 15
 Minutes of evidence of
Privy Council Committee on Channel Islands’ reform; published 1946, pages 86 -
 1947 Rapports et
Correspondance page 5
 See June 30th, 1955,
Act of the Special Committee constituted by the States of Jersey dated December