Tuesday, 4 September 2012

Does Jersey Need A Crown Prosecution Service?

Having look at Jersey justice historically, the major breakdown in the judicial system came during the time of Queen Elizabeth I, when the Island was more or less left to its own devices as a highly radicalised French speaking Protestant (Calvinist society). The realpolitik thinking was that a Calvinist state was a good bulwark against any tendency to look to join Catholic France, and it was better not undermined.

The result was that Jersey (and Guernsey likewise) suffered from a judiciary which cheerfully tortured and burnt people as witches, something which did not happen in England until the breakdown in Circuit Judges riding out occasioned by the Civil War, which left communities in the hands of local magistrates. The position was only rectified in Jersey with the restoration of Charles II, and the dismantling of the Calvinist structures; Charles was not going to let Jersey or Guernsey go their own ways.

One of the ways in which witch hunting never took off before the civil war, except in the Channel Islands and Scotland, was because only in those jurisdictions was a breakdown in the hierarchy of appeal and oversight. To my mind, that's the main requirement of a good judicial system, mechanisms for independent appeals, and oversight. In that respect, it is disappointing that so far nothing has been done in the case of Ian Christmas, who still continues to draw his salary.

But when it works properly, even if Islanders do not like it, it works well - Vernon Tomes is a case in point. Reading the minutes, one of the few occasions outside arriving and leaving the Island when the Lieutenant Governor has spoken in the States, the case against Tomes  - and in favour of justice - "justice delayed is justice denied" being a principle factor there, is clearly seen.

Problems however can arise when there is politicisation of the judiciary, as in the case of the Attorney-General and the run-ins with Lennie Harper. When a senior police officer is prevented from having suspects charged, and there are grounds for believing that political factors are muddying the water, the proper action was for both sides to get together, with someone independent as arbiter to iron out problems, rather than become polarised as appears to have happened. There was a failure of rapprochement on both sides, which did credit to neither. Perhaps Lennie Harper, as a bluff Ulsterman, can be forgiven for being a bit abrasive, but a haughty attitude ill becomes an Attorney-General.

There have been various occasions where either the previous Attorney-General's (William Bailhache's) judgment seems to be lacking in judgement, and certainly in the case of Sir Philip Bailhache (as Attorney-General), he admitted that in hindsight, he did not make the right decisions in the case of Roger Holland, and a public review found this to be the case. But the solution is surely not an independent prosecution services, which could just as easily make errors of judgment, or be subject to political pressure (just read Private Eye for examples!) but better oversight of decisions made. Where decisions would be contentious and political, that was especially important.

But outside of the Historical Abuse enquiry, there seem to be no cases emerging where prosecutions have been called into question or any kind of politicisation of the agenda has taken place. It is interesting that while Stuart Syvret talks of "the crimes of the oligarchs and their vassals have been customarily concealed", outside of the area covered by the Historic Abuse enquiry, and Nurse M, he doesn't cite any cases.

And yet people are tried every week in the Police Court and Magistrates Court. Those are not contentious, unless you are a Cyril Vibert to whom a parking fine is an abuse of law, and must be resisted at all costs. Even the high profile case of Damian Rzeszowski has not elicited cries of conspiracy - despite the strange fact (which I called attention to(that only two jurats were sitting!  Can it be that on the whole, justice proceeds fairly well in Jersey?

On the CPS, The case of the Twitter user shows how the CPS made monumental mistakes, but ones which could be quashed on appeal:

"Private Eye's comment on the saga: Not only has the law been made a laughing stock, Chambers been made unemployed and public money been wasted, but the
law officers' press officers have wasted yet more taxpayers' money spreading confusion. Like Robin Hood Airport, the CPS needs to 'get its shit together'."

And there are other case - Peter Hitchens reports on one: "The CPS will put anyone on trial... except crooks. The main purpose of the Crown Prosecution Service is to save money by pretending that crime and disorder are not as bad as they really are. That is why it is almost impossible to get it to prosecute anyone, unless you have clear, high-definition film of the crime actually being committed. Why on earth did the CPS think  it was worth spending heaps of our money on prosecuting Cinnamon Heathcote-Drury after  a bizarre and faintly comical scuffle in Tesco, in which nobody was hurt? Could it be because her accuser was a Muslim  who alleged she was a 'racist'? But now that a jury has thrown out this ludicrous case after 15 minutes of deliberation (God bless them), will anyone in the CPS be disciplined?"

Clearly, in its desire to assert its independence, the CPS has made some rather bad judgements!


Anonymous said...


You seem to imply that I have been fined for parking on yellow lines.
This is just not true, would you kindly remove or correct your piece accordingly.


TonyTheProf said...

Can you explain this please?

So, Myself, "fast" Eddie and Cyril "the squirrel" have had some non-parking ticket, parking infraction, voluntary payment, parking ticket, tick-ets to deal with. Eddie got three, Cyril got two, and I got one.

