Marcus Adam Pearce v The Attorney General

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Sir Michael Birt,Jurats Hughes,Le Cornu
• Judgment Date: 24 November 2022
• Neutral Citation: [2022] JRC 258

Marcus Adam Pearce

and

The Attorney General

[2022] JRC 258

Before:

Sir Michael Birt, Commissioner and Jurats Hughes and Le Cornu

ROYAL COURT

(Samedi)

Bail — procedural issue

Authorities

Criminal Procedure (Bail) (Jersey) Law 2017.

Royal Court Rules 2004.

AG v Evans and Evans [2011] JRC 199.

AG v Monks [2015] JRC 028.

AG v Caruso [2015] JRC 066B.

Advocate O. A. Blakeley for the Applicant.

M. R. Maletroit Esq., Crown Advocate.

THE COMMISSIONER:

1 On 14 November, the Court heard the Applicant's application to review the refusal of the Assistant Magistrate to vary a condition which he had imposed when originally granting bail in respect of two offences with which the Applicant has been charged.

2 The Court gave an ex tempore judgment on the merits of the application at the conclusion of the hearing, but said that it would issue a separate judgment on a procedural issue which had arisen. What follows constitutes that separate judgment.

The issue

3 Advocate Blakeley originally issued a Notice of Appeal pursuant to Article 16 of the Criminal Procedure (Bail) (Jersey) Law 2017 (“the 2017 Law”) which provides as follows:

“16. Right of defendant to appeal against Magistrate's decision to deny bail

(1) If the Magistrate denies a defendant bail in criminal proceedings, the defendant may appeal to the Royal Court against that decision .

(2) An appeal under this Article may only be made on the ground that the Magistrate's decision was unreasonable in all the circumstances of the case .

(3) There shall be no right of appeal against a decision of the Royal Court under this Article.”

4 An issue then arose as to whether an appeal against a decision of the Magistrate either to impose a condition on the grant of bail or to refuse to vary such a condition on a subsequent application fell within the terms of Article 16. We accept that neither of them does.

5 The wording in Article 16(1) could not be clearer; it applies where the Magistrate ‘… denies a defendant bail..’. We do not see how a decision to grant bail but to impose conditions or to refuse subsequently to vary such a condition can be categorised as a denial of bail.

6 Furthermore, where the 2017 Law wishes to distinguish between the grant of bail and the imposition or variation of conditions attaching to bail, it does so; see for examples Articles 7(1) and 9(1), (2) and (3).

7 Accordingly, we accept that Article 16 does not confer a right of appeal against a decision of the Magistrate to impose a condition when granting bail or to refuse subsequently to vary such a condition.

8 The question then arises as to whether a defendant has any ability to apply to this Court to review such a decision by the Magistrate.

The two alternative routes

9 In our judgment, there is such an ability on the part of a defendant and there are two possible routes by which he may do so.

10 The first is by way of an application for judicial review under Part 16 of the Royal Court Rules 2004 (“the 2004 Rules”). This would involve an application to the Bailiff for leave to bring an application for judicial review and, if the Bailiff grants leave, the matter is subsequently brought before the Court.

11 The alternative is pursuant to what we shall call the ‘longstanding procedure’. It is within the Commissioner's personal knowledge that, certainly for as long as he has been qualified as a Jersey advocate (1977) and no doubt for much longer before then, it has been the practice for defendants who wish to challenge a refusal of the Magistrate to grant bail to apply by Representation for a review of the Magistrate's decision. Such applications are routinely brought on the Friday morning sitting of the Samedi Court or on some other day if particularly urgent. The Attorney General is notified of the application in advance and the matter is heard and dealt with at the first hearing with both the prosecution and the defence having the opportunity of addressing the Court. We have no doubt that the longstanding procedure has been equally available in respect of reviews of the imposition of a bail condition or a refusal to vary a bail condition.

12 The longstanding procedure has survived the introduction of Part 16 of the 2004 Rules, which sets out the normal procedure for judicial review as we have described above. See for example, AG v Evans and Evans [2011] JRC 199; AG v Monks [2015] JRC 028; AG v Caruso [2015] JRC 066B.

13 This is not...