Jersey Unreported Judgments

[2007]JRC175

ROYAL COURT

(Samedi Division)

20^th September 2007

Before     :

Sir Geoffrey Nice, Esq., Commissioner, and Jurats Le Brocq, Le Breton, Allo, Newcombe and Liddiard.

The Attorney General

-v-

Peter Wilson Michel

Simone Anne Gallichan

C.E. Whelan, Esq., Crown Advocate.

Advocate D. F. Le Quesne for Michel.

Advocate C. M. Fogarty for Gallichan.

JUDGMENT

THE COMMISSIONER:

1.        Simone Gallichan was tried this year by the Inferior Number, at a trial over which I presided, where she faced an indictment of nine Counts jointly with Peter Michel.  She faced eight of those Counts, he faced all nine.  She was acquitted unanimously on all Counts.  He was convicted on all Counts.

2.        Mrs Gallichan, who was legally aided throughout this trial, seeks an order for costs in her favour. 

History

3.        The investigation of Peter Michel and Simone Gallichan began in 2000.  Eventually a ten Count Indictment against the two of them was preferred.  In this Indictment nine Counts concerned both defendants, one Count concerned Michel alone.  It was intended that there should be a single trial of all ten Counts.  Such a trial started in front of the Inferior Number, of a different composition from that of my trial, presided over by Sir Richard Tucker, in the spring of 2006. 

4.        The trial was not without procedural and other difficulties.  Eventually Sir Richard Tucker decided to sever from the ten Counts, one Count that was apparently ready for trial to conclusion.  That left the other nine counts for trial by a different Court on a later occasion; that was the trial at which I was to preside at.

5.        Both defendants were convicted unanimously of the single Count left in the trial before Sir Richard Tucker.  Sentencing for both defendants was put back until after the conclusion of the second trial and sentencing was left for determination by the Superior Number presided over by me. 

6.        All ten Counts - that is the nine Counts dealt with at the trial over which I presided - concerned things done within Peter Michel's accountancy practice in Jersey.  Michel was the principal of that practice, Simone Gallichan was a long serving, unqualified member of Mr Michel's staff.  Crimes charged all reflected advantages that it was possible could flow to tax fraudsters in the United Kingdom or to simple crooks - thieves and those defrauding revenue due on liquor being two examples - by improper and unlawful arrangements being made by Peter Michel and put into effect by him and by members of his staff including Mrs Gallichan.

7.        Two features of the case provide an important back drop to this application.  First there was no suggestion that Mrs Gallichan had at any time personally gained as a result of doing what she did in the Peter Michel office, on the contrary all the evidence showed her to be a hard working woman, probably put upon by Peter Michel, even by his clients and possibly I dare say by fellow members of staff.  Second she was one of a number of members of staff doing broadly similar work within the office, with those other members coming and going from time to time.  Whilst it is true that Mrs Gallichan was the longest serving member of staff there were others who from time to time took quite as much of an active role in doing the things complained of by the Crown as she did.  Yet all other members of staff were not pursued by investigation, many or most of them being treated as prosecution witnesses called to give evidence against Peter Michel and Simone Gallichan.  Two at least of these other members of staff were qualified accountants who, it could be argued, might have been alert to the wrong doing that was a feature of the Michel practice.

8.        With this very general background in mind the following issues ought to be considered in this costs application:

(i)        Whether I have a discretion to make a costs order in favour of Mrs Gallichan for the trial over which I presided?  Unquestionably I do, the right is given by statute, I being, for these purposes vested with the powers of the Bailiff in respect of the trial over which I presided under the Royal Court (Jersey) Law 1948.

(ii)       Whether I might have been in a position to make a costs order in respect of the prosecution costs in the first trial?  No application for prosecution costs was made at the conclusion of that trial to Sir Richard Tucker so far as Mrs Gallichan was concerned.  I take the view that I do not have the power to make any order with respect to the prosecution's costs in that trial, whether by ordering the costs to be paid by Mrs Gallichan or by ordering that they be set off against any order I make in favour of her in respect of the second trial.

