Jersey Unreported Judgments

[2009]JRC041B

ROYAL COURT

(Samedi Division)

5^th March 2009

The Attorney General

-v-

Curtis Warren

John Alan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

Ruling on application for leave to appeal.

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

Advocate D. Gilbert for Woodward.

Advocate M. J. Haines for Hunt.

Advocate M. L. Preston for Lucas.

The other defendants were present but not represented.

RULING

THE commissioner:

1.        I have before me an application by the defendant, Curtis Warren, for leave to appeal in relation to my rulings and also my failures to make rulings, at a preparatory hearing held on the 17^th February, 2009. 

2.        The application is made pursuant to Article 90(1) of the Police Procedures and Criminal Evidence (Jersey) Law 2003.  That Article provides that:-

"An appeal shall lie to the Court of Appeal from any ruling of the Bailiff [in this case me as the Commissioner] under Article 86(3), but only with the leave of the Bailiff or of the Court of Appeal."

3.        Rule 9(4) of the Police Procedures and Criminal Evidence (Preparatory Hearings) Rules 2003 empowers the Bailiff to decide whether or not to grant leave on the basis of the notice of the application and without an oral hearing.  I would have been entitled to take that course but I have invited Mr Warren to say whether he wishes to advance any further grounds and he has not done so and I have sought the assistance of Advocate Gollop.

4.        Article 86(3) provides that:-

"The Bailiff may make a ruling as to any question as to the admissibility of evidence and any other question of law relating to the case."

5.        So the first point to consider is whether the application relates to either of those questions.  I note that in the notice of application there is a reference to the description of the questions of law or procedure in respect of which the application is brought.  And it is asserted that the issues which are the subject of the application relate to Article 84(2)(d) of the Law in that they relate to the management of the trial. 

6.        The errors of law or procedure which are complained of are fourfold.  The first two relate to the role or conduct of Advocate Gollop as prosecuting advocate.  The third relates to an application that I should recuse myself from presiding over the trial.  The fourth is expressed as being an implicit application that the trial date should be vacated.  Implicit is a roundabout way of saying that this point was never argued before me.  These are not, and could not be suggested as being questions as to the admissibility of evidence. 

7.        Are they questions of law?  In my opinion they are not.  They raise no principle of law, they could at the highest be described as matters of administration or practice and are matters for the exercise of my discretion.  No issue of law was canvassed before me, I could not perceive any issue of law arising and I made no ruling on the law.  Therefore, in my judgment, no appeal lies from my rulings and this is not an appropriate case for an appeal.

8.        The second point is that the application is out of time.  Rule 9(1) of the Police Procedures and Criminal Evidence (Preparatory Hearings) Rules 2003 provides that:-

"An application for leave to appeal under Article 90(1) of the 2003 Law [the provision under which this application is made] shall be made in the first place to the Bailiff within 5 days of the making of the ruling to which it relates."

The present application is dated yesterday's date, the 4^th March.  Time expired on the 22^nd of February, but allowing for the fact that that was a Sunday, on the 23^rd of February at latest.  So the application is 9 days late.  The rule is expressed in mandatory terms and there is no provision for a discretionary extension of time contained within the rules.  This is not surprising since the purpose of holding a preparatory hearing, and of allowing an appeal from it, is so that issues of admissibility of evidence and law can be disposed of in good time before the trial commences, so as not to delay it.  I have considered my discretionary power to extend time within the rules of the Court, but I do not consider that this is a case for the exerciser of my discretion to extend time and I decline to do so. 

9.        I regret to say that I regard the present application as one which is designed not to assist the management of the trial but to frustrate it.  The applicant was present at the hearing, the fact that he was unrepresented was his own choice and any disadvantage he alleges he suffered was self-induced.  If he will allow me to say so, he is not without experience in these matters.  He heard all the evidence, he heard what was said and if he disagreed with it he could have put in his application forthwith.  Even if I considered that any appeal lay I would have refused leave.  The application is without merit and is not reasonably arguable. 

10.      So far as the position of Advocate Gollop is concerned, it is to be noted that it was not his erstwhile client Mr Welsh who raised the objection and he has not given any notice of appeal against the ruling.  Considering that Advocate Gollop has now been in the case for over a year, it is surprising that if there was any ground of complaint it was not made earlier.  It was certainly not made by any of the experienced trial advocates who, until a month ago, represented the defendants.  I regard this as an opportunistic allegation. 

11.      I have considered the rules of conduct laid down by the Law Society of Jersey which came into force on the 30^th September, 2005.  I have done so because it is asserted in the notice of application that the rules of conduct relating to counsel in England laid down by the Bar Council contain certain provisions which it is said were breached in the present case.  What governs the conduct of advocates in Jersey are not those rules but the code of conduct to which I have referred.  Having read with care that code of conduct, I find nothing in it which supports the suggestions made in the notice of application.  The nearest I come to it is in paragraph 4 where it is said "a member or a members firm may act for the adversary of a former client provided that such member or members firm is not privy to confidential information in respect of former client relevant to such dispute."  I repeat there is nothing in those rules which supports the suggestions made in the notice of application.

12.      As to my own position, I say at the outset that these matters were raised without prior notice, without any written submissions, and I had no opportunity of considering them in advance.  So far as the application to recuse myself was concerned, it came out of the blue and, as I say, without any prior indication.  I have presided over this trial from the outset, no specific allegations were put forward in support of the application that I should recuse myself and again the application was made at a late stage of the proceedings within 4 weeks of the start of the trial.  I have given several rulings, some a year ago, without any complaints being made by the experienced advocates who then represented these defendants, of any bias on my part and I must say I am surprised and hurt that it should be made now.  The fact that I have ruled against the defendants in their various applications does not mean that I am biased against them, I have done my utmost to ensure that they have had a fair hearing in every respect.  The reason I ruled against them was because their applications were without merit.  It does not demonstrate any bias on my part and I reject those suggestions.

13.      I reflect what the position would have been if I had acceded to these applications.  The defendants had, at that stage, dismissed their own counsel, save for one of them, though I am very glad to see that two more have been restored to the fold, and I welcome their appearance.  There would have been no prosecuting counsel, had the application succeeded and no judge to preside over the trial.  That would have lead to the wholesale disruption of the trial.  I am not prepared to see that happen.  I refuse the application and I make it plain that if there had been any right of appeal I would have refused leave.

14.      Reporting restrictions should continue until further direction.

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Police Procedures and Criminal Evidence (Preparatory Hearings) Rules 2003.