Jersey Unreported Judgments

[2008]JCA163A

COURT OF APPEAL

24^th September 2008

	Before     :		The Hon. Michael Beloff, Q.C., President; J. W. McNeill, Esq., Q.C., and; Miss C. Montgomery, Q.C..
Between		Samuel Gichuru		Applicant
And		The Police of the States of Jersey Police		Respondent

Appeal by the Respondent under Article 5(1) of the Court of Appeal (Civil)(Judicial Review) Rules 2000 against a decision of the Bailiff on 18^th July, 2008, granting leave to apply for judicial review.

Advocate S. Young for the Applicant.

Crown Advocate H. Sharp for the Respondent.

JUDGMENT

THE president:

Introduction

1.        This is an appeal by the Respondent ("the Police") under the Court of Appeal (Civil)(Judicial Review) Rules 2000 ("the Rules") Rule 5(1)(2) from the order made by the Royal Court on the 18^th July 2008, refusing an application to set aside leave to apply for judicial review in respect of the ex parte decision of the Bailiff on 6^th June 2008 to grant leave to the Applicant (Mr Gichuru) to bring a judicial review of the Police decision dated 28^th August 2007 refusing to grant consent pursuant to the Proceeds of Crime (Jersey) Law 1999 ("the 1999 Law") to withdraw funds from accounts in Jersey.  It raises an important issue of procedure, well researched and argued by both advocates.

2.        The grounds on which relief is sought by Mr Gichuru are set out with extreme brevity in the Court form.  "That the de facto freeing of assets by Court order by the States of Jersey Police for six years is unreasonable having regard to the mechanism of the same and the period for which it has been maintained." 

Issues

3.        No challenge was made that an arguable point was raised by this Ground: and the Deputy Bailiff in some obiter observations in a judgment on 25^th April 2008 ("the April 2008 Judgment"), to which I shall shortly refer, said at paragraph 35:-

"The case of UMBS Online Limited is persuasive authority for the proposition that the police are under a duty to keep a refusal to consent to payment under regular review.  One can therefore see the argument that any difficulties caused by the time limits applicable to applications for judicial review could be addressed by the customer asking the police to review their refusal and then seeking to judicially review a decision not to grant consent following such review.

One can also see an argument that a refusal to consent by the police which is entirely reasonable initially may become unreasonable and liable to be quashed through the effluxion of time, particularly bearing in mind the requirement in the 1999 Law for a saisie to be discharged if proceedings have not been instituted within a reasonable time and the corresponding provision in section 42 of the 2002 Act that a restraint order must be discharged if criminal proceedings are not started within a reasonable time."

albeit that he added:-

"However, I repeat that I offer no view on the merits ; they will fall for decision as and when they arise."

I am therefore content to proceed on the basis that the points are arguable but equally express no view at all on their merits.

4.        In such circumstances the Police asks the Court of Appeal to order that the Royal Courts decision of 18^th July 2008 be set aside and that (in necessary consequence) the leave granted to Mr Gichuru on 6^th June 2008 also be set aside on two distinct grounds first material non-disclosure, second effective alternative remedy.

Background: The Facts

5.        The Bailiff adopted the Deputy Bailiff's summary of the background as follows.  I shall with equal gratitude do likewise:-

"The factual background would appear to be as follows.  The representor is now aged 66 and has always lived in Kenya.  In 1974 he joined the Kenya Power and Lighting Company as assistant company secretary and subsequently rose through the ranks to the position of chief executive officer in 1984, a post which he held until February 2003 when he retired.  The majority shareholder in the company was at all times the Government of Kenya.  He states that in Kenya public servants were not barred from running their own businesses until 2003 and he had wide-ranging commercial and business operations.

In 1981 he opened a bank account in Jersey.  He says that the account was opened for the receipt of fees which he earned from business introductions and as a consultant.  In about 1986 he was advised by the Jersey office of Deloitte & Touche (the forerunner of the respondents, to whom we shall refer compositely as "Walbrook") that his needs would be better served by having a company.  Accordingly in August 1986 Windward Trading Limited ("the Company") was incorporated in Jersey.  Walbrook is the administrator of the Company and provides the Company's directors and secretary.  The Company has bank accounts with HSBC Bank Plc and the Royal Bank of Scotland International Limited.  Walbrook provides the signatories to the accounts.  Since 1986 the Company has received funds as a result of the representor's activities and has also paid moneys away.  The representor is the beneficial owner of the Company and the various Walbrook entities hold the shares as nominee for him.

