Jersey Unreported Judgments

[2010]JRC182

royal court

(Samedi Division)

8^th October 2010

Before     :

Sir Philip Bailhache, Kt., Commissioner, and Jurats De Veulle, Kerley, Nicolle, Le Brocq, Bullen and Allo.

 

Advocate F. B. Robertson for the Petitioner.

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

Advocate M. T. Jowitt for the Commonwealth of Australia.

judgment

the commissioner:

Introduction

1.        This is a petition of doléance brought by Philip Eric de Figueiredo ("the applicant") seeking a review of a decision of Tucker, Commissioner, given on 9^th September 2010, whereby he refused an application for an adjournment of the applicant's appeal against a decision of the Attorney General to order his extradition to Australia.  The applicant sought the adjournment in order to prepare an application which would compel the Attorney General to disclose documents alleged to exist and to be relevant to the applicant's appeal against the Attorney General's decision.

Article 54 of Extradition (Jersey) Law 2004

2.        The first matter for consideration is whether this Court has jurisdiction to hear this petition.  The Solicitor General, supported by counsel for the Commonwealth of Australia, asserts that there is no jurisdiction.  The basis of that assertion is Article 54 of the Extradition (Jersey) Law 2004 ("the 2004 Law") which is in the following terms:-

"A decision under this Part of the Magistrate or Attorney General may be questioned in legal proceedings only by means of an appeal under this Part".

The Solicitor General submitted that an appeal under Part 2 of the 2004 Law was very restricted in its scope.  An appeal to the Royal Court against the Attorney General's extradition order may only be brought on a question of law (Article 45).  The Royal Court may only allow such an appeal either on the ground that the Attorney General ought to have decided differently a question before him, or that there is a new issue or information which was not available to the Attorney General and that issue or information would have resulted in his deciding a question differently (Article 46).  The only issues to be determined by the Attorney General relate to the existence of the death penalty, specialty, and earlier extradition to Jersey from another territory (Articles 30-33).  If the Attorney General determines those issues by finding that he is not prohibited from ordering a person's extradition, he is under a mandatory duty to make an extradition order.  There is no discretion.  Very unusually, the 2004 Law provided that there was to be no further appeal to the Court of Appeal.  Appeal would lie from the Royal Court direct to the Privy Council only with leave.  The clear purpose of the statute, the Solicitor General submitted, was to streamline the extradition process and to avoid the lengthy delays for which extradition in the British Isles had previously been notorious. 

3.        Mr Robertson, for the applicant, submitted that the doléance was not an appeal against the decision of the Attorney General, but a form of appeal against the decision of the Commissioner.  Article 54 of the 2004 Law was not relevant.  In support of that contention, he referred the Court to a judgment of the Divisional Court in England in Asliturk v City of Westminster Magistrates' Court.  That was a case where the claimant, a Turkish national, sought judicial review of a refusal by the District Judge to order his discharge.  Section 75 of the Extradition Act 2003 provides that an extradition hearing should begin within a certain time limit and that, if it does not, "the judge must order his discharge". In fact, the hearing had begun four days late.  Some considerable time after the commencement of the hearing, the claimant had applied for his discharge.  Before the Divisional Court one of the issues for determination was whether Section 116 of the Act ousted the jurisdiction of the Court to hear an application for judicial review.  Section 116 is for all practical purposes in exactly the same terms as Article 54 of the 2004 Law.  In refusing to accept that the Divisional Court had no jurisdiction, Stanley Burton LJ stated at paragraph 24:-

"[24]   A statutory provision that purports to restrict the right to apply for judicial review or for a writ of habeas corpus is to be narrowly, but sensibly, construed.  Section 116 does not purport to exclude recourse to the court: it restricts the manner of recourse to the court.  However, in my judgment the refusal of the appropriate judge to order the discharge of a person under s 75(4) is not a decision for the purposes of s 116."

4.        It is unnecessary for us to cite the judge's reasoning because the decision is not directly in point.  It does, however, indicate the reluctance of the English court to exclude an application for judicial review in the context of extradition proceedings. 

5.        For our part, we do not consider that Article 54 ousts the jurisdiction of the Royal Court to hear a petition of doléance.  A decision of the Magistrate or of the Attorney General does not embrace an interlocutory decision of the judge of the Royal Court hearing the appeal in question.  We therefore reject the submission of the Solicitor General. Nonetheless, the broad purpose of the 2004 Law is a relevant matter to be taken into consideration in determining whether doléance should lie in this case.

