Jersey Unreported Judgments

[2004]JRC177

royal court

(Samedi Division)

5^th October 2004

Before     :

M C St J Birt, Esq., Deputy Bailiff and Jurats Le Cornu and Quérée.

In the matter of the 'Chef de Police' of the Parish of St Helier

 

Representation seeking a ruling from the Court on whether the Connétable has a right to choose his chef de police or whether it is a position to which the senior Centenier is entitled. 

The Connétable of St Helier and Mr Gray appeared in person.

Miss S C Nicolle Q.C, H.M. Solicitor General, appeared for the Attorney General.

judgment

the deputy bailiff:

 

Introduction

1.        Centenier Gray is the centenier of St. Helier with the longest record of honorary service.  He asserts that he is entitled to be recognised as chef de police of St Helier following the retirement of the former chef because the senior centenier automatically becomes chef de police.  The Connétable does not wish Centenier Gray to become chef de police.  He wishes to appoint whichever centenier he considers is most suited for the position.   

2.        The Connétable has presented a representation seeking a ruling from the Court on whether he has a right to choose his chef de police or whether it is a position to which the senior centenier is entitled.  The submissions of the Connétable and Centenier Gray have addressed some of the reasons behind the Connétable's wish not to appoint Centenier Gray but it is not for us to decide whether the grounds upon which the Connétable has reached his decision are well founded or not.  The sole issue for us is whether the Connétable has the right to choose his chef de police.  If he has, then it is entirely a matter for him; if he does not, then Centenier Gray will be recognised as chef de police. 

3.        All the parties have carried out considerable research on the development of the position of chef de police and we are extremely grateful to them.  We hope we will be forgiven if we pay particular tribute to the research and submissions of the Solicitor General representing the Attorney General as 'partie publique'.  We have found these to be of very considerable assistance. 

The history

4.        In law each Connétable is and has always been the chief of police or 'chef de police' in his parish (see for example Bois, A Constitutional History of Jersey at para 2/30) where the connétable is described as 'Head of the Civil Parish and Chief of the Parish Police'.

5.        However it is clear that, from a very early stage, it was necessary for the senior centenier to deputise for the connétable in the event of the connétable's illness, absence or death.  Thus, in an Order in Council dated 2^nd June 1786 (Lettres et Ordres du Conseil (1786) 24 juin OC2 p192) reference was made to a situation where a connétable had died or where, following his death, there had been an election but the result of that election was being contested before the Royal Court.  The Order in Council ruled that it was not appropriate for the candidate with the most votes to attend sittings of the States in place of the deceased connétable pending resolution by the Royal Court (as had been suggested by the States) but instead held that the same rule should apply on the death of the connétable as had, by long custom and usage, applied where the connétable was ill or absent from the island, namely that the senior centenier should deputise.  The relevant part of the ruling reads:-

"And His Majesty is hereby further pleased to declare and Order, that whenever a Vacancy shall happen, by the Death of the Constable for any of the Parishes of the Island, or when the Old Constable shall die pending a Contest between the Candidates upon an Election, the Eldest Centenier of the Parish where the Vacancy shall happen, shall be admitted to sit and vote in the States (in like manner as he now is by ancient usage long practised and never blamed, admitted in that Capacity upon the Absence or sickness of the Constable) until the new Constable, after the Trial is concluded shall be presented and sworn into Office:......" [emphasis added]

In the light of the other texts to which we have been referred, we are satisfied that the reference to 'Eldest Centenier' is a reference to the senior centenier in terms of service rather than the centenier of the greatest age. 

6.        It is clear that the procedure whereby the senior centenier deputised for the connétable extended to all the connétable's functions and not just his membership of the States (with which the 1786 Order in Council was concerned).  When giving Evidence to the 1811 Commission undertaken by Messrs Osgoode, Swabey and Hobhouse, the Connétable of St Helier said as follows:-

"Q.   In case of a constable being prevented by sickness or absence from the Island or other lawful cause from attending his duty, on whom does the duty devolve?

Upon the centenier who is senior in office.

Is the person so substituted capable of sitting and voting in the States as well as executing the other parts of a constable's duty?

He is."

These replies were consistent with the evidence of the Solicitor General, Mr J W Dupre, to the 1847 Commissioners appointed to enquire into the state of the Criminal Law in the Channel Islands.  At page 120 of the report one finds the following:- 

"426,  Q.    Does one of the centeniers supply the place of the constable, if he happened to die, in the States as well as in the parish? 