In May 2002 Walbrook filed an SAR with the police.  The police did not give consent to Walbrook making any payments and accordingly Walbrook has refused to make any payments from the Company to the representor since that date.

On 21^st August 2003 a notice under the Investigation of Fraud (Jersey) Law 1990 was issued by the Attorney General demanding documents and information.  The representor came to Jersey of his own volition and, with his then lawyer, met with the police in relation to the notice.  He says that he was asked about two particular payments, one being to a former minister in the Kenyan government and another to a former head of public service in Kenya.  The representor states in his affidavit that these payments were made for 'purely commercial investment purposes' and says that he provided the police with a statement to this effect and with supporting documentary evidence.  He says that he fully answered all of the questions which were put to him and was told that he would be furnished with a transcript of the interview, although this has not been forthcoming despite requests by his advocate.

In October 2003 the representor was informed that the Finnish authorities had sought information from the Jersey authorities about him and the Company.  He was told that if a formal request was received from the Finnish authorities, he would have the opportunity to make representations but he says that he has not been contacted and does not know whether this matter has been taken forward.

On various occasions since then the representor has requested payment of funds from the Company but this has been refused by Walbrook on the basis that no police consent has been received.  In 2006 his advocates sought a further meeting with the Attorney General's department but on 12^th July 2006 Crown Advocate Belhomme wrote stating inter alia "I have since met with Detective Inspector Faudemer and Acting Inspector N Troy of the Joint Financial Crimes Unit.  In this respect I am instructed an investigation into the affairs of Mr Gichuru is ongoing and there is currently no prospect of the States of Jersey Police granting consent to transactions on relevant accounts pursuant to the Proceeds of Crime (Jersey) Law 1999.  In the circumstances you may feel little stands to be achieved by a proposed meeting."  The representor says that he has not heard further from the Attorney General's department since then.  He says that he has been interviewed by the Kenya Anti Corruption Commission in June and July 2007 but that he has not been charged or arrested.  In July 2007 Advocate Young wrote to Walbrook again requesting payment of the money held by the Company but was advised that Walbrook was unable to comply with the request.

Accordingly, on 22^nd August 2007, the representor issued his representation seeking, inter alia, an order that Walbrook be ordered to pay the assets of the Company to the representor.  On 20^th September 2007 the Court ordered that the Police be convened and gave consequential directions for the serving of evidence.  However, at an early stage the Police gave notice that he did not consider it proper for him to have been joined to the proceedings and he wished to be discharged.  That is the application which is now before us."

6.        In the April 2008 judgment the Deputy Bailiff, granted the Police application for discharge.

7.        Further with the consent of Walbrook on the same day the civil proceedings were adjourned sine die.

8.        Thereafter on 28^th April 2008 Mr Gichuru's legal adviser wrote to the Law Officers' Department formally requesting that the Police review the refusal to grant consent for the withdrawal of the funds.

9.        On 12^th May 2008 the Crown Advocate replied stating that the Police were reviewing their position and inviting the submission of "full representations" so that they could be considered. 

10.      On 16^th May, 2008 Mr Gichuru's legal adviser responded that his client's funds had been effectively frozen for more than six years without any court order, that Mr Gichuru had attended for interview and provided affidavits, and that he would do no more.

11.      On 20^th May 2008 the Crown Advocate replied seeking "detailed evidence that explains the provenance of funds received into Windward Trading Limited".   Mr Gichuru's legal adviser took the view that his client was under no obligation to do so, and duly applied for leave for judicial review.

12.      On 6^th June 2008 the Bailiff granted leave generally for judicial review of the decision of the Police of 28^th August 2007 to refuse consent under the 1999 law.  Proceedings were served upon the Police.

