Jersey Unreported Judgments

[2010]JRC217A

ROYAL COURT

(Samedi Division)

3^rd December 2010

Before     :

Sir Philip Bailhache, Kt., Commissioner, sitting alone.

Sandra Ann Wakeham

-v-

The Attorney General

Appeal from the Magistrate's Court

Advocate C. M. Fogarty for the Appellant.

Crown Advocate S. M. Baker for the Respondent.

JUDGMENT

THE commissioner:

Introduction

1.        This is an appeal by case stated by Sandra Ann Wakeham ("the appellant") against a decision of the Relief Magistrate determining a legal issue in relation to the meaning of Article 29 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the 2003 Law") during the course of the appellant's trial.  This is a highly unusual appeal, and indeed the Crown Advocate has submitted that there is no jurisdiction to hear it.  It is highly unusual because the appellant has in fact been discharged from her prosecution for obstructing a police constable in the execution of his duty, the Crown having decided on 29^th April, 2010, that the prosecution was no longer in the public interest.  Counsel for the appellant insisted that it was not a frivolous appeal because the appellant sought a ruling on the alleged error of interpretation by the Relief Magistrate so that she could bring a civil action against the police.  The appeal raises an important point of law in the context of the Magistrate's jurisdiction to state a case for the opinion of the Royal Court. 

2.        The background can be briefly explained.  The appellant's son was stopped by the police on 16^th April, 2009, whilst driving his car near the old La Pouquelaye School in St Helier.  He was searched and found to be in possession of a piece of cannabis resin, was arrested and taken to the police station.  At the time of his arrest, the son had just come from the appellant's house and the police accordingly went there in order to conduct a search of the premises.  They did not seek a search warrant.  They instead relied upon the provisions of Article 29 of the 2003 Law the material part of which is in the following terms:-

"Search upon arrest

(1)       A police officer may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the police officer has reasonable grounds for believing that the arrested person may present a danger to himself or herself or others. 

(2)       Subject to paragraphs (3) to (5), a police officer shall also have power in that case -

(a)       to search the arrested person for anything which the person might use to assist him or her to escape from lawful custody or which might be evidence relating to an offence; and

(b)       to enter and search any premises in which the person was when arrested or immediately before the person was arrested for evidence relating to the offence for which he or she has been arrested."

The police relied upon paragraph (2)(b) and sought the agreement of the appellant to search her premises.  She refused to consent to the search. 

3.        The appellant was therefore arrested and subsequently charged with obstructing a police officer in the execution of his duty.  The search was in fact executed and a further piece of cannabis resin was discovered, but this was not connected in any way with the appellant. 

4.        The appellant was prosecuted before the Magistrate on 22^nd May, 2009, when she pleaded not guilty.  The matter then proceeded before the Magistrate's Court at a sombre pace.  The issue of the legality of the police search of the appellant's premises on 16^th April, 2009, was raised, but legal arguments did not begin until 23^rd October.  The argument was resolved by Harris, Relief Magistrate, in favour of the prosecution.  Counsel for the appellant had submitted that the power to search premises contained in paragraph (2)(b) was subject to paragraph (1); in short, it was said that the power to search premises "in which the person was ..... immediately before the person was arrested ..." could not be exercised unless the police officer had "reasonable grounds for believing that the arrested person may present a danger to himself or herself or others".  It was common ground that the appellant's son did not constitute such a danger.  The Relief Magistrate rejected the appellant's argument and construed the Article as meaning that the powers in paragraph (2) could be exercised in any case "where the person to be searched has been arrested at a place other than a police station".  

5.        The Relief Magistrate's judgment was delivered on 30^th October, 2009.  There were then further arguments and proceedings which it is unnecessary to relate until the Crown abandoned the prosecution on 29^th April, 2010.  An order was then made for the payment of the costs of the defence out of public funds. 

