Jersey Unreported Judgments

[2010]JRC179

royal court

(Samedi Division)

6^th October 2010

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

 

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW.

The Applicant represented himself.

H. Sharp, Esq., Solicitor General for the Respondents.

judgment

the commissioner:

1.        On 27^th September 2010 I refused the applicant leave for Judicial Review and now set out my reasons more fully.

2.        The applicant was charged with road traffic and data protection offences on 3^rd June and 8^th July 2009 respectively.  I was not given a summary of the history of the proceedings against him in the Magistrate's Court but was informed that his trial was due to commence at 10 a.m. that morning and was scheduled to start with an application by the applicant to the Magistrate for a stay of the prosecution for abuse of process.

3.        The application for Judicial Review was lodged with the Royal Court late on Friday 24^th September 2010.  It named the Attorney General and the Connétable of Grouville as the two respondents.  The parties were notified that the application would be heard before me at 7 a.m. on Monday 27^th September so as to allow proper time for them to address the Court in advance of the trial starting at 10 a.m. that morning.

Recusation

4.        At the outset of the hearing, the applicant sought my recusation on the grounds that I knew the respondents to the application.  I confirmed that I had no conflict and that there was no reason that I was aware of which would have prevented my hearing the application.  I pointed out that in a small jurisdiction such as Jersey it was inevitable that a Commissioner appointed locally would know, for example, the Crown Officers and that in my view, and applying the appropriate test set out in In re Esteem Settlement [2001] JLR 169 at page 170, the circumstances would not lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger that I was biased.

Application for adjournment

5.        The applicant then applied for his application for leave to be adjourned, pending the filing of further evidence to meet an assertion of the Solicitor General in his skeleton argument filed at the weekend that there was a conspicuous failure to provide any cogent evidence to support the allegations that he was making in his application. I rejected the application for an adjournment on the basis that I would first consider the two contentions raised by the Solicitor General in his skeleton argument, namely that the applicant had an alternative remedy to that of Judicial Review and that there had been a delay in applying for Judicial Review, as they would determine the matter if successful.

The application

6.        In my interpretation of the documents filed by the applicant and of his oral submissions he was alleging abuse of process on the part of the prosecution, centrally that he is a victim of a malicious prosecution.  In support of that central allegation, he alleged (in summary):-

(i)        that he is a direct and immediate victim of a variety of unlawful policies, decisions and actions taken by the holder of the office of Attorney General and his agents;

(ii)       the office of the Attorney General is inherently unlawful in nature and incompatible with the requirements of the ECHR;

(iii)      he is the victim of political oppression conducted by the office of Attorney General and is a victim of clear breaches of Article 47 of the States of Jersey Law (which makes it a criminal offence to blackmail, threaten, assault, obstruct or molest States members in order to influence their conduct);  as a consequence of which he was unlawfully driven from political office;

(iv)      that the purpose of the prosecution was to conceal a wide range of serious crimes committed by others including senior public employees, various public authorities and by the office of the Attorney General itself.

(v)       from at least 2007 to the present time, the applicant had suffered a constant campaign of unlawful harassments and oppressions (including  a massed  police raid and unlawful covert surveillance) conducted against him by the office of the Attorney General, to which unlawful enterprise the Connétable of Grouville had latterly joined.

(vi)      Advocate Steven Baker, who was acting for the prosecution in the Magistrate's Court, had an improper, direct, personal and conflicted interest in the oppression of the applicant and had made a variety of decisions as prosecutor, particularly in respect of disclosure of evidence, that were biased, improperly motivated and not compatible with the requirements of the ECHR .He had also committed perjury.

Decisions to be reviewed

7.        The applicant had written to the Attorney General on 24^th August 2010 (I was not shown a copy of the letter) apparently drawing a variety of unlawful actions and decisions to his attention including the above and asking him to rectify and put right "all of the unlawful mischiefs",  which the applicant asserted he had failed to do.  The applicant required scrutiny by way of Judicial Review both of the Attorney General's decision not to put right these unlawful mischiefs and the unlawful mischiefs themselves.

The relief sought

8.        The applicant sought the following relief:-

"1:       An immediate stay of proceedings in respect of the case against the applicant being conducted in the Magistrate's court, until such time as the matters raised by this application and in the accompanying affidavit - in so far as they relate to the prosecution being conducted against the applicant - have been resolved by the court.

2:        A declaration that the prosecution against the applicant as originated and conducted fails to meet the relevant test of lawfulness - and remit the decisions concerning the prosecution - including the declare (sic) and admissibility of evidence - to the Attorney General as the relevant public authority for re-consideration.

