Attorney General v Thwaites

CourtRoyal Court
Judge(Ereaut, Bailiff and Jurats Le Cornu and Simon):
Judgment Date29 September 1978
Date29 September 1978
(Ereaut, Bailiff and Jurats Le Cornu and Simon):

H.M. Solicitor General for the prosecution.

W.J. Bailhache for the accused.

Courts—Royal Court—jurisdiction—no inherent jurisdiction to create new offences in respect of undesirable behaviour—may only declare boundaries of established categories of crime and apply existing principles to new facts

Criminal Law—public mischief—existence of offence—no offence of public mischief in Jersey—English common law authority heavily criticized and subsequently replaced by statute—for States to consider whether legislation appropriate

EREAUT, BAILIFF: On 25th August, 1978, Penelope Violet Thwaites was presented before the Inferior Number of the Royal Court upon an indictment charging her as follows:—

"Statement of Offence

Committing a public mischief.

Particulars of Offence

Penelope Violet Thwaites, on the 10th June, 1978, between 17.30 and 17.50 p.m. in the Parish of St. Helier, at the premises known as 'Police Headquarters' by knowingly making certain false statement to wit that she had been raped at knife-point in an alleyway at the side of the premises known as the 'Graham Hotel', St. Saviour's Road, in the Parish of St. Helier, did cause officers of the States of Jersey Police maintained at public expense for the public benefit to devote their time and services to the investigation of a false allegation, thereby temporarily depriving the public of the services of these public officers, and rendering liege subjects of the Queen liable to suspicion, accusation and arrest, and in so doing did unlawfully effect a public mischief."

Counsel for the accused entered the following plea in bar:

1. The charge of committing a public mischief is a crime not known to the Law of Jersey, and in the alternative:

2. That the particulars of offence do not support a charge of committing a public mischief.

Subsequently, that plea was argued before us. In the course of the hearing, counsel withdrew paragraph 2 of his plea, and therefore the only issue with which this judgment is concerned is whether or not the charge of committing a public mischief is a crime known to the law of Jersey.

The onus of establishing that a particular category of crime is known to the law of Jersey must rest firmly on the Crown.

The Solicitor General, who argued that there was such a crime as committing a public mischief, based his submission, first, on the customary law of Jersey, and secondly, on the common law of England.

As regards the customary law of Jersey, he referred to the Report, dated 1847, of the Commissioners appointed to inquire into the state of the Criminal Law in the Channel Islands. On page vii of their Report the Commissioners state that the Criminal Law of Jersey is derived from five sources, namely, the Customary Law, the Charters, the Orders of the Sovereign in Council, the Ordinances of the Local Legislature, and certain Statutes of the Realm. We are concerned only with the customary law, because the crime which we are considering, if it exists, cannot be attributed to any other of the sources there described.

In the course of considering the customary law, the Commissioners state, at page xxii:

"If this is to be understood (as was assumed in the evidence before us) to authorize the Court to visit any act which may appear wrong and mischievous (though not a breach of any definite law, written or other) with a punishment, at their discretion, stopping short of capital punishment, it follows that the discretion, which we have found to be exercised as to visiting a defined crime with arbitrary punishment, is extended to an enlargement of the range of punishable crimes."

and again at page xxvi:

". . . Other offences are cognizable under a power, which the Court seems to assume, of punishing generally whatever appears to be in its nature offensive or criminal. To this, it seems, we are to refer to the law on coining (which has been punished here only since it has ceased to treason in England), sedition, misconduct of officers, returning from transportation or banishment, provoking a breach of the peace, nuisances, brothel-keeping, indecency, unchasteness, solicitation of chastity. For these the Court imposes punishments in its discretion, varying from transportation to imprisonment and fine."

There is no doubt that at that date, 1847, the Royal Court did assume the power to declare as a crime acts which appeared to it to be wrong, mischievous, offensive or criminal, although the Commissioners went on to criticize the absence of a formal code of criminal laws and the lack of a definition of crimes and their punishment. That assumed power was referred to in the judgment of the Lords of the Judicial Committee of the Privy Council (1836) in Renouf v. Att. Gen., [1936] A.C. 445 ([1936] UKPC 27), in these words:—

". . . It appears from the first (Jersey) report of the Royal Commissioners appointed in 1846 for enquiring into the criminal laws of the Channel Islands, that there was not in any Act, Order in Council, or even in any work of authority published in Jersey, any specific definition of crimes or their...

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14 cases
  • Attorney General v Foster
    • Jersey
    • Royal Court
    • 20 February 1989
    ...considered. (28) Att. Gen. v. Quentin, Police Ct. (1937), Causes Criminelles 937, unreported, considered. (29) Att. Gen. v. Thwaites, 1978 J.J. 179, not followed. (30) Att. Gen. v. Williams, Royal Ct. (1963), 36 P.C. 27, unreported, considered. (31) Att. Gen.'s Reference (No. 1 of 1981), [1......
  • Attorney General v Bhojwani
    • Jersey
    • Court of Appeal
    • 6 November 2008
    ...that a particular category of crime is known to Jersey customary law rests firmly on the prosecution (see Att. Gen. v. Thwaites, 1978 J.J. 179)." 17.The Commissioner sets out the history of the offence which originated under English common law and which is summarized in the decision of......
  • AG v O Driscoll
    • Jersey
    • Royal Court
    • 9 July 2003
    ...(January, 2003.) European Convention on Human Rights: Article 5. Criminal Justice (Insane Persons) (Jersey) Law 1964. AG v Thwaites (1978) JJ 179 . AG v Foster [1989] JLR 70 ; [1992] JLR 6 (C.A.). Mental Health (Jersey) Law 1969. R v Dickie (1984) 3 All ER 173 . Dusky v US 32 US402 (19......
  • AG v Bhojwani
    • Jersey
    • Royal Court
    • 12 August 2008
    ...Police Procedures and Criminal Evidence (Jersey) Law 2003. Attorney-General's Reference (No. 3 of 2003) [2005] QB 73 . AG v Thwaites [1978] JJ 179 . R v Boulanger [2006] 2 S C R 49 , 2006 SCC 32. R v Bembridge (1783), 3 Dougl. 327 , 99 E.R. 679 (K.B.). Digest to the Criminal Law (1887) S......
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