ROYAL COURT
17 November 1998
Before: Sir Peter Crill, K B E, and Jurats Le Ruez and Herbert
AG
-v-
Robert John Young
IN THE MATTER OF
Appeal of ROBERT JOHN YOUNG 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 4½ years imprisonment were passed by the Superior Number on 8 May 1998;
and for leave to call further evidence
An extension of time within which to file a notice of application for leave to appeal and leave to appeal was granted by the Court of Appeal on 12 November 1998.
(The Appellant appealed against sentence, which was dismissed by the Court of Appeal on 9 July 1998]
APPLICATION FOR BAIL PENDING DETERMINATION OF APPEAL UNDER ARTICLE 35 OF THE COURT OF APPEAL (JERSEY) LAW, 1961.
Advocate A P Begg for the Applicant
C E Whelan Esq., Crown Advocate
JUDGMENT
THE COMMISSIONER: On 26 March 1998, the appellant was convicted by the Inferior Number of the Royal Court on a number of counts under the Investors (Prevention of Fraud) (Jersey) Law 1967. On 8 May 1998, he was sentenced by the Superior Number of the Royal Court to concurrent terms of 4years 6 months imprisonment on each of the counts upon which he had been convicted. He appealed against that sentence. His appeal was heard on 9 July 1998, by the Court of Appeal which dismissed his appeal.
On 17 August 1998, he gave notice of an application under Article 39 of the Court of Appeal (Jersey) Law 1961 for leave to appeal against his conviction outside the statutory period fixed by Article 30 of that Law.
On 26 August 1998, the appellant appeared in person asking the Court to grant him bail under Article 35. That application was refused by the Court on the same day. At that hearing no point was taken by the Crown that the appellant was not an appellant as required by Article 35 but only an applicant. Eleven matters were canvassed by the appellant before the Court on that occasion.
On 22 October 1998, a further application was made to the Royal Court for bail. On that occasion the appellant was represented by Advocate Begg, who had been appointed under the Legal Aid provisions in force in this Court, to act for the appellant. He had been appointed in August. At that hearing the grounds upon which bail was sought - that is to say the grounds on which the appeal would eventually be heard - were increased by eight. The Court on that occasion declined to receive the application because it ruled that the appellant was not, as I have said, an appellant, but an applicant.
The matter then went before a Single Judge of the Court of Appeal, Southwell JA, on 12 November 1998, who, without deciding the point as to whether the appellant was an applicant or an appellant, granted him an extension of time within which to apply for leave to appeal against conviction and also granted him leave to appeal. At the same time the learned Judge directed that the appeal against conviction would be heard by the Court of Appeal at the Sitting taking place in the week beginning on 18 January 1999. The time limit within which the appellant’s grounds of appeal with supporting documents and the grounds must be lodged in a proper form rather than in the way in which they were presented before Southwell JA, has been fixed by the Greffier at 18 December. Thereafter the Crown will have fourteen days to reply, on 4 January 1999.
Today, therefore, the appellant (represented by Mr Begg) comes before us as an appellant and has asked for bail. A number of additional grounds have been added to those which the Court considered at the 22 October hearing; they are three in number and concern the question of duplicity; the failure of the Court to exercise its discretion to rule that there was no case to answer and a failure by the Court to rule that the prosecution was in fact an abuse of the procedure of the Court.
The Law on the subject is very clear. This Court has always had regard to the English authority in matters of criminal law in the Island where we are satisfied that those authorities may properly be applied to the circumstances of the case before the Court. The leading case in England which this Court has cited and used in the past is that of Watton (1978) 68 Cr.App.R. 293 where the headnote reads:
"The only ground for the granting of bail on an appeal to the Court of Appeal from the Crown Court, after refusal by a single judge under section 31 of the Criminal Appeal Act 1968 to grant bail in giving leave to appeal to an appellant, is the existence of special circumstances, i.e. where it appears, prima facie, that the appeal is likely to be successful or where there is a risk that the sentence will be served by the time the appeal is heard".
Clearly, so far as this case is concerned, the second matter of "a risk that the sentence will be served by the time the is heard" does not apply. Of course, by analogy, the refusal of a single judge might be compared to the refusal of the Royal Court in August to grant bail except of course we are not sitting as a Court of Appeal and there is that distinction. However, in its judgment given by Lane LJ, the Court extended the headnote somewhat at p.297 and said this:
"We feel that the grant of leave by the single judge under a section 31 consideration of the papers is only one of the matters to be considered when examining the true question".
Therefore, the decision of the Court in August of this year not to grant bail is not conclusive; and Lane LJ continues:
"And the true question is, are there exceptional circumstances, which would drive the Court to the conclusion that justice can only be done by the granting of bail? The law has not altered. The law is as it was. Exceptional circumstances are the test and the decision of the single judge is only one of the many matters which the Court must take into account when reaching its conclusion on that difficult matter".
The Court then went on to say that there were no exceptional circumstances in that case. It is interesting to look at what were advanced as exceptional circumstances. These were personal circumstances; that is to say that the appellant was not fit; that his wife suffered from angina; that she was under medication constantly; that he had the misfortune to have a daughter who was mentally unstable and looked to the appellant, her father, for a great deal of her companionship and support. Then it was said that he was not expecting to go to prison and therefore had not taken the necessary steps to put his affairs in order before he went to prison. I continue:
"Then it is said that the Christmas holidays were coming up and finally, he is of good character to all intents and purposes".
