I have asked Senator Ian Le Marquand for background information on the legal situation regarding Ian Christmas, the Magistrate jailed for fraud.
He has been happy to give permission for me to make his reply public, with the proviso (that I am happy to place here) as follows:
"you can make my response public provided that you make it clear that I am not a Justice Minister but have need dealing with responses on behalf of the Chief Minister because of my knowledge of the legal and constitutional issues."
I would like to thank him for making this information public.
To put our exchange in context, this was my email asking for clarification of what he had said on BBC Radio Jersey, as I had missed the interview:
I missed hearing you on the radio the other day about arrangements over the Crown Officers, and wonder if you could fill me in on what you said, and what you are proposing.
Obviously this has to do with Mr Christmas, and while I think that it is proper he should receive a salary while suspended before sentencing, it seems inequitable if he receives one after he has been found guilty. After all, a pensioner who is sent to prison will (as I understand it) cease to receive his pension once sent there.
I understand Mr Christmas is appealing, but if the appeal fails, then he will have been paid for the interim period with, apparently, no means for redeeming that back by the States of Jersey. This again does not seem equitable. It would surely be fairer for him to not be paid until his appeal is heard, or paid into a kind of escrow account, and paid a backlog if successful. That way, he does not lose out, but if still guilty as charged, the State does not lose either.
The mechanisms for removing Mr Christmas from office also seem exceedingly protracted. At what point - when sentenced to prison - when failing on appeal - is he removed from office? It seems that there should a point, certainly if his appeal fails, where removal from office becomes automatic. I'm taking the appeal as the end point, because I think it is important that justice is also given to Mr Christmas as fairly as possible (unlike, perhaps, the media); on the other hand, if the appeal fails, given the time he has already been paid - including time in prison, there is surely no justice in him being continued to be paid from that point on.
Lastly, should there be a code of conduct and/or register of interests for magistrates? It appears that Mr Christmas was in effect using his office as magistrate to engender trust in a private business venture, and surely magistrates should not use their office as a kind of marketing endorsement? A magistrate is a position (I hope) of respect in the community, and I'm not sure they should engage in private schemes of the kind cited in Mr Christmas case, or if they do, shouldn't that be transparent with a register of judiciary interests?
This was his reply, which makes the situation very clear:
Tony, Mr. Christmas is a public office holder and the terms of his tenure of office are set out in the 1864 law on the Juge d'Instruction. There is no provision for his suspension from office and he can only be dismissed by the Privy Council upon petition by the Superior Number of the Royal Court. The Superior Number is the Bailiff, the Deputy Bailiff and all 12 Jurats who are usually assisted by the Attorney General, the Judicial Greffier and the Viscount.
There was a Press Release dated 25th September which explained the procedure which was being followed on behalf of the Royal Court, namely, a disciplinary investigation by a UK judge.
In my view, Mr. Christmas ought to have resigned at the point at which it became clear that he could not return to his former role. In my view that was when he was formally charged although some may think that he should have resigned earlier and you appear to think that he should have resigned when convicted.
In an ideal world, we would have in place a procedure by virtue of which a judge could be removed from office once there was such a public loss of confidence in the judge as to render it impossible for the judge to return. However, that is not without its difficulties. It is an important constitutional principle in a democracy that we have an independent judiciary. That is partly because the Government itself will be a party to court cases and partly as a safeguard against corruption. That therefore requires that a judge cannot be removed for political reasons. That in turn make the loss of public confidence test a difficult one to determine objectively.
It is my view that there now needs to be a review of the disciplinary arrangements for judges
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