13.      On 26^th June 2008 a notice was duly filed by the Police seeking, pursuant to the Court of Appeal (Civil) (Judicial Review) Rules 2000 Rule 16/6/(1), to have the leave to apply for judicial review set aside.  That Rule provides:-

"Any person served under Rule 16/4(2) who did not appear before the Bailiff to make representations prior to the granting of leave may, within 14 days of service, apply to the Bailiff sitting as sole judge and constituting the Inferior Number to have the leave set aside by making an application substantially in the appropriate form set out in Schedule 5 and the Bailiff may make an order setting aside the leave if satisfied that the applicant did not disclose all material facts in the application or that for some other substantial reason it is just to make such an order."

14.      Before the Bailiff, it was contended by the Police that it was not open to Mr Gichuru to wage war on two fronts.  Having begun a private law action against Walbrook, he could not now commence, in particular where he had not been candid with the Court as to his reasons for switching his line of attack, judicial proceedings against the Police.  The private law action and the judicial review were alternative remedies and could not both be pursued simultaneously.  This amounted to a "substantial reason" why leave should be set aside.

15.      The Bailiff summarily dismissed the other argument as to material non-disclosure as hereinafter appears.

16.      The Bailiff next considered such well known authorities as R v Home Secretary ex parte Swati [1986] 1 WLR 477 per Sir John Donaldson MR at 485 and R v Epping and Harlow General Commissioners ex parte Goldstraw [1983] 3 All ER 257, R v Civil Service Appeal Board, ex parte Bruce [1988] 3 All ER 686 ("Bruce"), and the decision of this Court in Planning and Environment Committee v Lesquende Limited [1998] JLR 1,. ("Lesquende").

17.      The Bailiff reasoned at para 14:-

"It is noteworthy that in all these cases it was the existence of an alternative statutory procedure or remedy available to the applicant in a public law setting which was held to be material.  If one asks the rhetorical question "what other remedy apart from judicial review is available to the applicant to challenge the refusal of the Police to grant consent?" the answer is "none"." 

He continued at para 18:-

"In this case the two remedies available to Mr Gichuru are separate and distinct.  The public law action against the Police is directed at the unlawfulness or unreasonableness of the decision to refuse consent pursuant to the 1999 Law.  The Court will not necessarily be concerned with the question whether the funds are the proceeds of criminal misconduct.  It is possible that the Police's refusal of consent could be susceptible to quashing on the ground of unreasonableness even if the Court did think that the funds were the proceeds of crime.  The private law action against Walbrook, on the other hand, is concerned with the enforcement of a contractual or other right to seek payment of funds under their control.  The issue for the court in that action is likely to be whether the funds are in fact the proceeds of criminal conduct." 

and concluded at para 21:-

"In my judgment there is no reason in law or in logic why Mr Gichuru should not be permitted to pursue either or both the remedies that are available to him.  On the contrary it seems to me that a requirement to elect between the two remedies is capable of causing injustice.  Suppose that a private law action is pursued with every expectation that the court can be satisfied that the funds in question are not the proceeds of criminal misconduct.  Prior to trial all the material documents are accidentally destroyed in a fire.  What was a straightforward case has overnight become much more problematic.  If the individual has grounds for arguing that the refusal of the police to grant consent is vulnerable to judicial review, why should he not be permitted then to pursue that remedy?"

18.      The Bailiff therefore dismissed the application.  It is common ground that the Bailiff was exercising a discretion, which would only be impugned by this Court on principles frequently restated and generally known. See e.g. UCC v Bender [2006] JLR 269, paras 25 and 26.

19.      The grounds of this appeal, which reflect those principles, are that the Royal Court:-

(i)        erred in principle;

(ii)       misdirected itself on the law;

(iii)      took into account matters which it should not have done;

(iv)      failed to take into account matters which it should have done;

(v)       such that the exercise of the Court's discretion was plainly wrong.

