Jersey Unreported Judgments

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Cite as: [1998] UR 235

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COURT OF APPEAL

25 November 1998

Before:J M Collins Esq QC (President)

R C Southwell Esq QC

M G Clarke Esq QC

Robert John YOUNG

-v-

IN THE MATTER OF

Appeal of ROBERT JOHN YOUNG against his CONVICTION on 26 March 1998 [1998.058], by the Inferior Number, following not guilty pleas to the following charges:

4 counts ofinducement 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 [1998.094];

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 [1998.226].

(The Appellant appealed against sentence, which was dismissed by the Court of Appeal on 9 July 1998.[1998.147])

Application for review of refusal by the Royal Court on 17 November 1998 [1998.227], of bail pending determination of appeal under article 35 of the Court of Appeal (Jersey) Law, 1961, or, in the alternative, a de novo application for bail.

C E Whelan Esq., Crown Advocate

Advocate A P Begg for the Appellant

JUDGMENT

SOUTHWELL. J A: The Judgment which I am delivering is the Judgment of the Court, I want to say at the outset that we are indebted to Mr Begg and to Mr Whelan, the Crown Advocate.

On 26 March 1998 Dr Young was convicted on four 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. He did not then appeal against conviction. On the 8 May 1998, he was sentenced to 4½ years imprisonment on each count to run concurrently. He timeously appealed against sentence. His appeal against sentence was dismissed on 9 July 1998. On 13 July 1998, he applied for legal aid with a view to seeking to appeal out of time against conviction. Legal aid was agreed in principle, but there was a short delay in finding an advocate ready or able to act for him. On 17 August 1998, he delivered to the Judicial Greffier the requisite documents in relation to his attempt to appeal against conviction. On 26 August 1998, Dr Young applied in person for bail pending the hearing of his application with a view to the appeal. The application for bail was refused.

Advocate Begg was appointed to investigate the merits of Dr Youngs application to appeal against conviction on about 25 August 1998. On 27 August 1998, Mr Begg wrote to the Assistant Judicial Greffier, Mr F B H Sergeant, asking that Dr Youngs application be included in the List of Appeals for the September sitting of the Court of Appeal or any other extraordinary sitting which might be held between then and January 1999. Since it appeared that Mr Begg would not be ready for the September sitting the application was not then included. On 9 October 1998, Mr Begg and the Attorney General when informed that the application would be brought before a special sitting of the Court of Appeal, fixed for the week starting 23 November 1998. Mr Begg objected to this, unless his client was granted bail. On 22 October 1998, a further application for bail was heard in the Royal Court, and rejected on the ground that there was no power to grant bail under Article 35(2) of the Court of Appeal (Jersey) Law 1961, because Dr Young was not an "appellant" as defined by Article 42 (1) of that Law. On 28 October 1998, Mr Begg informed the Assistant Judicial Greffier that he could not be ready for a hearing at the sitting on 23 November 1998, and following, which had been fixed specially having regard to Mr Beggs letter of 27 August 1998, already mentioned. Mr Begg requested an initial hearing before a single Judge of the Court of Appeal. This was held on 12 November 1998, when the single Judge granted an extension of time and also leave to appeal against conviction, and indicated that any further application for bail should be renewed in the first place in the Royal Court. The single Judge also directed that (1) the grounds of appeal prepared by Dr Young should be re-formulated in appropriate form by Mr Begg, and (2) the hearing of the appeal should take place in the sitting starting on 18 January 1999.

On 17 November 1998, a renewed application for bail was heard in the Royal Court, and rejected. The Royal Court, however, requested that special assistance be given by the authorities of HM Prison, La Moye to Dr Young, this was no more than a request, since the Royal Court probably would not have had jurisdiction to order the provision of such special assistance. It appears that special assistance as requested is to be given to Dr Young, at least for the time being. Some has not yet been available, but this Court was assured by Mr Whelan, that what has not yet been provided, is shortly to be provided.

The matter comes before this special sitting of the Court by virtue of an application by Dr Young to this Court to, and I quote:

"(1) hear my appeal against, or alternatively, review the refusal of the Royal Court, on 17 November 1998, to grant me bail pending Appeal; in the alternative

grant me bail pending appeal or for such other period as the Court shall deem fit, de novo."