(iii)      Whether I should exercise my discretion in Mrs Gallichan's favour?

(iv)      If so what should be/will be the effect of such an order?

(v)       Implied within the previous issue is whether I should spell out what would and should be the effect of any order favourable to Mrs Gallichan if I were to make one.

9.        In reality it is these last two points - the effect spelt out or not by me - that have driven the vigorous opposition by the Attorney General, through Advocate Whelan, acting not in the specific interests of the Attorney General but in the public interest.

10.      Although exercise of discretion - the third issue identified above - might well be made independently of the practical effect of any such order for costs as might be granted, it is probably sensible to deal with the last two points first. 

Mrs Gallichan's Legal Aid

11.      Mrs Gallichan was provided with legal aid throughout.  Her financial circumstances were such that she would have been obliged to pay nothing to the Advocate representing her or to the firm that employs that Advocate, Miss Fogarty.

12.      The present practice in Jersey is that if she receives a favourable costs order following her acquittal then, notwithstanding her inability to pay personally anything towards the costs of her representation, there will be full taxation of the costs of representing Mrs Gallichan on the second trial, very substantially to the benefit of the lawyers and law firm representing her.

13.      In her latest filing on behalf in this application Miss Fogarty makes it clear that the real purpose of objection to Mrs Gallichan's application for costs is to reverse the law that leads to the practice that I have just described.  Miss Fogarty suggests that it is only because the costs involved in this particular case would be of such an unprecedented large amount that the Attorney General is now choosing to attempt to reverse law and practice that has stood unchallenged for eleven years. 

Legal Aid

14.      Legal aid in Jersey granted to criminal defendants is not remotely like legal aid in the United Kingdom when made available for such people.  Advocates in Jersey take an oath that they have to renew annually which obliges them to represent those who cannot afford to hire a lawyer.  The system was, as it is understood, clearly explained in the 2005 Legal Aid Guidelines of the Law Society of Jersey, and although that is not in any sense an authority or prescriptive document, it nevertheless is descriptive of the present understanding.  At paragraph 1.2 of those Guidelines, the discretion of the Bâtonnier to grant legal aid is set out and at paragraph 1.3.2, where the history of the obligation by oath of Advocates to represent widows, the poor orphans and undefended persons, the following appears:

"Unless a costs order is made by a Court in favour of the lawyer concerned or the legally aided individual, the Solicitor or Advocate (or the firm that are employed by, hereinafter referred to as their "Firm") receives no payment for their services other than the fees, if any, which they are permitted to charge to the client."

It then goes on to deal with the ability notwithstanding that limitation on reimbursement to claim out of pocket expenses in the legal aid vote.  So the understanding of the Law Society in 2005 was that a costs order in favour of the lawyer concerned, or of the legal aided individual, could constitute an effective order even where the defendant concerned was under no personal obligation to pay any money to the lawyers representing him or her.  This understanding has been well amplified by statements made available to the Court from people willing to be witnesses, but who didn't have to be heard, because their evidence was accepted as non-controversial. 

