McMAHON and PROBETS v ATTORNEY GENERAL

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Le Quesne, Harman and Frossard, JJ.A.:
• Judgment Date: 13 July 1993
• Date: 13 July 1993

COURT OF APPEAL

Le Quesne, Harman and Frossard, JJ.A.:

R.G. Michel for the first appellant;

G.R. Boxall for the second appellant;

J.A. Clyde-Smith for the respondent.

Cases cited:

(1) Amand v. Home Secy., [1943] A.C. 147; [1942] 2 All E.R. 381; (1942), 58 T.L.R. 382; sub nom. R. v. Home Secy, ex p. Amand, 167 L.T. 177; 111 L.J.K.B. 657; sub nom. Amand, Re, 86 Sol. Jo. 384, applied.

(2) Bonalumi v. Home Secy., [1985] Q.B. 675; [1985] 1 All E.R. 797; (1984), 129 Sol. Jo. 223; 82 L.S. Gaz. 1336.

(3) Carr v. Atkins, [1987] Q.B. 963; [1987] 3 All E.R. 684; (1987), 85 Cr. App. R. 343; 131 Sol. Jo. 1087; 84 L.S. Gaz. 2048, applied.

Additional cases cited by counsel:

Advocate, In re an, 1978 J.J. 193.

Doody v. Home Secy., [1993] 3 All E.R. 92.

O, In re, [1991] 2 Q.B. 520.

Taylor v. Constable of St. Helier, 1980 J.J. 29.

Tett v. States, 1972 J.J. 2249.

Legislation construed:

Court of Appeal (Jersey) Law 1961, art. 1: The relevant terms of this article are set out at page 112, lines 15-16.

art. 12(1): The relevant terms of this paragraph are set out at page 112, lines 19-22.

art. 24: The relevant terms of this article are set out at page 112, lines 28-30.

Investigation of Fraud (Jersey) Law 1991, art. 2: The relevant terms of this article are set out at page 111, lines 3-30.

art. 3(3): The relevant terms of this paragraph are set out at page 111, lines 33-38.

Supreme Court Act 1981 (c.54), s.18(1): The relevant terms of this sub-section are set out at page 115, lines 34-37.

Courts—Court of Appeal—jurisdiction—no appeal from Royal Court's refusal to review Attorney General's power to investigate fraud—not criminal appeal by convicted person within Court of Appeal (Jersey) Law 1961, art. 24, nor appeal in "any civil cause or matter" within art. 12, since purpose of proceedings to affect scope of criminal investigation

The appellants brought an action in the Royal Court to challenge the validity of a notice issued by the Attorney General under the Investigation of Fraud (Jersey) Law 1991, art. 2.

The Attorney General issued notice to the appellants under the Investigation of Fraud (Jersey) Law 1991, art. 2 requiring them to furnish information regarding a bank account held or controlled by them. The appellants sought to have his decision to issue the notice quashed but the Royal Court (Crill, Bailiff and Jurats Vint and Rumfitt) dismissed their representations. These proceedings are reported at 1993 JLR 35.

The appellants appealed against this judgment and the Attorney General subsequently made the present representation to the Court of Appeal seeking a ruling as to whether it had jurisdiction to consider the appeals. He submitted that his notice had been for the purpose of a criminal investigation and the court therefore had no jurisdiction to entertain the appeals since by art. 24 of the Court of Appeal (Jersey) Law 1961, appeals in criminal or quasi-criminal matters could only be brought (under Part III of the Law) by persons who had been convicted of a criminal offence, which the present appellants had not.

The appellants submitted in reply that (a) they would have had a right of appeal under the law prior to the 1961 Law, which right had not been abrogated by the legislature in enacting that Law; and (b) the words "any civil cause or matter" in art. 12 of the 1961 Law should be interpreted so as to mean any cause or matter not involving actual or potential conviction or sentence, as here, and since the only question before the Royal Court had been the extent of its power to review the Attorney General's exercise of his powers under the Investigation of Fraud (Jersey) Law 1991, which was a civil question, the Court of Appeal had jurisdiction to consider their appeals under Part II of the 1961 Law.

Held, granting the representation:

The court could not entertain the appeals. Its jurisdiction depended entirely upon the provisions of the Court of Appeal (Jersey) Law 1961 and an appeal accordingly had to fall within the ambit either of Part III of the Law which, by art. 24, dealt with appeals in criminal or quasi-criminal matters only by persons who had been convicted of criminal offences, or of Part II which, by art. 12, dealt with appeals in "any civil cause or matter." Since the appellants had not been convicted of any criminal offence, the court had no jurisdiction under Part III. Furthermore, the powers given to the Attorney General by the Investigation of Fraud (Jersey) Law 1991 were exercisable only for the purpose of a criminal investigation. Since the purpose of the proceedings in the Royal Court had been to restrict the scope of such an investigation, it could not be said that the appeals were in a "civil cause or matter." The appeals did not therefore fall within the provisions of the 1961 Law at all (page 112, lines 14-40; page 113, lines 28-34; page 114, line 37 - page 115, line 24).

LE QUESNE, J.A.: On November 24th, 1992 the Attorney General, acting under a power contained in the Investigation of Fraud (Jersey) Law 1991, issued a notice requiring the manager of A.I.B. Bank (C.I.) Ltd. to furnish information regarding the account held in the name of J. and N.

McMahon...