A.      The senior centenier of the particular parish supplies the place of the constable, in case of sickness or absence, or of death till a new constable is elected and sworn in."

Similarly in the written responses to the questions posed by the 1847 Commissioners, one finds the following in the course of Advocate Francis Godfray's answer to question 32 at page 44:-

"The connétable and centeniers, his immediate subordinate officers, the oldest of whom replaces him officially, when out of the island or incapacitated through illness or some other cause from performing the duties of his office, are elected by the rate-payers of their respective parishes."

7.        None of the above texts uses the expression 'chef de police'.  However in our judgment it must clearly have been the case that the senior centenier, who could deputise for the connétable, had come to be called by this name, because the expression began to be used occasionally in legislation without the need for a definition.  In other words it must have been assumed that all who read the legislation would know what was meant by the expression 'chef de police'.

8.        The first such example is to be found in the Loi (1804) au sujet des Assemblées Paroissiales ("the 1804 Law").    Article 13 provides as follows:-

"Chaque vingtenier, dans l'étendue de sa vingtaine, et en l'absence du connétable et des centeniers, aura le pouvoir, et sera tenu, de signifier et faire garder la paix toutes fois et quantes qu'il en sera besoin; et sera également en droit de se faire assister d'officiers du connétable, et tenu de saisir tous perturbateurs de la paix publique, et infracteurs des lois, et de les conduire, sans délai, au chef de police de la paroisse."

This is clearly a reference to the person at the head of the parish police.  This would normally be the connétable but, in his absence, would be his deputy.  The fact that the legislation refers to 'chef de police' rather than 'connétable' presumably means that the legislation envisaged a situation where the connétable was absent when an offender was arrested.  It is clear that the expression 'chef de police' was accepted and did not require any definition.  Given the customary law that we have already described, the implication must be that it was the senior centenier who would act as chef de police in the absence of the connétable.  Nevertheless, in this statute, the expression is clearly used to cover both the connétable and the deputy for the connétable.

9.        The next occasion upon which the expression appears in a statute is the Loi (1842) sur les Publications dans les Eglises ("the 1842 Law").  Article 4 provides as follows:-

"Chaque Connétable ou Chef de Police sera tenu de faire placer et sceller convenablement dans le mur du cimetière de sa paroisse, proche la barrière principale, une boîte grillée, pour y faire les affiches, ainsi qu'il est porté à l'Article précédent; et sera tenu de la faire réparer, lorsqu'il sera nécessaire, aux frais de sa paroisse."

10.      For the first time in a statute the expression is used in addition to that of connétable which suggests that, by this time, the chef de police was an expression which represented a person other than the connétable.  Although the statute does not expressly say that the chef de police is the senior centenier, it must surely have been the case that he was.  It is clear from the evidence to which we have already referred that it was the senior centenier who stepped into the shoes of the connétable not only in relation to the States but also in relation to parish affairs generally.  It would be very surprising if the expression, when used in Article 4 of the 1842 Law, meant anything other than the person who would deputise for the connétable i.e. the senior centenier. 

11.      The next provision to which we were referred was the Loi (1860) au sujet du Victoria College ("the 1860 Law").  This Law established a Comité for the management of the College.  Article 10 authorised the Comité to appoint a 'Gardien' who was given the powers of a paid police officer for the purposes of maintaining order in the College precincts.  Article 10 went on to provide as follows:-

"[Le Gardien] sera, en ce qui regarde ses fonctions de Gardien, sous les ordres du Connétable de St-Helier, et sera tenu de lui obéir, ou en son absence aux Centeniers de cette paroisse, de la même manière que les Officiers de la Police Salariée.  Lorsq'il arrêtera des personnes pendant la nuit, il pourra les conduire et faire détenir à la maison d'arrêt, et devra en faire rapport au Connétable ou Chef de Police de ladite paroisse aussitôt que possible le matin ensuivant.  S'il arrête quelque personne pendant le jour, il pourra la faire détenir provisoirement à la maison d'arrêt,   mais il sera tenu d'en informer sans délai le Connétable ou l'un des Centeniers de ladite paroisse...................."