As is apparent, this application raises in limine two questions of law: first, whether this Court has jurisdiction to hear an appeal against refusal by the Royal Court of bail pending appeal; and secondly, whether this Court has jurisdiction itself to grant bail pending appeal.

This Court proposes to consider first the question on which argument has been heard, whether bail should be granted, assuming for this purpose that this Court has jurisdiction. The jurisdiction issues, on which argument has not been heard, will be referred to subsequently.

On the basis of this assumption the Court has carefully considered the arguments put forward by Mr Begg. The question for the Court is whether there are exceptional circumstances which would drive the Court to the conclusion that justice can only be done by the granting of bail: see R -v- Watton (1978) 68 Cr. App. R 293 as interpreted in Jersey in A.G. -v- Mallett (1^st March, 1991) Jersey Unreported, (1991) JLR Note 7. Mr Begg urges, amongst other matters, that:

Dr Young is intelligent and able to play a considerable part in preparing for his appeal;
however, Dr Young suffers from diminished vision and has difficulty in working on the appeal in prison;
therefore, unless Dr Young is given bail, there will be considerable difficulties in making ready for the appeal so as to enable Mr Begg adequately to present the appeal as Dr Youngs advocate, and:
several grounds of appeal are to be put forward of which some are said to be particularly strong, and it is said that the single Judge by granting the extension of time and leave to appeal was recognising that there were grounds on which the appeal is likely to succeed.

In the judgment of this Court, assuming as already indicated that it has jurisdiction to grant bail, no arguable case for the grant of bail pending appeal has been made out. This Court observes as follows:

The facilities already available for Dr Young in prison, or shortly to be made available, for the time being, are extensive and will largely obviate difficulties which might otherwise be obstacles to his assistance to Mr Begg:
What Mr Begg needs for the preparation of the appeal are; the papers in the case ( which are available to him); access to a law library ( and he has this facility); and reasonable access to his client and to his clients practical assistance (for which he has sufficient facilities).
The position is not that these are exceptional circumstances driving this Court to the conclusion that justice can only be done by the grant of bail. On the contrary, the exceptional circumstances are that Dr Young and his advocate, Mr Begg, have exceptionally advantageous facilities for the conduct of the appeal.
Between Dr Young and Mr Begg, they have identified a large number of potential grounds of appeal. What is now required, and has been directed by the order of the single Judge on 12 November 1998, is for Mr Begg To exercise his responsibility as an advocate by refining the grounds of appeal to those which Mr Begg, as an advocate, is satisfied are appropriate and properly and reasonably arguable, and then to put the final grounds of appeal in appropriate form, as compared with the present prolix form in which his client has without legal training been able to present certain suggested grounds of appeal. All this Mr Begg can readily do with a reasonable amount of input from his client, and Mr Begg has time within which to do this.
This Court has reviewed the grounds of appeal presently put forward by Dr Young, but not as yet put into appropriate form, as directed by the single Judge. This Court is not going to pre-judge the likelihood of any of those grounds succeeding. All that this Court can conclude at this stage, like the single Judge, is that once Mr Begg has done the necessary work on the grounds of appeal, there are likely to be some grounds which are reasonably capable of argument.
It appears that Mr Begg did not apply for payment by the States for his work on this appeal; the Attorney General has recently taken the initiative about this, and we were assured by Mr Whelan that, once Mr Begg has presented appropriate figures to the Attorney General, there should be no difficulty in providing payment, as was provided to the Advocate who appeared for Dr Young at the trial.

Having regard to the clear conclusion which this Court has reached on the footing of the assumption that it has full jurisdiction, the questions whether it does have such jurisdiction, either on appeal or itself de novo, do not require to be answered on this application. Accordingly, the Court does not propose to do more than make these further observations:

whether or not an appeal lies to the Court of Appeal from a refusal of bail
by the Royal Court, is a question which would require a much more detailed analysis of the relevant statutory provisions and of the relevant authorities, than would have been possible on this occasion, and;
it may well be that the Court of Appeal has itself an inherent jurisdiction to

grant bail pending appeal, but once again this requires a more detailed analysis than would have been possible on the present occasion.

Accordingly, this Court does not grant bail to Dr Young pending the hearing of his appeal in January 1999.

Authorities

Watton (1978) 68 Cr. App. R. 293

A.G -v- Mallett (1 March 1991) Jersey Unreported: JLR Note 7