Jersey Unreported Judgments

[2006]JRC125A

ROYAL COURT

(Samedi Division)

6^th September 2006

The Attorney General

-v-

Karen Marie Atkinson

And

Alan William Smith

Re Statement of case by Magistrate pursuant to Article 18 of the Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949.

J. C. Gollop, Esq., Crown Advocate.

Advocate S. A. Pearmain for Atkinson.

Advocate J. P. Michel for Smith.

JUDGMENT

THE COMMISIONER:

1.        This is an application by the Attorney General under Article 21 of the Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949.  An application was first made on 28^th June 2006 for a statement of case by the Magistrate by Mr Lawrence O'Donnell, the legal adviser to the police.

2.        There are two persons accused in this drugs case - Cedric Smith, who is 48 and was born in India.  He has an address in Middlesex.  The other accused is Karen Atkinson who is 37 and was born in Jamaica.  She has an address in Clapham, London.  Mr Smith was arrested on 31^st March 2006 and was presented before the Magistrate's Court on 3^rd April 2006.  He reserved his plea and was remanded in custody to 24^th April 2006.  On that date he was further remanded in custody to 16^th May and again to 8^th June 2006.  The Magistrate made it clear at that hearing that if substantial progress were not made in relation to disclosure during the following two weeks then that would be "taken into account as a factor in relation to any future bail applications".  It was on 22^nd June 2006 that bail was granted to Mr Smith.

3.        Mrs Atkinson was arrested in the United Kingdom on 8^th May 2006 and brought back to Jersey on a warrant and presented before the Magistrate's Court on 11^th May.  She reserved her plea and was remanded in custody to the 8^th June and again remanded in custody to 22^nd June.  On 22^nd June 2006 bail was granted to Mrs. Atkinson.

4.        There are some matters that need to be examined before we move on to our decision.

5.        In AG v Whelan [2001/98] the learned Deputy Bailiff said -

"We wish to emphasise that a bail application is not a case for mini trial and we note that, on this occasion, the police officer was called to give evidence at an early hearing.  That would not normally be appropriate unless it was the only convenient method for the Magistrate to ascertain what the case was about in general terms".

6.        The procedure to be adopted was clear -

"The prosecution will outline, probably from a short summary, the general nature of the case.  It is open to the defence to make any observations that they wish to show that the case is not strong".

7.        On 22^nd June 2006, DC Jackson was called and gave detailed evidence including the police opinion that Mrs Atkinson was not a mule and was a leading player and that she paid Mr Smith's hotel bill with her credit card (a point which was denied by Advocate Michel, on instructions). There is, in our view, no need for a mini trial of this sort and, albeit that the police investigation was a complex one, there is nothing that could not have been explained in the prosecution's summary of the case.

8.        The system that the Magistrate employs is criticised by the Crown.  Crown Advocate Gollop says as much in his skeleton argument -

"In general terms, the Crown is not critical of the approach or system applied by the Learned Magistrate to bail applications.  The Crown readily acknowledges that the Learned Magistrate, when delivering his decisions on bail, gives a reasoned judgment which addresses the issues which have been brought to his attention.  However, the Crown does note that the system applied by the Learned Magistrate does not appear to have been adopted or used by the Assistant Magistrate or, for that matter, by any of the Relief Magistrates.  The Crown would, therefore, comment that it is not in the interests of justice for different systems to be applied by different Magistrates.  The Crown would respectfully suggest that one system, whatever that system may be, should be adopted and consistently applied by all Magistrates when dealing with the issues of bail."

9.        In looking closely at the major factors that the Magistrate uses in assessing whether or not bail should be granted, we observe a careful examination of the risk element which, although complex, covers all the important matters that are to be taken into account in assessing whether bail is appropriate. The main purpose of assessment is to decide what risk there is, for example, of the accused person absconding if bail were granted or deciding whether the offence alleged is so serious that bail cannot be granted. Many factors will go to make a final decision.  We cannot see that the learned Magistrate failed in that regard.

10.      There were delays in this case and they were serious by any standards but this is a complex case and as such it is a continuing one but the non-disclosure of documentation to the defence was a fault and the Magistrate not only gave warning that he would take it into account, but did take it into account in assessing whether bail should be granted. If there were reasons why some of the information was so sensitive that it could not have been supplied at that time, then it only needed someone to explain that to the Magistrate in open court.

11.      We do not think that the Magistrate gave bail in order to "punish" (the Attorney General's words) the prosecution but he took into account problems that the defence had encountered.  In our view the English cases cited by the Crown do not help to advance the matter.  The granting of bail involves a discretion (and in our view the Magistrate exercised his inherent discretion).  After all, Advocate Michel had raised the matter of delay with the Magistrate on 8^th June and Mr Le Marquand had asked the prosecution to make "substantial progress" within two weeks.  We are not prepared to discuss the events that followed the decision of 22^nd June except to say that Crown Advocate Gollop has been criticised by defence counsel.  We cannot in any way support that criticism which seems to us unfounded.  What is at fault is the system that the prosecution adopted.  In this particular case it does seem to have been seriously flawed.  As we have said in our short judgment - and we will repeat it - we would not have granted bail to either accused on 22^nd June.  The question of delay would not have been paramount in our minds. We would not normally expect to see delay on the part of the prosecution as a separate factor in determining whether to grant bail or not.  We do not believe that the learned Magistrate was wrong in law or so unreasonable that we should interfere. In passing, we should say that, in our view, Mr Christmas did have a fresh discretion of his own to grant or refuse bail in the light of the new charge. He exercised a discretion and reached a conclusion.  While we do not agree with it, we are not prepared, in law, to interfere with it.

12.      We can only hope that this matter is brought before this Court as speedily as possible, commensurate, of course, with the complexities of the case.

Authorities

Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949.

AG v Whelan 2001/98.