ROYAL COURT
(Samedi Division)
1 July 1999
Before R D Harman Esq Q C Commissioner sitting as a Single Judge
IN THE MATTER OF
the Representation of the Bâtonnier
regarding Advocate Philip Cowan Sinel
Application by Advocate P C Sinel for Orders recusing the Jurats as a body from sitting and the Attorney General from appearing as Amicus Curiae, at the hearing of the Bâtonnier's Representation.
The Bâtonnier, Advocate R.J. Michel
Advocate N.M. Santos Costa for the Attorney General
Advocate D.E. Le Cornu for Advocate P.C. Sinel
JUDGMENT
THE COMMISSIONER: On 18th March, 1998, Advocate Sinel swore an affidavit in Jersey at a time when he was acting for the plaintiffs in an action, Mayo Associates SA & Others -v- Union Bank of Switzerland and Others. Its purpose was to support an application made before a Judge of the United States District Court for the Southern District of New York that the action should be heard in that Court rather than in the Royal Court in Jersey. This affidavit was the subject of a complaint to the then Bâtonnier by Advocate Clyde-Smith who submitted that it amounted to professional misconduct on the part of Mr. Sinel. The then Bâtonnier, Advocate Mourant, then appointed a panel of three advocates to investigate this complaint and to answer questions in relation to it.
In February, 1999, the panel replied to the four questions with answers directed to Advocate Michel who by this time had succeeded Advocate Mourant as Bâtonnier. The panel concluded that there was a prima facie case of professional misconduct which should be the subject of a full investigation. The panel recommended that the Bâtonnier should determine what action, if any, was appropriate and further stated that if the Bâtonnier determined that further action should be taken, he should refer the matter to the Superior Number of the Royal Court to be presided over by a Commissioner. The Bâtonnier took action accordingly, and his Representation includes the requests that Mr. Sinel be convened before the Superior Number of the Royal Court; and that the Superior Number take into consideration the complaint of Advocate Clyde-Smith and take such steps as it deems appropriate. I have been appointed as the Commissioner to preside over the hearing. It thus falls to me to consider the submissions which have been advanced by Advocate Le Cornu as to the recusal of the Jurats as a body and the exclusion of the Attorney General from acting as Amicus Curiae.
The submissions on behalf of Mr. Sinel, together with supporting authorities, have been summarised for me as follows:
(1) It is a fundamental principle of natural justice and fair adjudication that no man shall be a judge in his own cause.
(2) It is a further fundamental principle of natural justice and fair adjudication that justice must not only be done; it must also be seen to be done.
(3) In considering whether there has been compliance with the rules of natural justice regard should be had to the provisions of the European Convention on Human Rights with particular emphasis on Article 6(1).
In seeking the recusal of the Jurats as a body it is submitted on behalf of Mr. Sinel that the Jurats would inevitably be at least unconsciously influenced by a number of factors including the contents of paragraphs 23-27 of the affidavit. Mr. Le Cornu submits that it would be a breach of natural justice if the Jurats formed part of the tribunal convened to try the accusations made by the Bâtonnier. The Jurats would have to make findings, inter alia, about their own independence. The short objection to the Attorney General assisting the Court as Amicus Curiae is that because Mr. Sinel in his affidavit accused the present Attorney General personally of misconduct and incompetence, the Court would not be able to look for dispassionate assistance on his behalf. I am therefore asked to sit alone and if necessary to select an Amicus who has no connection with the subject matter of the accusations.
Mr. Le Cornu has quoted from 4 (Re-issue) Halsbury 1(1) paras. 84-86, 89, 101 in the context of natural justice and bias. He has emphasised the duty of the Courts to act fairly. This may be said to apply in particular where there is the exercise of a power to deprive a person of his livelihood or of his legal status. He has not sought to establish the presence of actual bias but has submitted that it is enough to establish a real likelihood that in the circumstances of the case an adjudicator would be biased. Alternatively, it may be sufficient to establish that a reasonable person acquainted with the outward appearance of the situation would have reasonable grounds for suspecting bias. In this connection he has referred me to the recent House of Lords case, R -v- Bow Street Metropolitan Stipendiary Magistrate & Ors ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272 and in particular to the following passage from the speech of Lord Browne-Wilkinson at p.281 under the heading "Apparent Bias":
"The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications.
The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial."
