QUEEN'S BENCH DIVISION
B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE JACKSON
|CHRISTINE SUSAN BRYCE-RICHARDS||APPLICANT|
|(1) ATTORNEY GENERAL OF JERSEY|
|(2) STATES OF JERSEY POLICE||RESPONDENTS|
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MR WILLIAM REDGRAVE appeared on behalf of the RESPONDENT
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Part 1. Introduction.
"If any person against whom a warrant shall be issued in any county, riding, division, liberty, city, borough, or place in England or Wales, by any justice of the peace, or by any judge of her Majesty's Court of Queen's Bench or [the Crown Court] for any indictable offence, shall escape, go into, reside, or be, or be supposed or suspected to be, in any of the Isles of Man, Guernsey, Jersey, Alderney or Sark, it shall be lawful for any officer within the district into which such accused person shall escape or go, or where he shall reside or be, or be supposed or suspected to be, who shall have jurisdiction to issue any warrant or process in the nature of a warrant for the apprehension of offenders within such district, to indorse such warrant in the manner herein-before mentioned, or to the like effect; or if any person against whom any warrant, or process in the nature of a warrant, shall be issued in any of the isles aforesaid shall escape, go into, reside, or be, or be supposed or suspected to be, in any county, riding, division, liberty, city, borough, or place in England or Wales, it shall be lawful for any justice of the peace in and for the county or place into which such person shall escape or go, or where he shall reside or be, or be supposed or suspected to be, to indorse such warrant or process in the manner herein-before mentioned; and every such warrant or process so indorsed shall be a sufficient authority to the person or persons bringing the same, and to all persons to whom the same respectively was originally directed, and also to all constables and peace officers in the county, district or jurisdiction within which such warrant or process shall be so indorsed, to execute the same within the county, district, or place where the justice or officer indorsing the same has jurisdiction, and to convey such offender, when apprehended, into the county or district wherein the justice or person who issued such warrant or process shall have jurisdiction, and carry him before such justice or person, or before some other justice or person within the same county or district who shall have jurisdiction to commit such offender to prison for trial, and such justice or person may thereupon proceed in such and the same manner as if the said offender had been apprehended within his jurisdiction".
Part 2. The Facts.
"1(a) Fraudulent Conversion.
Christine Susan Bryce-Richards, (aka Mauger) on a day or days between 14th October 1999 and 4th March 2000, having been entrusted (as director of a corporate trustee) with certain property, namely the trust assets held under the Ocean Trust as at 14th October 1999, in order that the property should be held and applied for the care and well-being of Joan Helen Edmonds for the duration of her lifetime, criminally and fraudulently converted the said property to the use and benefit of herself and Ryan Edwin Bryce-Richards, her husband, in that she arranged for the said property to be settled into the Ballad Trust upon terms whereby she herself was entitled to benefit from the trust property during the lifetime of Joan Helen Edmonds.
1(b) Ryan Edwin Bryce-Richards at the same time aided, assisted or participated in the said fraudulent conversion."
Part 3. The Present Proceedings.
(1) The warrant against the applicant does not give sufficient particulars. (This argument has not been pursued today.)
(2) Section 13 of the 1848 Act must now be read subject to the Human Rights Act 1998. The magistrates in endorsing the warrant acted contrary to the applicant's rights under the European Convention on Human Rights.
(3) If tried in Jersey, the applicant will be denied effective representation contrary to Article 6.3 (c) of the Human Rights Convention.
(4) If tried in Jersey, the applicant will not receive a fair and public hearing before an independent and impartial tribunal, contrary to Article 6.1 of the European Convention on Human Rights.
(5) The applicant's detention and removal to Jersey gives rise to a breach of Article 5 of the European Convention on Human Rights.
(6) The applicant's detention and removal to Jersey gives rise to a breach of Article 8 of the European Convention on Human Rights by reason of the matters contained in her affidavit, which I summarised a little earlier.
Part 4. The Impact of Article 5 of the European Convention on Human Rights.
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...
"2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
"3. Everyone who is arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation".
"The jurisprudence of the European Court of Human Rights indicates that there are various aspects to Article 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under Article 5(1). It will thus give rise to an enforceable right to compensation under Article 5(5), the provisions of which are not discretionary but mandatory. The second question is whether, assuming that the detention is lawful under domestic law, it nevertheless complies with the general requirements of the convention. These are based upon the principle that any restriction on human rights and fundamental freedoms must be prescribed by law (see articles 8 to 11 of the convention). They include the requirements that the domestic law must be sufficiently accessible to the individual and it must be sufficiently precise to enable the individual to foresee the consequences of the restriction (see Sunday Times v UK (1979) 2 EHRR 245; Zamir v UK (1983) 40 DR 42 at 55 (paragraphs 90 to 91)). The third question is whether, again assuming that the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate (see Engel v Netherlands (Number 1) (1976) 1 EHRR 647 (paragraph 58); Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198 (paragraph 56))".
"There is no doubt that the 1965 Act is intended to be a simple and expeditious process, more so than extradition procedures under the Extradition Act 1989: see Lord Steyn in Gilligan at page 1255H. This reflects the close geographical and political ties between the Republic and the United Kingdom and the similarities between their criminal laws and procedures see Lord Steyn again at 1256B and D to E, where he said that the Act of 1965 was premised on the basis that the Irish courts were well able to guard against abuse and that Ireland had a special position in English law. The power to discharge a fugitive for abuse of process would undermine the legislative purpose of a single and expeditious procedure between neighbouring countries, and one is not to forget that there remain the protections of section 2(2) of the Act against return for offences of a political character, or related to race, religion or nationality."
Part 5. The Impact of Article 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 by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly ...
"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
"3. Everyone charged with a criminal offence has the following minimum rights:
"(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
"(b) to have adequate time and facilities for the preparation of his defence;
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
"(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court".
"If it were thought arguable (perhaps by reference to the reasoning in paragraph 52) that a violation might be shown on any wider basis, having regard to the Bailiff's multiple roles, I would express my firm dissent from any such view. Where there is no question of actual bias, our task under Article 6.1 must be to determine whether the reasonable bystander -- a fully informed layman who has no axe to grind -- would on objective grounds fear that the Royal Court lacks independence and impartiality. I am clear that but for the coincidence of the Bailiff's presidency over the States in 1990 and over the Royal Court in 1995, there are no such objective grounds whatever."
Part 6. Other Grounds of Challenge.
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
"2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
Part 7. Conclusion.