This provision draws a distinction between the chef de police and the other centeniers.  Thus if an arrest takes place during the night the gardien must make a report to the connétable or to the chef de police; whereas if an arrest takes place during the day, he must inform the connétable or one of the centeniers.  Again, there is no definition of chef de police but, when put into the context of the general understanding of the time, it seems clear that it must have been the senior centenier i.e. the person who deputised for the connétable in his absence.  The fact that the expression is used in conjunction with that of connétable again confirms that, by this time, there was a person who had come to be known as the chef de police, so that the expression could be used in the statute without definition. 

12.      The position of chef de police was next referred to in the Loi (1905) au sujet des Assemblées Paroissiales ("the 1905 Law").  The relevant part of the sole Article of the Law provides:-

"Le Recteur ou le Vicaire dûment appointé par l'Ordinaire et résidant dans la paroisse, convoquera et présidera les Assemblées Paroissiales pour les affaires ecclésiastiques, et le Connétable ou Chef-de-Police convoquera et présidera les Assemblées Paroissiales pour les autres affaires, chaque Président d'Assemblée avertissant, avant la publication, l'autre Président d'Assemblée et prenant sa commodité pour le jour de la tenue eu égard à ses fonctions publiques."

Again, no specific assistance is given as to what is meant by the expression 'chef de police' but it is clearly a person other than the connétable.  Given the customary law that we have referred to whereby the senior centenier stepped in to the shoes of the connétable for all purposes in the absence of the connétable, it would be very surprising if it were not the senior centenier who stepped into his shoes to preside at a Parish Assembly in his absence.  Again therefore the natural inference is that the expression 'chef de police' in the 1905 Law was referring to the senior centenier. 

13.      The next significant authority is the case of the representation of the Procureur Général du Roi re Chef de Police de St Helier (1946) 242 Ex 386 ("the 1946 judgment").  The case involved a dispute as to which centenier was entitled to act as chef de police in the absence of the connétable.  The contest was essentially between Centenier Pirouet, who had been a centenier for just over twelve years but had no other honorary service and Centenier Le Brun, who had only eleven years service as a centenier but had other honorary service as a constable's officer and as a roads' inspector such that his aggregate honorary service was twenty years.  The Court held that Centenier Le Brun was entitled to act as chef de police in the absence of the connétable.  In those days no reasons for the Court's decisions were given but one can infer from the details set out in the Attorney General's representation, as recorded in the Act, that the ground of the decision was that Centenier Le Brun had the greater aggregate honorary service. 

14.      It is useful to refer to certain parts of the representation.  It begins as follows:-

"Le Procureur Général du Roi a représenté à la cour:- Que des doutes se sont soulevés en ce qui concerne la personne qui, dans le cas du décès, de la maladie ou de l'absence de l'Ile du Connétable, serait en droit d'exercer les fonctions de Chef de Police en la Paroisse de St Helier.  Que les Centeniers actuels de ladite Paroisse sont les suivants:-."

The representation then goes on to list the various centeniers and their date and manner of election and to set out the terms of Article 16 of the Loi (1897) sur les Elections Publiques.  It then sets out the respective periods of honorary service of each of the Centeniers in question and concludes as follows:-

"Que l'Article en question ne traite pas spécifiquement de l'ordre de préférence où certains Centeniers sont élus sans scrutin et certains après scrutin.  Que le Centenier Pirouet prétend à la préférence sur la base qu'il a occupé la charge de Centenier pour un espace de temps plus long que les autres Centeniers de St Helier.  Que le Centenier Potier demande que la période pendant laquelle il a agi en qualité d'Officier Spécial du Connétable ("Special Constable") et d'Inspecteur pour les besoins du Règlement pour combattre et éliminer le Doryphore ("Colorado Beetle") soient prises en considération.  Que le Procureur Général du Roi estime cependant que la Loi veut que préférence soit donnée à celui qui aura occupé une charge publique non rétribuée pour l'espace de temps le plus long et que conséquemment c'est le Centenier Le Brun qui est en doit d'exercer, en cas de nécessité, les fonctions de Chef de Police.  Partant le Procureur Général du roi a porté lesdits faits à la connaissance de la Cour afin qu'il en soit ordonné."

The Court's decision seems to have accepted the Attorney General's recommendation because the Act records simply:-

"La Cour, après avoir pris ladite représentation en considération a jugé que le Centenier Le Brun est en droit d'exercer, en cas de nécessité, les fonctions de Chef de Police en ladite paroisse de St Helier."