Mr. Le Cornu submits that his client's criticisms of the "Royal Court" must be deemed to include the Jurats as part of the Court process. Further, the Bailiff and Deputy Bailiff together with Sir Peter Crill as a Commissioner, who were all personally referred to in the affidavit, have récused themselves and therefore the Jurats should also be récused because they would have to make decisions on the criticisms of the Court and of the Judges. They would have to decide whether the accusations made by Mr. Sinel in his affidavit are capable of the interpretation put upon them by the Bâtonnier. He makes the point that these proceedings are "unique" and without any comparable precedent. He has emphasised that disciplinary proceedings have a historical background but have no statutory basis. Although there is an acknowledged practice for the Superior Number to preside over such proceedings this would not be appropriate in the present case. In the last resort, said Mr. Le Cornu, the truth of Mr. Sinel's allegations is very much an issue, if only because of the statement in paragraph 12 of the Bâtonnier's re-amended Representation that the allegations made by Advocate Sinel are not supported adequately or at all by the evidence and/or justification purportedly adduced in support. In short, the Jurats have a special interest in the protection of their own integrity.
Mr. Michel has argued that the allegation of professional misconduct is based upon statements made by Mr. Sinel which have not been retracted by him. Mr. Michel says that there is no issue before the Superior Number as to the truth or otherwise of those statements. It is the fact that they were made which constitutes the alleged professional misconduct. However, Mr. Sinel, having disassociated himself from the criticism set out in paragraphs 23-27 of the affidavit, the Bâtonnier has withdrawn any allegation of professional misconduct arising from them. Further, Mr. Michel submits that the Superior Number of the Royal Court can only be properly constituted in this instance if it consists of a Commissioner and not less than five Jurats. In the absence of a statutory disciplinary body, the only body competent at the moment to rule upon the alleged misconduct of an advocate of the Royal Court is the Superior Number of the Royal Court.
These arguments have been fully and carefully placed before me and I hope that I have done sufficient justice to them in this brief summary. Apart from the issue whether the Court can be constitutionally convened without Jurats, certain fundamental matters fall to be considered by me in hearing these objections. This does not, however, require me to express any opinion about the affidavit itself. Mr. Sinel has stated that its only purpose was to detail his client's reservations about the ability of the Island of Jersey to render justice in the litigation against Cantrade. It contains criticism both of individuals and of ancient institutions. This in itself may be no ground for alleging professional misconduct. At the same time Mr. Sinel is no stranger to the system which he has sought to criticise. He begins his affidavit with a personal statement about himself in these words:
"I qualified originally as a barrister of the Middle Temple, England, on 28 July 1983. I became an advocate of the Royal Court on 22 April 1987. I have been in business on my own account since that date. My ancestors have resided in this Island for several hundred years. I am primarily a litigation lawyer. I have extensive experience of the manner in which the Island of Jersey operates and in particular the function of its judicial system."
There is no denying that the system of trial by Bailiff and Jurats has been fundamental to the administration of justice in Jersey since ancient times. After all, as is well known, it goes back more than seven hundred years. Nowadays, as Mr. Sinel has pointed out in his affidavit, Jurats are elected by an electoral college consisting of, inter alia, the Bailiff, the Deputy Bailiff, States Members and Advocates of the Royal Court. No one may be both a Jurat and a member of the States. Again, as is well known, the position of Jurat is an honorary one, although Mr. Sinel has stated that it carries with it an immense amount of prestige, so that Jurats are very firmly part of the establishment, occupying premises adjacent to the States Chamber.
It is for this reason that he has submitted in the affidavit that the Jurats would inevitably be unconsciously influenced by local considerations prejudicial to the plaintiffs' case. However, I am not concerned with that case at this hearing. The sole consideration is whether Mr. Sinel will have a fair trial on a charge of professional misconduct. It is not whether the Jurats will provide a fair trial for the issues in the action in which he appears for the plaintiffs. I must bear in mind that I will be the sole judge of law, whereas the Jurats would be the sole judges of fact.
The principles which I must follow are, of course, well known. I quote from the speech of Lord Goff in R -v- Gough [1993] AC 646 at 670:
"...having ascertained the relevant circumstances, the court should ask itself whether, having regard to all those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him..."
This is the standard test for apparent bias. However in Jersey certain local considerations must be deemed to apply. I have been reminded of the Court of Appeal case, Drew -v- AG (1994) JLR 1 CofA, when I was a member of the Court. The Judgment was given by Chadwick JA and included this passage at p.12:
"Before leaving this part of the appeal, we should indicate that some degree of caution is required before applying without qualification the principles developed in the English courts in relation to apparent bias to the different circumstances which exist in this Island. Jurats of the Royal Court of Jersey are not closely analogous to justices of the peace in England. The Jurats number only 12 and they are chosen to administer justice in this Island on the basis that they will bring knowledge, experience and independence to their important office. It is inevitable, from the nature of the Island community, that there will be cases in which one or more Jurats will be known to have some connection, in the loose sense, with the subject-matter of the proceedings. We have no doubt that, in the vast majority of such cases, the Jurats themselves will be quick to recognise any possibility of apparent injustice and will excuse themselves from sitting. There may be other cases in which a recusation will properly lie. The law provides for this. But it should not be thought that recusation will necessarily lie against a Jurat in all circumstances in which a Justice of the Peace would be disqualified in England."
