The Law is Crap(aud)

William Bailhache, QC, the Attorney-General also said that if a police enquiry into alleged abuse at a former children's home on the island led to lengthy trials, an outside judge was likely to be brought in to handle them....He said the allegations of abuse at the children's home should be handled largely by Jersey's legal system, but added that if several defendants were involved who pleaded not guilty, a judge from outside the island was likely to be brought in. "I don't think there's any doubt that justice can be done," he told the newspaper. "The Jersey Royal Court is very well respected. When any community, wherever it is, has this sort of problem, the community must deal with it."

http://www.telegraph.co.uk/news/2064076/Jersey-abuse-case-Thousands-to-be-added-to-sex-offenders-register.html?service=print

I love the way in which we are told contradictory things.

First, Jersey can handle its own cases and does not need outside help.

Then the Attorney General says that they may bring in judges from outside, and notes (in another version of this interview) that can be standard practice for long drawn out and involved cases.

But that doesn't mean the Island courts can't handle matters on their own!!


Of course it is and always has been the case, as the Edward's report notes:

The Bailiff may appoint persons from outside the Island, mainly QC's from the United Kingdom, as Commissioners to hear particular cases when pressure of business or conflicts of interest require.

But that doesn't mean the Island courts can't handle matters on their own!!!

A difference that makes such a difference makes all the difference, to paraphrase Spock.

But that doesn't mean the Island courts can't handle matters on their own!!!!!

And on a lighter note, but still of interest, a few extracts from Matthew Jowitt's law review from 2003:

http://www.jerseylaw.je/Publications/jerseylawreview/Oct03/JLR0310_Postscript.aspx

To an English lawyer wearied by Government performance targets and fatuous attempts to apply the 'user friendly' culture of fast-food restaurants to a criminal justice system, Jersey's dignified adherence to its legal past is refreshing, if not a little off-putting at times.The most immediate aspect, because the most obvious, is the Island's apparent love for arcane titles. In England we used to have all manner of exotic legal creatures: stipendiaries, serjeants, assistant recorders, Lord Chancellors - even silks. All sadly extinct, or about to become so. In our brave new legal world the colour of history and tradition is being bleached away. Titles now are prosaic: district judge, list officer, minister of justice - like quick-dry paint, they do exactly what it says on the tin.

For some time I thought 'Judicial Greffe' was pronounced 'judicial grief' - and assumed that must be what advocates received in the Court of Appeal. I suspected that a 'Bâtonnier' was a type of French gateau, probably with marzipan. Bailiff, Deputy Bailiff, Lieutenant Bailiff, Acting Deputy Lieutenant Bailiff (second class) - what is the newly-arrived Englishman to make of this? When I first heard a lawyer talking about 'the Jurats' I assumed he meant an island chain somewhere off the coast of Norway.

But the differences between our two criminal legal systems are more than skin-deep, no matter how familiar much of Jersey criminal law and practice is to the English barrister. In the Island I am repeatedly struck by how involved the prosecution are with matters which, in England, the prosecution not only do not trespass upon, but it is felt should have nothing to do with as a matter of sacrosanct principle.

In Lincoln Crown Court you would not only never hear a prosecutor giving the judge his opinion on what the sentence should be. If he were to do so the judge would come down on him like a ton of bricks. An English judge may well ask a prosecutor what his sentencing powers are as a matter of law, but anything more than that and defence counsel - rightly - would be jumping to his feet to object. In England it is considered somehow unseemly for the Crown to be seen demanding its pound of flesh.

In Jersey things are very different. A Crown Advocate is required, through his submissions, to recommend to the Court a particular conclusion, and give relevant indications from case law about sentencing practice and tariffs. Custody thresholds and starting points are debated at length.

In England it is accepted without being said that the tribunal which sentences an offender should be the tribunal which tried him. There are good reasons for that: the trial judge will have heard the evidence, assessed each and every witness, formed a view as to where the truth lies, or whether certain aggravating features, notwithstanding a guilty verdict, were sufficiently proved to be reflected in sentence. Chiefly, the trial judge will have been able to assess the defendant himself, if he gave evidence, (and in England the fact that an adverse inference cannot be drawn from a defendant's failure to give evidence means that most do). I have often heard a sentencing judge express his opinion as to a defendant's character on the strength of his earlier performance in the witness box. Any English judge asked to sentence a man following his trial before another judge would - unless that judge were seriously ill or dead - decline to deal with it, and send it back to the trial judge.

In Jersey it is difficult for the English barrister to see the point of Inferior and Superior numbers. One manifestation of the Royal Court, with the power to sentence to any length of imprisonment, ought to suffice as it does in the English Crown Court. One manifestation of the Royal Court both to try and sentence the same defendant would be a simpler, more elegant solution than that which pertains as present.

It may be that I have missed point, but it does strike me that this procedural complexity is exacerbated by Jersey's peculiar dual system of trial by judge and jury for customary law offences, and trial by judge and jurats for statutory offences.

It is a system which has the potential too for wide-reaching constitutional problems. English common law offences grow few and far between: violence, dishonesty, drugs and sex are all now, for the most part, codified in statute. Statutes have a distinct advantage over customary law: subject to construction, and some interpretative case law, their meaning is clear and fixed. To an English lawyer, Jersey's customary law is a particular headache - varied in origin, not always clear in substance. The molly-coddled London counsel, used to turning up statute to discover what an offence involves, can be tempted to conclude that Jersey customary law is no move than a misnomer for a piecemeal assortment of ad hoc decisions by different people at different times over a course of ages.

In this new age of human rights law the principle that law should be clear, consistent and unambiguous grows more important that ever. The law should say what it means, and mean what it says. Similarly, defence lawyers will grow ever more astute to argue against changes which detract from those rights - chief amongst them, perhaps, the hallowed right to jury trial. Here lies the seed of conflict: on the one hand the potential need to clarify customary law through codification, on the other the erosion of trial by jury which such a course would entail. Short of abolishing the dual system of juries and jurats, it is not immediately obvious how such problems would resolve themselves.