Thursday, 17 February 2011

Laws Apart

The Jersey and Guernsey Law Review 2010 is now out, and is always worth a look. In the "Miscellany Section" , on a consideration of a recent case for forgery, the author notes, with some dismay that:

There is, as yet, no textbook on the criminal law of Jersey. The best substitute for such a work that we have is probably the 36th edition of Archbold, published in 1966. The solution to the problem, in default of the writing of a textbook, was probably identified as long ago as 1847 when the Commissioners recommended that "[a] definite system of penal law ought undoubtedly to be laid down"; in other words, codification of the criminal law should take place. In the meantime prosecutors need to take care that reference to current English textbooks on the criminal law does not lead them astray.

"Archbold" here refers to "Archbold: Criminal Pleading, Evidence and Practice" which is a comprehensive coverage of the practice and procedure of the United Kingdom Crown Court including jurisdiction, bail, evidence, costs and appeals. It was first published 1822, when it was written by John Frederick Archbold. Successive editions have been produced to the present day, and now it is published annually.

The trouble comes when English law has changed, and the case law flowing from that legislation depends upon a foundation which is not, in fact, present in Jersey law, either because similar legislation has not yet been passed, or because Jersey is still relying on older laws and customary law. This is why the 1966 edition of Archbold is prized, because there was enough overlap between Jersey and the United Kingdom for it to form a useful groundwork for Court cases. But there has been a raft of newer legislation in the United Kingdom which has not been mirrored in Jersey:

The problem for practitioners today is that reliance upon English textbooks and authorities is no longer so easy. Quite apart from offences against property, there are other important areas of the criminal law where statute has now changed English law so that it differs materially from the old common law and from the law of Jersey. The law relating to sexual offences is perhaps the prime example.

The result is that Jersey has to rely on its own customary law to pick on the same effect as legislation in the United Kingdom, and while this works, it is not codified:

The customary law offence of fraud (which is not reflected in the common law of England) catches much of the conduct which would now be criminal in England under the new Theft Act offences.

An example is given of the case of Paul Self in 2009, the indictment was framed using a modern version of Archbold, and some of the charges were dismissed because the categories in the UK law did not exist in Jersey law, and the wording was not amended to allow for those charges to be made under Jersey customary law. While this was the fault of the draftsman of the indictment, it highlights the problem of not having a codified law, which will mean that slip ups will invariably occur; it is not the most efficient way to conduct legal matters.

It also means that members of the public who may think that a criminal offense has taken place against them, or the police investigating a crime, viewing the matter on the basis of cases in the United Kingdom, may find that in some circumstances, Jersey customary law is not strong enough to deliver the same justice, or can only do so in other ways that are obscure to all but the legal expert.

The article then turns across the water to Guernsey, there was also a call for codification back in 1848, when Commissioners were appointed to enquire into the State of the Criminal Law in the Channel Islands. They concluded that the reliance on interpretation of custom law, rather than case law for criminal cases was often up to the discretion of the Court, and varied widely, sometimes using UK law, and sometime custom law, on a "jurisprudential "pick'n'mix" approach":

It is sufficient to state that we found scarcely a single instance in which the law could be traced to a higher source than the discretion of the Court, or in which that discretion was itself secured from continual variation in practice. It is clear that the continuance of such a system is inconsistent with the administration of justice on any fixed principle, and that it tends to subject the Court to the imputation of partiality or caprice.

We recommend the adoption of a course, with regard to the criminal law of Guernsey, similar to that suggested in our First Report with regard to the criminal law of Jersey: that is to say, that a code be drawn up, embodying in as few words as possible the definitions of crime, and, so far as may be thought expedient, assigning punishments, in language which has already become familiar in the English law books

This led to considerable changes in Guernsey law, so that:

Whilst the Commissioners' recommendations were mostly directed towards the administration of justice rather than the substantive criminal law, from mid-Victorian times the character of Guernsey's criminal jurisprudence became, and resolutely remains, English, and nowadays recourse to French sources for purposes of identifying and characterising criminal offences and their ingredients would be regarded as aberrant.

But the codification still had not really been done by 1953, when a letter was sent to the States Advisory Council by the Procureur, William Arnold (later to be Bailiff of Guernsey from 1960 to 1973) wrote:

"For some time past I have had under consideration the necessity for bringing our Criminal Law more into line with that of England and for codifying step by step those parts of it which are most frequently administered by the Royal Court and the Magistrate."

Hence Guernsey became more engaged with a legislative programme in order to codify the law, one example being the English Larceny Acts (particularly of 1916) which eventually found a near complete legislative reproduction in the Bailiwick in the Larceny (Guernsey) Law, 1958.

The procedure in Guernsey's with regard to criminal law has been to refer to and reproduce English statutes. In contrast, Jersey has relied more on customary law. The Theft Act of 1978, and the Forgery and Counterfeiting Act 1981 - UK legislation - have not been mirrored in Jersey Law:

In England dishonesty is now a key ingredient of the new offences. Specific offences now cover conduct such as obtaining a money transfer or a pecuniary advantage by deception...None of these new English offences forms part of the law of Jersey.

In contrast, Guernsey has continued its legislative codification. The recent Forgery and Counterfeiting (Bailiwick of Guernsey) Law, 2006 was based on the Forgery and Counterfeiting Act 1981. The Theft (Bailiwick of Guernsey) Law, 1983 took a substantial part from the UK Theft Act of 1978.

The Law Officers in Guernsey adopt the view that arguments (as occurred for example in Jersey in the case of Paul Self) over whether an offence exists as part of Guernsey law distract prosecutors from their proper functions. They also note that:

Furthermore, it cannot be denied, in our human rights conscious environment, that any uncertainty as to what conduct might or might not constitute a criminal offence leaves the administration of justice pregnant with vulnerability and inconvenience.

No codifications have taken place, either in Jersey or Guernsey, but because Guernsey has largely introduced legislation which mirrors UK law, this means that authorities such as current editions of Archbold can be utilised to extremely good effect as an alternative to local codification, and a wider scope of judgments is available to draw upon, and this also speeds up the Court's time and expense in the framing of indictments.

Jersey, on the other hand, has diverged significantly in a number of areas from the UK, and as a consequence has no codification, an increased risk of mistakes with indictments where there is a divergence from UK law, and a much narrower and obscurer base of judgments to draw upon.

It should be said, in fairness, that the Jersey & Guernsey Law Review does help to mitigate against this problem since its inception in 1997 with its discussions of criminal cases, but there is still a long way to go before such a substantial work as Archbold exists locally.



Ian Evans said...

Great posting Tony, an enjoyable and thought provoking read.

Nick Palmer said...

"It is sufficient to state that we found scarcely a single instance in which the law could be traced to a higher source than the discretion of the Court"

Hmmm. It's all a bit "Judge Dredd - I am the law" isn't it?