3:        A declaration that the involvement of Advocate Stephan (sic) Baker, given the decision-making power by which he exerts great influence over the proceedings in the case in the Magistrates' Court in respect of the applicant, is not lawful, given conflicts of interest on the part of Advocate Baker, which render him acting as a public authority, self-interested in the outcome of decisions, and not capable of meeting the request (sic) tests of impartiality.

4:        A declaration that the involvement of the Office of the Connetable of Grouville in the charging and prosecution of the applicant is unlawful, on the grounds of the Connetable being a politician and member of the Jersey legislature not being compatible with the use of policing, charging and prosecution powers against opposing members of the Jersey legislature.

5:        A declaration that the evidenced involvement of a number of senior public officials in the unlawful engineering of the dismissal of the applicant from the Office of Minister for Health and Social Services - and the formal criminal complaints made against such actions, by the applicant - are matters of fundamental public law and public policy importance, and remit to the Attorney General the question of prosecuting the individuals in question.

6:        A declaration that the covert police surveillance conducted against the applicant was unlawful.

7:        a declaration that the massed police raid, and imprisonment of the applicant was unlawful.

8:        A declaration that the search mounted of the property at that time was unlawful in the absence of a search warrant.

9:        A declaration that the above-described actions were disproportionate.

10:      A declaration that the human rights of the Applicant have been breached, many of the actions and decisions taken in respect of him, not being consistent with the requirements of the Human Rights (Jersey) Law 2000.

11:      The award of damages to the applicant in respect of financial losses he has suffered as a result of the unlawful acts  complained of, and further damages for the harm, suffering and wrongs he has endured."

Alternative remedy

9.        The test for the grant of leave to apply for Judicial Review is set out in paragraph 12 of the Court of Appeal decision in Welsh v the Deputy Judicial Greffier [2009] JCA 145C, where the Court said this:-

"12.    The latest learning on the test for the grant of leave to apply for Judicial Review is set out in the case of Sharma v Browne Antoine [2007] 1 WLR 780 where Lord Bingham said:-

'(4)      The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: see R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628 and Fordham, Judicial review Handbook 4^th ed (2004), p 426' (Para. 14)

This exegesis, in my view, elaborates what is meant by '...an arguable case that a ground for seeking Judicial review exists which merits a full investigation at a full oral hearing with all parties and all the relevant evidence' (Yates v Minister of Planning and the Environment [2006] JRC 167), a decision of the Royal Court."

10.      The availability of an alternative remedy forming a discretionary bar to the grant of leave was considered further in Attorney General v Bhojwani [2010] JRC 042.  In that case, the trial judge had rejected a defence application to exclude certain evidence obtained by the Attorney General in Nigeria.  The defendant then applied to the Royal Court for Judicial Review of the decision of the Attorney General to adduce and rely on that evidence at the trial.  Birt, Bailiff, refused leave on the ground that such matters are entirely within the province of the trial judge when considering whether to allow evidence to be admitted or whether there had been an abuse of process.  All of these points could be made with equal vigour before the Court of Appeal in the event of a conviction in support of an argument that the evidence should not have been admitted or that there had been an abuse of process.  It was the sort of parallel or satellite litigation which the Privy Council in Sharma v Brown-Antoine (2007) 1 WLR 780 discouraged.  The defendant had therefore a perfectly satisfactory alternative remedy and leave to apply for Judicial Review was refused on that ground.

11.      In Sharma, the Chief Justice of Trinidad and Tobago sought leave to judicially review the decision of the DPP to prosecute him for attempting to pervert the course of justice on the grounds that the DPP's decision had been influenced by political pressure from the Prime Minister and the Attorney General.  The Privy Council held that he should not have been granted leave to apply for Judicial Review because the matters in issue could be adequately dealt with in the criminal process.  The headnote in Sharma reads:-

"That although a decision to prosecute was in principle susceptible to judicial review on the ground of interference with a prosecutor's independent judgement, such relief would in practice be granted extremely rarely; that in considering whether to grant leave for judicial review, the court had to be satisfied not only that the claim had a realistic prospect of success, but also that the complaint could not adequately be resolved within the criminal process itself, either at the trial or by way of an application to stay the criminal proceedings as an abuse of process.  That since, in the circumstances, all the issues would best be investigated and resolved in a single set of criminal proceedings, permission for judicial review ought not to have been granted and had rightly been set aside."