15.      Three witnesses in total, the Bâtonnier first, Advocate Thacker responsible for the legal aid system, describes the present position but first of all stating that in his understanding Jersey's legal aid system is similar in many respects to those which historically were to be found in civil law jurisdictions on the continent of Europe, but that it does not appear to owe anything to the common law jurisdictions, for provisions for legal aid and any correspondence between Jersey legal aid and that in the United Kingdom is coincidental.  He deals with the with the history of the oath, which he takes back to 1771 although he is able to draw on writings of Philip Le Geyt in the previous century which he says reveals that the Bâtonnier, in dealing with the allocation of legal aid to those who need it, is an authority delegated from the Court, he also identifies, in Le Geyt writing reference to a tradition of the bar rather than a legal obligation which the Court will enforce, as requiring members of the bar to represent the undefended and, as it is described, "the truly poor."  He then goes on to explain that, even though the Bâtonnier may allocate legal aid in respect of an applicant to a particular Advocate, without the Advocate having any choice in the matter, they are just simply on a rota, or role, the person represented, nevertheless, recognises by what he signs that the Advocate concerned may be entitled to charge for the services to an extent which is reasonable.  He sets out slightly more detailed administrative developments of the last 20 years which don't, I think, affect the principles with which we are concerned because he says, at page 3 of his statement, "There is no formal contribution in a specific amount imposed by the Bâtonnier as a condition of legal aid being granted, the amount, if any of the contribution, is left to the Advocate to assess.  The decisions made being subject to appeal to the Bâtonnier."  He observes that there are very few cases of allocated legal aid where the person represented is able to pay the full amount which the Advocate would normally charge, and observes that in reality the portion of the Advocate's time which is not funded by the client is effectively paid by the Advocate himself, or by the Advocate's law firm.  He deals with the administrative details of the Bâtonnier and his Acting Bâtonnier and the office of the Acting Bâtonnier and where the costs fall for the administration of the legal aid scheme.  He goes on to cover something called the legal aid fund administered by Advocate Matthews, which he says is entirely distinct from the legal aid system, being in no sense under the control of the Bâtonnier or Acting Bâtonnier, his understanding being that public funds may be available by Advocate Matthews to pay or contribute to the services of an Advocate who is awarded legal aid.  His understanding being that that happens where the case concerned is such that the demands of the Advocate's time and the paucity of the client's ability to make a contribution would, or will cause the Advocate or his employers to incur a disproportionate and unfair financial burden.  Thus the understanding from the Bâtonnier who administers the legal aid we see that Advocates may be obliged to represent the poor are then in a position to assess whether and if so to what extent the person represented should pay any part of their fees, it being improbable, perhaps almost in the extreme, that they'd ever be able to pay the fees in full, the Advocate, or the Advocate's law firm, having to pick up the shortfall. 

16.      Advocate Matthews is the second statement with which I deal, he being the Deputy Judicial Greffier, he explains how the Judicial Greffe has, for many years, administered something called the Legal Aid Vote to found any necessary disbursements in respect of medical or other legal reports, the cost of obtaining English Counsel's opinion on specialist areas of the law and so on.  Thus where the Jersey Advocate appears for free, disbursements including disbursements to United Kingdom Counsel are met out of this fund, the Legal Aid Vote, as I understand it.  He explains how where, for example following an acquittal, a Court makes an order under the relevant statute, the Advocate will receive public monies, that if that does not happen, or cannot happen, there are circumstances where ex gratia payments are made after criminal cases are concluded on account of the unduly onerous nature of the legal aid burden falling on the Advocate or the Advocate's firm, and third that there are cases where, if the Judicial Greffier is satisfied that the case represents an unduly onerous burden for the lawyer to whom the legal aid certificate has been issued, then payment on account, or during the course of the proceedings may be warranted.  That, again, is payment through the Judicial Greffe.  As a matter of detail, he explains how ex gratia payments were consolidated into the work of the Judicial Greffe in early 2006 by the Bailiff so that it appears all payments, one way or another, can be dealt with by the same office, explains that ongoing funding, that is the third of the three methods of funding for legal aid Advocates that I described, has been effected in three criminal and three civil cases since 1998, and then goes on to deal, in detail at paragraph 17 of his statement, with the funding of Miss Fogarty in Mrs Gallichan's case explaining how a total £260,000 had been paid at the time of the preparation of this statement in relation to her defence in both trials and in connection with an appeal to the Court of Appeal and the Privy Council.  He identifies the amount of money, £83,000 plus, going to the firm Ogier, but also explains that this has gone at the calculated rate of £48.02 per hour and at a lesser rate for a legal assistant.  He explains how far short £48.02 would be of any of the hourly rates that would be applied on taxation at trail, or indeed in the Appeal Court for which there are quite specific provisions, and the shortfall per hour could be anything from £100 to approaching £200 and without doing too much arithmetic it becomes clear that what is at stake here is potentially a very large sum of money, in the hundreds of thousands, and perhaps that, to an extent, although not fully, explains why the public interest has been activated by representations of the Attorney General in this case, where it hasn't been activated before. 

