Young v Attorney General

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Southwell, Collins and Gloster, JJ.A.:
• Judgment Date: 22 January 1999
• Date: 22 January 1999

COURT OF APPEAL

Southwell, Collins and Gloster, JJ.A.:

A.P. Begg for the appellant;

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

Cases cited:

(1) D.P.P. v. Stonehouse, [1978] A.C. 55; [1977] 2 All E.R. 909; [1977] Crim. L.R. 544; (1977), 65 Cr. App. R. 192; 121 Sol. Jo. 491, distinguished.

(2) Hughes v. Trapnell, [1963] 1 Q.B. 737; [1962] 3 All E.R. 616; (1962), 127 J.P. 1.

(3) Lapidus v. Att.Gen., 1987-88 JLR N-7, considered.

(4) Pearce, In re, 1990 JLR N-1.

(5) R. v. Aitken (1991), 94 Cr. App. R. 85.

(6) R. v. Davis (1960), 44 Cr. App. R. 235.

(7) R. v. Emmerson (1990), 92 Cr. App. R. 284; [1991] Crim. L.R. 194.

(8) R. v. Hagan, [1997] 1 Cr. App. R. 464.

(9) R. v. Lamb (1974), 59 Cr. App. R. 196; [1974] Crim. L.R. 563.

(10) R. v. Lydon (1986), 85 Cr. App. R. 221; [1987] Crim. L.R. 407.

(11) R. v. Riaz (1991), 94 Cr. App. R. 339; 156 J.P. 721; [1992] Crim. L.R. 366, applied.

(12) R. v. Rose, [1982] 1 W.L.R. 614; [1982] 2 All E.R. 536; affirmed, [1982] A.C. 822; [1982] 2 All E.R. 731; (1982), 146 J.P. 276.

(13) R. v. Thompson, [1984] 1 W.L.R. 962; [1984] 3 All E.R. 565; [1984] Crim. L.R. 427; (1984), 79 Cr. App. R. 191; 128 Sol. Jo. 447, distinguished.

(14) Saunders v. United Kingdom (1996), 23 E.H.R.R. 313, distinguished.

Additional cases cited by counsel:

Att. Gen. v. Associated Newspapers Ltd., [1998] E.M.L.R. 711.

Att. Gen v. English, [1983] 1 A.C. 116.

Att. Gen. v. Ferguson, 1998 JLR N-9.

Att. Gen. v. MGN Ltd., [1997] 1 All E.R. 456.

Drew v. Att. Gen., 1994 JLR 1.

Snooks v. Att. Gen., 1997 JLR 253.

R. v. Maxwell, Crown Ct., March 6th, 1995, unreported.

Legislation construed:

Investors (Prevention of Fraud) (Jersey) Law 1967, art. 12: The relevant terms of this article are set out at page 22, line 19 - page 23, line 13.

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953)) (Cmnd. 8969), art. 6(1): "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time before an independent and impartial tribunal established by law."

Text cited:

Archbold, Criminal Pleading, Evidence & Practice, para. 17-8, at 1498 (1999 ed.).

Financial Services—investor protection—fraudulent inducement to investors—elements of offence—fraudulent inducement to take part in arrangement with respect to property—elements of offence under Investors (Prevention of Fraud) (Jersey) Law 1967, art. 12(c)—no requirement that accused intended false statement to act as inducement—additional mental element not implied in statutory offence already specifying intention required

Criminal Procedure—fair trial—adverse publicity—fair trial vitiated if effect of publicity, before or during trial, causes miscarriage of justice—on appeal, relevant that accused failed to apply for stay of trial; that trial before Jurats; inevitability of publicity over high-profile cases; and powers available to prevent media intrusion

Criminal Procedure—fair trial—adverse publicity—absence of rules preventing media reporting of committal proceedings not contrary to right to fair trial under European Convention on Human Rights, art. 6—law of contempt available and Jurats capable of making impartial decisions

Evidence—recorded evidence—re-hearing recording—proper to reconvene in presence of both sides before allowing Jurats to re-hear recording of testimony—failure not miscarriage of justice if procedure adopted carries no risk that verdict could have been different

The appellant was charged in the Royal Court with fraudulently inducing investors to take part in arrangements with respect to property under art. 12(c) of the Investors (Prevention of Fraud) (Jersey) Law 1967.