15.      The Court was concerned with the question of who was entitled to deputise for the connétable when he was unable to act through illness, absence from the island or death.  It is clear that no one thought that the appointment lay in the gift of the connétable.  All parties accepted that the senior centenier was entitled to this role ("est en droit"); the sole issue was as to how seniority should be measured for this purpose.  For better or worse (as to which we will see later) the Court decided that seniority should be measured by reference to the criteria set out in Article 16 of the 1897 Law (since repealed and which in any event dealt with a rather different matter) and that accordingly the aggregate length of honorary service of any description carried out anywhere in the island was the determining factor.  The decision did not specifically address the question of whether the senior centenier was entitled to call himself the chef de police but, in our judgment, it is implicit in the Court's decision because it refers to the function of 'chef de police' rather than simply referring to deputising for the connétable.  In our judgment the decision is strongly supportive of the contention that the senior centenier was entitled to become chef de police and that this arose by operation of law rather by means of any discretionary appointment by the connétable. 

16.      Further evidence that the senior centenier was in practice known as the chef de police can be found in the Report on Police Organisation in Jersey carried out in 1950 by Sir Alexander Maxwell and Mr F T Tarry ("the 1950 Report").  Page 7 of the Report contains this passage:-

"The senior centenier replaces the constable in his absence being known in that capacity as chef de police.  By ancient custom this extends to representing the constable in the States."

Furthermore, in the acknowledgments at the end of the Report on page 36, having referred to the fact that they had been unable to meet the Constable of St Helier, the commissioners stated:-

"His Chef de Police, Mr Le Brun, did everything he could to enable us to understand the position in St Helier, and we thank him for his cordial helpfulness."

17.      Further evidence that there was an individual known as the chef de police can be found in Article 1 of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 ("the 1949 Law").  In that article there is a definition of constable which reads:-

""The Constable", in relation to an offence, means the Constable or 'Chef de Police' of the parish in which the offence was committed or is suspected to have been committed."

It is clearly envisaged that there is one person who is connétable and another who is chef de police.  The connétable is authorised by Articles 8 and 9 to issue and sign a summons to appear in the Magistrate's Court.  It is clear from the definition that such a summons may be issued and signed either by the connétable or by the chef de police; the latter is not confined to signing it when he is deputising and stepping into the shoes of the connétable.  He is given a co-extensive power exercisable in his own right as chef de police.  The law is silent on who is the chef de police but again there was obviously felt to be no need for a definition and in our judgment it must have been the senior centenier. 

18.      The final enactment to which we were referred is the Poor Law Amendment (Jersey) Law 1953 ("the 1953 Law").  That Law stated that the Assistance Board was comprised of the twelve connétables.  Article 3 dealt with the procedure at meetings of the Assistance Board and paragraph (6) provides:-

"For the avoidance of doubt, it is hereby declared that a Constable unable to be present at a meeting of the Board may be replaced by his Chef de Police."

This again confirms that there was a person who was known as the chef de police.  We would suspect that the reference to 'For the avoidance of doubt' was because, although it was clear that the senior centenier could step into the shoes of the connétable in all parochial matters, it might have been debatable whether this was truly a parochial matter.  Nevertheless we regard it as inconceivable that the person authorised by the statute to represent the Connétable at such meetings would not have been the person who substituted for him generally.  We thus conclude that this provision is further evidence that the chef de police was synonymous with the senior centenier.

19.      Further contemporaneous evidence that the senior centenier was known generally as the chef de police is to be found in the advice of the Attorney General to an extraordinary meeting of island centeniers held on 27^th July 1946.  In what was clearly to a response to a question concerning the 1946 judgment, the Attorney General is minuted as saying this:-

"Chef de Police

As the Law stands, where there are new centeniers, if one has been a constable's officer for 10 years and the other a roads inspector for 11 years, the roads' inspector is the chef de police.  The basis of the law is "service honorifique non-rétribuée".  Clearly it requires legislation to put matters right.  The old test is altogether wrong today.  You should discuss the matter and make up your minds as to an equitable and fair thing to do, then it can be put into legal language and put to the States."