The Legislative Context

20.      The legislation which provides a backcloth to this application is to be found in the 1999 Law.  The material provisions under the rubric "MONEY LAUNDERING" are Article 32(1), which stipulates as follows:-

"Assisting another to retain the benefit of criminal conduct

(1)                Subject to paragraph (3), if a person enters into or is otherwise concerned in an arrangement whereby -

(a)           the retention or control by or on behalf of another (in this Article referred to as "A") of A's proceeds of criminal conduct is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or

(b)           A's proceeds of criminal conduct -

(i)                 are used to secure that funds are placed at A's disposal, or

(ii)                are used for A's benefit to acquire property by way of investment,

knowing or suspecting that A is a person who is or has been engaged in criminal conduct or has benefited from criminal conduct, he or she is guilty of an offence.

(2)                Where a person discloses to a police officer a suspicion or belief that any property is derived from or used in connection with criminal conduct, or discloses to a police officer any matter on which such a suspicion or belief is based -

(a)           the disclosure shall not be treated as a breach of any restriction upon disclosure imposed by any statute or contract or otherwise, and shall not involve the person making it in liability of any kind; and

(b)           if the person does any act in contravention of paragraph (1) and the disclosure relates to the arrangement concerned, the person does not commit any offence under this Article if -

(i)                 the disclosure is made before the person does the act concerned and the act is done with the consent of a police officer, or

the disclosure is made after the person does the act, but is made on the person's initiative and as soon as it is reasonable for the person to make it."

21.      The Deputy Bailiff also gave, in the April 2008 judgment a succinct summary of the law enshrined in those and cognate provisions, which both Counsel accepted as accurate:-

10       "Article 15 of the 1999 Law provides that, where the Court is satisfied that criminal proceedings are to be instituted, it may grant a saisie judiciaire vesting a person's property in the Viscount pending a decision (which can only be taken following any conviction in the criminal proceedings) on whether a confiscation order should be made.  Article 15(3) provides that in such circumstances " ... the court shall discharge the order if the proceedings have not been instituted within such time as the Court considers reasonable".  [Emphasis added].  Thus the legislature has attempted to strike a fair balance between the rights of a person against whom no criminal prosecution has been brought to be able to deal with his assets and the need to preserve monies which may be liable to confiscation following conviction.

11.      The position is different where an SAR has been made by a financial institution such as a bank.  If the police consent to the bank complying with its customer's instructions to pay out money from the account, then the bank is protected.  But if the police do not consent, the bank is on the horns of a dilemma.  On the one hand, it has its customer demanding that it make payment in accordance with the mandate.  On the other hand, it has a suspicion that its customer has been engaged in criminal conduct and, if it makes the payment, it will clearly facilitate the retention or control of the money by its customer.  Accordingly, if it were subsequently to transpire that the money in the account was in fact the proceeds of the customer's criminal conduct, the bank would have committed the criminal offence of money laundering under Article 31 of the 1999 Law.  As the bank does not know at that stage whether the money in the account is in fact the proceeds of criminal conduct, it invariably errs on the side of caution and refuses to make the payment.  The result is that the account is informally frozen for so long as the bank has the relevant suspicion and the police do not consent."

In short while consent of the police may provide a defence to a charge under Section 32(1) it has no direct relevance to any civil action brought by a depositor against a Bank or a person such as Wallbrook.

22.      I draw attention to the fact that the Act contains at Articles 29, 30 and 31 provisions as to disclosure of information disclosed to the police by the police onward to third parties.  It is not necessary to set these out in full.  Suffice it to say that it is the reach of the restrictions as well as their limits which is significant: inter alios, competent authorities outside Jersey may be recipients of such information.

Material Non-Disclosure

23.      Advocate Sharp contended, that no explanation was given as to why Mr Gichuru had agreed to an adjournment of the civil proceedings sine die: and that the duty uberrmae fidei which is imposed upon all applicants for leave to apply for judicial review had accordingly not been discharged.

24.      The Bailiff held at paragraph 9:-

"In my judgment the first submission of Mr Sharp holds no water.  It is true that the form filed by Mr Young on behalf of Mr Gichuru stated in answer to the question relating to alternative remedies only "Civil action being taken against Walbrook Trustees (Jersey) Limited and others: Case no.2007/284."  The representation of Mr Gichuru in relation to that civil action was, however, amongst the papers placed before me, as was the April 2008 judgment.  I am satisfied that all material facts were placed before me."