17.      The third statement of Sarah Fitz, the Advocate of Ogier who are the firm that employs Miss Fogarty, completes the picture.  Miss Fitz, being head of the personal law group that deals with legal aid matters and indeed deals with legal aid matters at about the rate of 30 a month, she explains how Miss Fogarty was allocated, effectively, full time to appear for Mrs Gallichan, the loss of Miss Fogarty to the firm, requiring the engagement, on an annual contract, of a locally qualified Advocate to assist.  This incident alone shows quite how dramatic is the effect of the legal aid system in Jersey where, without consent, but simply because one is on a rota, one's time can be so consumed that the firm employing the Advocate concerned has to go and employ someone else.  Indeed Miss Fitz also explains that under the system the Acting Bâtonnier was not prepared to excuse Miss Fogarty from further certificates in her name during the time she was representing Mrs Gallichan, those further certificates, as I understand it, coming her way simply when her name came to the top of the rota or roll.  Miss Fitz explained that Mrs Gallichan was indeed in no position to pay any fees, and deals with the discretion which existed and which operated in favour of the firm to have a contribution to expenses at the rate of £48 per hour for Miss Fogarty in exceptional cases, explaining how full funding of London Counsel was organised under the system already described.  Thus the legal aid system.

18.      Having described the system I can only echo and agree with the words of the Bâtonnier that similarities between this system and the system operating in, for example, the United Kingdom are coincidental only.  The statute under which Miss Fogarty seeks her costs following acquittal, Costs in Criminal Cases (Jersey) Law 1961, setting out the power to award costs under Article 2.  It says under Article 2(4):-

"The costs of the defence payable under paragraph (1)(c) shall be such sums as appear to the court reasonably sufficient to compensate the accused for the expenses properly incurred by the accused in carrying on the defence and to compensate any witness for the defence for the expense, trouble or loss of time properly incurred in or incidental to the witness's attendance and giving evidence."

In that sub section, the critical words are the words "expenses properly incurred by the accused".  The issue is a very simple one, where, in the event, the defendant is not expected to pay and/or does not pay is it appropriate to describe costs that may be sought and might be ordered by the Court fully to compensate under taxation the lawyer concerned, is it proper to describe those costs as "properly incurred by the accused"? 

19.      Three relevant cases are AG v Bouchard [1989] JLR 350, the decision of Deputy Bailiff Crill, the facts do not need recitation, but in the case of a legally aided person making no contribution, the concluding words of his Judgment were, for a time, effective for the determination of issues such as the one I face today.  For he said this:-

" I therefore make an order that the accused shall have his costs-and when I say his costs, I mean that contribution towards the legal aid assistance which he has been granted which he would normally expect to make."

Although the phrase "which he would normally expect to make" might be thought to be ambiguous, it was, I understand, understood as meaning the costs that somebody had been assessed, or would have been assessed by the Advocate, as being vulnerable or liable to make to the Advocate win, lose or draw.

20.      The second case is AG v McKinney [1992] Unreported 2, a decision of the then Deputy Bailiff Mr Tomes.  A decision valuable for two issues, but on the immediate topic he said, with a like form of defendant:-

"Accordingly, I order the payment out of public funds of the costs of the defence, restricted to the contribution towards legal aid which the defendant would normally be expected to pay."

Thus echoing, repeating and endorsing the words of Deputy Bailiff Crill.  The history is best filled in by reference to the Legal Practice Committee Report (the Le Quesne Report) 1993, the year following the McKinney decision, and it is worth having in mind that this was a high powered committee numbering Jurats, Advocates, Sir Cecil Clothier KCB, QC, as those assisting Sir Godfrey Le Quesne.  He described the legal aid scheme, he dealt with the case of Bouchard and said the following:-

"4.15   The result is that, if, as commonly happens, the accused could pay nothing to his lawyer, nothing is payable out of public funds.  The benefit of legal aid is thus effectively transferred to the States. 

