Jersey Unreported Judgments

[2003]JRC089

ROYAL COURT

(Samedi Division)

2^nd June 2003

Neil Liam O'Driscoll

-v-

The Attorney General

Magistrates' Court Appeal

Application by the Attorney General, under Article 18 of the Police Court (Miscellaneous Provisions) (Jersey) Law, 1949, for the opinion of the Royal Court on the Statement of Case by the Magistrate regarding the Magistrate's decision of 11^th April, 2003, to determine a test for fitness to plead and the Defendant's fitness to plead.

Advocate C.M. Fogarty on behalf of the Attorney General.

Advocate P.D. James for the Appellant.

JUDGMENT

THE BAILIFF:

1.        This is an appeal by Case Stated by the Attorney General from a decision of the Magistrate.  The appeal is in the context of a charge of grave and criminal assault brought against Neil O'Driscoll.  The accused is charged with having committed a grave and criminal assault upon his mother on 28^th August, 2002.

2.        He was first presented before the Magistrates' Court on 16^th October, 2002.  A number of remands ensued until counsel for the accused requested that an "old style" committal should take place. 

3.        Some evidence was heard by the Relief Magistrate on 10^th February, 2003, when the relief magistrate indicated that, in his view, it was a matter which could be dealt with in the Magistrate's Court.  On 11^th April, 2003, counsel for the Connétable sought to persuade the Magistrate to review that decision on the basis that there was a question as to whether the accused was fit to plead, and a further question as to what test should be applied in that connection.  These issues in her submission needed to be resolved by the Royal Court. 

4.        The Magistrate refused to accede to that submission, and indicated that he would himself try the question of whether the accused was fit to plead and determine the appropriate test.  Against that decision the Attorney General appeals.  He has requested the Magistrate to state a case on the point of law involved.  The Magistrate has done so and we have been greatly assisted by the clear and comprehensive manner in which the Statement of Case has been laid out.

5.        The Attorney General's application states that he is aggrieved by the "decision of the Magistrate to determine a test for fitness to plead and [to adjudicate upon] the defendant's fitness to plead".  We have interposed the words in square brackets in order, as we think, to make better grammatical sense of the request. 

6.        According to the Magistrate's statement he has subsequently received a letter from the Attorney General making it clear that the Attorney is seeking an order that the accused should be committed to the Royal Court for trial.

7.        Article 1 of the Criminal Justice (Insane Persons) (Jersey) Law 1964 ("the 1964 Law") provides:

"Persons found insane on accusation or trial.

(1)       If on the accusation or trial before the Royal Court of any person charged with any act or omission punishable with death or imprisonment, it appears to the court that the accused may be so insane as to be unfit to plead to the accusation or unable to understand the nature of the trial, the court shall adjourn the case to enable the Superior Number of the Royal Court to try the question whether or not the accused is so insane as aforesaid.

(2)       Such trial shall be held by the Superior Number of the Royal Court as soon as may be at such time and place as the court may direct and may be held in the absence of the accused if it is proved to the satisfaction of the court by evidence (including the oral evidence of two medical practitioners who in the opinion of the court have had special experience in the diagnosis or treatment of mental disorders) that it is impracticable or inappropriate to bring him before the court.

(3)       If the Superior Number of the Royal Court finds the accused to be so insane as aforesaid, it shall be lawful for the original court to order him to be detained during Her Majesty's pleasure; and until Her Majesty's pleasure is known, he shall be detained in such place and in such manner as the court shall order and any such order may be varied from time to time as the court thinks fit."

8.        The Magistrate's Case recites those provisions and continues:

"I deduce from these provisions that Article 1 of the Criminal Justice (Insane Persons) (Jersey) Law, 1964, did not create the power of the Royal Court to find a person unit to plead but merely gave the Royal Court, on so finding, the power to order an accused person who is unfit to plead to be detained during Her Majesty's pleasure.  Prior to 1964 the Royal Court had the ancient common law power to find a person who is insane unfit to plead and that power must still exist in relation to charges which are before the Royal Court, such as Housing infractions, which do not fall within the said Article 1.  The same common law power must also have existed in the Magistrate's Court, by virtue of its being a criminal court and has never been removed.  Without this power the Magistrate's Court simply could not do justice to individuals who were insane and were charged with minor offences.  By giving the power contained in the said Article 1 to the Royal Court alone, the legislature clearly intended that the power to order detention during Her Majesty's pleasure should only apply to cases which were sufficiently serious to warrant such detention.  Subsequent increases in the jurisdiction of the Magistrate's Court have not led to the Magistrate's Court being given a similar power to order detention at Her Majesty's pleasure and it must be assumed that the legislature intended thereby that that power be reserved to more serious cases.  Very similar arguments apply to the construction of Article 2 of the Criminal Justice (Insane Persons) (Jersey) Law, 1964, which relates to the question of insanity at the time of the alleged commission of the offence.  Both the Royal Court and the Magistrate's Court must have, in order to do justice, the power to consider this defence to a charge in cases which fall outside the terms of the said Article 2."