20.      Let us take stock at this stage and review the position as at, say, 1950.  Until that time connétables were all actively engaged as head of their parochial police force as well as head of the parish generally.  The connétable exercised his powers personally.  However, provision had to be made to cover the situation where the connétable was unable to perform his functions by reason of illness, absence from the island or death.  Thus the 1786 Order in Council, having referred to ancient usage whereby the senior centenier replaced the connétable in the States in the event of illness or absence, extended this to cover cases of death.  It is clear from the evidence to the 1811 and 1847 Commissioners that the senior centenier also stepped into the shoes of the connétable in respect of all his parochial functions where the connétable was absent, ill or deceased. 

21.      That deputisation was not a discretionary appointment by the connétable.  There is no suggestion that the connétable could choose who should deputise for him in his absence.  On the contrary, all the evidence suggests that the functions of connétable devolved automatically upon the senior centenier and this was confirmed by the Royal Court in the 1946 decision when it determined who was entitled to act as chef de police in the absence of the connétable. 

22.      It seems clear that gradually the senior centenier came to be known as the chef de police which became a title and position separate from the connétable even though the latter remained chief of the parish police.  Thus the 1842 Law, 1860 Law, 1905 Law, 1949 Law and 1953 Law all referred to the chef de police as being a person and office distinct from that of connétable.  There was therefore an office of chef de police which went under that name by the time of these statutes.  It is true that nowhere do any of the statutes expressly state that the chef de police is the same person as the senior centenier who deputises for the connétable in his absence.  But in our judgment they were one and the same person.  The legislature clearly did not feel the need to define chef de police.  It would be astonishing if these statutes were to refer to a chef de police who was not the senior centenier in the knowledge that, under the customary law of the island, the senior centenier was entitled to act as chef de police in the absence of the connétable.  That would mean that, at times, there might be two chefs de police, one deputising for the connétable (in his absence) and one who carried the title in his own right.  Furthermore the references in the 1950 Report, the 1946 judgment, and the minutes of the centeniers' meeting in 1946 provide clear evidence that the custom was to describe the senior centenier as the chef de police, as does Bois at para 2/30(c) where he describes the officers of the parish as including "the Centeniers, the senior of whom is known as the Chef de Police".

23.      Our conclusion is that, had we been sitting to decide this case in, say, 1950, we would have held that, under the customary law, the senior centenier was entitled to deputise for the connétable in his absence in respect of all his duties; that seniority was measured according to the 1946 judgment; and that the senior centenier was also entitled to be known as the chef de police.  References in the various statutes to the chef de police were therefore references to the senior centenier.  The senior centenier became chef de police by operation of law and the connétable had no discretion as to whom he could appoint. 

The modern position

24.      When the matter first came before the Court the Solicitor General submitted that the role of chef de police had changed dramatically in the last fifty years or so and that the Court should declare that the customary law had changed.  The Connétable also raised an issue as to whether, in practice, persons had become chef de police when they did not comply with the rules as to seniority contained in the 1946 judgment.  The Court therefore adjourned the matter for further enquiries to be made. 

25.      The Solicitor General has carried out detailed enquiries of each of the parishes and they have in turn carried out researches as far back as memories and records allow.  The Court is extremely grateful to the Solicitor General and to the parish officials who have undertaken this work which has been of great assistance.  The Solicitor General has exhibited the replies from the parishes in her submissions and has also summarised their effect. 

26.      The Solicitor General and the Connétable submit that practice has changed and that the Court can now declare that the customary law has also changed.  In matters such as this, usage makes custom and custom makes the law. 

27.      In support the Solicitor General referred to Routier: Principes Généraux du Droit Civil et Coûtumier de Normandie (Rouen, 1748).  In a passage dealing with the general rules for the interpretation of customary law Rule 15 (at page 6) provides:-

"Les dispositions des Coûtumes cessent et demeurent sans autorité en trois manières, ou par le non-usage, ou ........."

Thus the customary law can be abrogated by non-usage.  This can be so, she submitted, even where a practice is originally introduced in error.  It can by long usage become law.  In this connection she refers to Le Geyt: Constitution, Lois et Usages (in the preface):-

"En second lieu, c'est que n'y ayant à Jersey que peu de droit écrit, on y a d'autant plus facilement fait usage de la prochaine Coûtume, qu'on l'a regardée comme la plus conforme à l'ancienne Constitution.  Le mal est qu'on ne distingue pas bien les tems; et que les innovations de chés nos voisins ont parmi nous trop de vogue.  Cependant ce qui d'abord se seroit introduit par erreur, peut devenir une Loy par une longue pratique."