4.16    We doubt whether this is the intention with which this Law was enacted.  We say this because Article 2(4) also provides for the costs payable to include compensation to any witness for the defence for the expense, trouble or loss of time properly incurred in giving evidence.  It seems most unlikely that the States intended that a witness should be compensated in this way, but that the lawyer should receive nothing for the trouble and loss of time (probably much greater) incurred by him in the conduct of the case.  Furthermore if a lawyer defends a client in the normal way, i.e. not on legal aid, and the accused is acquitted, the Court can make an order under Article 2 which results in the States having to pay the lawyer's fee.  It seems unfair that the lawyer should be unable to get his fees paid by the States in a precisely similar case done on legal aid simply because the accused is too impecunious to have paid it himself. 

4.17    We therefore recommend that Article 2(4) should be amended so as to provide that the costs payable shall consist of such sums as would have been payable if the accused had not been legally aided, and compensation to any witness for the defence, as now defined in paragraph (4)."

21.      The third case which follows the Le Quesne Report, and follows nine years of the practice, first identified in the Bouchard case is the case of Santos-Costa v AG [1996] JLR 87, a decision of the present Bailiff, the same argument, effectively, as has been presented to me was then argued by Crown Counsel Mr Whelan, who appears for the Attorney General today, and at page 94 of the 1996 Jersey Law Reports the learned Bailiff set out:-

"Mr Whelan's argument was that a legally aided client is not liable for the costs of his defence.  If he were liable, he would not be on legal aid.  It seems to me there is a circularity in this argument.  A client obtains legal aid because he is not able to pay for the costs of his defence.  But if the Court has ordered, following his acquittal, the costs of his defence to be paid out of public funds, he is surely ex hypothesi able to pay them.  In those circumstances, his lawyer would be entitled to charge him the full fee rather than a reduced fee to reflect his means.  In my judgment, the construction of Article 2(4) of the 1961 Law adopted by the Court in Bouchard amounts to the insertion after the words "reasonably sufficient to compensate the accused for the expenses properly incurred by him in carrying on the defence" of some such phrase as "except that where the accused is legally abided, only such contribution as he could afford to pay shall be recoverable."  This seems to me to strain the statutory language beyond its breaking point.  I am reinforced in my conclusion by the fact that in enacting the 1961 Law, the legislature was clearly alive to the question of legal aid.  In Article 3(3), specific provision is made for the payment of the Advocate's fees and expenses on an appeal irrespective of its outcome.  Paragraphs (1) and (2) of Article 3 make similar provisions to those found in Article 2(1) for the payments of costs by the appellant or out of public funds.

He then sets out the Article, and states:-

"It was open to the legislature to make specific provision to cover the situation in which an accused person was legally aided if it had wished to do so.  In default of any such express provision, it seems to me that the statutory language must be given its ordinary and natural meaning.  If, on the accused's acquittal, the court orders the payment of the costs of the defence out of public funds, that is what should be paid."

He reached his conclusion with some diffidence, knowing that he differed from two learned judges of this very Court.  He observed that the conclusion would have the result which might be thought unfortunate, that there is a premium on success for the lawyer acting for a legally aided defendant.  He continued:-

"However unfortunate that outcome may be, if it is the result of a proper construction of the statutory language, it must be a matter to be addressed by the legislature.  I am comforted, however, by the thought that on this construction, the costs or the defence can at least be objectively determined.  On the Bouchard ruling, the costs of the defence are determined by a subjective assessment by the lawyer acting on legal aid of what he thinks his client can reasonably afford to pay."

In the upshot he granted the declaration sought by Mr Costa, saying that the costs of the defence "should be assessed by the Judicial Greffier without regard to the fact that Mr Hakes was assisted under the legal aid scheme." 

22.      In one of her filings Miss Fogarty was concerned at the thought of having this matter dealt with by a Commissioner not familiar with the legal aid system.  In her filing of 12^th July, at paragraph 15, she said:-

"The Crown seeks to reopen the decision in Santos-Costa before the same division of the Royal Court differently constituted and with a Commissioner who is not familiar with the legal aid system in this jurisdiction.  If Santos-Costa is to be overruled the appropriate way for this to be done would be via senior Court familiar with local legal aid system or by the legislature, not by the same Court differently constituted."