The Court went on to find that those matters were not exceptional circumstances.
In this application a number of matters have been urged upon us by Mr Begg as constituting special circumstances here. I take them in no particular order. The first is the difficult position in which Mr Begg finds himself as a sole practitioner in his firm. He concedes that he has some assistance, but he is the sole principal, and has said that it is impossible for him - by inference - without damage to his practice, to devote the time that is necessary to the preparation of this appeal. To that we must say that the time for him to prepare is not limited to the period from today until next month. Mr Begg has had since last August and if he found himself in difficulties as regards his practice, it was then that he should have taken steps to put that right.
As regards his complaint that he needs to have access to a number of papers - he mentioned that the appellant’s previous advocate was retaining them - it seems to us that in an appeal of this nature as in every criminal appeal against conviction, the essential papers are the records of the trial. These have been available at the Greffe since the trial and were easily obtainable. We understand, in fact, that Mr Begg has indeed obtained some if not all of them. It seems to us, therefore, that as regards the facts of the trial and as regards the rulings of the trial, these have all been available to the appellant since March and to Mr Begg since August.
It is clear to us from the previous hearing in August that the appellant is a man of considerable intellectual ability and that he was able to draft his representation to the Court which was clearly impressed. Therefore Mr Begg urges us that that ability of his client should be harnessed to the appeal and that he, Mr Begg, should not have to go it alone. It is said that because the appellant has bad vision (40% sight) he needs help to assist him, in Nottingham particularly where his wife resides. His wife is legally trained and can read to him there. There are, in addition, a number of other matters regarding his physical condition: diabetes and so on.
We do not think that the physical condition of the appellant, nor the fact that there is somebody in Nottingham who is prepared to assist him beyond what Mr. Begg is able to offer, are special circumstances entitling us to grant bail; more than that, compelling us to grant bail as otherwise there would be an injustice. The European Convention on Human Rights says no more than that a person charged with an offence has the right to be represented, or represents himself to put his case and there is case law which extends that right to a convicted person appealing to a Court of Appeal. Mr Begg suggests that Southwell JA, by fixing a date, has magnified the difficulties which he has already mentioned. To that we can only say that we understand what Mr Begg has said: he applied earlier for a date, but perhaps that letter was misinterpreted and the Court of Appeal actually fixed a hearing in November for the appeal. It is not a very important matter taken as a whole.
However, even if there are no special circumstances in relation to the physical condition of the appellant, or the difficulties in which his legal adviser finds himself, we have to consider whether there are any of the grounds of appeal, on which a prima facie case on any one would compel us to the conclusion that to refuse bail would be to do an injustice to the appellant.
I return for a moment to the question of preparation for the appeal. We have been told that the appellant wishes to play a full part in the appeal - that is his right, but he is advised by Mr Begg. An appeal falls into two parts, first of all a challenge as to the facts as adduced at the trial; and secondly a challenge as to the legal ruling of the Court during the course of the trial on a number of submissions that were given and its legal ruling in its summing up.
So far as the facts are concerned we have been told that the appellant has lived with the facts for a long time and knows them but nevertheless requires to go through them yet again and requires assistance to do this. So far as the law is concerned, which we think, of necessity, must be the duty of Mr Begg to apply himself to, he has told us that he would wish to obtain advice from specialist criminal lawyers - or one at any rate - in London but being on legal aid, his client cannot find the funds to do this and neither should he (Mr. Begg) be expected to find them. A view with which we totally agree. It should not, however, be beyond his ability to convince the Finance and Economics Committee that in order to do justice to his client’s appeal he should be put in funds to obtain that advice and that is something which no doubt he would wish to do as soon as possible.
We have looked very carefully at the grounds of appeal - all except the three which have been added to the grounds of appeal for the purposes of this afternoons application. These were fully canvassed in the very careful résumé of the grounds of appeal set out by Mr Begg for which we are grateful. Nevertheless he agreed that a number of those grounds and the way in which they had been written had been formulated by the appellant, but, having noted that he wished to take a full part in his own appeal, there is nothing untoward in that.
Looking at the three matters raised of duplicity; knowing that the Court should have ruled on the question of the submission that there is no case to answer; and the question of abuse of the process of the Court, we can find nothing in any one of those three matters which would justify us in reaching the conclusion that there is a prima facie case to succeed on appeal. Having examined the others set out in full in Mr Beggs written submission and in the Crowns answer, again, we can find nothing in any one of those which stands out so clearly as being a ground which would be prima facie likely to succeed and therefore, if we were not to grant bail, that would be a injustice to the appellant. Therefore, for the reasons which I have stated we are not prepared to grant this application and the application is refused.
However, I wish to add a rider that the utmost assistance should be given to the appellant by the prison authorities and the committee responsible for the prison so that he should have access to an up-to-date computer with a compact disc to enable him by these means to research (if he wishes to do so) the law on fraud in this type of case. To that end - and we do not think it unreasonable - he should be given the assistance of somebody at the prison, or of a seconded civil servant to assist him to read the screen and those documents which he wants to read in order to prepare his appeal.
Authorities
Watton (1978) 68 Cr.App.R. 293
AG -v- Mallett (1 March 1991) Jersey Unreported; (1991) JLR N.7