Warren v Deputy Judicial Greffier

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: J. A. Clyde-Smith
• Judgment Date: 01 June 2009
• Neutral Citation: [2009] JRC 108A
• Date: 01 June 2009

[2009] JRC 108A

ROYAL COURT

(Samedi Division)

Before:

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

Between

Curtis Francis Warren

Applicant

and

The Deputy Judicial Greffier

Respondent

The Applicant represented himself.

Advocate P. Matthews, the Deputy Judicial Greffier, was present.

Authorities

McMahon v Attorney General [1993] JLR 108.

Acturus Properties v Attorney General [2001] JLR 43.

Royal Court Rules 2004.

Council of Civil Service Unions v Minister of Civil Service (7) (1984/3) AER.

COMMISSIONER

COMMISSIONER

1 On 1st June, I refused an application by Curtis Francis Warren (“the applicant”) for leave to institute judicial review proceedings against a decision of the Deputy Judicial Greffier, refusing permission to authorise funding of English counsel to attend in Jersey and to advise the applicant during the course of his trial before the Royal Court (“the decision”) and now set out my reasons.

2 The applicant was advised by the Judicial Greffe to make the application under Rule 16/2 of the Royal Court Rules 2004 which only applies to applications for judicial review in civil proceedings (Rule 16/1(4)). It seemed to me arguable that the application could be categorised as an application in criminal proceedings (see the Court of Appeal decision in McMahon v Attorney General [1993] JLR 108). It is clear that the Court has an inherent jurisdiction to entertain applications for judicial review (see Acturus Properties v Attorney General [2001] JLR 43 at paragraph 11) and as Mr Matthews pointed out the test would be the same, whether the Court is operating under Rule 16/2 of the Royal Court Rules or its inherent jurisdiction. Out of fairness to the applicant, I proceeded to hear the application exercising my powers either under Rule 16/2 of the Royal Court Rules 2004 or under the Court's inherent jurisdiction.

The decision

3 In substance, the background is as follows:-

• (i) The applicant is one of a number of defendants all of whom had advocates appointed to them under the Legal Aid scheme.

• (ii) The defendants applied for the criminal proceedings to be stayed on the grounds of abuse of process. Their advocates sought funding to engage the services of leading English counsel at the abuse of process hearing before the Royal Court and the subsequent appeal. In the view of the Deputy Judicial Greffier, the application raised a discrete area of law on which there was little local authority and on which he agreed that legal advice as to the law of England was merited. Accordingly, funding for the advice of Mr Dorian Lovell-Pank QC was obtained and it is clear from his fee notes that his advice was channelled predominantly through the applicant's counsel.

• (iii) Following the Abuse of Process applications, which were unsuccessful, all the defendants (bar one) dismissed their Jersey advocates. Two of the defendants then applied for and had appointed other Jersey advocates to represent them. The other defendants have since accepted back the advocates originally appointed to them leaving only the applicant representing himself. Thus all the defendants bar the applicant have a Jersey advocate appointed to represent them in the trial.

4 Instead of applying to the Acting Bâtonnier for the appointment of another advocate to represent him, the applicant decided to represent himself, but was in need of expert advice, specifically from an English lawyer Mr Barraclough who had apparently attended the abuse of process hearings on a pro bono basis and who I presume is an English criminal law specialist. He therefore applied to the Deputy Judicial Greffier by letter dated 19th February 2009 for the services of Mr Barraclough to be funded out of the Legal Aid fund.

5 The Deputy Judicial Greffier responded by letter dated 26th February 2009, (the delay being attributable to a period of illness) asking the applicant to set out in full the grounds upon which he came to dispense with Advocate Baker's services, to inform him of steps he had taken to have a Jersey advocate appointed for the trial and to set out all the matters on which he relied in connection with his application.

6 The applicant responded by letter dated 28th February 2009 and in summary:-

• (i) He said that he had dispensed with the services of Advocate Baker because, having appraised him of the defence tactics, Advocate Baker was apparently concerned with his own position. As a result of that, the applicant lost confidence in him.

• (ii) It was his right to have a lawyer of his choosing, not one appointed to him, and that is why he sought funding for a legal adviser from England to help conduct his defence.

• (iii) Mr Barraclough would be there not to represent him in Court, but to advise him on the cross-examination of witnesses, his main line of defence being the actions and conduct of the States of Jersey Police and the prosecution —in essence the matters which were the subject of the abuse of process application.

7 The Deputy Judicial Greffier considered the application and responded with his decision on 4th March 2009. It is convenient to set out his letter in full:-

“ Dear Mr Warren

Application for Legal Aid Funding for UK Legal Adviser Mr Barraclough

Thank you for your letter of 28th February, 2009 (received 3rd March, 2009). This is the first application requesting funding for the appointment of English counsel to...