28.      She has also referred to the desirability of declaring the customary law in a manner which serves the public interest.  On this point she cites Rule 12 of Routier (page 5) which states:-

"Les dispositions qui sont faites en faveur de la cause publique, s'interprétent toujours favorablement, et reçoivent toutes les extensions que l'intérêt public requiert."

She also referred to the following extract from Re Father Amy [2000] JLR 80 at 93:-

"The Court's sole duty is to declare the law of jersey, and it must do so for a community of the 21^st Century.  To insist on adopting some rule laid down or derived from principles laid down several centuries ago, if they are clearly inappropriate for modern times would, in my judgment, be an unsatisfactory way of proceeding and is not required by authority."

That observation was however made in the context of ancient Norman principles. 

29.      In effect the Solicitor General and the Connétable submitted that, by reason of the change in the position and responsibilities of chef de police since 1946 and the non-observance of the 1946 judgment, the Court should now declare that the customary law has changed. 

(i)    The change in the role of Chef de Police

30.      As we have already stated, at the time of the 1946 judgment the connétable acted personally as chief of police of his parish.  The chef de police was the substitute in the absence of the connétable and could undertake certain additional roles even if the connétable was present (e.g. receiving a report from the Gardien under the 1860 Law or signing a summons under the 1949 Law).

31.      During the latter part of the 20^th century, the position changed dramatically.  The complexities of running a parish in modern times have meant that connétables have in general delegated almost all of their policing role to the chef de police, who has in effect become responsible for the day to day management of the parish police.  This is especially so in the parish of St. Helier.  The position was summarized by the report of the Independent Review Body on Police Services in Jersey in 1996 in the following passages:-

"2.2.2  Every parish has a Chef de Police appointed by the connétable on the basis of length of service.  In general it is this officer who supervises and manages honorary police activity in the parish, including patrols, mostly in the evenings. .....

3.1.1   We have already remarked upon the political nature of the office of connétable.  Most of those holders of this high office who appeared before us asserted that they had much business to attend to in the States as well as a heavy burden of parochial administration.  Some even held concurrently the presidency of a major committee of the States, a demanding political service.  A few asserted or admitted that they had nothing at all to do with active policing, finding that their duties in the States and the parish fully absorbed their time and energies.  Most, if not all of them, as already noted, delegate operational policing to their chefs de police. 

3.1.4   To say therefore that the connétables should cease to be even nominal heads of police forces, is merely to recognize the status quo as it is today.  The final abandonment of an almost entirely nominal post would not only regulate properly the constitutional position of the connétables in Jersey, but would open the way to more consistent and co-operative relations within and between the twelve separate forces of the honorary police.....

3.1.6 ..........But the connétables in our view should cease to be even nominal heads of the parish police forces now that they have ceased to be involved in operational policing."

32.      It follows that the requirements for a chef de police are very different from earlier years.  In the past he merely had to fill in for the connétable on the rare occasions when the connétable was unable to act personally. Now he is, in effect, the day to day chief of the honorary police of his parish.  This carries great responsibility.  It requires considerable management, personal and other skills.  It is vital for the effective functioning of the honorary police that the chef de police is a man or woman of ability, not just one who has served for a lengthy period. 

(ii)  Non-observance of the 1946 judgment

33.      We do not propose to rehearse in detail the material which the Solicitor General has placed before us from the parishes and which she has helpfully pulled together in her submissions. 

34.      A brief summary is as follows.  Only one parish, St. Clement, claims to have been wholly compliant with the 1946 judgment.  A number of parishes do not select the chef de police in accordance with the 1946 judgment at all.  Thus in Grouville, the current practice is to hold an election amongst all of the honorary police; in St. Martin, Trinity, St. Peter and St. Mary, the practice is to offer the post to the longest serving centenier, regardless of length of service in other ranks of the honorary police or in other honorary posts; in St. Ouen, it is only service in the honorary police of any rank in the parish which is taken into account in assessing seniority.  Although St. Saviour purports to apply the 1946 judgment generally, it has introduced a rule whereby a person may not become chef de police until he has been a centenier in the parish for one year.  There is no authority for this restriction in the 1946 judgment.

