Le G v Attorney General

• Jurisdiction: Jersey
• Court: Youth Appeal Court (Jersey)
• Judge: Birt, Deputy Bailiff and Mrs. L. Falle, Mrs. N. Santos-Costa and Mrs. A. Scott-Palmer
• Judgment Date: 10 June 2004
• Date: 10 June 2004

YOUTH APPEAL COURT

Birt, Deputy Bailiff and Mrs. L. Falle, Mrs. N. Santos-Costa and Mrs. A. Scott-Palmer

Miss C.M. Fogarty for the appellant;

J. Hawgood for the Crown.

Case cited:

(1) Att. Gen. v. Devonshire Hotel Ltd., 1987-88 JLR 577, followed.

Legislation construed:

Court of Appeal (Civil) (Jersey) Rules 1964 (R. & O. 4561), r.15:

"(1) Except so far as the court below or the Court may otherwise direct

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below "

Criminal Justice (Young Offenders) (Jersey) Law 1994, art. 15(2): The relevant terms of this paragraph are set out at para. 35.

Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949, art. 18(1): The relevant terms of this paragraph are set out at para. 24.

art. 18(5): "Where the Magistrate refuses to state a case, the Royal Court may, on the application of the person who applied for the case to be stated, make an order requiring the Magistrate to state a case and it shall be the duty of the Magistrate to comply with the order."

Texts cited:

Jersey Law Society Code of Conduct, para. 2; para. 17(1) (2002).

Taylor on Appeals, paras. 3-018-3-019, at 54 (2000).

Criminal Procedurepleasco-accusedif co-accused facing same charge, prosecution not to accept guilty plea to lesser offence from one until aware of intentions of otherslegal adviser not bound by Centenier's acceptance of lesser plea if co-accused not yet sentenced

Advocatesduties to courtpresentation of caseadvocate may apply to change plea to match lesser plea of co-accused if given opportunity by courtif reasonable to advance lesser plea, advocate not prevented by professional duty to court despite personal view that offence more serious

The appellant was charged in the Youth Court with grave and criminal assault.

The appellant and two other girls (all aged between 14 and 15) were charged with grave and criminal assault following a group attack on another girl. The victim was physically assaulted, insulted and intimidated for about 40 minutes but no weapon was used and the physical injuries she sustained were only minor.

One of the appellant's co-accused pleaded not guilty to the charge of grave and criminal assault but guilty to common assault, which was accepted by the Centenier. The appellant later pleaded guilty to grave and criminal assault. The Centenier was replaced by a legal adviser, who considered that he was bound by the Centenier's earlier acceptance of the co-accused's lesser plea and also accepted a similar plea from the other co-accused.

The court stated that the assault to which the two co-accused had pleaded guilty was at the top end of the range for common assault and invited the appellant to change her plea to one of guilty of common assault. Her counsel declined, claiming that her professional duty to the court prevented her from so doing, as in her opinion the attack was too serious to be regarded as common assault. She asked the Youth Court to state a case on its decision to accept the lesser pleas which it refused to do, ruling that the appellant did not have locus standi. The appellant then brought the present proceedings for an order under the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949, art. 18(5) that the Youth Court state a case.

It was agreed that the precise category of assault would not affect the sentences to be passed and all three accused were sentenced despite the pending application. The court agreed to state a case in relation to its refusal to adjourn sentencing.

The appellant submitted that (a) the assault was so serious that only a charge of grave and criminal assault was justified and the Youth Court had therefore erred in accepting the pleas of common assault; (b) the Centenier ought not to have accepted the lesser plea, but in any case his acceptance did not bind the legal adviser, who should have insisted on all three accused facing the original charge; (c) she had the necessary standing to request the statement of a case on the Youth Court's decision to accept the co-accused's pleas because she was a "person aggrieved" under art. 18(1) of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949; (d) although, consistent with her previous refusal to plead guilty to common assault, she could not now request the court to reduce her sentence, it was nevertheless open for the court to do so of its own volition; and (e) furthermore, the application for a case stated automatically stayed proceedings in the Youth Court, which ought to have adjourned sentencing.

Held, dismissing the application and making no ruling on the case stated:

(1) The Youth Court would not be ordered to state a case in relation to its acceptance of the lesser pleas from the co-accused as there would be no practical benefit to the appellant in doing so. The court could only intervene on a case stated if there had been an error of law or an excess of jurisdiction. As the appellant's plea of guilty to grave and criminal assault in relation to her admitted part in the assault was not an error of law, her charge could not be reduced to one of common assault ( para. 11).

(2) Nevertheless, the Centenier ought not to have accepted the co-accused's lesser plea before he knew the intentions of the others, since the Crown's evidence clearly suggested a joint venture of a grave and criminal assault rather than merely a common assault. In any case, the legal adviser was not bound by the Centenier's acceptance of the lesser plea because as a member of the Attorney General's chambers he could have overridden the Centenier's decision not to proceed with the more serious charge, provided that the accused had not yet been sentenced. Given the knock-on effect of accepting the lesser plea, the legal adviser should have insisted on all three facing the original charge of grave and criminal assault ( para. 16).

(3) The appellant's counsel had, however, also been wrong to refuse to change her plea to common assault when given the opportunity to do so. An assault could be categorized as a grave and criminal assault as a result of either the severity of the injuries caused or the severity of the assault itself, e.g. the use of a weapon. Although the victim only sustained minor injuries, it was reasonable to conclude that the severity of this assault, namely its duration, the number of people involved and the degree of intimidation, made it a grave and criminal assault. However, it was not so obviously a grave and criminal assault that a plea of common assault would have been unreasonable. The appellant's counsel was not therefore precluded from pleading guilty to that lesser offence by her professional duty to the court, and should have done so despite her personal view of the nature of the assault ( paras. 19-22).

(4) The appellant had locus standi to apply for a case stated in relation to the Youth Court's acceptance of her co-accused's pleas of common assault, as she was a "person aggrieved" under art. 18(1) of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949. Although the Youth Court had wrongly held that the appellant did not have standing to apply for a case stated on this issue, it was unlikely that it would have exercised its discretion to grant a case stated, given that the purpose of the application was not to challenge decisions concerning the appellant herself, but rather her co-accused, which was only allowed in rare circumstances ( paras. 27-28).

(5) The application under art. 18(5) of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 for an order that the Youth Court state a case in relation to its acceptance of the pleas of common assault did not automatically stay those proceedings and no order would be made in relation to the court's refusal to adjourn sentencing. Whether a stay ought to have been granted was a matter for the court's discretion and in many cases a stay would be appropriate, particularly if otherwise a case stated would be ineffective. No criticism was made of the Youth Court's refusal to stay the proceedings, however, as the accused were young and it was desirable to sentence them as soon as possible, and it had already been agreed that their sentences would not depend on the label given to the assault to which they pleaded ( paras. 30-32).

1 BIRT, DEPUTY BAILIFF: This is an application by Le G for

(a) an order, pursuant to art. 18(5) of...