Jersey Unreported Judgments

[2009]JRC108A

royal court

(Samedi Division)

1^st June 2009

 

The Applicant represented himself.

Advocate P. Matthews, the Deputy Judicial Greffier, was present.

judgment

COMMISSIONER:

1.        On 1^st June, I refused an application by Curtis Francis Warren ("the applicant") for leave to institute judicial review proceedings against a decision of the Deputy Judicial Greffier, refusing permission to authorise funding of English counsel to attend in Jersey and to advise the applicant during the course of his trial before the Royal Court ("the decision") and now set out my reasons.

2.        The applicant was advised by the Judicial Greffe to make the application under Rule 16/2 of the Royal Court Rules 2004 which only applies to applications for judicial review in civil proceedings (Rule 16/1(4)).  It seemed to me arguable that the application could be categorised as an application in criminal proceedings (see the Court of Appeal decision in McMahon v Attorney General [1993] JLR 108).  It is clear that the Court has an inherent jurisdiction to entertain applications for judicial review (see Acturus Properties v Attorney General [2001] JLR 43 at paragraph 11) and as Mr Matthews pointed out the test would be the same, whether the Court is operating under Rule 16/2 of the Royal Court Rules or its inherent jurisdiction .  Out of fairness to the applicant, I proceeded to hear the application exercising my powers either under Rule 16/2 of the Royal Court Rules 2004 or under the Court's inherent jurisdiction. 

The decision

3.        In substance, the background is as follows:-

(i)        The applicant is one of a number of defendants all of whom had advocates appointed to them under the Legal Aid scheme.

(ii)       The defendants applied for the criminal proceedings to be stayed on the grounds of abuse of process.  Their advocates sought funding to engage the services of leading English counsel at the abuse of process hearing before the Royal Court and the subsequent appeal.  In the view of the Deputy Judicial Greffier, the application raised a discrete area of law on which there was little local authority and on which he agreed that legal advice as to the law of England was merited.  Accordingly, funding for the advice of Mr Dorian Lovell-Pank QC was obtained and it is clear from his fee notes that his advice was channelled predominantly through the applicant's counsel.

(iii)      Following the Abuse of Process applications, which were unsuccessful, all the defendants (bar one) dismissed their Jersey advocates.  Two of the defendants then applied for and had appointed other Jersey advocates to represent them.  The other defendants have since accepted back the advocates originally appointed to them leaving only the applicant representing himself. Thus all the defendants bar the applicant have a Jersey advocate appointed to represent them in the trial.

4.        Instead of applying to the Acting Bâtonnier for the appointment of another advocate to represent him, the applicant decided to represent himself, but was in need of expert advice, specifically from an English lawyer Mr Barraclough who had apparently attended the abuse of process hearings on a pro bono basis and who I presume is an English criminal law specialist.  He therefore applied to the Deputy Judicial Greffier by letter dated 19^th February 2009 for the services of Mr Barraclough to be funded out of the Legal Aid fund.

5.        The Deputy Judicial Greffier responded by letter dated 26^th February 2009, (the delay being attributable to a period of illness) asking the applicant to set out in full the grounds upon which he came to dispense with Advocate Baker's services, to inform him of steps he had taken to have a Jersey advocate appointed for the trial and to set out all the matters on which he relied in connection with his application.

6.        The applicant responded by letter dated 28^th February 2009 and in summary:-

(i)        He said that he had dispensed with the services of Advocate Baker because, having appraised him of the defence tactics, Advocate Baker was apparently concerned with his own position.  As a result of that, the applicant lost confidence in him.

(ii)       It was his right to have a lawyer of his choosing, not one appointed to him, and that is why he sought funding for a legal adviser from England to help conduct his defence.

(iii)      Mr Barraclough would be there not to represent him in Court, but to advise him on the cross-examination of witnesses, his main line of defence being the actions and conduct of the States of Jersey Police and the prosecution - in essence the matters which were the subject of the abuse of process application.

7.        The Deputy Judicial Greffier considered the application and responded with his decision on 4^th March 2009.  It is convenient to set out his letter in full:-

"Dear Mr Warren

Application for Legal Aid Funding for UK Legal Adviser Mr Barraclough

Thank you for your letter of 28^th February, 2009 (received 3^rd March, 2009).  This is the first application requesting funding for the appointment of English counsel to assist a defendant in a criminal trial I have received and I have therefore considered the content of your letter most carefully.

I am not persuaded that the right to appoint a lawyer of one's choosing extends to appointing a lawyer from a foreign jurisdiction.

The Bâtonnier appointed Advocate Baker under the Legal Aid Scheme which operates in this Island.  Advocate Baker is a very experienced lawyer and, it is fair to say, one of the leading lawyers in this jurisdiction.  Advocate Baker would advise you both fearlessly and fairly.  It appears that you have not heeded Advocate Baker's advice in relation to the proposed conduct of your defence.

As in England, a lawyer in Jersey has duties not only to a defendant but also to the Court and I surmise that the disclosure of your proposed defence tactics caused Advocate Baker, and would cause any defence lawyer, to be professionally embarrassed or compromised, such that he or she could not longer act for you.

If there were valid grounds for dispensing with Advocate Baker's services the Bâtonnier would consider appointing another Jersey lawyer to act for you.  You have not advised me of what, if any, steps you have taken to obtain the services of another Jersey lawyer and I assume this is because you have decided not to seek the appointment of another Jersey lawyer but only wish to secure the services of Mr Barraclough.

