The Attorney General v Norberto Tome Francisco Teixera
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | J. A. Clyde-Smith |
| Judgment Date | 17 April 2018 |
| Neutral Citation | [2018] JRC 72 |
| Date | 17 April 2018 |
[2018] JRC 072
ROYAL COURT
(Samedi)
J. A. Clyde-Smith, Esq., Commissioner, sitting alone.
C. M. M. Yates, Esq., Crown Advocate for the Attorney General.
Advocate S. E. A. Dale for the Respondent.
Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949.
Road Traffic (Jersey) Law 1956.
AG -v- Bacon [2016] JRC 181 .
Warren -v- AG [2011] JLR 424 .
R v Abu Hamza [2007] 1 Cr. App. R.27 .
AG v Devonshire Hotel Limited [1987–88] JLR 577 .
Honorary Police (Jersey) Law 1974.
Attorney General v Bojwani [2010] JLR 1 .
Attorney General v R [1995] JLR 315 .
Bennett v Horseferry Road Ct [1994] AC 1 .
Magistrate's Court Appeal — appeal by the AG against the decision of the. Magistrate on 1st Dec 2017 to stay the proceedings against the respondent as an abuse of process.
This is an appeal by the Attorney General against the decision of the Assistant Magistrate on 1 st December, 2017, to stay the proceedings against the respondent as an abuse of process.
The appeal is brought under Article 21 of the Magistrate's Court ( Miscellaneous Provisions) (Jersey) Law 1949 by way of case stated, on the ground that the decision of the Assistant Magistrate was wrong in law.
On 30 th June, 2017, the respondent was involved in a traffic accident in which the car he was driving collided with a motor cyclist, who sustained a broken leg. He was interviewed by the police on 29 th July, 2017, after which he was told that the matter would likely be sent to the Magistrate's Court and that he should attend at St Clement's Parish Hall on 6 th September, 2017, to receive a court date.
On 6 th September, 2017, the respondent attended St Clement's Parish Hall, and it was agreed by Advocate Yates, on behalf of the Attorney General, that the respondent's affidavit of 23 rd November, 2017, accurately reflects what took place. I therefore set out the relevant paragraphs as follows:–
“13 When I attended the Parish Hall, I spoke to a female Centenier who introduced herself to me but I cannot independently recollect her name. However, I now know she is Centenier Mandy Le Brocq. She cautioned me and charged me with the offence of causing serious injury by careless driving.
14 After charging me, the Centenier said that she had reviewed all of the paperwork and heard the recordings. I am not entirely sure what she meant by ‘recordings’ but assumed she was talking about the interview I gave or the account given by the witnesses. She then explained that she had three options in how to deal with the matter. She could either:–
(i) send the matter to the Magistrate's Court;
(ii) deal with the matter at the Parish Hall and dispose of it by way of a fine; or
(iii) deal with the matter at the Parish Hall and dispose of it by way of written caution.”
I asked her what a written caution was and she explained. She then referred to the Road Traffic Law (including the year, which I cannot recall).
15 The Centenier said that whilst she acknowledged PC Dupré wanted the matter to go to Court, she said she would deal with it by way of a written caution, which I gladly accepted. I then signed the written caution form (which I exhibit at page 1 of Exhibit ‘NFT’) before I was told I could leave.
16 As I walked toward the door, the Centenier said to me that she would now have to explain her decision to the Police. I thought nothing more about this comment at that time.
17 Following that Parish Hall Enquiry I believed that the matter was now over and that I would not be prosecuted. I had been very worried about it and it was therefore a huge sense of relief.”
On 19 th September, 2017, St Clement's Parish wrote to the respondent, informing him that at the direction of the Attorney General, he had to attend a further Parish Hall inquiry on 27 th September, 2017, and at that inquiry he was told that his case would be sent to the Magistrate's Court.
On 11 th October, 2017, the respondent was charged in the Magistrate's Court with an offence contrary to Article 26A of the Road Traffic (Jersey) Law 1956. He reserved his plea, and the matter was adjourned until 1 st December, 2017, when he successfully applied for a stay of prosecution on the basis that it was an abuse of process.