Happy though I am to acknowledge my lack of familiarity, when starting with this case, with the legal aid system, I am satisfied that I can become familiar with the details and have done so sufficiently to deal with this application.  Were Commissioners not able to become familiar with what was formerly unfamiliar to them, then the whole process of employing Commissioners, or engaging Commissioners, would be up for question.  However, I think that Miss Fogarty, within that paragraph, identifies something of which a visiting Commissioner should be careful and that is that although he can, of course, understand details as presented to him, as in this case so fully by witness statements, it may be a little more difficult for him to understand the environment in which a particular statute should be interpreted.  A Commissioner being invited to correct or change the interpretation of a statute, first of all thought to be in error, as we see by the Le Quesne report, which comprised people knowledgeable indeed of the life of the Island, secondly considered to be erroneously interpreted by earlier judges in the decision of Santos-Costa by the present Bailiff, it would be important for a visiting Commissioner to be aware that those acts of interpretation, and particularly the interpretation of the Bailiff, is something which should be given very careful consideration.  However, lest there be any doubt in the matter, I approach this problem having in mind what is said by Deputy Bailiff Tomes in the McKinney case, page 34 where he deals with the proposition that he is being asked to overturn a previous decision of a judge of parallel jurisdiction and he quotes Halsbury's Laws of England, 4^th Edition, volume 26, page 301:-

"There is no statute or common law rule by which one Court is bound to abide by the decision of another Court of co-ordinate jurisdiction.  Where, however, a judge of first instance after consideration has come to a definite decision on a matter arising out of a complicated and difficult enactment, the opinion has been expressed that a second judge of first instance of co-ordinate jurisdiction should follow that decision; and the modern practice is that a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance unless he is convinced that the judgment was wrong."

The learned judge went on to say:-

"I cannot say that the decision in AG v Bouchard arose out of a complicated and difficult enactment.  However, I believe that I should follow the modern practice and, as a matter of judicial comity, follow the decision of the learned Bailiff unless I am convinced that the judgment of the learned Bailiff was wrong.  Miss Fitz has failed to convince me that the judgment of the learned Bailiff was wrong.  It has stood since 1983 and has been applied in other cases.  If it is to be overruled now it is a matter for the Court of Appeal."

I can only echo the general words that he uses to describe the role of a judge facing an application of the kind I face here.  Notwithstanding the desirability of achieving judicial comity, if I were to be convinced that the decision of the Deputy Bailiff in Santos-Costa was wrong, I would have no hesitation in saying so, nor any embarrassment.

23.      In her most recent filing on the definition on the interpretation of the word "incurred", Miss Fogasrty has found some useful authorities, I recite them because I have read them, I will not go into them in detail, but they tend substantially to support her case, Adams v The London Improved Motor Coach Builders Ltd [1921] 1 KB 495, Davis v Taylor (No 2) [1974] Appeal Cases 225, Lewis v Avery (No 2) [1973] 2 All ER 229, these cases came in late, I indicated that if the Crown wanted an opportunity to discuss them, although it would not technically have another right to speak or present representations, I would nevertheless be minded to be sympathetic to an application by the Crown to be heard, no such application has been made.  I, myself, drew to the attention of the Advocates, because it was in my mind, something from the book relevant for English proceedings, Cook on Costs 2007 because the point being argued by Mr Whelan is, effectively, the indemnity principle point that has featured so extensively in arguments about costs and in particular arguments about recent changes in the costs regime in England.  The indemnity principle has been long attacked, was reckoned in a government paper, to be due for imminent death.  As the indemnity principle for collective conditional fee agreements that the government is persuaded there is no longer any justification for the operation of the principle when assessing costs no matter how funded.