Doléance

6.        We turn to consider the proper limits of the remedy of doléance.  It is a remedy the use of which has fluctuated over the centuries.  In 1943, Le Gros was able to write:-

"Heureusement de nos jours, la doléance est peu usitée.  Elle était autrefois d'un usage fort commun.  La justice est maintenant administrée suivant les lois, coutumes et usages 'tant aux riches qu'aux pauvres sans acception de personne.' Les luttes politiques d'autrefois, avec toutes les conséquences regrettables qu'elles engendraient, avaient leur répercussion sur le banc de Justice.  Tout est changé.  Il s'est produit un changement dans le caractère et le génie du peuple jersiais qui, d'abord peu marqué, se manifeste aujourd'hui par le désir du triomphe du droit."

7.        In 1985, however, it had a renaissance.  In Re Barker [1985-86] JLR 284 a doléance was allowed and an order of the Inferior Number of the Royal Court establishing a novel procedure between a dégrèvement and a remise de biens was annulled on the ground of excess of jurisdiction.  Frossard, Commissioner, stated that "...".a doléance must show that there had been a failure of natural justice leading to injustice...". 

8.        In Re Harbours & Airport Committee [1991] JLR 316, Tomes, Deputy Bailiff, after an exhaustive analysis of the history of doléance, laid it down that doléance:-

(i)        no longer carried its character of being an attack upon the integrity and honour of the judge;

(ii)       was available to all legal persons; and

(iii)      was available where there was no other right of appeal or remedy and there was a manifest error of law upon the record.

9.        Both these decisions were made, of course, in the context of civil proceedings.  In the sphere of criminal procedure, a petition of doléance was made in Re Lagadec [1996] JLR N 9C, where the Court held that, in the absence of evidence that a discretionary power to order costs had been improperly exercised, the judge's failure to invite submissions and to give reasons for his decision was not such a failure of natural justice as to warrant a petition of doléance. 

10.      In AG v Michel and Gallichan [2006] JLR N 15, [2006] JRC 089, a doléance was presented complaining of a decision of the trial judge to refuse an adjournment to give counsel more time to prepare his submissions.  Birt, Deputy Bailiff, (as he then was) stated:-

"Essentially the position is this.  A doléance is not an ordinary appeal.  It is a review and the Superior Number may only intervene to overturn a decision where the petitioner satisfies the heavy burden of showing that a grave injustice will result whether it be from an excess of jurisdiction, a breach of natural justice, an error of law or some other manifest judicial error.

In our judgement the burden is particularly heavy when a defendant seeks to challenge an interlocutory decision of a trial judge during the course of case management in relation to criminal proceedings.  Although, save in the case of preparatory hearings under the Police Procedures and Criminal Evidence (Jersey) Law 2003, it is correct to say that there is no immediate right of appeal against an interlocutory decision, it is not correct to say there is no right of appeal at all so that doléance becomes appropriate as being the only method of remedying a manifestly incorrect decision.

That is because if a defendant is convicted he may appeal to the Court of Appeal and may raise as a ground of appeal any criticism which he may have of any interlocutory decisions made by the trial judge.  If satisfied that the interlocutory decision of the trial judge was wrong and has led to injustice the Court of Appeal may allow the appeal.  So we are not in the situation where doléance has most frequently been used, namely where there is in effect no other remedy whatsoever to correct a manifest judicial error. So that militates against the Court intervening in connection with interlocutory case management decisions in a criminal case.

Secondly, such decisions often depend very much upon a detailed knowledge of, and a feel for, the case in question.  This will be possessed by the trial judge, but it will not be possessed by the Superior Number and that is particularly so, of course, in a complex case such as the present."

11.      Finally, in Metzner v Attorney General [2010] JRC 106, the petitioner brought a doléance in respect of a refusal to award certain costs in connection with criminal proceedings.  The Superior Number reminded itself that that there was no right of appeal against a costs order made following an acquittal or discharge from a prosecution.  Even where there had been a conviction, and the costs order could be treated as part of the sentence so as to confer a right of appeal, an appellate court would be slow to interfere with the judge's exercise of discretion.  Birt, Bailiff, in dismissing the petition, stated:-

"Thus, even where there is a right of appeal against a costs order, the threshold for a successful appeal is very high.  Where there is no right of appeal, the threshold must by definition be even higher as otherwise the Court will simply be conferring a right of appeal when none is conferred by law. This is reflected in the jurisprudence concerning doléance.  It is made clear in Re Barker [1985/86] JLR 284 at 291, that doléance is a remedy of last resort when all other doors are closed and a grave injustice will remain unless remedied."

12.      The test which emerges with clarity from these different decisions is that the Superior Number will only intervene "where the petitioner satisfies the heavy burden of showing that a grave injustice will result" (per Birt, Deputy Bailiff, in AG v Michel and Gallichan). Doléance, which involves convening the Superior Number of the Royal Court at short notice, is an extreme remedy of last resort.  It is not to be employed to challenge any exercise of judicial discretion where the law allows of no appeal.  To permit doléance to expand itself into a general remedy of judicial review, particularly in the context of criminal proceedings, would, in our judgement, be an abuse.  It may be worth recalling that an order of His Majesty in Council of 27^th July 1671 provided that:-

"...in case the Complaynant shall not make good his Doléance, His Majesty by the advice of his Councill will lay such ffine upon the Partys fayling, as the Case shall require."

