Jersey Unreported Judgments

ROYAL COURT

(Samedi Division)

9 July 1999

Before: F C Hamon, Deputy Bailiff, and

Jurats de Veulle and Allo

AG

v

Dandara Island Homes

2 counts of:contravening Article 2(1)(b) of the Regulation of Undertakings and Development (Jersey) Law, 1973 by increasing the number of persons employed in building and construction work without a licence.

Plea: Facts admitted.

Details of Offence:

Charge 1: Upon filing in January 1999 of defendant’s manpower return for period ending 31 December 1998 it became apparent to RUD officers that the form had not been completed correctly and that defendant employed a greater number of staff than was disclosed by the figures entered on the form. Revised manpower return showed that the undertaking had increased by 15 since 1 June 1998 (the date from which the new legislation came into force). No licences had been obtained and none of the new employees was exempt.

Charge 2: The papers were referred to the Attorney General. Whilst the original offence was under consideration the defendant filed its manpower return for the period ending 31 March 1999. This showed a further increase of 12 employees since the December 1998 manpower return. No licences had been granted in respect of any of these employees. None was exempt.

Details of Mitigation:

Defendant completely co-operative with RUD officers. Frank about its number of staff. Law and its application far from clear. Defendant had been looking at its core employees when filing its strategic business plan, rather than taking into account blocklayers, carpenters, etc. as defendant would not know how many would be needed in any event. Defendant had now reached accommodation with RUD office: had agreed number of (a) core/infrastructure staff on a permanent basis and (b) site operatives on a project-by-project basis.

Previous Convictions: None.

Conclusions:

£4,000 costs.

Defendant must have been aware of its obligations under the Law. It wrongly assumed that the manpower returns applied only to its core staff rather than those employed for particular jobs. If defendant company truly believed that they were complying with the Law then the Law must be unclear. There were undoubtedly difficulties, however, and Court could not share the view that these particular offences merited the punishment requested.

A J Olsen, Esq, Crown Advocate

Advocate W J Bailhache for the defendant company

JUDGMENT

THE DEPUTY BAILIFF: This is the first prosecution under Article 2(1)(b) of the Regulation of Undertakings and Development (Jersey) Law, 1973. Crown Advocate Olsen described the Law as a weapon. If it is a weapon it has been shaped and moulded into many forms over the years.

Dandara Island Homes Limited is a Jersey registered company and a wholly owned subsidiary of an Isle of Man company. It was invited into Jersey by the States because of its island experience and it acquired an existing development and existing undertakings in Jersey.

There are huge profits to be made in the construction industry and there are many firms competing for a lucrative market. Dandara must have been aware from its competitors alone that there were regulatory difficulties and obligations. Dandara wrongly assumed that they only had to declare core staff to the authorities. No manpower returns were sent to them even in October, 1995, when they received their first consent for two core staff. The address given on that consent form is St. Peter Port, Guernsey, and on that point we cannot surmise, but we cannot believe that Dandara was unknown to the authority.

The company continued in error, believing that they were complying with the Law. The Committee did not disabuse them; maybe it had no legal obligation to do so. The Law on that point is not clear which is surprising when it stands at the forefront of the States desire to control a burgeoning population.

Advocate Bailhache has taken us at length and most carefully through a mass of correspondence. We cannot share the Crown’s view that this company deserves such condign punishment as is recommended. The Law is now in its present format carefully policed and regulated. We cannot say that this was the case throughout the period under review - from late 1995 to June, 1998. A penalty is clearly required. The Law is a serious and important piece of legislation and it needs to be treated seriously and we need to say now that we will punish those whom we consider to have flouted the Law for their own gain. The penalties in such cases will be harsh.

In this case, pleas of guilty have been entered. Even in correspondence the company has made a fulsome apology when it realised that it was at fault.

We note that the guidelines with a foreword by the President of the Finance and Economics Committee were issued in February 1999 and in the light of the arguments that we have heard in this court we need to close this judgment with a quotation from that very document:

On count 1 the company is fined £10,000; on count 2 we grant them an absolute discharge. There will be no order as to costs.

Authorities

Regulation of Undertakings and Development (Jersey) Law, 1973: Article 2.