24.      I have also had in mind, in thinking about this problem, how in my own experience in the United Kingdom there was a time when legally aided defendants who were acquitted in the Crown Court would have a favourable costs order made notwithstanding the fact that it would have achieved nothing but to move the figures of who had paid for the cost of the legal aid in the instant case, from one government department to another.  Nevertheless it was the practice to grant these defence legal aid costs order in such cases.  I have had in mind that the practice, starting with the Santos-Costa case, is one that, on Miss Fogarty's own experience, has been applied in the intervening period of time some three times favourable to clients of hers, and she calculates there are tens of other Advocates who will be in the same position as her.  I had explained to me, at my request, by Mr Whelan that Advocates in Jersey appear on both sides of the prosecutorial divide, thus there will have been Advocates, prosecution and defence, who will have sought and obtained, or will have seen their opponents seek and obtain, favourable costs orders operating, effectively, a contingency fee scheme of the type envisaged, but not in those words, by the Bailiff in Santos-Costa.  And that at no time, until this case, has the propriety of those orders, which must be many in number, been challenged, despite Advocates, because they swap sides, being necessarily fully familiar with the consequences of the orders that were sought and obtained.  I have in mind that the qualifications in the letter to Mrs Gallichan about how the position for her legal aid might change if her financial circumstances change, could have been amplified specifically to cover the possibility of a successful defence costs order in the light of acquittal, but have never been changed, and as I understand it, in no case have been changed by addition of those words.  It seems to me possible to infer that there has been a reasonable expectation on the part of those doing legal aid since the Santos-Costa case that, in the event of success to the extent of being able to get a defence costs order, then their costs would be taxed.  That seems to me not insignificant.  Finally I had in mind what was said by the Bailiff at the swearing in ceremony last week, where the Advocate's renew their oaths, about the requirement for development or it may be reform of legal aid in this Island.  I am quite satisfied that the interpretation made by the Bailiff in the Santos-Costa case, backed by authorities, informed by his understanding of the law and practices of this Island, was the correct interpretation.  I am not persuaded that after 11 years of that practice it would be right to change the practice by a ruling, accordingly it follows that if Mrs Gallichan is to receive a favourable order for costs it would be an ordinary order for costs of the kind that have been granted for the last 11 years and as envisaged in Santos-Costa.  Of course from any such order there would, as was agreed by the payment of subsidy, be a deduction of the subsidy, it does not seem to me however that the subsidy or the payment of subsidy changes at all, conceptually, the issue that I face.

25.      Thus I turn to the issue of discretion.  Should I make an order in favour of Mrs Gallichan?  The earlier trial has been relied on by both sides but in different ways.  The prosecution has sought to liken the facts facing me to the position of a man facing many counts on an Indictment, convicted of one or a couple, acquitted of others, where it is said, as I think in the case of AG v Gouveia [2000] 182, there should be no order.  The prosecution asserts that Mrs Gallichan has been convicted of a very serious offence, in the first trial, and that it would be wrong to award her any costs.  The defence say that victory in the second trial, because it covers facts that were also covered in the first trial, actually shows the first trial to be wrong, says Miss Fogarty, if the Court in the second trial had taken the same view of the same facts, or the same evidential material as was presented in the first trial, why then there would have had to have been a conviction as had happened on at least Count 1 of the trial before me.  She says that the first trial is flawed because the evidence led in it is insufficient, almost she says, on the words of the prosecution itself.  I have no intention of doing anything but respecting both trials and their conclusions.  I have no doubt, unless and until be the case that the Court of Appeal takes a different decision, that it is appropriate for me to regard both decisions as conscientiously made and in accordance with the law.  If there is any inconsistency, and that is not for me to comment on and would be in another place for Miss Fogarty to establish, it may simply be the inconsistency that comes from conscientious people holding different views, an inconsistency that lies behind the desirability for large alleged criminal matters being the subject of single trials.  The prosecution say further that Mrs Gallichan brought the trial upon herself, in that by being disbelieved in the first trial she led the prosecution to believe that the case against her for the second trial was stronger than it was.  Miss Fogarty deploys a substantial amount of material to argue to the contrary, she refers to the way that her client was fully cooperative dealing with answering questions, dealing without much notice with matters of history, matters that she says may well not have been very fairly presented to her by the investigators at the time.  I am not persuaded remotely that it can be said that Mrs Gallichan brought the second trial upon herself.  The second trial was part of the initial decision it seems to me, a view that is supported by the observation to which Miss Fogarty refers at the time that the Commissioner, Sir Richard Tucker, was considering severance, the observation on behalf of the Attorney General that Mrs Gallichan would face a second trial really come what may, that decision being made well before it was ever possible to rely on things said in evidence or other asserted lies established by the prosecutions assertion against Mrs Gallichan.  Given that all parties, prosecution and all defence parties, opposed the severance, I am quite satisfied that it is appropriate to look at these two trials as separate trials.  If I am wrong about that and they should be looked at as a single issue, then I can't help but observe that a number of counts in underlying property concern, the second trial was substantially the greater trial, I cannot but observe that whereas in the first trial the defendant gave evidence and indeed Miss Fogarty invoked the potential for a shift in burden that might fall on, be discharged or not, by the defendant in the second trial, that burden was never to be considered and Mrs Gallichan gave no evidence so that the unanimous acquittal on all counts by the learned Jurats of Mrs Gallichan followed simply from the presentation of the prosecution case.  The prosecution case did not establish, to the satisfaction of the Jurats, guilt on the part of Mrs Gallichan at all.  I identify the cases that I looked to, Gouveia, Romeril v AG [2001] 71, AG v McLees and Swanston [2002] 215, and Troy v AG [2003] JLR N 21, all of which reinforced there is a prima facie entitlement to costs subject to exceptions which, in my judgement, do not apply here.  I also have in mind that Mrs Gallichan was cooperative in answering questions, that the trial was conducted with economy and dispatch by Miss Fogarty.