6.        I should record that, after the Relief Magistrate's decision had been announced at the conclusion of argument on 23^rd October, 2009, there was discussion about an appeal on the point of law involved by case stated.  The Magistrate referred to a decision of Tucker, Commissioner, in Syvret-v-AG [2009] JRC 165 in which it was held that the Magistrate had no jurisdiction to state a case under Article 21 of the Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949 ("the 1949 Law") until the final determination of the case in the Magistrate's Court.  As the case was at that stage clearly continuing, it was agreed by both counsel and the Relief Magistrate that any question of an appeal against that interlocutory ruling could not at that time be entertained.  I will revert to the decision of this Court in Syvret-v-AG below. 

Contentions of the Attorney General

7.        Counsel for the Attorney General makes three submissions in response to the appellant's case:-

(i)        He submits that, as the Relief Magistrate made no final determination in the proceedings, he ought not to have stated a case and, even though he has purported to do so, this Court has no jurisdiction to hear it. 

(ii)       He submits that the appeal is frivolous in the sense that it is futile and academic.  The case against the appellant has been dismissed.  There is no order that this Court can properly make. 

(iii)      He submits that, if the appeal is to be heard, the Relief Magistrate correctly construed the relevant provisions of the 2003 Law. 

I will take those submissions in turn.

No final determination and no jurisdiction

8.        Mr Baker contended that the prosecution discontinued the proceedings so that the appellant was neither convicted nor acquitted.  In AG-v-Kelly and Others (1982) JJ 275, the Court held that when proceedings had been withdrawn by the prosecution, the discharge of the accused did not amount to a final determination of the matter.  Ereaut, Bailiff, stated:-

"When the charge against Ferguson was dismissed the Assistant Magistrate was sitting in his first capacity as a Juge d'Instruction.  No evidence was offered and therefore the case never got to the stage where the Assistant Magistrate became seized of the issue of guilt or innocence.  It followed that Ferguson was never in jeopardy and that, therefore, the dismissal of the charge was not an acquittal.  We believe that argument to be correct. 

....

We have decided that when the Assistant Magistrate dismissed the charge against Ferguson he was acting as a Juge d'Instruction and that, therefore, as in the Snelson case already cited the dismissal did not amount to an acquittal so as to act as a bar to a subsequent prosecution for the same offence."

9.        Miss Fogarty, for the appellant, contended that there was a final determination of the case against her client because she was ultimately discharged from the prosecution.  In my view, this issue is of peripheral importance.  If the question is whether or not the appellant has been acquitted so that any further proceedings against her could be met by the plea in bar of autrefois acquit, the answer is clearly, on the authority of AG-v-Kelly, in the negative.  However, the issue is really whether an appeal by case stated lies in these circumstances under Article 21 of the 1949 Law. 

10.      Article 21 of the 1949 Law provides, so far as material:-

"(1)     Any person who was a party to any proceeding before the Magistrate's Court or is aggrieved by the conviction, order, determination or other proceeding of the Magistrate's Court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Magistrate to state a case for the opinion of the Royal Court on the question of law or jurisdiction involved:-

Provided that a person shall not make an application under this Article in respect of a decision which by virtue of any enactment is final. 

(2)       An application under paragraph (1) shall be made within 8 days after the day on which the decision of the Magistrate's Court was given. 

(3)       On the making of an application under this Article in respect of a decision, any right of the applicant to appeal under Article 17 against the decision will cease. 

(4)       If the Magistrate is of opinion that an application under this Article is frivolous, the Magistrate may refuse to state a case and, if the applicant so requires, shall give the applicant a certificate stating that the application has been refused:-

Provided that the Magistrate shall not refuse to state a case if the application is made by or under the direction of the Attorney General. 

(5)       Where the Magistrate refuses to state a case, the Royal Court may, on the application of the person who applied for the case to be stated, make an order requiring the Magistrate to state a case and it shall be the duty of the Magistrate to comply with the order.  

(6)       ....."

