Marriott v Attorney General

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Southwell, Gloster and Carey, JJ.A.
• Judgment Date: 04 April 2002
• Neutral Citation: [2002] J.Unrep 75
• Date: 04 April 2002

COURT OF APPEAL

Southwell, Gloster and Carey, JJ.A.

C.E. Whelan, Crown Advocate, for the Crown;

P.C. Sinel for the appellant.

Cases cited:

(1) Att. Gen. v. Pennington, 1970 J.J. 1349, considered.

(2) Jones (S.M.) v. Att. Gen., 2000 JLR 103, followed.

(3) Ras Behari Lal v. R. (1933), 50 T.L.R. 1; [1933] All E.R. Rep. 723, followed.

(4) R. v. Bliss, [1986] Crim. L.R. 467; (1986), 84 Cr. App. R. 1, not followed.

(5) R. v. Kelly, [1950] 2 K.B. 164; [1950] 1 All E.R. 806; (1950), 34 Cr. App. R. 95, not followed.

(6) R. v. Raviraj (1986), 85 Cr. App. R. 93, not followed.

(7) R. v. Salt, [1996] Crim. L.R. 517, followed.

(8) R. v. Wakefield, [1918] 1 K.B. 216; [1918-19] All E.R. Rep. 842, followed.

Legislation construed:

Court of Appeal (Jersey) Law 1961, art. 25(1):

"On any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal ..."

Court of Appeal (Criminal) (Jersey) Rules 1964 (R. & O. 4563), r.24: The relevant terms of this rule are set out at para. 5.

Loi (1865) étendant la compétence de la Cour pour la Répression des Moindres Délits, et définissant sa juridiction, art. 1: The relevant terms of this article are set out at para. 11.

Loi (1864) réglant la procédure criminelle, art. 10: The relevant terms of this article are set out at para. 3.

Police Court (Miscellaneous Provisions) (Jersey) Law 1949, art. 1: The relevant terms of this article are set out at para. 11.

Texts cited:

First Report of the Commissioners appointed to inquire into the state of the Criminal Law in the Channel Islands: Jersey, Report, at xxvi; Answers to Questions, para. 15, at 89; Minutes of Evidence, para. 2554, at 222 (1847).

Criminal Procedure—trial by jury—number of jurors—jury must contain statutory number of qualified jurors—substantial miscarriage of justice within Court of Appeal (Jersey) Law 1961, art. 25(1) for jury to contain ineligible jurors

Criminal Procedure—trial by jury—disqualification of jurors—person guilty of common law offence statutorily disqualified—no distinction between common law "crimes" and "délits"

The Secretary of State referred the appellant's case to the Court of Appeal.

On January 15th, 1987, the appellant was convicted by a jury of the fraudulent conversion of stock or its proceeds (which he held as his mother's curator) by a majority verdict of at least 16 to 8 under the law in force at that time. He appealed unsuccessfully against his conviction on the ground that he had not been entrusted with his mother's property and therefore had not fraudulently converted it. These proceedings are reported at 1987-88 JLR 285. It was later discovered that 2 of the 24 jury members had previous convictions for offences of receiving stolen goods and larceny, and the Secretary of State referred the appellant's case to the Court of Appeal to determine whether the jury had been properly constituted at his trial.

The appellant submitted that (a) art. 10(4) of the Loi (1864) réglant la procédure criminelle prohibited those with convictions for "crime" from serving on juries; (b) the jury was therefore not properly constituted as the two jurors with previous convictions were ineligible; and (c) a trial before an improperly constituted jury amounted to a substantial miscarriage of justice within the meaning of art. 25(1) of the Court of Appeal (Jersey) Law 1961, and his conviction should be set aside.

The Crown submitted in reply that (a) under the common law of Jersey, the offences of larceny and receiving stolen goods were classified as "délits" and not "crimes"; (b) "crime" was not used in art. 10(4) as a general term to cover both "crimes" and "délits"; (c) the jury was therefore properly constituted, as the two jurors with previous convictions for "délits" were not disqualified by art. 10(4); and (d) in any event, there had been no actual miscarriage of justice as the ineligibility of two jurors did not affect the majority verdict which had found the appellant guilty.

Held, allowing the appeal:

(1) The jury included two persons who were not eligible to be jurors because of their convictions for larceny and receiving stolen goods. Although it was unclear from authority whether these common law offences were classified as "crimes" or "délits," the correct interpretation of the word "crime" in art. 10(4) was to disqualify a person who was guilty of any common law offence ( para. 13; paras. 15-16).

(2) The appellant's conviction amounted to a substantial miscarriage of justice within the meaning of art. 25(1) of the Court of Appeal (Jersey) Law 1961 as (a) he was entitled to stand trial before a jury composed solely of the correct number of eligible jurors as required by the 1864 Law; and (b) it was irrelevant that the majority verdict could have survived the removal of the two unqualified jurors, as the effect of their presence on the qualified jurors was unknown. Moreover, the Crown had failed to prove that no miscarriage of justice had taken place and that a correctly composed and directed jury would have convicted on the evidence before the Royal Court ( paras. 25-26).

(3) Although it was not necessary to decide the matter, it was probable that a conviction secured by a jury which was not constituted in accordance with the law was in contravention of art. 6 of the European Convention on Human Rights, which required that all trials be determined by "an independent and impartial tribunal established by law" ( para. 29).

1 SOUTHWELL, J.A., delivering the judgment of the court: On January 15th, 1987, in the Royal Court (Criminal Assize), Mr. Marriott was convicted by a majority verdict of the jury on two charges of fraudulent conversion, in relation to property of his mother of which he...