A similar approach was followed by the Court of Appeal in Greffier of the States -v- Les Pas Holdings Ltd (24th June, 1998) Jersey Unreported; (1998) JLR 196. The judgment of the Court, over which I presided, was given by Southwell, JA who said this at p.203:
"...having regard to the written evidence which this Court has seen, I think it right to make these observations of general import on the developing habit of making recusation applications:
1. Those who live and work in Jersey have to accept that the administration of justice depends to a great extent on the two senior Judges, the Bailiff and the Deputy Bailiff.
2. No application for recusation should be made without strong grounds to support it, and no such application should be granted unless such strong grounds are clearly established."
In my judgment these observations are equally applicable to the Jurats. I have been further referred, in the papers, to the Court of Appeal case of Snooks -v- AG [1997] JLR 253 where the present Bailiff sat with Lord Carlisle of Bucklow and Beloff JJA and gave the judgment. In the course of it he emphasised at p.256 that although the origins of the office of Jurat were lost in the mists of antiquity the office was always one of singular constitutional importance and until very recently the Royal Court could not be properly constituted by the Bailiff sitting alone. From the vantage point of 1999 I can only say that the system of trial by Judge and Jurats has a long and honourable history. But I have to decide as a matter of fact if such a Court would be an independent and impartial tribunal in the eyes of a reasonable and fair-minded person.
I repeat what I said at the start of this judgment, that the hearing which is to take place involving the affidavit sworn by Mr. Sinel is concerned with that affidavit alone, with Mr. Sinel alone, and is not concerned with whether his clients in the civil action would obtain a fair hearing from the Jurat system so long established in this Island. I have to decide whether the circumstances are exceptional so that there is a real possibility that Mr. Sinel would not receive the same fair hearing and treatment as any other person would receive at the hands of the Jurats. I have come to the firm conclusion that there is no reason to anticipate such prejudice or such an injustice. If he is known personally by any or all of the Jurats on account of his professional life or his life otherwise in Jersey, they will be well aware of his own honourable reputation of which he is, of course, justly proud. I should say that I, too, have become acquainted over the years with Mr. Sinel in his capacity as an advocate and I am sure that he would receive as fair a hearing from a Court convened to include myself together with the Jurats as from a Court with me sitting as a Commissioner on my own.
I return to the submission which has been advanced by Mr. Michel that the Superior Number of the Royal Court can only be properly constituted if it consists of a Commissioner and no fewer than five Jurats. It is, of course, the case that the Bâtonnier referred this matter to the Superior Number of the Royal Court and his Representation, as I have already noted, includes the request that the Superior Number should deal with it. Mr. Michel relies on Article 13 of the Royal Court (Jersey) Law 1948 as amended by Article 13(b), of the Royal Court (Amendment No. 10) (Jersey) Law 1998. Thus, in summary, in all causes and matters, civil, criminal and mixed, the Bailiff shall be the sole judge of law; in all causes and matters, civil, criminal and mixed, other than criminal causes tried by a jury before the criminal assizes, the Jurats shall be the sole judges of fact; while any cause or matter in which only issues of law arise may be determined by the Bailiff sitting alone, and any civil cause or matter in which issues of law and fact arise and in which the parties have applied to the Judicial Greffier for certification that the cause or matter is suitable for trial by the Bailiff alone, and the Judicial Greffier has granted such certification, may, if the Bailiff thinks fit, be determined by the Bailiff sitting alone. For the moment I substitute myself as Commissioner for the office of Bailiff. I am told that no application has been made to the Judicial Greffier.
Mr. Michel has stated before this Court that, whereas an application made under Article 13(b) for certification by the Judicial Greffier must be made by the parties to the proceedings, that is to say with the agreement and active co-operation of all parties, nevertheless if this application for recusation were to succeed on the basis that there was an appearance of partiality on the part of the Jurats, and if there was no alternative, he would adopt the fall-back position and support an application under Article 13(b), although only to ensure that a Court was properly constituted. The alternative he suggests would be that there was no procedure under the law of Jersey for the hearing of this matter.
A question nevertheless remains whether the referral of the case by the Bâtonnier to the Superior Number necessarily requires the Superior Number to determine the issues raised. I have been referred to the Court of Appeal case of In Re an Advocate [1978] JJ 193 CofA. The judgment of the Court was given by the President, Sir Roger Parker and includes this passage at p.195:
"There is no formal disciplinary procedure in respect of advocates laid down by statute, or by any agreed rules of the profession, or arising from case law. Advocates are subject to the Loi (1961) sur l'exercice de la profession de droit à Jersey, but are otherwise unfettered by statute, and that law is of no assistance in the present context. By custom they must renew their oath twice a year failing which they may not practise. In the event of established complaints of a minor nature they are internally and informally reprimanded. If, however, it is considered that the complaint is or may be serious enough to warrant formal censure or suspension, the practice has been for a representation to be made to the Royal Court."