That was a warning shot to litigants bringing inappropriate doléances to the Privy Council.  The principle, nonetheless, holds good in this Court.  A party who is found wrongly to have raised a clameur de haro may expect to be fined.  We think that a similar practice ought in future to be adopted in relation to doléance in appropriate cases so as to deter all but serious and well founded complaints about the administration of justice.  If an appeal does not lie against a particular decision, there is usually good reason for that rule.  A petition of doléance should not be casually employed in circumstances where the law provides no right of appeal.  It is a measure to which parties should resort only to prevent grave injustice.  If inappropriately brought to the Superior Number, it should lay the petitioner open to a wasted costs order. 

Discussion

13.      We turn therefore to apply these principles to the facts of this case.  The applicant seeks to impugn the decision of Tucker, Commissioner, to refuse an adjournment so that the applicant could pursue another application to seek disclosure of documents allegedly in the possession of the Attorney General.  Ironically, the applicant was able to secure an adjournment for a different purpose, namely to consider the second specialty certificate issued by the acting Attorney General on 6^th September 2010.  Be that as it may, the applicant now seeks orders, inter alia, to require Commissioner Tucker to receive an application for disclosure from the Attorney General. 

14.      In refusing the application for an adjournment to enable such an application to be made, Commissioner Tucker ruled in the following terms:-

"Thank you, Advocate O'Connell.  I refuse your application.  I do not regard it as having any merit.  It seems to me the new certificate was granted on the basis of the diplomatic note, which has been disclosed and which sets out the Australian position very clearly.  I am not satisfied that there is any further material information to which you are entitled or which would assist you, and I feel that all issues in the case can be determined by regard to the new certificate and the diplomatic note which preceded it."

15.      In this Court, counsel for the applicant appeared to shift his ground during oral argument as to the reason why it was important for his client to have access to documents allegedly in the possession of the Attorney General.  Initially, it was suggested that disclosure might yield evidence of mala fides on the part of the Attorney General or his office, but that was later withdrawn.  The Solicitor General told us unequivocally that, as the person who had signed the second specialty certificate, he had had sight only of the diplomatic note from the Australian High Commission.  He had had no other involvement with Australian officials, nor had he seen any other correspondence.  He had nothing to disclose and there was no basis whatever for asserting bad faith or collusion between him and Australia.  Faced with those statements from the Solicitor General, counsel for the applicant very properly withdrew any suggestion of bad faith, for which there is indeed not a shred of evidence. 

16.      The only evidence that there might be documents within the Attorney General's department, other than memoranda and advice which are subject to legal privilege, lies in a response from a senior official in the Attorney General's department to a request for "all material and representations which influenced the Attorney General to issue this fresh certificate".  The senior official responded - "In order to consider your request further, please would you explain why you consider that disclosure might be made of material some of which is, on the face of it, subject to legal privilege and to what issue in the appeal any such material might relate". It was the implication that there was some material not subject to legal privilege that led the applicant's legal advisers to contemplate an application to compel disclosure of that material. The issue in question, they said, was "the adequacy of the specialty arrangements".  It should be recorded that the Attorney General did disclose, after some hesitation, the diplomatic note from the Australian High Commission, and the senior official explained that "[t]he new certificate was issued in order to record accurately the terms of the arrangement which exists with Australia as set out in the diplomatic note".

17.      Counsel for the applicant submitted that the material, assuming it exists, might throw light on the alleged lack of "structural impartiality" in the office of the Attorney General in relation to his functions under the 2004 Law.  It is agreed that the Attorney General fulfils responsibilities which, under the equivalent UK Act, are undertaken by the Secretary of State.  In England and Wales, an application for extradition on behalf of a foreign country will be handled by the Crown Prosecution Service.  The argument therefore is that the actions of the Attorney General's department in receiving the Australian application for extradition and initially presenting it to the Magistrate are incompatible with the quasi judicial functions of the Attorney General in determining whether to issue an extradition order.  The resolution of those arguments is, of course, a matter for consideration by Commissioner Tucker in due course in the context of the applicant's appeal, and we should not trespass on the Commissioner's territory.  The only relevance for our purpose is whether there are any grounds for supposing that documentary material exists which might influence Commissioner Tucker in his consideration of the applicant's arguments in relation to the alleged want of "structural impartiality".  The mere expression of the question in those terms underlines the difficulties faced by the applicant in this petition.  The determination of the question which we have just posed is a matter for the exercise of judicial discretion; a case management issue.  It is not for this Court to interfere with such a decision unless satisfied not only that it is plainly wrong, but also that it will lead to a substantial injustice.  Commissioner Tucker clearly had regard to the arguments put forward by counsel for the applicant.  He expressed himself satisfied that there was no further material information in the possession of the Attorney General which would assist the applicant.  He formed the view that the issues in the case could be determined by having regard to the second specialty certificate and to the diplomatic note which preceded it.  It was a case management decision which fell well within the parameters of the judge's discretion. 

