Warren v Attorney General

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Beloff, J.A.
• Judgment Date: 18 October 2012
• Date: 18 October 2012

COURT OF APPEAL

Beloff, J.A.

S.M. Baker for the applicant;

H. Sharp, Q.C., Solicitor General, for the Attorney General.

Cases cited:

(1) Billson's Settlement Trusts, In re, [1984] Ch. 409; [1984] 2 W.L.R. 966; [1984] 2 All E.R. 401, referred to.

(2) Cotterill v. Ozanne, 2011 12 GLR 1, considered.

(3) Ekbatani v. Sweden (1988), 13 E.H.R.R. 504, referred to.

(4) Glazebrook v. Housing Cttee., 2002 JLR N [43], applied.

(5) Hermi v. Italy (2008), 46 E.H.R.R. 46, referred to.

(6) R. v. Gavin, [2011] 1 Cr. App. R. (S.) 126; [2011] Crim. L.R. 239; [2010] EWCA Crim 2727, distinguished.

(7) R. v. Jones, [2003] 1 A.C. 1; [2002] 2 W.L.R. 524; [2002] 2 All E.R. 113; [2002] 2 Cr. App. R. 9; [2002] UKHL 5, referred to.

Legislation construed:

Procédure Criminelle, Loi (1864) réglant la (Revised Edition, ch.08.740, 2010 ed.), art. 1: The relevant terms of this article are set out at para. 19.

art. 5: The relevant terms of this article are set out at para. 24.

art. 26: The relevant terms of this article are set out at para. 24.

art. 70: The relevant terms of this article are set out at para. 25.

art. 72: The relevant terms of this article are set out at para. 22.

art. 72A: The relevant terms of this article are set out at para. 26.

Text cited:

First Report of the Commissioners appointed to inquire into the state of the Criminal Law in the Channel Islands: Jersey, Answers to Questions, para. 17, at 25 (1847).

Criminal Procedure — procédure devant l'enquête — accused's right to be present — Loi (1864) réglant la Procédure Criminelle, art. 72 entitles accused to be present at jury proceedings, not all proceedings connected to but outside trial — wider construction not necessary to comply with ECHR, art. 6, which requires presence only at trial — accused not entitled to be present at hearing of Attorney General's application for order preventing him from contacting juror (seeking evidence to restart appeal)

The applicant was charged in the Royal Court with conspiracy to import drugs.

The applicant was convicted in the Royal Court of conspiracy to import drugs and sentenced to imprisonment. He appealed unsuccessfully against his conviction up to the Privy Council. He wished to contact a juror, who had been discharged during the trial, to ascertain whether the juror had been improperly approached by the police and whether any witness statement could be obtained from the juror to support an application to the Lieutenant Governor for a referral under art. 43 of the Court of Appeal (Jersey) Law 1961, so as to enable the Court of Appeal to consider the matter.

The Attorney General sought an order preventing the applicant from contacting the juror. The Royal Court (Pitchers, Commr.) refused to permit the applicant, who was in prison in England, to be physically present at the hearing of the Attorney General's application. The court concluded that the applicant was not entitled to be present under art. 72 of the Loi (1864) réglant la Procédure Criminelle or as a matter of natural justice, but could attend by way of video link. Article 72 provided: "L'accusé sera présent aux débats et à tous les jugements qui le concernent, et le Verdict de l'enquête sera rendu en sa présence .?.?."

The applicant applied for leave to appeal, submitting inter alia that the proceedings to resolve the Attorney General's application were criminal and he was therefore entitled to be present in person because they fell within art. 72 of the 1864 Law, which applied to all stages of the proceedings outside the trial but connected thereto.

Held, dismissing the application:

The applicant would not be granted leave to appeal, as he had not shown a properly arguable case that the Royal Court's decision was wrong and the application did not raise for the first time a matter of general principle or a question of genuine public importance such as would justify the grant of leave irrespective of the merit of the proposed appeal. Even if the proceedings to determine the Attorney General's application were properly classified as criminal, the applicant had no legal entitlement to be physically present at the hearing. Article 72 of the Loi (1864) réglant la Procédure Criminelle applied only to jury proceedings. There was no justification for construing that article so as to require an accused's presence at all stages of proceedings outside the trial but connected thereto. Such a construction was not supported by precedent; art. 6 of the European Convention on Human Rights required an accused's presence only at a criminal trial and the 1864 Law did not therefore have to be given an elastic interpretation so as to comply with the Convention; and there was no reason to construe art. 72 as providing an accused with more generous rights than those provided under the legal systems in England and Wales and Scotland, which had a well-established commitment to fair trial and entitled an accused to be present at his criminal trial. In the circumstances, the applicant also had no entitlement as a matter of natural justice to attend the hearing. The hearing could properly and fairly proceed without his presence, as it would not be a trial and would involve no conflict of evidence (at any rate in which the applicant was involved), and his presence would make no difference to its outcome. In addition, securing his presence would be a complex and expensive exercise which would inevitably delay the hearing. Providing a video link would satisfy any conceivable principle of fairness ( paras. 23 34).

1 BELOFF, J.A.: This is an application made by Curtis Francis Warren ("Warren") to me as a single judge pursuant to the Court of Appeal (Jersey) Law 1961, art. 13 ("the Appeal Law") for leave to appeal rulings made by Pitchers, Commr. ("the Commissioner") dated May 14th, 2012 ("the May ruling") and September 6th, 2012 ("the September ruling").

2 In those rulings, the Commissioner refused an application made by Warren (who, where appropriate, I use as a proxy for his lawyers), to be physically present at the hearing ("the hearing") of an application made on March 21st, 2012 by the Attorney General.

3 By that application, the...