I would add that the Transcript makes clear that the Bailiff was apprised of the consensual adjournment of the civil action, and I draw attention also to a significant interchange between the Bailiff and Advocate Young in the Transcript which the Bailiff must have had in mind.

"BAILIFF:   Well, that's really for a second stage isn't it Mr Young?  I mean what, what uhm, Mr Sharp is saying here is that uhm, or one of the things he's saying is that the available private law action is uhm, is there, no explanation has been given for not pursuing that, having two bites of the cherry, and it's not, he didn't put it quite like this, but it's not really in the public interest I think for two actions to be running simultaneously or contemporaneously.

ADVOCATE YOUNG:   Well Sir, I hope Sir I, I have dealt with that, but I, I shall deal with the point again.  One, at the present time the civil proceedings are adjourned sine die.  Secondly, the two actions seek different relief.  Is it suggested, and it has not been suggested, that Judicial Review alone would be enough in this case, in my, respectful submission, the answer would be no.  It may be that Mr Gichuru, with hindsight, may have decided judicially to review the administrative decision first, and then may have had to go on to sue Walbrook.  Would that not put this Court in exactly the same position?""

Advocate Young therefore relied not only on the fact that the Bailiff knew the nature and state of the civil proceedings, but also had at least a hint of the reason why Mr Gichuru had chosen an alternative tack.

25.      As against this Advocate Sharp also drew attention to the Deputy Bailiff's analysis in his April 2008 judgment of how the civil suit might have progressed where he said in that judgment at para 33:-

(i) Transposing that principle to a case of this nature, the customer must first prove that, for example, he has money in a bank account and has demanded payment.  Having proved that, the burden then switches to the bank to show why it should not pay.  In a case of this nature, the bank does that by proving on the balance of probabilities that it has the requisite suspicion, which then entitles it to refuse to pay unless the police consent or the court so orders.

(ii) Once the bank has proved the necessary suspicion, the customer can only overcome that by asserting an affirmative, namely that, despite the bank's suspicion, the funds are in fact not the proceeds of criminal conduct.  In accordance with normal principle, the burden must revert to the customer to prove that on the balance of probabilities.  I accept that, in a case which is not concerned with money laundering, a customer does not normally have to prove that his funds are not the proceeds of criminal conduct before he can demand them.  However, where a bank has made an SAR, the position changes and, in order to overcome the fact that the bank has developed the requisite suspicion, the customer must show that the funds are not the proceeds of criminal conduct and this he must do on the balance of probabilities.

26.      Accordingly, submitted Advocate Sharp, Mr Gichuru, appreciating his inability to show that the money in Wallbrook was - to use the vernacular - "clean" opted for judicial review where that issue would or might not arise. 

27.      I entertain respectful doubts as to the Deputy Bailiff's analysis of the civil claim.  It is not at all clear to me how an assertion of "reasonable suspicion" as to the source of the funds would provide any defence in law to action by a customer for payment of his deposit in loan to a Bank.  In the absence of legislative provision or express conditions to that effect.  It would be otherwise if the Bank could show, on the balance of probabilities, that it would itself be committing or assisting a customer to commit a criminal offence by making such payments.  [See K Ltd v National Westminster Bank Plc 2007 WLR 313 per Longmore LJ. (para 10)]

28.      It is, of course, obvious that the Police for their part doubted Mr Gichuru's statement on oath in an affidavit dated 15^th April 2008 that the monies deposited were "fees earned by way of business consultancy and business introductions carried out in Africa" and not unlikely that Mr Gichuru may have lacked confidence in his ability, if need be, to persuade the Royal Court that those doubts were ill-founded.  But it seems to me that the key to Mr Gichuru's change of tack lay in the removal from the civil proceedings of the Police, thereby disabling Mr Gichuru from seeking in those proceedings to ascertain, and even challenge, the evidence on which the Police relied for the maintenance of their refusal to consent.  Such a course would, by contrast, be available to him in a judicial review.  Advocate Young's response to the Bailiff's question cited above supports that analysis.  In my view the Bailiff was told enough.  In any event Advocate Young's argument before us on the "alternative remedy issue" itself shows exactly why the new approach was chosen by or on behalf of Mr Gichuru.  I therefore reject Mr Sharp's first argument.