The proposed purpose for seeking assistance from Mr Barraclough is to assist your cross-examination of witnesses in relation to the actions and conduct of the States of Jersey Police and the Law Officers' Department.  The Royal Court and the Court of Appeal have dismissed the abuse of process and admissibility of evidence applications and I do not understand the relevance of such line of cross-examination at trial.  The conduct complained of is admitted in any event.  Cross-examination on such conduct in relation to certain police witnesses might be relevant to undermine credibility but in this case the prosecution evidence is based, inter alia, on recordings made of conversations and the defence have received copies of the original recordings.  This is not a case where there is any dispute that Officer A says the defendant said XYZ and the defendant asserts he said nothing or something different.

There is a Legal Aid Scheme in Jersey which ensures that defendants, if they so wish, can be represented by an advocate.  The Scheme also enables a second lawyer to be appointed where there are appropriate grounds for doing so.  I am satisfied that the Scheme is adequate and I am not prepared to grant your request to fund English counsel on your behalf.

In addition I am not satisfied as to the relevance of cross-examination on the conduct issues bearing in mind the findings of both the Royal Court and the Court of Appeal in the abuse and admissibility applications.

Yours sincerely

Advocate P Matthews

Deputy Judicial Greffier"

8.        The Deputy Judicial Greffier subsequently and at the direction of the Bailiff filed an affidavit dealing with the funding of Mr Lovell-Pank QC to provide specialist legal advice to all the defendants in connection with the abuse of process application and subsequent appeal to the Court of Appeal.  He further confirmed in that affidavit that in relation to the forthcoming trial all of the other co-accused are represented by Jersey advocates and that no Legal Aid funding had been granted to any co-defendant to be represented by leading counsel who is not a member of the Jersey Bar.  Furthermore, he confirmed that he had not received, nor would he expect to receive, any application by the advocates for the other co-defendants for any assistance from leading counsel in connection with the trial or trial preparation.

The hearing

9.        At the hearing on 1^st June 2009, I explained to the applicant that judicial review is not an appeal but a check on the legality of the decision.  The Court is not entitled to substitute its own view for that of the decision maker (see Acturus paragraph 21).  I took the applicant through the grounds for judicial review, namely the GCHQ Trilogy, and read to him the extract from the judgment of Lord Diplock in Council of Civil Service Unions v Minister of Civil Service (7) (1984/3) AER at 950 -951 as quoted at paragraph 26 of Acturus.  He readily accepted that his application was not grounded on either illegality or procedural impropriety, but on irrationality and that it was for him to persuade a court if leave were granted that the decision of the Deputy Judicial Greffier was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

10.      The applicant submitted that the Deputy Judicial Greffier's decision was outrageous or illogical on a number of grounds:-

(i)        The Deputy Judicial Greffier had given two of the co-defendants new advocates under the Legal Aid Scheme;

(ii)       It was unfair that the prosecution were given funds to engage the assistance of English counsel (which he believed to be the case) when he was deprived of the same facility;

(iii)      If he applied for a Jersey advocate to be appointed, he was certain that he would be granted one, but he did not see the point, as he wished to represent himself. However because he was not that skilled in certain technical areas, he needed the assistance of English counsel; those technical areas being the matters raised in the abuse of process application and cross border activities.

(iv)      No reasonable person would deprive him of an adviser in his circumstances.  Without assistance, the trial will be subject to delay and disruption caused by constant interruptions as a result of his lack of skill and it would therefore be more cost effective for assistance to be funded.  He estimated that the trial, currently estimated at six to eight weeks, could take two to three months without such assistance. 

11.      Whilst acknowledging that an amicus had been appointed to assist the Court, whose performance, he said, had been "brilliant", he did not wish to avail himself of any assistance that the amicus might be able to give.

12.      The Deputy Judicial Greffier in response pointed out that there was confusion on the applicant's part as to his role.  He did not administer the Legal Aid Scheme, which is administered by the Acting Bâtonnier, and he had no role in the funding of the prosecution's costs.  His role was limited to  administering the Legal Aid fund, which, as its title suggests, is used:-

(i)        To meet disbursements for litigants in civil matters and defendants in criminal matters, such as the cost of engaging independent experts, medical advisers and specialist legal advisers.

(ii)       To provide funding for Jersey counsel in unduly onerous cases.

13.      The applicant's complaint was, in essence, an attack on the Legal Aid system, for which the Deputy Judicial Greffier had no responsibility, other than his role in disbursing the Legal Aid fund.  He pointed out that the Court had appointed an amicus whose assistance the applicant had elected not to utilise and his real remedy lay in applying for a Jersey advocate to represent him, which he had declined to do.  There was no requirement on the part of any of the defendants in this trial for ongoing specialist English law advice.

14.      I accepted the submissions of the Deputy Judicial Greffier.  In my view, his position was logical and his application of the Legal Aid fund in this case consistent.  However, whatever my views of the merits of the decision, it was absolutely clear to me that the applicant had no real prospect of persuading any Court that the decision was so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Furthermore it was clear to me that the applicant had another remedy to address his lack of skills, namely, to apply to the Acting Bâtonnier for the appointment of an advocate to represent him under the legal aid scheme.

15.      I therefore refused leave to the applicant to institute judicial review proceedings under Rule 16/2 of the Royal Court Rules 2004 or alternatively under the Court's inherent jurisdiction.

Authorities

McMahon v Attorney General [1993] JLR 108.

Acturus Properties v Attorney General [2001] JLR 43.

Royal Court Rules 2004.

Council of Civil Service Unions v Minister of Civil Service (7) (1984/3) AER.