Tuesday, 9 October 2012

Ian Christmas: The Legal Background

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


Anonymous said...

This is very interesting. However, the perhaps necessary emphasis on the strict legal position demonstrates that there is little, if any, room for common sense.

Christmas has been suspended for some 4 years - plenty of time for our government to have had a good look at the old statute and produce something which is fit for modern day issues. So, I think it is somewhat disingenuous to claim now, at the end of the game (for that is what I think it is) that hoops have to be jumped through and hurdles crossed - all very difficult stuff.

Common sense says that Christmas believes he has done nothing wrong. This is evidenced by the appeal against his conviction. Now here's the rub. In the unlikely (in my opinion) event that his appeal is successful, he will be expecting the sheet to be wiped clean and, I suppose, expecting to return to the the role of Magistrate. I can only begin to imagine what kind of difficulties our government would then find itself in.

I'm afraid that the ordinary members of the public find this whole situation somewhat farcical. Others have pointed out that a so called business man was recently jailed for 3 years for a £60,000 Social Security fraud. Moreover, unless he pays back the money within 12 months, he will get a further 18 months.

In my opinion, Christmas has got off extremely lightly. He has been paid very well for 4 years for doing nothing and continues to be extremely well paid for being a prisoner at La Moye. There is no date as yet for when this payment will stop. The business man convicted of fraud robbed the States of £60,000. This is of course bad news. But Christmas robbed a Jersey citizen of £100,000 and has since taken a further half million from the States in salary. For this he gets 15 months in jail and there is no requirement to pay back the ill-gotten gains.

We can all analyse the so called facts and rationalise the position of all the players in this game but the fact remains that it would be impossible for the infamous man on the Clapham omnibus to understand this mess.

As a footnote, even if Christmas is sufficiently deluded to believe that he did nothing wrong, he must have realised that his credibility as a Magistrate was blown some 4 years ago and should have done the honourable thing - resign. This is why I referred above to a game. The Christmas game has been to take his salary for doing nothing and to continue to expect to receive it until the whole protracted process has been exhausted.

All very unsatisfactory!

TonyTheProf said...

If he was an honorable man, he would resign his position now. But then, if he was an honorable man, he probably wouldn't be in prison.

Anonymous said...

ILM seems to be confused as to what is political and what is criminal

Anonymous said...

Amen to that comment Tony!

Anonymous said...

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

I don't see that public loss of confidence has anything to do with it.

This man has been found guilty of a criminal act, and the sentence given means that the offence will remain on his record for five years - regardless of whether he serves jail time or has to do community service.

To have a convicted criminal claiming that he can then sit in judgement on other people would make the judicial system the laughing stock of Europe.

TonyTheProf said...

BBC Jersey politics ‏@politicsjersey
CM taking advice on how to stop jailed magistrate Ian Christmas continuing to get his salary while in prison

Anonymous said...

Anonymous said above: "ILM seems to be confused as to what is political and what is criminal"

Excuse the flippancy but I suspect he is wearing the wrong sandals :)

TonyTheProf said...

No ILM is spot on with the legal situation, crazy though it is in this instance, but it was designed not prevent a crook keeping his salary but to prevent politicians getting rid of judges they didn't like.

Obviously, this situation means that it badly needs changes, but back in 1864, the independent judiciary was needed.


TonyTheProf said...

In 1861 there once more arose an effort to reform the Royal Court, in connection with which Serjeant Pigott's name stands foremost as having introduced a Bill into the House of Commons for that purpose, the debate on the motion for the second reading of which took place on June 29th, 1861. The evident necessity for such reform may be summed up in the report of the Commissioners— Sir John Audry, the Earl of Devon, and Richard Jebb, Esq. —appointed in 1859, and quoted on the occasion by the worthy Serjeant to the effect that : Whatever might have been in earlier times the merits of the very ancient Tribunal of Jersey, it was the Commissioners' opinion "that the Island with its great resources of wealth, its large foreign commerce, and the all-important interests that had arisen in it," had at that time "so outgrown its judicature that any reform which should leave the duties of the Superior Court in the hands of a numerous body without professional education, whose attendance was precarious, and for whose nomination no one was responsible to public opinion, was absolutely nulitary," the Commissioners in their report further remarking: " We are bound to state that whatever difficulties may stand in the way of reform, the practice of the Royal Court is in fact intolerably dilatory and vexatious."

Strong language, it is true, but to the point, and of extreme value as showing how matters stood in Jersey up to that date.

Petitions were presented by several well-known English M.P.'s in favour of the Bill, whilst Serjeant Pigott presented one signed by 128 landowners of the Island to the same effect. One also was presented by Mr. Dodd, a resident, complaining of the maladministration of the law in Jersey, and, through Mr. Hadfield, Mr. Abraham Jones Le Gros also presented a petition in its favour.

In the end, however, Serjeant Pigott consented to a withdrawal on consideration that the Royal Court under- took its own reform. The whole fight in the English Parliament, it may he added, was the old one, centred upon the question of whether or no it could legislate for Jersey, the opinion of many of the (then) leading advocates of the Island being that it had such power, though it was but seldom enforced.

TonyTheProf said...

In 1864 one of the most important events that occurred was in connection with the system of indictment and grand enquete up to that time in vogue, it being then abolished, and the mode of procedure in criminal cases as at present existing adopted in preference, as being more efficacious and less cumbersome—an effort on the part of the States towards a much-needed self-reform.

TonyTheProf said...

That's from Ragg's Popular History of Jersey