11.      Counsel for the Attorney General referred the Court to Syvret-v-AG [2009] JRC 165 where the accused applied to recuse the Magistrate from hearing certain criminal charges against him.  The Magistrate refused and the accused purported to appeal by case stated against that decision.  Tucker, Commissioner, stated in dismissing the appeal:-

"Jurisdiction

9.        The Magistrate has purported to state a case.  Too late it seems to me, she was reminded of the decision in the English case of Streames-v-Copping [1985] 1 QB 920.  I have now been referred to that case, a decision of the Divisional Court presided over by Lord Justice May.  My attention has been drawn to a passage in that case in which the English Law is made clear.  It appears at page 928 between letters E and F where Lord Justice May says:-

'It follows that Magistrates' Courts on the one hand have no jurisdiction to state a case under section 111(1) of the Act of 1980, unless and until they have reached a final determination on the matter before them, and that this Court has no jurisdiction on the other to consider or determine such a case if justices should nevertheless purport to state one.'

That is precisely the position that this Court finds itself in on this occasion.  The Magistrate has purported to state a case, but it appears to me that she had no jurisdiction to do so until final determination of the matter before her.  That means final disposal of the criminal charges brought against the Appellant.  Then it would be open to her, if application was made on that occasion, to consider whether or not it was appropriate to state a case.  If a case was stated then this Court would consider whether it had jurisdiction to deal with it. 

10.      Advocate Jordan, on behalf of the Attorney General, assures me that the Jersey Law is in precisely the same terms as the English Act of 1980, and therefore I regard the decision of the English Divisional Court as of strong persuasive authority.  In any event even without assistance I would have had to question whether this was an appropriate situation where a case stated should be considered and whether or not this Court had jurisdiction to deal with it.  I am quite satisfied that the Court has no jurisdiction to deal with this matter until final determination of the case.  I take into account the Appellant's submissions that it would be better if the matter were dealt with now and the case could be remitted to the Magistrate or to another Magistrate.  However it does not seem to me that I have jurisdiction or discretion in the matter.  The law is clear; this Court has no jurisdiction to consider the matter.  I decline to hear the appeal by way of case stated.  I should add that I have considerable sympathy with the learned Magistrate in the position in which she was placed.  It is regrettable that she was not given earlier advice."

12.      In response to that submission, counsel for the appellant drew my attention to a number of cases where, she submitted, appeals by case stated had been entertained by this Court even though there had been neither a conviction nor an acquittal, and therefore no final determination of the case.  Counsel referred to Romeril-v-AG 2001/71 unreported, and Cahors-v-AG 2001/253 unreported, where appeals were brought against a refusal of the Magistrate to award costs to the defence.  The case of Romeril does not seem to me to be in point, because there had been a final determination in the sense that the accused had been acquitted of the charges involved.  Cahors is, however, a case where the prosecution offered no evidence and the defendant was discharged but there had been a final decision on the question of costs. 

13.      Another case is AG-v-Campbell [2004] JRC 060 where the Attorney General applied to quash the order of the Magistrate staying the proceedings against the accused in relation to a charge of indecent assault.  The Court granted the Attorney General's application and directed the Magistrate to hear the case. It seems, however, from the judgment of Hamon, Commissioner, that the case of Streames-v-Copping was not drawn to the Court's attention, and no argument took place on the question whether the Court had jurisdiction to hear the appeal.  It is clear that no final determination had been reached in the Magistrate's Court. However, while this judgment was in draft, the Crown Advocate drew my attention to the case of R (on the application of Donnachie) v Cardiff Magistrates' Court [2007] 1 WLR 3085 where it was held that where a magistrate decides a preliminary issue as to jurisdiction that is to be taken as a final decision and can be challenged by way of case stated.  

14.      Counsel for the appellant also drew attention to a reported case where an appeal by case stated was heard and the attention of the Court had been drawn to Streames v Copping.  That case was AG-v-O'Driscoll [2003] JLR 157 where the accused had been charged in the Magistrate's Court with grave and criminal assault.  At the trial an issue arose as to the accused's fitness to plead.  The Magistrate indicated that he had jurisdiction to try that issue.  The Attorney General contended that the Magistrate had erred in law, had no jurisdiction to try the issue of fitness to plead, and requested the Magistrate to state a case for the opinion of the Royal Court.  Before the Royal Court, counsel referred to Streames-v-Copping although no reference was made to the case in the Court's judgment, where I presided in my then capacity of Bailiff.  The Court acceded to the submissions of counsel for the Attorney General, and remitted the matter to the Magistrate with an instruction to commit the accused for trial by the Royal Court so that the issue of fitness to plead could be determined by the Superior Number.  Again, however, this was a decision on a preliminary issue as to jurisdiction and, on the authority of Donnachie was amenable to appeal by case stated. 