35.      The other parishes have generally made efforts to comply with the 1946 judgment, but have all on various occasions not so complied.  Thus, in all those parishes, there have been occasions when the senior centenier has declined to become chef de police with the result that the post has been offered to and accepted by another centenier.  This itself is a departure not only from the 1946 judgment, but also from the fundamental concept of the chef de police as it originally evolved and from the law as we have held it to have been in the early part of the 20^th century.  As already indicated, the senior centenier acted as chef de police in the connétable's absence, not by virtue of any appointment, nomination or election, but automatically by virtue of his position as senior centenier.  The power to act in the connétable's absence as chef de police was not an entitlement which the senior centenier could exercise or forego as he thought fit, nor was it something which could devolve upon the next senior centenier if the most senior centenier did not wish to discharge it.  The position is similar to that of the Solicitor General, who acts as Acting Attorney General in the absence of the Attorney General.  It is not open to the Solicitor General to refuse to do so with the result that the Attorney General's role can devolve on someone else.  It follows that, even those instances where someone who is not the most senior centenier has acted as chef de police because the most senior centenier was unwilling or unable to do so, represent a change in  usage and thus a change in the custom. 

36.      There have been other departures from the strict application of the customary law as decided in the 1946 judgment. Thus, it seems to have been fairly general practice that, once a centenier becomes chef de police, he remains so for as long as he remains a centenier and wishes to remain chef de police.  The 1946 judgment requires that, if a new centenier is elected who has greater aggregate honorary service, he automatically becomes chef de police in place of the then chef de police. 

37.      Further evidence of non-observance of the 1946 judgment can be found in the Minutes of a Meeting of the Centeniers' Association on 24^th September 1970.  The meeting was attended by Mr. P. L. Crill, the then Attorney General, and the subject of the 1946 judgment and the position of chef de police came up.  In that connection, the minutes record:-

"CHEFS DE POLICE Mr. Crill instanced several hypothetical cases that caused dissatisfaction if the present law on seniority was observed.  This peculiar judgment had not been observed on many occasions in the past. Mr. Crill was of the opinion that the qualification should be seniority in the job, and he offered to approach the Legislation Committee to amend the Law.  Centenier D. A. Buesnel proposed that the Law should be amended so that the centenier who has the longest service in this office should be chef de police.  The resolution was unanimously approved." [emphasis added].

This shows that not only was the 1946 judgment not being followed but that it was also generally recognized as leading to unsatisfactory and undesirable consequences. 

Conclusion

38.      The Court finds that the position of chef de police has changed very considerably since the 1946 judgment.  Although still the head of the police in their parishes, connétables have in general delegated the management of the policing of their parishes to their chefs de police.  The chef is in effective charge of day to day policing in the parish.  It is no longer a question of simply deputising for the connétable in his absence; the essential direction and management of policing is now dealt with by the chef de police. 

39.      This change in role has consequences.  Whilst it may have been acceptable for the senior centenier to deputise for the connétable on the rare occasions that the connétable was away, it is, in our judgment, not in the public interest for the effective head of the parish police force to be chosen simply by reference to his length of service (however that may be measured) without regard to the ability or suitability of the person in question.  Policing is far too important to the community to be dealt with in this way. 

40.      Furthermore, it is clear that usage has changed.  The 1946 judgment has been widely ignored.  It is true that, in most cases, the person who has become chef de police has been chosen on grounds of seniority, but the measurement of seniority has varied considerably.  Furthermore, it is clear that the position has not devolved by operation of law as originally envisaged, because the senior centenier has often declined to take the position so that, in practice, the connétable has selected another centenier to become chef instead. 

41.      It is also clear that the mechanism for determining seniority established by the 1946 judgment is unsatisfactory and could lead to very undesirable results.  Thus a person who has served for 25 years as, say, a roads inspector in parish A and then moves to parish B where he is elected a centenier, will become the chef de police of parish B rather than a person who has been a distinguished centenier of parish B for 20 years.  It is clearly unsatisfactory that a person with no experience whatsoever of honorary policing is entitled to become chef de police. 

42.      As the Solicitor General submitted, if we declare that the law remains as set out in the 1946 judgment, it must, in future, be enforced.  This would mean that a number of current chefs de police would immediately cease to be so, because they do not comply with the test laid down in the judgment.  In those parishes where the most senior centenier had declined, the role would be thrust upon someone who did not want it.  In those parishes where honorary service in some other parish, or honorary service in some position other than a police role, is disregarded, the Chef de Police may be someone who either does not want the role or is unsuited for it. 