Alternative Remedy

29.      It is useful to consider at the outset why judicial review is conventionally regarded as a remedy of last resort.  Professor Sir William Wade Q.C. is hostile to the convention: he considers that "the review of legality is the primary mechanism for enforcing the rule of law under the inherent jurisdiction of the Courts".  (Administrative Law: 9^th ed. p [208 2]).  However, on this issue his views have (unusually) not commanded assent from the judiciary see e.g. R v Birmingham CC exp Ferrero (1993) All ER 530.  One reason is constitutional: if Parliament has directly or indirectly, provided a special remedy for a public law wrong, it would seem contrary to principle for the judiciary not to respect this choice.  Another reason is pragmatic: the explosion of judicial review as a curb on abusive executive action has placed the Courts under pressure: if that pressure can be alleviated by referring a matter to a specialist tribunal or other forum, that promotes rather than impairs the public interest.  In short where judicial review is not necessary, it is not desirable.  This same philosophy is responsible for the general rule that the issue of whether judicial review should be refused on the grounds of an effective alternative remedy is to be decided at the leave stage, not at the inter partes hearing .  De Smith Judicial Review of Administrative Action 6^th ed para 16-061.

30.      Nonetheless the Courts do not lightly surrender their powers in this context.  It is not enough that there should be an alternative remedy.  That remedy must be equally effective to achieve the applicant's ends.  The question is "whether the substitute for judicial review adequately protects the rights and interest of the claimants" (De Smith op cit para 16-011).

31.      I am content to endorse as a point of departure the statement of principle in the judgment of this Court in Planning and Environment v Lesquende Limited [1998] JLR 1 ("Lesquende"):-

"The existence of an alternative statutory remedy does not oust the jurisdiction of the court to grant judicial review. We hold that the court had jurisdiction.  The existence of such a statutory remedy is, however, highly relevant to the discretion of the court to grant or refuse relief by way of judicial review. Judicial review is a remedy of last resort: de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed., para. 18-032, at 753 (1995), R. v. Home Secy., ex p. Swati 1986 1 WLR 427 at p.485 and R. v. Chief Constable of  Merseyside, ex p. Calveley 1986 QB 429. The principles set out by de Smith and Sir John Donaldson, M.R. in R. v. Epping & Harlow Gen. Commrs., ex p. Goldstraw ([1983] 3 All E.R. at 262) appear to us to be applicable in Jersey: "But it is a cardinal principle that, save in the most exceptional circumstances, that jurisdiction will not be exercised where other remedies are available and have not been used.""

32.      The present is not (like Lesquende) a paradigm case of where there is an avenue of appeal or review created by statute (De Smith op cit paras 16-108 - 16-020 but the "cardinal principle" applies to other avenues of legal challenge (ditto 16-021 - 16-022)).

33.      Advocate Sharp reminded us too that identity of parties is not essential for identification of an effective alternative remedy, and pointed to Yates v Minister of Planning and Environment [2006] JRC 167 (Yates) and R v DPP ex p Camelot Plc 1988 10 Admin AC 93 (Camelot).  The concept of parties in the conventional private law sense does not sit wholly comfortably with judicial review in any event, but we accept the validity of the particular point made.  Neither case, however, advances the argument far enough beyond that point.  In Yates (which the Bailiff himself considered turned on its own facts: Judgment para 22) the object of preventing the operation of a noisome skip was achievable either by the private law of voisinage or by a successful assault on the decision to license the skip.  In Camelot the object of having a rival lottery operator prosecuted was not directly promoted by establishing a public law flaw in the decision of the DPP not to prosecute: indeed Simon Brown LJ did not for various reasons consider such course an available option at all (page 105): as he put it a private prosecution which achieved the same object directly was the "only proper remedy").  In the present context (as I now explain) the private law proceedings cannot quash the refusal to consent and cancel its consequences: only judicial review could do so.