18.      Counsel for Australia contended that the proposed application for documents from the Attorney General was in any event a device to get around the rule that discovery does not lie against a sovereign state requesting extradition.  The issue arose in Jenkins and Benbow v USA [2005] EWHC 1051 (Admin), where the extradition of the two appellants was being sought by the USA.  During the course of his judgment, Sedley LJ stated at paragraphs 24 and 25:-

"24.    The second aspect of this argument is that, assuming entrapment not to be made out on the face of the US government's case, the district judge had the power and consequently the obligation to require or at least invite the US government to disclose facts and documents going to the question of entrapment.  Specific disclosure is sought in this regard of covert video and audio recordings which a Metropolitan Police report has indicated are in the possession of the DEA.  From the district judge's failure to do this it followed, in each appellant's original submission, that there was no fair or proper hearing of the extradition request, so that they were and are entitled to be discharged.

25.      But as both counsel now accept, there is no such power and no such obligation in the court hearing an application for extradition."

19.      At paragraphs 29-30, he continued:-

"29.    For the rest, the nature of the process under part 2 of the 2003 Act precludes any general remit of the kind which is contended for.  It is for the requesting state to decide what material to advance in support of its application.  There is a general duty on a requesting state to be candid about vitiating factors in its case (Wellington v Governor of HMP Belmarsh [2004] EWHC Admin 418), but it is not a duty enforceable by inspection or interrogation.  If the defence is able independently to establish a case of breach of the accused's Convention rights, the court must of course entertain it in order to fulfil its remit under s.87: see Re Serbeh (ante).  But none of these instances arise here.

30.      We are therefore unable to accept that the district judge has failed in respect of any legal obligation resting on him to inquire further than he has done into the material placed before him or into its background."

20.      The process in that case was of course at a different stage, but the principle nonetheless holds good.  We agree that in this jurisdiction discovery does not lie against a foreign requesting state and, to the extent that the applicant might be seeking documents which emanate from Australia, he is not entitled to them. 

Conclusion

21.      We think it is worth repeating the passages cited from two English cases by Birt, Deputy Bailiff, in AG v Michel and Gallichan.  In R v Chaaban [2003] EWCA Crim 1012, the judge stated at paragraph 35:-

"35.    A trial judge has always been responsible for managing the trial.  That is one of his most important functions.  To perform it he has to be alert to the needs of everyone involved in the case.  That obviously includes, but is not limited to, the interests of the defendant.  It extends to the prosecution, the complainant, to every witness (whichever side is to call the witness), to the jury, or if the jury has not been sworn, to jurors in waiting.  Finally the judge should not overlook the community's interest that justice should be done without unnecessary delay.  A fair balance has to be struck between all these interests."

22.      In R v Jan Jisl [2004] EWCA Crim 696, the court stated at paragraph 114:-

"The starting point is simple.  Justice must be done.  The defendant is entitled to a fair trial; and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant.  It is not, however, a concomitant of the entitlement to a fair trial that either or both sides are further entitled to take as much time as they like or for that matter as long as counsel and solicitors or the defendants themselves think appropriate."

23.      It is for the trial judge to balance numerous issues during the course of a trial or an appeal, including whether or not to grant an adjournment.  There is no right of appeal against an interlocutory decision in a criminal case, but, if such a decision is wrong and leads to injustice, it can be corrected by the Court of Appeal or, in the case of extradition proceedings, by the Privy Council.  It seems to us that it will be very rare indeed that a decision of a judge in a criminal case will be suitable for review by a petition of doléance.  This is not, and never was, an appropriate matter to bring before the Superior Number by way of doléance.  We will not, on this occasion, visit any financial penalty upon the applicant or his legal advisers, but that should not be taken as an indication of what the Court might do in any future comparable case.  The petition is dismissed.

Authorities

Extradition (Jersey) Law 2004.

Asliturk v City of Westminster Magistrates' Court [2010] All ER (D) 78

Extradition Act 2003.

Re Barker [1985-86] JLR 284.

Re Harbours & Airport Committee [1991] JLR 316.

Re Lagadec [1996] JLR N 9C.

AG v Michel and Gallichan [2006] JLR N 15.

AG v Michel and Gallichan [2006] JRC 089.

Metzner v Attorney General [2010] JRC 106.

Jenkins and Benbow v USA [2005] EWHC 1051 (Admin).

R v Chaaban [2003] EWCA Crim 1012.

R v Jan Jisl [2004] EWCA Crim 696.