I assume that's you, and you had a parking fine? Or would you prefer me to change my text to parking ticket?

TonyTheProf said...


I'd also be interesting in your comments here:

"I can confirm that Cyril 'Le Squirrel' will be suing judge Richard Falle, and anyone else who is party to the corruption."

Can you confirm if this is true or false?

TonyTheProf said...


This also refers to a parking fine. Did you receive on or not, Cyril?

"Cyril the Squirrel will be up for his 'parking ticket infraction fine security interest Tick-et' this Thursday at 2.30pm in the Royal Court of Administration of Summary Justice"

TonyTheProf said...

This has a document which makes it pretty clear it was a parking fine:


Anonymous said...

Thank you for removing the reference to me being fined for parking on yellow lines.


Anonymous said...

Now we have that out of the way, let's talk CPS.

There is a significant problem with the Crown Prosecution Service, but it is perhaps not what you think it is. The issue at bottom is that the CPS is designed to keep business out of the courts. Its fundamental test is this: On the balance of probabilities, will we get an easy conviction from this case?

Note the use of the word "easy". There are two aspects to this: one is to stop members of the police from chancing their arm with a prosecution for which they do not have adequate evidence (properly applied, this would have stopped some of the major scandals of the 1970s - Guildford 4, Birmingham 6, Judith Ward - in their tracks). The other relates to those cases where the letter of the law has been broken, but where it is thought that the public outcry resulting from prosecution would be such that the judiciary, legislature or executive would be discredited - in other words there is a public interest test. There was a PIT applied to the potential prosecution of Katharine Gun under the Official Secrets Act: it was decided that although Gun had admitted passing information out (and any sane juror would thus find her guilty), the ramifications would cause major public outrage.

This is, of course, quite different to the inquisitorial system used in France, where the investigating magistrate is charged first with getting at the truth rather than apportioning blame: only when s/he has the facts of the case is the decision made on whether charges will follow.

You might wonder whether Jersey, being between England and France physically and metaphorically, might have elements of both systems. It doesn't. What I have seen of reporting in the JEP (hardly a trustworthy source, but unfortunately it has to suffice) is an adversarial system which is more aggressive than any English court. Advocates are quite happy to suggest the opposing side is lying at the drop of a hat.

Returning to the Crown Prosecution Service: it is clear that there have been occasions when politicians have leaned on it heavily. The fact that the head of the Service reports to the Attorney General means that it is one of the places where separation of powers is significantly blurred. For all that, when the CPS is leaned on, it is usually quite obvious what is happening, and people are able to make their own judgements.

This is not the case in Jersey. The local understanding of separation of powers is poor to non-existent (witness the continuing presence of Constables in the States), and the idea that transparency might be applied to decisions on prosecutions - well... (see the case of Roy Boschat, HdlG passim). The fact that the first power of charge resides with elected centeniers (who owe their position to electors) rather than appointed policemen or prosecutors (who do not) serves only to make matters worse.

On those grounds, giving control of prosecution to the UK CPS (one of the regional services, not handled as a special unit at head office) might actually be of significant benefit: it would assuredly make it a lot harder for vested interests to prevail.

TonyTheProf said...

The principles by which a Centenier will come to a 'conclusion' to
prosecute is four-fold. A easonable knowledge of the law (as it is
written); an understanding of plain English; confidence in the source
of evidence; and most importantly of all, the application of simple

A Centenier also has 24hour access to a legal adviser, a trained Court
lawyer who will dispense such guidance as may be necessary - and they may offer advice. However a Centenier is not duty bound to accept it. And further, a Centenier can in fact refuse to charge if he/she feels the evidence is lacking despite taking advice.

TonyTheProf said...

A UK regional CPS would also have to be aware of Island laws (where differing from the UK laws) and custom laws (which draw from Norman Law sources), and would probably have to rely on local legal advice in those matters. And the principal legal authorities often cited, for instance in the Unreported Judgments, require a knowledge of French, and the Norman roots of Jersey law.

TonyTheProf said...

A UK regional CPS would also have to be aware of Island laws (where differing from the UK laws) and custom laws (which draw from Norman Law sources), and would probably have to rely on local legal advice in those matters. And the principal legal authorities often cited, for instance in the Unreported Judgments, require a knowledge of French, and the Norman roots of Jersey law.

TonyTheProf said...

"Appointed policemen" independent? Would these be the same ones who grabbed Stuart Syvret from Grouville?

Ex-Senator Stuart Syvret said...

Tony, there are so many fundamental errors in your posting - so many failures to see both actual problems - and the structural ultra vires of the prosecution function in Jersey - that it requires a longer, deeper response than I am able to provide at present. But I will do, when time and circumstances permit.

I'm not quite sure what has come over your usually rigorous considerations in respect of this subject, of Jersey's judicial / prosecutory apparatus.

Most strange.


TonyTheProf said...

Look at my latest post on the difference between "normal justice" and "exceptional justice".