The appellant conducted foreign exchange dealings on behalf of investment companies. He allegedly made false claims that the investments were increasing in value when in fact they were making substantial losses, and also had an agreement with one of the companies, of which the investors were not told, whereby he received 15% of the net profit from his trading. Because his profits were based on the false figures, he made personal profits whether the currency deals were profitable or not.

The appellant and others were subsequently charged under art. 12(c) of the Investors (Prevention of Fraud) (Jersey) Law 1967 with having committed various fraudulent inducements on the companies and on the investors. The Royal Court (Le Quesne, Commr.) ruled that as a matter of law, the arrangements thus entered into by the investors were arrangements with respect to property other than securities within the meaning of art. 12(c) of the 1967 Law (in proceedings reported at 1998 JLR 101).

At the trial, the Commissioner directed the Jurats that to establish that the appellant had committed an offence under art. 12(c), they had to be sure that he had made a statement, promise or forecast which was misleading, false or deceptive, that he knew when he made it that it was misleading, false or deceptive, that by that statement he had induced someone to take part or offer to take part in arrangements with respect to property other than securities, and that the purpose or effect of the arrangements was to enable persons taking part in them to participate in or receive profits alleged to arise from the acquisition, holding, management or disposal of the property.

After retiring to consider their verdict, the Jurats wished to re-hear the evidence of a witness, whose statement regarding the events in question had been heard in open court and electronically recorded. The Commissioner ordered that they return to court and the recording was replayed by the prosecution; however, it appeared that there was no material contact between the prosecution and the Jurats. The court was not reconvened for this purpose and the defence advocates were not present.

It appeared that both before and during the trial, including the committal proceedings, there was considerable media interest in the case and a number of reports were published. No complaint was made at that time by the appellant or any other party as to the nature of these reports, nor was there any attempt by the Attorney General to use his powers to bring proceedings against any journalist for contempt of court, nor by the defence to seek a stay of the prosecution on the ground that a fair trial was now impossible.

The appellant was subsequently convicted on a number of counts and sentenced to 4½ years' imprisonment. On appeal against his conviction, he submitted, inter alia, that (a) the Commissioner had erred in his summing-up to the Jurats when he said that to establish an offence under art. 12(c), it had to be shown that the appellant knew that the statement by which he induced the investors to enter into the arrangements was false; in fact, it was also necessary to show that he had intended the statement to act as an inducement, which had not been established; (b) the publicity surrounding the case made it impossible for the Jurats to put the media allegations out of their minds when considering the evidence and the fact that no efforts had been made to prevent prejudicial reporting rendered the conviction unsafe; (c) in particular, the absence in Jersey of any rules preventing the reporting of committal proceedings was contrary to the right to a fair hearing before an independent and impartial tribunal guaranteed by art. 6 of the European Convention on Human Rights; and (d) the replaying of the recorded evidence in the absence of the defence was a clear miscarriage of justice, since there was a likelihood both of improper contact with the prosecution and of the Jurats hearing other parts of the recording which they should not have heard.

Held, dismissing the appeal:

(1) The Commissioner had properly summed up the elements which had to be proved to establish that the appellant had committed an offence under the Investors (Prevention of Fraud) (Jersey) Law 1967, art. 12(c): that he had made a statement, promise or forecast; that the statement, promise or forecast was misleading, false or deceptive; that he knew when he made it that it was misleading, false or deceptive; that by that statement, promise or forecast, he had induced someone to take part or offer to take part in arrangements with respect to property other than securities; and that the purpose or effect of the arrangements was to enable persons taking part in them to participate in or receive profits alleged to arise from the acquisition, holding, management or disposal of the property. There was no additional requirement that an accused should have intended to induce the relevant persons to take part in the arrangements; indeed, such an additional mental element would not be implied into a statutory offence of which the mental element was already expressly stated (page 23, lines 16-34; page 28, lines 12-24).

(2) Although prejudicial publicity over a criminal trial could vitiate the fairness of the prosecution, in the present case there was no evidence that it had. The test was whether the effect of the publicity either before or during the trial was such as to render the verdict so unsafe as to amount to a miscarriage of justice. The following factors were relevant: that the appellant had had the opportunity of applying for a stay of the prosecution but failed to do so; that the trial had been before Jurats, experienced members of the court who were well able to exclude from their deliberations any matters not properly adduced in evidence before them and to follow the directions of the judge; the inevitability of publicity over allegations of certain high-profile offences such as fraud; the fact that the Royal Court had no power to restrict the publication of reports of court proceedings, except in cases involving children; and that the...