ROYAL COURT
(Samedi Division)
22 October 1998
Before: Sir Peter Crill, K B E, Commissioner, and Jurats Herbert and Le Breton
IN THE MATTER OF
An application by ROBERT JOHN YOUNG for an extension of time within which to apply for leave to appeal, and for leave to appeal against his CONVICTION on 26 March 1998, by the Inferior Number, following not guilty pleas to the following charges:
4 counts of inducement to take part in arrangements with respect to the management of property by statements known to be misleading, false or deceptive, contrary to Article 12(c) of the Investors (Prevention of Fraud)(Jersey) Law, 1967: counts 1A, 2C, 3A, 5A., on each of which counts concurrent sentences of 4 ½ years imprisonment were passed by the Superior Number on 8 May 1998;
Application, under Article 35(2) of the Court of Appeal (Jersey) Law, 1961, for admission to bail pending determination of appeal against conviction.
Application refused: Applicant is not an Appellant in the Court of Appeal, but an applicant for an extension of time and for leave to appeal; the Court, therefore has no jurisdiction under Article 35(2) to grant the application for bail.
C E Whelan Esq., Crown Advocate
Advocate A P Begg for the Applicant
JUDGMENT
THE COMMISSIONER: On the 26 March 1998, Dr Young was convicted by the Inferior Number of the Royal Court on Counts 1(a), 2(c), 3(a) and 5(a) of the Indictment then before it. He was convicted of four offences under Article 12(c) of the Investors Prevention of Fraud (Jersey) Law 1967. On the 8 May 1998, he was sentenced by the Superior Number of the Royal Court to concurrent terms of 4 years and 6 months imprisonment on each of the counts upon which he had been convicted.
He appealed against his sentence, and leave to appeal was given in respect of that appeal, and the Court of Appeal heard his appeal on 9 July 1998, and dismissed it. A right of appeal to the Court of Appeal against conviction by the Inferior Number is given by Article 24 of the Court of Appeal (Jersey) Law, 1961. Article 30(1) of that Law states:
"Where a person convicted desires to appeal or to obtain leave to appeal under this Part of this Law, he shall give notice of appeal or notice of his application for leave to appeal to the Judicial Greffier, in such manner as may be directed by rules of court, within ten days of the date of the conviction."
Dr Young did not do that. Nevertheless, Article 30 (3) of the 1961 Law states.
"…the time within which notice of appeal, or notice of an application for leave to appeal, may be given may be extended at any time by the Court of Appeal."
On the 17 August 1998, the Applicant gave notice of an application under Article 33 (3) of the 1961 Law for leave to appeal against his conviction outside the statutory period, fixed by Article 31 of that Law. That application for bail was, in fact, made to this Court on the 26 August 1998, when Dr Young appeared in person seeking an order almost identical to the one now sought through Counsel.
The Court understands that that matter is due to come before the Court of Appeal next month - although there may be some doubt about that - however, we are told by both Counsel that a date has been fixed.
Article 35 (2) of the 1961 Law provides that:
"The Royal Court may, if it sees fit, on the application of an Appellant" - and I stress the word "Appellant" - "admit the Appellant to bail pending the determination of his appeal".
It is contended by the Crown that there is at present no appeal pending before the Court of Appeal; there is an application to extend time within which to apply for leave to appeal, and therefore Dr Young is not an "Appellant" within the meaning of that Article, but merely an applicant, and as such, the Court has no jurisdiction to grant him bail.
The question which I have to determine today, as a matter of law, is whether Article 35 (2), which empowers this Court to grant bail, limits such power to Appellants, or whether it extends to include an Applicant.
Mr Begg has argued strongly, that if there is any doubt about the interpretation, I should give the benefit of that doubt to Dr Young. That is a standard principle and I have no doubt that it is true, and if I thought there were any doubt, I would adhere to it. However, Mr Begg goes on to say that even if I were to rule that Article 35(2) does not include an Applicant, in the instant case, the effect of such a decision would be to breach Article 6 of the European Convention on Human Rights, because the net effect would be that Dr Young would remain in prison, unless he makes a further and successful application.
It is the practice of the Court of Appeal in hearing applications for an extension of time within which to lodge a notice of appeal or an application for leave to appeal, to hear the grounds on which an appeal would be urged were they to grant leave or extensions, as the case may be.
The main ground on which of Dr Young seeks an extension of time is that he is partially sighted, and that combined with the fact that his present legal advisor is a single practitioner, means that the time available for that practitioner to help him is, of necessity, limited, and because of his semi-blindness, the time taken by Dr Young to read all the papers which he feels necessary to read is longer than it would otherwise be.
We had put in front of us an application from Dr Young, setting out the minimum requirements he would need in prison, and they are quite extensive and go beyond anything that we have so far come across, but it is not for us to question what he says he needs. I have had to ask myself whether, if I interpret the law as urged by the Crown, it could, at some point, be argued that the Island was thereby in breach of
the Convention. to that, I would say - as was, I think, said in the Guinness case - that conventions are not self-executing: the United Kingdom does not regard conventions as self-executing, and neither do we, and if anything were needed to convert the rather generalised provisions of the Convention into our domestic law, that would be for the States, the legislative body in the Island. Therefore, for the purposes of interpreting the Article, I am not minded to have regard to the possible effects which might conceivably amount to a breach of the Convention.
So, I turn back to the 1961 Law itself. An Appellant is defined, by Article 42 (1), as follows:
"appellant" includes a person who has been convicted and desires to appeal under this Part of this Law."
Dr Young has been convicted, and he desires to appeal, and he has an absolute right to do so, provided that he gives notice within the requisite time; thus, had he, upon leaving the dock, after conviction said ‘I wish to appeal’, in my opinion he would have been covered by Article 42, even though he had not actually filled in the appropriate forms. But he did not do so and therefore now requires leave to reinstate the absolute right which he lost by not appealing within the requisite time as required by the law. I am strengthened in my belief that there is a difference between an applicant and an appellant by reference to Article 37 of the 1961 Law, where express provision is made as to the duties of the Judicial Greffier, and where there is a distinction drawn between appeals and applications.
That being so, I am satisfied that this Court has no jurisdiction under Article 35 (2) of the 1961 Law to grant bail to the Appellant, as he wishes to be called, though he is, in fact, an Applicant. I am grateful to both Counsel.
Authorities
Court of Appeal (Jersey) Law, 1961: Articles 35(2), 37, 42
Criminal Appeal Act 1968: s.19
Benest-v-Le Maistre (9 July 1998) Jersey Unreported
European Convention on Human Rights: Articles 1,5(4), 6(1),6(3)(c], and 7 (extract from ‘Basic Documents on Human Rights’ (3 Ed’n) by I. Brownlie: (325-332]
Archbold (1998 Ed’n): sections E.15-E.70
Harris, O’Boyle & Warbrick: ‘Law of the European Convention on Human Rights (Notice 5): p.107,111,146,155,156,171,173,202,207,208,223,230,241