34.      It is obviously vital to compare the two sets of proceedings in order to evaluate whether one (the civil) is an alternative, and in particular, an equally effective alternative to the other (judicial review).  I have already noted that the refusal to consent (and its validity) will not be - if it ever was -in issue in the civil proceedings which is a private law action for debt.  The judicial review proceedings are by contrast focussed exclusively on the propriety of the refusal to consent.  While, at one level it can be contended that the private and public law proceedings have the same objective i.e. to secure the release of the money, at the next level up the objectives manifestly diverge.

35.      It is clear that the refusal to consent is in fact, if not in law, an obstacle in the path of Mr Gichuru obtaining release of the funds.  If it were to be shown to be invalid after analysis by a court of the basis for it Walbrook might be compelled to withdraw its objection.  (Whether it would have that result I cannot speculate).  More importantly the refusal to consent (and the material which originally gave rise to it) can be disclosed to regulatory authorities overseas; additionally its existence would need to be disclosed by Mr Gichuru to any bank invited to take deposit of the monies once released.  Although Advocate Sharp says that such a bank might well regard the fact that such an order was once in place (even if later set aside by the Court) as sufficient to decline the deposit, I regard it as unrealistic to conclude that it would have no impact at all on Mr Gichuru's ability to obtain the funds and place them elsewhere in terms, at the very least, of his reputation and also in Miss Montgomery's felicitous phrase " the regulatory taint" see R v Dep Gov of Parkhurst Prison: ex Leech 1988 AC 533 per Lord Bridge at 562 where an analogous analysis can be found, comparing the Secretary of State's statutory duty to ensure compliance by the Governor with the law and a judicial review at the request of a prisoner charged by the Governor with an offence against discipline as an effective remedy for a public law wrong and highlighting the deficiency of the former compared with the latter, from the prisoner's perspective .

36.      There are other reasons why I consider that the Bailiff's order should be upheld.  First the issue of what constraints, if any may be imposed upon the police in making or maintaining a refusal to consent, (where prolongation as the Deputy Bailiff noted could wreak unfairness on an individual) is a matter of general importance on which the Court's guidance is required, and itself justified the grant and upholding of leave, see R (DR) - Head Teacher of S School 2003 ELR 104 at p 121.Simon Brown LJ: the matter here is whether the police can put in place a time-unlimited quasi-saisie and keep someone in a kind of financial limbo. Second, as had been said, judicial review is less about private rights (or expectations) than about public wrongs and the focus in the judicial review is on the police action.  Third it requires a strong case to deny an applicant for a remedy, who can, in the public law sphere, surmount the hurdle of arguability, the opportunity to pursue a remedy which he considers, not irrationally, may, if granted, enure to his benefit.

37.      Advocate Sharp's primary and more focussed argument was that once embarked on the civil proceedings Mr Gichuru was fixed with his choice and could not institute an application for judicial review until the conclusion of those proceedings.  He advanced the argument on the basis of precedent (ex p Bruce) and practicality i.e. the need to minimise the burden on the Courts by being compelled to resolve two sets of proceedings rather than one.

38.      I cannot see that the argument for practicality can deny an applicant a right to pursue an otherwise available and useful remedy, and I cannot construe Bruce in the manner contended for.  In Bruce the applicant had been dismissed from the Civil Service.  His application for judicial review sought to compel the Board to give its reasons, no doubt in order to ascertain if they were infected with inappropriate considerations.  He also instituted proceedings in an industrial tribunal for unfair dismissal; compromised them; and then sued on the compromise.  Understandably the Divisional Court regarded the issue in the judicial review as academic; no advantage would accrue to the applicant given what had occurred in the other for a. Two passages from the judgments were relied on by Advocate Sharp, May LJ said at pp 696 - 697:-

"Even if the failure of the Board in the instant case to give any reasons for its decision did mean that in law that decision as open to challenge by way of judicial review I have no doubt whatever that it would be a wholly wrong exercise of this Court's discretion to grant the present applicant any relief.  Simultaneously with his application to us he has not only started proceedings before an industrial tribunal, but also as he alleges, he has compromised those proceedings with the Board itself and has then started and continued to prosecute civil proceedings in the High Court based on that alleged compromise.  In my opinion the right course for us to take is to leave the applicant to the other remedies which he seeks in those other proceedings"

