Jersey Unreported Judgments

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Cite as: [1999] UR 123A

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ROYAL COURT

(Samedi Division)

9 July 1999

Before: F C Hamon, Deputy Bailiff and

Jurats Rumfitt and Tibbo

Alexander McLees

Application for review of a refusal of bail in the Magistrate’s Court.

On 7 May 1999:the applicant reserved his plea to 2 counts ofpossession of cannabis, with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978: (counts 1, 3); and to 2 counts of possession of cannabis, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978 (counts2, 4) and was remanded in custody without bail. On 2 June 1999:the applicant pleaded not guilty to counts 1 and 3 and was remanded in custody without bail and again on 16 June 1999. On 23 June 1999: the applicant pleaded guilty to count 4 and not guilty to count 2, and was remanded in custody without bail. On 1 July 1999: a bail application was refused and again on 5 July 1999.

Application granted: bail in the sum of £7,500, subject to conditions.

A J Olsen, Crown Advocate

Advocate R Tremoceiro for the accused

JUDGMENT

THE DEPUTY BAILIFF: This application is not without difficulty. We have a duty in this Court, when reviewing a decision of the lower Court, to be satisfied that the Magistrate positively misdirected himself, or the proceedings were irregular, or that he gave a decision to which no reasonable Magistrate could possibly have given. Now, the last words of the Magistrate on the bail application of 23 June of this year, were these:

"I’ve listened very carefully to your application. (This is to the counsel) I’m told that it will be considered by the defence that there is a case to answer and on that basis that there will shortly be a committal new style. I’m not satisfied that the time has yet come when I ought to liberate the defendant. I repeat that. The time has not yet come. I refuse the application at present."

Now we move onto the 5 of July and Advocate Fitz, who then represented the applicant, made a further application. There had been some discussion about the amount of bail and in fact £7,500 was then available and I will quote again from the transcript which has been provided to us:

ADVOCATE FITZ: "And it was my understanding, Sir, that you were giving an indication last time that it was your concerns about the availability of that £7,500, and I think perhaps that’s one in (indistinct), Sir, but I think that’s probably changed by the fact that we’re not now having a paper committal."

JUDGE SOWDEN: "I’m afraid it hasn’t changed. I said at the time of committal, and of course we haven’t got to that stage."

ADVOCATE FITZ: "No, Sir, sorry, I’m not clear in my own mind, Sir, why it being a committal stage, or otherwise, makes a difference. Perhaps if you could help me on that I’d be able to address you on that point."

JUDGE SOWDEN: "It makes an enormous difference because one of the things that we … that happens to this Court so frequently, is that a case looks like being committed, it should be committed, and then we bail the defendant. The defendant then goes off and re-offends, and the whole committal process is put off, and put off, and put off. And in order to expedite the proper disposal of the defendant, I personally don’t like for the reason I’ve given, giving bail until after committal."

And his last words were:

"Advocate Fitz, I’m sorry, but I can’t on this occasion grant bail, but we will hasten up the committals as quick as we can as it’s to be old style."

We have made some enquiries when we retired and we found that, in fact, he will probably be arraigned for a date on the 2 August in the lower Court, and the old style committal will probably take place 28 days after that. We - with deep respect to the learned Magistrate - have found it difficult to understand the logic behind the decision. If the Magistrate is saying that, if he is given bail before committal and then reoffends the court has to start all over again, we would merely say that he loses the bail money and is in a much more parlous state than he was before. We have thought about this long and hard, Mr Tremoceiro, and we thought perhaps that we should, in fact, wait until the committal proceedings.

We are very wary about the decision we are about to make because we do not, in any way, want to interfere with the smooth workings of the Court below, but really, and without criticising the learned Magistrate, all the Magistrate had to say, it seems to us, is that the seriousness of the offence alone is sufficient not to grant bail. Only he has not said that. He has referred to it at times and certainly those were the matters put to him by the Centenier when asked to give his opinion.

With some hesitation, then, we are going to grant bail, but bail will be on these terms: bail will be granted when £7,500 has been deposited. If it is a cheque, when the cheque has cleared. He is to live at the address where he lives and he is to inform the Police of any change of address, if that change of address should occur. He is to surrender his passport to the Police and is to report to the Police on a weekly basis.

McLees, I want to address you on this, if I may, because it has been said by Crown Advocate Olsen that you are a regular user of cannabis. That is against the law and because the statement has been made, if you are found in possession of cannabis you are going straight back into prison and are going to lose the £7,500, so you are going to have to make a determined effort because if you do not make that effort, you are back inside and the £7,500 is lost.

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