Monday, 3 December 2012

Criminal Justice (Miscellaneous Provisions) (No.3) (Jersey) Law

The standard direction on corroboration evidence in cases of sexual offences, with appropriate adaptations to suit the circumstances of each case, would be on the lines of:  "Experience has shown that people who say that sexual offences have been committed against them sometimes, and for a variety of reasons, tell lies.  Such false allegations are easy to make and frequently very difficult to challenge, even by an entirely innocent person. So it is dangerous to convict on the evidence of the complainant alone unless it is corroborated, that is independently confirmed, by other evidence . . ."

I recently wrote that "Allegations of abuse were made before Saville's death,  but when he was protected by an aura of celebrity fame that made any accusations unlikely to succeed such a high evidential bar - and in Jersey, unlike the UK or Europe, the judge would also have to brief the jury against the accuser, with no discretion allowed. That law, on which Frank Walker's Council of Ministers refused to budge, and which Wendy Kinnard decided to resign on a matter of principle, is still in place."

I thought this was the case, but checking the records, I find a Ministerial Order sneaked in very quietly in the dying days of Terry Le Sueur's tenure as Chief Minister.

This was the Criminal Justice (Miscellaneous Provisions) (No. 3) (Jersey) Law, which was lodged in 18 October 2011. As the preamble states:

The Chief Minister, acting on the recommendation of the Legislation Advisory Panel, agreed to lodge 'au Greffe' the draft Criminal Justice (Miscellaneous Provisions) (No.3) (Jersey) Law

The proposal under this heading is to abolish certain rules (which have long been repealed in England and Wales, and in the other Crown Dependencies - see further below) about the evidence of certain categories of witness being corroborated, or 'backed up', by other separate evidence.  The relevant categories of witnesses are -

(a) a child;
(b) an accomplice;
(c) a person - in practice, more often than not, a woman - alleging that they are the victim of a sexual offence.

The Bailiff or a Commissioner in the Royal Court, in a case where evidence has been given by any of the above, must always, when summing up to a jury, warn them that it is dangerous to convict if that evidence has not been corroborated in some way.

The Jersey Law Commission has recommended abolishing this automatic requirement.  Instead, in these cases, the position would be as in all other trials, i.e. the Bailiff or Commissioner would required to use his or her discretion, when summing up to the jury, as to whether or not they needed to be warned to treat any particular evidence with caution.

It notes that the same changes took place elsewhere

In Guernsey: Administration of Justice (Bailiwick of Guernsey) Law 1991, and Criminal Evidence and Miscellaneous Provisions (Bailiwick of Guernsey) Law, 2002.

In the Isle of Man:  section 56 of that Island's Criminal Justice Act 2001.

Back in 2008, under Frank Walker's tenure as Chief Minister, the Home Affairs Minister, Wendy Kinnard resigned because the Council of Ministers would not make these changes to the law. As the JEP reported:

On 21 October she made a statement to the States that she was stepping down 'on a point of moral conscience and principle'. She said at the time that her decision to go was based on a refusal by the Council of Ministers to discuss a change in the way that judges instructed juries over uncorroborated evidence.

The change in the law was voted on 17 January 2012, and became law in March 2012. It passed by 41 votes, with no abstentions, but a lot of absences from the sitting. Deputy Roy Le Hérissier asked if more convictions had come about as a result of the changed law in the UK and elsewhere, and Sir Philip Bailhache, acting as rapporteur for this order, replied that:

"I am not sure that I can give Deputy Le Hérissier any specific information about the number of cases which have led to convictions in other jurisdictions as a result of the changes in the corroboration rules, but logic would suggest that the absence of the requirement for corroboration has made it easier to bring guilty men to justice and I cannot, I am afraid, say more than that."

What he was not asked, and which I think should have been asked, was how this would place the matter of deciding to take a case on evidence to prosecution, the so-called evidential rule. It is, I think, not a coincidence that this was a change rejected by Frank Walker's Council of Ministers at a time when there could have been a significant number of prosecutions relating to the historic child abuse.

Let's be clear - I am not suggesting some kind of deliberate conspiracy, but instead the reaction of a Council of Ministers who had been berated by the UK national press, and were fearful that this would send out the wrong kind of signal. It's a siege mentality reaction.

Those in the Council of Ministers at the time were Frank Walker, Wendy Kinnard (who resigned over this), Terry le Sueur, Philip Ozouf, Alan Maclean, Freddie Cohen, Ben Shenton, Terry Le Main, Mike Vibert, Paul Routier.

Those in the Council of Ministers that eventually brought it in were Terry Le Sueur,  Philip Ozouf, Alan Maclean, Ian le Marquand, Anne Pryke, James Reed, Rob Duhamel, Andrew Green, Mike Jackson.

It is interesting how such a sea-change could have taken place, from it being a resignation issue in late 2008, to something acceptable in October 2011. What had changed? Both membership of the Council of Ministers had altered, and one other significant factor - the trials relating to the historical abuse enquiry had ended. There was no more pressure relating to that with these changes, and they could take place without court proceedings hanging over the outcome. That must have made change easier to take, and perhaps explains why it took so long for Terry Le Sueur to finally bring about the change in the law, long after other jurisdictions - including Guernsey - had done so.

When it came up with Ian Gorst's new Council of Ministers, the Minutes note:

Draft Criminal Justice (Miscellaneous Provisions) (No. 3) (Jersey) Law 201-(P.173/2011)

The Council noted and endorsed the draft Law, recognising that the amendment taken as a whole would be beneficial to the administration of justice in Jersey's criminal courts.

It is also worth noting that there had been changes with the Law Officers, and William Bailhache, Attorney-General in 2008, had been replaced by Tim Le Cocq by 2011. William Bailhache makes no mention that I can find of the "corroboration rules" in his statements about the decisions not to prosecute in particular cases, and perhaps this silence is as singular as the curious incident of the dog in the night time.

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