Dimsey

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Calcutt, Southwell and Smith, JJ.A.:
• Judgment Date: 07 November 2000
• Date: 07 November 2000

COURT OF APPEAL

Calcutt, Southwell and Smith, JJ.A.:

The appellant appeared in person.

P. Matthews, Crown Advocate, for the Crown.

Cases cited:

(1) DC v. United Kingdom (Application No. 39031/97), [2000] BCC 710, followed.

(2) R. v. D.P.P., ex p. Kebeline, [2000] 2 A.C. 326; [1999] 4 All E.R. 801, followed.

(3) R. v. Dimsey, [2000] Q.B. 744; [2000] 2 All E.R. 142; [2000] 1 Cr. App. R. 203.

(4) Sevenoaks Stationers (Retail) Ltd., Re, [1991] Ch. 164; [1991] 3 All E.R. 578; [1991] BCLC 325; [1990] BCC 765; (1990), 134 Sol. Jo. 1367, dictum of Dillon, L.J. applied.

Legislation construed:

Bankruptcy (Dsastre) (Jersey) Law 1990, art. 43:

"(1) Where during the course of the 'dsastre' in respect of a company it appears to the Attorney General that it is expedient in the public interest that a director of that company should not be a director or in any way, whether directly or indirectly be concerned or take part in the management of a company, the Attorney General may apply to the court for an order to be made to that effect against that director."

Companies (Jersey) Law 1991, art. 1: The relevant terms of this article are set out at page 406, lines 25-26.

art. 78, as amended: The relevant terms of this article are set out at page 404, line 36 - page 405, line 4.

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; UK Treaty Series 71 (1953)), art. 7(1):

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

Texts cited:

Winchester, Disqualification of company directors in Jersey, 2 Jersey Law Review 288 (1998).

Companiesdirectorsdisqualificationdisqualification order under Companies (Jersey) Law 1991, art. 78(2) only available on basis of conduct in relation to Jersey companyevidence may be provided by proof in proceedings abroad

Companiesdirectorsdisqualificationpower to disqualify under Companies (Jersey) Law 1991, art. 78(2) not dependent on criminal convictionwhether foreign authorities have sought disqualification on same facts irrelevant

Companiesdirectorsdisqualificationrequirement in Companies (Jersey) Law 1991, art. 78(1) that disqualification "expedient in public interest" not applicable to court but imposed upon authorities empowered to apply to court for disqualification

European Lawhuman rightsconsistency of sentencingdisqualification as director under Companies (Jersey) Law 1991, art. 78(2) not "penalty" and therefore not "heavier penalty" under European Convention on Human Rights, art. 7(1)

Companiesdirectorsdisqualification3 years' disqualification appropriate in case involving actual dishonesty, rather than mere incompetence

The Crown applied to the Royal Court for an order that the appellant be disqualified from being in any way concerned in the management of any company.

The appellant was convicted in England in 1980 of conspiracy to defraud and in 1997 with conspiring to cheat the public revenue, in respect of which an appeal to the House of Lords was pending. The 1997 conviction involved alleged deceptions by the appellant relating to the management and control of Jersey companies. He was not, however, disqualified by the English court. On an application by the Crown, the Royal Court made an order under art. 78(2) of the Companies (Jersey) Law 1991 disqualifying the appellant from being involved in any way in the management of a company for a period of three years.

The appellant appealed, submitting that (a) no consideration had been given to the possibility of his 1997 conviction's being quashed on appeal; (b) in seeking to disqualify the appellant, the court was attempting to impose a "heavier penalty" than that applicable at the time of the offence, contrary to art. 7(1) of the European Convention on Human Rights; (c) the judgment of the Royal Court did not demonstrate that it was "expedient in the public interest" that the appellant be disqualified as required by art. 78(1); (d) the Crown ought to have acted earlier than it had done and the delay involved made the application an abuse of the process of the court; and (e) the 1980 conviction did not relate to a company registered under Jersey law and therefore should have been disregarded.

The Crown submitted in reply that the judgment of the English Court of Appeal relating to the 1997 conviction provided sufficient evidence of conduct on the part of the appellant justifying a disqualification order.

Held, dismissing the appeal:

(1) A person could only be disqualified under art. 78 for conduct in relation to a Jersey company, i.e. one registered under the Companies (Jersey) Laws, which made him unfit to be concerned in the management of a company. Evidence of such conduct could come from anywhere and need not relate to an offence or conviction in Jersey (page 406, lines 18-31; page 409, lines 1-13).

(2) The 1980 conviction did not relate to a Jersey company and therefore could not be considered. The English Court of Appeal judgment upholding the 1997 conviction, however, revealed ample material entitling the Royal Court to find the appellant guilty of conduct justifying an order under art. 78(2). It...