43.      The immediate reaction to this is difficult to foretell.  Depending upon how unwelcome the office would be for those centeniers who had already declined it, they might seek to resign as centeniers, rather than have to discharge the function of chef de police.  Conversely, a centenier who has been chef de police to everyone's satisfaction for years might well feel so aggrieved at finding himself removed and replaced by someone else that he might wish to offer his resignation as a centenier.  Even if no one resigned, they might well decide against standing for a further term. In future recruitment, it might be that potential candidates for the office of centenier would decline the office because it would mean that they had to undertake the duties of chef de police, which they did not want.

44.      The 1946 judgment appears generally to have been thought to be wrong and no doubt that is why it has been widely ignored.  Thus, as already stated, the minute of the Association of Island Centeniers of 27^th July 1946 records the Attorney General as saying even then that "the old test is altogether wrong today".  By this he was referring to the test of general honorary service in establishing who should be chef de police.  The minute of 24^th September 1970 records the Attorney General as instancing several hypothetical cases that caused dissatisfaction if the present law on seniority were observed and describing the 1946 judgment as "this peculiar judgment". 

45.      In our judgment, usage has changed and the role of the chef de police has changed.  Furthermore, continuation of the customary law as declared by the 1946 judgment would be undesirable for the reasons we have given.  In our judgment the Court should take the opportunity of declaring that nowadays, under customary law, the senior centenier (however measured) has no right to be appointed a chef de police.  The appointment lies in the hands of the connétable who has a discretion in this regard.  It is the connétable's choice as to who should be chef de police and he has the task of choosing the centenier who would be most suitable for this important role. 

46.      Having said that, it would be an unwise connétable who does not place considerable weight on seniority.  A person who has served as a centenier for some time may be taken usually to have acquired the experience which would help him in the role of chef de police.  An inexperienced centenier is much less likely to be able to manage the parish police force effectively.  Furthermore, the reasonable expectations of people in a small close-knit voluntary parish police force are likely to play an important part in maintaining morale and cohesion.  In view of our decision, it will be for a connétable to determine how he measures seniority but we would strongly recommend abandoning the rule laid down by the 1946 judgment that honorary service other than in the honorary police is material.  In our judgment there is much to be said for considering that the key service which should be considered is that as a centenier, with the result that the longest serving centenier in the parish will often be appointed chef de police.  No doubt consultation with other members of the honorary police will also be an important aspect so as to ensure that the person appointed carries the support of the majority of the members of the parish force.

47.      Nevertheless, these are all ultimately matters for the connétable.  It is a matter for him as to which of his centeniers he appoints as chef de police.  We therefore declare that the Connétable of St. Helier is free to choose which of the centeniers of his parish should be appointed by him as chef de police.

48.      In so holding, we repeat that we make no finding on Centenier Gray's suitability as chef de police.  Our decision is certainly not to be taken as endorsement or rejection of the Connétable's views in this respect.  Our ruling is simply that, as a matter of law, the choice of chef de police rests with a connétable. 

Authorities

Bois: A Constitutional History of Jersey: para 2/30.

Ordres du Conseil et Pièces Analogues enregistrés à Jersey, Vol 4:1771-1812: (1786) 24 Juin OC2: p.192.

Osgoode, Swabey, and Hobhouse: Evidence to the 1811 Commission.

Report of the Commissioners appointed to enquire into the state of the Criminal Law in the Channel Islands, Jersey (1847): p.120: Evidence of Mr J.W. Dupré, H M's Solicitor General: p.44: Advocate F. Godfray.

Loi (1804) au sujet des Assemblées Parioissiales: Article 13.

Loi (1905) au sujet des Assemblées Pariossiales.

Loi (1842) sur les Publiocations dans les Eglises: Article 4.

Loi (1860) au sujet du Victoria College.

Procureur Général du Roi re Chef de Police de St Helier (1946) Ex 386.

Loi (1897) sur les Elections Publiques: Article 16.

Maxwell & Tarry: Report on Police Organisation in Jersey (Jersey, 1950) : p 7.

Magistrate's Court (Miscellaneous Provisions) (Jersey) Law, 1949: Article 1.

Poor Law (Amendment) (Jersey) Law, 1953: Article 3 (6).

Routier: Principes Généraux du Droit Civil et Côûtumier de Normandie (Rouen, 1748): Rules 12 and 15.

Le Geyt: Constituion, Lois et Usages (Jersey 1846).

Re Father Amy [2000]JLR80.

 

Authorities

This is one authority.