26.      In all the circumstances the appropriate order to be made in this case is that she shall have an order for costs in respect of the second trial as sought, partition of the work between first and second trial to be for the taxation by the Judicial Greffier in the usual way, it not being a matter for me to go further into detail then I have done in explaining that the costs order shall be in line with the costs orders envisaged by the Bailiff in Santos-Costa. 

27.      I recollect one matter that I should have dealt with, perhaps at an earlier stage, but I deal with now.  I observe that the scale of the costs may indeed have been something that affected the opposition by the Attorney General, through Advocate Whelan, to this application in the public interest, and I think I said something to the effect that this could be part only of the explanation.  In fairness I think I should amplify that.  I am quite satisfied that the Attorney General, of course, has a public interest, I can quite easily see and accept that the substantial scale of costs sought would be a very good reason for the Attorney General deciding to act in a matter like this, whereas on earlier occasions he had never done so in the entire 11 years since Santos-Costa was pronounced, at least as I understand it.  So I accept that there is no bad motivation in opposing this application.  That does not detract from the significance, so far as I am concerned, of this practice having gone unchallenged for 11 years, despite its necessarily being understood by lawyers on all sides.  Despite its necessarily having been a burden to some extent, or maybe to a significant extent, on the funds of the taxpayers of Jersey, and this does not detract at all form the points that emerged from the failure over the 11 years to bring this matter to further review on the practices of Advocates and law firms in their dealings with legally aided defendants.

28.      This matter has taken some time to deal with because the issues involved were extensively argued, a significant amount of money is at stake, and the arguments of the parties, very helpfully presented on both sides, required careful consideration.

Authorities

Royal Court (Jersey) Law 1948.

Legal Practice Committee Report (the Le Quesne Report) 1993.

Costs in Criminal Cases (Jersey) Law 1961.

AG v Bouchard [1989] JLR 350.

AG v McKinney [1992] Unreported 2.

Santos-Costa v AG [1996] JLR 87.

Adams v The London Improved Motor Coach Builders Ltd [1921] 1 KB 495.

Davis v Taylor (No 2) [1974] Appeal Cases 225.

Lewis v Avery (No 2) [1973] 2 All ER 229.

Cook on Costs 2007.

AG v Gouveia 2000/182.

Romeril v AG 2001/71.

AG v McLees and Swanston 2002/215.

Troy v AG [2003] JLR N 21.