12.      The decision of the Privy Council in Sharma has been followed by the Jersey Court of Appeal in Trant v Attorney General [2007] JCA 073 and by the Royal Court in Bhojwani.

13.      As in Sharma, the application before me concerned allegations of abuse of process and applying the principles laid down in Sharma, it was clear that they could and should be dealt with within the trial process; indeed, time had been set aside for just such an application before the Magistrate that very morning.  In the event of such an application being unsuccessful, then in the event of a conviction, the applicant's arguments can be pursued on appeal.

14.      The applicant put forward a number of arguments suggesting that the Magistrate's Court process did not provide an adequate remedy, all of which centred on the inability he perceived of the Magistrate to deal with the wide questions raised by his application and in particular the structure and powers of the office of the Attorney General.  I rejected  these arguments, partly because the applicant had yet (as I understood it) to make his application for a stay on the grounds of an abuse of process and he was therefore pre-judging the outcome of that application, and secondly because I have no doubt that the Magistrate's Court is equipped to deal with complaints of abuse of process.

15.      I was not shown any of the interlocutory decisions made to date by the Magistrate in the prosecutions against the applicant, but in any event, the applicant made it clear that he was not seeking Judicial Review of any such decisions; instead he sought Judicial Review of the decisions of the prosecution. 

16.      In R v Director of Public Prosecutions ex parte Kebilene & Ors [2002] AC 326, the House of Lords was concerned with an attempt to circumvent a statutory provision preventing Judicial Review of decisions of the Crown Court  in matters relating to trial on indictment  by seeking Judicial Review of the decisions of the prosecution.  Lord Hobhouse of Woodborough said this at 394B;-

"The Divisional Court avoided this conclusion by saying that it was the Director's decision which it was sought to review not that of the Crown Court judge. My Lords, this reasoning places a gloss on the subsection. If the substance of what is sought to review is the answer to some issue between the prosecution and the defence arising during a trial on indictment, that issue may not be made the subject of Judicial Review proceedings.  The issue is within the jurisdiction of the Crown Court judge and (subject to appeal) it is for him to decide it. It does not provide a basis for reviewing the decision of the litigator when one is precluded from reviewing the decision of the court.  Suppose that the Crown Court judge had accepted the submission of the prosecution on compatibility:- would it be suggested that the defendants could go to the Divisional court on the basis that the Director had taken a wrong view of the law and so obtain a reversal of the judge's decision?  In my judgement, it is not correct either as a matter of the construction of section 29(3) or as a matter of principle to use the device of purporting to review the conduct of the Director to obtain the relitigation in the Divisional Court of an issue in the criminal trial." (Emphasis added)

17.      The substance of what the applicant seeks to have reviewed in this case is an issue, alleged abuse of process, between prosecution and defence which should properly be for the Magistrate to decide in the course of the proceedings in the Magistrate's Court.

18.      As a matter of English law, proceedings in the Magistrate's Court must ordinarily be concluded before any application for Judicial Review.  In Hoar-Stevens v Richmond Magistrates' Court (2003) EWHC 2660, Kennedy LJ said this:-

"In General, No relief During Hearing, Jurisdiction

2.        Normally this court will not entertain an application for a quashing order in relation to a decision made in a magistrate's court where the proceedings in that court are not complete.  In R v Rochford Justices ex p Buck (1978) 68 Cr.App.R 114 it was said that there is no jurisdiction to do so, and a distinction was drawn between an order to direct a magistrate to hear and determine a matter, which can be obtained if he refuses to do so, and an order, as Cockburn CJ put it in Carden (1879) 5 QBD 1 at 5, "to control the magistrate in the conduct of the case or to prescribe to him the evidence which he shall receive or reject.". Such control, it was said, could only be exercised when the case was at an end. In Buck the prosecution had sought to introduce certain evidence which the justices ruled inadmissible.  The matter was then adjourned to enable the prosecution to test the ruling in the Divisional Court.  When giving judgment in this court Lord Widgery CJ said that the decision to adjourn was wrong.  The prosecution were asking this court to do what Cockburn CJ had said could not be done, that is to say to exercise a measure of control over the way the magistrates try the case.  At page 118 he said:

'The obligation of this court to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both to summary trial and to committal proceedings. Accordingly, I would be prepared to dispose of this matter on the first argued point, namely, that there was no jurisdiction in this Court to interfere with the justices' decision, that not having been reached by termination of the proceedings below.'