9.        We think the Magistrate was correct to point out that prior to the enactment of the 1964 law the Royal Court had a jurisdiction at customary law to determine whether or not a person was fit to plead.  That is clear from the answers given by a number of witnesses to questions posed by the Royal Commissioners examining the state of the Criminal Law in 1847.  We do not agree, however, that this was ever a jurisdiction possessed by the Magistrate's Court or Police Court as it was originally titled. 

10.      We reach that conclusion for three reasons.   First, the Magistrate's Court is a creature of statute.  It was created by the Loi (1853) établissant la Cour pour la Repression des moindres délits.   It enjoys no greater jurisdiction than that conferred by the legislature.  Its original jurisdiction was very limited, although that jurisdiction has been expanded by the Magistrates' Court (Miscellaneous Provisions) (Jersey) Law, 1949 and subsequent legislation.  However, the power to determine whether or not a person is fit to plead has never been conferred by statute upon the Magistrates' Court. 

11.      Secondly, the enactment of the 1964 law has removed the jurisdiction of the Inferior Number of this Court to determine fitness to plead and has vested that power in the Superior Number.  It would be a strange state of affairs if the Inferior Number were incompetent to determine such an issue but that competence were possessed by the Magistrates' Court.

12.      Thirdly, suppose that the Magistrate were to try the question of whether an accused person was fit to plead and to decide that he was not fit.  What could he do?  The power to direct detention at Her Majesty's pleasure is possessed (as the Magistrate concedes) only by the Royal Court.  The Magistrate would thus be obliged to commit the accused for trial by the Royal Court which would then, notwithstanding the finding by the Magistrate, be bound to proceed in accordance with the mandatory provisions of Article 1 (1) of the 1964 Law. 

13.      The accused having undergone one trial on the issue of his fitness to plead would be bound to undergo another.  That cannot be right.  We therefore conclude that the Magistrate was wrong to decide that the Magistrate's Court has a jurisdiction to determine whether an accused person is fit to plead.  What then is the procedure to be followed when a doubt has been raised as to whether a person charged with an offence before the Magistrate's Court is fit to enter a plea?

14.      We note, in this case, there is clearly a doubt because the Magistrate has thus far declined to accept the guilty plea tendered by counsel on behalf of the accused.  Given the terms of the 1964 Law and the conclusion at which we have arrived in relation to the absence of jurisdiction in the Magistrate's Court to determine an issue of this kind, the appropriate procedure is for the Magistrate forthwith to commit the accused for trial by this Court.

15.      We are conscious of the provisions of Article 4(2) of the Magistrates' Court (Miscellaneous Provisions)(Jersey) Law 1949 as amended which provides:

"(2) Subject to the provisions of Article 4A of this Law, if the Magistrate is of opinion that the gravity of an offence is such that there should be imposed a penalty or penalties in excess of those which he is empowered by paragraph (1) of this Article to impose, it shall be his duty to commit the accused for trial before the Royal Court."

16.      The general duty of the Magistrate under this paragraph is, however, in our judgement subsumed by the duty to commit to the Royal Court where an issue relating to the accused's fitness to plead has been raised.  If there is no jurisdiction to make a finding in relation to fitness to plead, the jurisdiction conferred by Statute under Article 4 (2) cannot be exercised.  It follows, of course, that an accused person might be committed for trial upon a relatively trivial offence.  That would be a matter for the Attorney General to consider having regard to all relevant matters in deciding whether or not the criminal law should continue to be engaged. 

17.      We observe in passing that recent judicial developments in the context of the powers of the Secretary of State in England following the enactment of the Human Rights Act 1998 seemed to indicate that reform of the Criminal Justice (Insane Persons) (Jersey) Law, 1964, is required.  No doubt this is a matter to which the Attorney General will give his attention in making recommendations to the appropriate committee of the States Assembly.  We therefore allow the Attorney General's appeal and remit the matter to the Magistrate with a direction that the accused be committed forthwith for trial by the Royal Court.

18.      We request the Attorney General to bring the matter forward with as much expedition as possible having regard to the length of time which has passed since the alleged offence was committed.

Authorities

Criminal Justice (Insane Persons) (Jersey) Law 1964.

A.G. -v- Prior [2001] JLR 146.

Atkinson -v- United States Government and Others (1969) 2All ER 1317.

Streamers -v- Copping (1985) 2 All ER 122.