Roch J said at p 697:-

" Let me say at once that I agree with May LJ, that the answer to the second question in the present case is that the applicant's claim to relief should not proceed by way of judicial review; that the discretion which the court has in deciding to grant or withhold relief by way of judicial review should in this case be exercised against the granting of relief, because the applicant has a sufficient opportunity for redress, if indeed he has been wronged, in the proceedings which he has started before the industrial tribunal, or, if those proceedings have been compromised, as the applicant now contends, in the High Court action which the applicant has commenced to enforce the alleged settlement"

39.      It is however to be borne in mind that May LJ  at p 694 said earlier:-

" In the instant case, however, in the absence of a contract of service between him and the Crown I think that one is bound to hold that there was sufficient public law element behind the applicant's dismissal from his appointment with the Inland Revenue and the hearing of this appeal by the Board to entitle him to apply for judicial review for the latter and he has obtained leave to do so.  Indeed, even in a case of a civil servant employed under a contract with the Crown, I think that the circumstances of his dismissal and any appeal to the Board might still be susceptible to judicial review by the courts under RSC Ord 53.  Nevertheless, as I said in Walsh's case [1984] 3 All ER 425, [1985] QB 152, I think that at the present time in at least the great majority of cases involving disputes about the dismissal of an employee by his employer, the most appropriate forum for their resolution is an industrial tribunal.  The courts should not be astute to hold that any particular dispute is appropriate for consideration under the judicial review procedure.  I would hope and expect, therefore, that where a civil servant was alleging unfair dismissal by the Crown it would only be in the very exceptional case, whether his employment was founded in contract or not, that a single judge would grant leave to proceed by way of judicial review rather than by way of complaint to an industrial tribunal"

40.      In my view the two passages relied on by Advocate Sharp were in that context a recitation of the factual background, not an exposition of the Court's reasoning for dismissing the application which was made on well established grounds of an effective alternative remedy in another forum.

41.      I should add this: the Deputy Bailiff had, in his April 2008 judgment, stated:-

"I hold therefore that a customer facing an informal freeze of his funds continues to have two alternative remedies which he may follow and it is a matter for him which he chooses.  He may seek to bring a public law action for judicial review of the police refusal to consent to payment.  In those circumstances, the focus of the Court's attention will be on whether the polic's decision can be successfully challenged on conventional judicial review grounds.  Alternatively the customer may bring a private law action against the financial institution seeking to enforce his contractual or other right to seek payment.  In this event, the issue for the Court is likely to be whether the funds are in fact the proceeds of criminal conduct" (para 28).

42.      Advocate Sharp relied on this observation, but it provides an infirm basis for his argument.  The Deputy Bailiff was right to say that Mr Gichuru had a choice of remedy, but wrong if he was saying that the remedies were alternatives, the one to the other.  In our view Mr Gichuru is entitled to pursue both. 

43.      It would also be incorrect to suggest that if there is indeed an effective alternative remedy, judicial review can nonetheless be sought, at any rate in the absence of special circumstances.  The alternative remedy trumps judicial review.

44.      For these reasons I would dismiss this appeal.

Authorities

Court of Appeal (Civil)(Judicial Review) Rules 2000.

Proceeds of Crime (Jersey) Law 1999.

R v Home Secretary ex parte Swati [1986] 1 WLR 477.

R v Epping and Harlow General Commissioners ex parte Goldstraw [1983] 3 All ER 257.

R v Civil Service Appeal Board, ex parte Bruce [1988] 3 All ER 686.

Planning and Environment Committee v Lesquende Limited [1998] JLR 1.

UCC v Bender [2006] JLR 269.

K Ltd v National Westminster Bank Plc 2007 WLR 313.

Administrative Law 9^th ed.

R v Birmingham CC exp Ferrero (1993) All ER 530.

De Smith Judicial Review of Administrative Action 6^th ed.

Yates v Minister of Planning and Environment [2006] JRC 167.

R v DPP ex p Camelot Plc 1988 10 Admin AC 93 (Camelot). 

R v Dep Gov of Parkhurst Prison: ex Leech 1988 AC 533.

R (DR) - Head Teacher of S School 2003 ELR 104.