Conclusion

18.      Moreover even today it seems to me that there are powerful reasons for accepting the guidance offered by Buck.  It is of the utmost importance that the course of a criminal trial in the Magistrates' Court should not be punctuated by applications for an adjournment to test a ruling in this court, especially when in reality if the case proceeds the ruling may turn out to be of little or no importance."

19.      In my judgement, this offers useful guidance to this Court and although the application before me was framed as an application to review decisions of the prosecution and not of the Magistrate, it was as I have said in substance an attempt to review issues that should be within the jurisdiction of the Magistrate to decide.  The obligation of this Court is to keep out of the way until the prosecution before the Magistrate is completed.

20.      The applicant submitted that the decisions over which he sought judicial review were separable and that I should give consideration to granting leave in relation to some decisions but not others.  At the same time he submitted that the relief sought (specifically prayer 5) was interrelated.  The very broad terms in which judicial review was sought made it difficult if not impossible to separate out the decisions for review in this way. In any event I took the view that all of the matters raised by the applicant constituted allegations of abuse of process made in support of the central allegation that the applicant was the victim of a malicious prosecution, all of which were properly for the Magistrate to decide.  I declined therefore to separate out the decisions for review.

21.      I therefore concluded that there was an alternative remedy to Judicial Review which acted as a bar to the grant of leave and I refused leave on this ground.

Delay

22.      Under the provisions of Rule 16/3(1) of the Royal Court Rules, an application for leave to apply for Judicial Review must be made promptly and in any event not later than three months from the date when grounds for the application first arose.  Under Rule 16/3(3) an application may be made after the period of three months has expired if I was  satisfied:-

(i)        That there is good reason for the application not having been made within that period and

(ii)       That if the relief sought were granted, on an application made at this stage, it would not be likely to cause substantial hardship to, or substantially prejudice  the rights of, any person or be detrimental to good administration.

23.      Whilst the applicant's letter to the Attorney General of 24^th August 2010 comes within the three months period, the underlying complaints substantially pre-date it.  The prosecution was first brought in June and July of 2009 and yet no application for Judicial Review was made until the eve of the trial.  The applicant cited his own ill health and inability to obtain legal aid as contributory factors in this delay.

24.      I note however from Stuart Syvret-v-The Attorney General [2009] JRC 165 that in August 2009 the applicant was able to pursue an appeal by way of case stated against the decision of the Magistrate not to recuse herself and that his submissions before Royal Court cited the "hopeless and structural disfunction" of the judicial arrangements in Jersey; echoes of similar arguments to those in the application before me.

25.      There is a strong public interest in criminal matters being pursued without delay and I agree with Mr Sharp that the applicant has not put forward a good reason for his application being brought on the very eve of the trial over a year from the commencement of the prosecutions against him. It should have been brought within three months of the prosecutions being brought. In my view the application was a misconceived attempt to interfere in the due process of the criminal prosecution of the applicant before the Magistrate's Court.  For the Court to grant leave and thus cause a further no doubt substantial delay in the prosecution of those cases before the Magistrate's Court would be detrimental to good administration. Accordingly, on this ground, and independently of the availability of an alternative remedy, I also refused leave.

Costs

26.      I awarded the Attorney General his costs on the standard basis.  The applicant resisted a costs order on the grounds that his application raised matters of public interest which he was under a duty to pursue.  Costs were a weapon being used to stop and deter him. 

27.      However, he accepted that the Attorney General had written to him on 14^th September 2010 referring to the judgment in Bhojwani (and later providing a copy) and explaining that he should pursue the alternative remedy of placing all of his arguments before the Magistrate.  He continued with his application notwithstanding. 

28.      In my view, it is in the public interest that there be discipline in the use of court proceedings and that it is right in principle that litigants should suffer the consequences of knowingly pursuing an application which they had been warned was likely to fail.

Appeals

29.      Finally, the applicant's applications for leave to appeal against my refusal to recuse myself, the application for adjournment and my decision not to grant leave for Judicial Review were rejected.

Authorities

In re Esteem Settlement [2001] JLR 169.

Welsh v the Deputy Judicial Greffier [2009] JCA 145C.

Attorney General v Bhojwani [2010] JRC 042.

Sharma v Brown-Antoine (2007) 1 WLR 780.

Trant v Attorney General [2007] JCA 073.

R v Director of Public Prosecutions ex parte Kebilene & Ors [2002] AC 326.

Hoar-Stevens v Richmond Magistrates' Court (2003) EWHC 2660.

Royal Court Rules.

Stuart Syvret-v-The Attorney General [2009] JRC 165.