Article 26A carries a maximum sentence of imprisonment for a term of two years and an unlimited fine. It also provides at Article 26A(4):–
“4 A person convicted of an offence under this Article shall, without limiting the power of the court to order a longer period of disqualification and unless the court for any special reason thinks fit to order otherwise, be disqualified for a period of 12 months for holding or obtaining a licence.”
The disqualification can only be imposed on a conviction before a Court and would not therefore apply on the giving of a written caution by a Centenier. By being cautioned, therefore, the respondent avoided what would otherwise have been a mandatory disqualification, unless special reasons applied.
Written skeleton arguments were filed by both the respondent and the Attorney General and the Assistant Magistrate was referred to the relevant case law, to which I will come to below, but in essence, Advocate Dale, on behalf of the respondent, summed up her application to the Assistant Magistrate on behalf of the defendant in this way:–
“(1) The prosecution of the defendant, in all of the circumstances, is prima facie an abuse of process. Not only has there been a clear representation that the defendant would not be prosecuted but he has acted in reliance of that representation. To now prosecute him would be a clear affront to justice and undermine the public's confidence in the Parish Hall enquiry system and the Criminal Justice system generally.
(2) The offence with which the Defendant is charged is not in itself serious, which goes against the public interest in prosecution. Further, the marking of this offence by written caution and the financial recompense [the motor cyclist] can receive either through insurance or a civil action further weighs against prosecution.
(3) In determining whether the prosecution is an affront to justice, the balance of the competing public interests falls in favour of the defendant and therefore the prosecution should be dismissed as an abuse of process.”
The Assistant Magistrate issued a full written judgment on 1 st December, 2017, later supported by way of a case stated. He set out a lengthy extract from the judgment of Sir Michael Birt, Commissioner, in AG -v- Bacon [2016] JRC 181, which summarises the legal principles to be applied. The leading authority is that of the Privy Council decision in Warren -v- AG [2011] JLR 424, which summarises in the headnote the two situations in which the Court may stay criminal proceedings as an abuse of process:–
“Held, dismissing the appeal:
The court had power to stay proceedings for abuse of process in two distinct categories of case: first, where it would be impossible to give an accused a fair trial, and secondly, where it offended the court's sense of justice and propriety to be asked to try an accused in the particular circumstances of the case (to avoid confusion, the issue in the second category should not be framed as whether it would be ‘fair’ to try the accused). In the first category, if the court concluded that an accused could not receive a fair trial, it would stay the proceedings without more. No question of balancing competing interests would arise. In the second category, the court was concerned to protect the integrity of the criminal justice system. A balance had to be struck between the public interest in ensuring that those accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct did not undermine public confidence in the criminal justice system and bring it into disrepute. An infinite variety of cases could arise. Among the factors frequently taken into account by the court when conducting the balancing exercise were the seriousness of any violation of the accused's (or a third party's) rights; whether the police acted in bad faith or maliciously, or with improper motive; whether the misconduct had been committed in circumstances of urgency, emergency or necessity; the availability of a direct sanction against those responsible for the misconduct; and the seriousness of the offence with which the accused had been charged. Whether it could be said that ‘but for’ an abuse of executive power an accused would not have been before the court at all was a factor for consideration but it would not always or even in most cases necessarily determine whether a stay should be granted. Proceedings should not be stayed for abuse of process merely to punish prosecutorial or police misconduct.”
The respondent's application came under the second category, namely whether it offends the Court's sense of justice and propriety to be asked to try a defendant, and where a balance had to be struck between the public interest in ensuring that those accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct did not undermine public confidence in the criminal justice system and bring it into disrepute.
In AG v Bacon a former Attorney General had, in 1985, directed that complaints of indecent assault against the defendant should proceed by way of written caution; he was therefore duly cautioned. Proceedings for these and other allegations of indecent assault were then brought by a successor Attorney General in 2016, some 31 years later. Reference was made to the English Court of Appeal decision in R v Abu Hamza [2007] 1 Cr. App. R.27, in which it was alleged that there had been...
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