In that case a necessary prerequisite for the hearing of the appeal was that the disciplinary proceeding fell into the category of a civil cause or matter. Under the Court of Appeal (Jersey) Law 1961 Article 12:
"(1) There shall be vested in the Court of Appeal all jurisdiction and powers hitherto vested in the Superior Number of the Royal Court when exercising appellate jurisdiction in any civil cause or matter.
(2) Subject as otherwise provided in this Law and to Rules of Court, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the Superior Number of the Royal Court when exercising original jurisdiction in any civil cause or matter."
In that case the Court of Appeal held that the Court had jurisdiction to entertain the appeal on the basis that it was in a "civil cause or matter". Nevertheless it was a case which had involved throughout the Superior Number when exercising original jurisdiction, although sitting in a somewhat special capacity, as the Court noted.
The Court had concluded this part of the judgment by stating that it was very desirable that urgent consideration should be given to the question of making agreed rules as to procedure in disciplinary matters both for the benefit of the public and of the Bar itself. Members of the Bar should know clearly what is their position in the event of complaint and the public should know that a satisfactory system exists for properly investigating and dealing with complaints. I am told that no rules or guidelines have been introduced since 1978, but I take into account the recognised practice of referring complaints of this nature to the Superior Number of the Royal Court. However, I have come to the conclusion that it is unnecessary for me in the context of this case to determine whether there is any further room for a special situation as argued by Mr. Le Cornu. For the reasons which I have already given I reject the application to récuse the Jurats and in those circumstances it is unnecessary to investigate further what would be a hypothetical situation. The appropriate tribunal, in my judgment, must be the Royal Court sitting as the Superior Number and I see no reason to depart from the acknowledged practice based on precedent.
Finally, I have considered the objection advanced by Mr. Le Cornu to the participation of a Crown Advocate on behalf of the Attorney General at the hearing of the Bâtonnier's complaint. As Mr. Michel has pointed out in his submissions, the criticisms of the Attorney General by Mr. Sinel in his affidavit relate to the present office holder and not to the office itself. Mr. Santos Costa would be acting as Amicus Curiae on behalf of the office of Attorney General. It would be no part of his function to defend the Attorney General against any allegations which have been made against him. He would be present to give assistance to the Court in such circumstances as it might require it. Historically, that is to say before 1963, the Superior Number of the Royal Court was not properly constituted without the presence of the Attorney General or the Solicitor General. But for the objection raised here his presence would be taken for granted today at a hearing of this nature. I have been referred to a definition of the term Amicus Curiae in a Canadian case Grice -v- The Queen, Ex. Rel. [1957] 11 DLR (2d) 699:
"An Amicus Curiae, properly so called, is a person or bystander, usually a lawyer, who has no interest in the proceedings and intervenes simply to call the attention of the Court to some point of law or fact which has escaped its notice."
Mr. Le Cornu has argued that anyone who is connected with the Attorney General's office would not give the appearance of being impartial and that an advocate appointed on the Attorney General's behalf is not to be regarded as truly independent and would not be seen to be independent.
Mr. Santos Costa, in reply to my invitation to address the Court, emphasised the distinction between the rôle of a Crown Advocate in independent private practice but representing the Crown on particular occasions and the Law Officers who have the status of permanent office holders. He pointed out that Mr. Le Cornu is also a Crown Advocate.
I have carefully considered these objections but I reject the proposition that the Court might be adversely affected or prejudiced by the assistance of Mr. Santos Costa as an Amicus Curiae.
Authorities
4 (Reissue) Halsbury 1(1): paras. 84-86, 89, 101.
R -v- Bow Street Metropolitan Stipendiary Magistrate & Ors ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272 at 288, 289, 290, 293.
4 (Reissue) Halsbury 3(1): para. 504.
Grice -v- The Queen Ex. Rel. (1957) 11 DLR (2d) 699.
In re an Advocate [1978] JJ 193.
Royal Court (Jersey) Law, 1948, as amended: Articles 13 and 13B.
Representation of Bâtonnier re Advocate Sinel (14th May, 1998) Jersey Unreported.
R -v- Gough [1993] AC 646.
Drew -v- AG [1994] JLR 1 CofA.
Greffier of the States -v- Les Pas Holdings (24th June, 1998) Jersey Unreported CofA; (1998) JLR 196 CofA.
Snooks -v- AG [1997] JLR 253 CofA.
Court of Appeal (Jersey) Law, 1961: Article 12.