15.      Finally, counsel for the appellant also referred me to AG-v-Freitas [2009] JRC 176 which was decided only 3 weeks after Syvret-v-AG.  In Freitas the Court considered an appeal by case stated by the Attorney General against the refusal of the Relief Magistrate to grant leave to adduce the evidence of a witness in Northern Ireland by way of live television link under Article 98(1) of the 2003 Law.  It is clear from the judgment of Birt, Bailiff, that the case had also not resulted in a final determination in that, following the Magistrate's ruling, the prosecution had offered no evidence on all but one of the charges with the result that they were dismissed.  There was, therefore, no acquittal on those charges.  It is also clear that Streames-v-Copping was not cited to the Court and that no argument took place on the question of jurisdiction.  Nonetheless, the Court did assume jurisdiction and having considered the Relief Magistrate's interpretation of the relevant provisions of the 2003 Law, concluded that the Magistrate had rightly refused leave to adduce the evidence of the witness by live television link, and dismissed the appeal. 

Discussion

16.      It is unfortunate that in AG-v-Freitas the Court was not referred to the decision of Tucker, Commissioner in Syvret-v-AG.  As a result, it may be said that the recent decisions of this Court on the question of jurisdiction to hear an appeal by case stated from the Magistrate's Court appear to be conflicting. 

17.      The Court therefore proposes to examine the matter afresh.  Article 21 of the 1949 Law, which confers the jurisdiction to state a case for the opinion of the Royal Court, is indeed in the same terms as the equivalent provision of the Magistrates Court Act 1980.  The appeal provisions in the 1949 Law, as amended in 1960, were originally modelled upon the provisions of section 87 of the Magistrates Court Act 1952.  The 1952 Act was repealed by the Magistrates Court Act 1980 but the relevant provisions relating to appeals by case stated were re-enacted in almost identical terms.  Ordinarily, as indicated by Tucker, Commissioner, in Syvret-v-AG, the decision of the Divisional Court in Streames-v-Copping would indeed have been of strong persuasive authority.  Miss Fogarty contended, however, that there were differences in the judicial machinery in Jersey and England which militated against the approach adopted by the Divisional Court in 1985.  In Streames-v-Copping the justices were called upon to rule whether a particular summons was bad for duplicity.  Having ruled against the defendant, they were asked to state a case for the opinion of the Divisional Court, and they did so.  Before the Divisional Court the question was argued as to whether the Justices had jurisdiction to state a case and whether the Divisional Court had jurisdiction to hear it.  The Divisional Court answered both questions in the negative. 

18.      May, LJ considered that he was bound by a decision of the House of Lords in Atkinson-v-United States of America Government [1971] AC 197.  That case concerned extradition proceedings before the Chief Metropolitan Magistrate against an escaped US prisoner.  The Magistrate stated a case in relation to one aspect of the extradition proceedings before him for the opinion of the Divisional Court.  The question for the House of Lords was whether the Magistrate had any power to state such a case in extradition proceedings.  The relevant statutory provision was section 87(1) of the Magistrates' Court Act 1952 which was, as I have said, for all practical purposes in the same terms as Article 21 of the 1949 Law.  Lord Reid had stated at page 235:-

"But the drafting is not ideal.  The word "proceeding" where it first occurs must mean litigation or proceedings - something to which there are parties.  But where it is next used it must mean adjudication or decision and where it is used for the third time it must also have that meaning.  So the case for the respondents is that they were parties to the litigation in the magistrates' court and are therefore entitled to question the decision of the court by applying for a stated case.  If this subsection is to have a limited meaning it must be because "conviction, order, determination or other proceeding" has a limited meaning.  I think it must be limited at least to this extent: it frequently happens that a court has to make a decision in the course of the proceedings - e.g., whether certain evidence is admissible - but it cannot have been intended that the proceedings should be held up while a case on such a matter is stated and determined by the superior court.  So application for a case can only be made when the litigation or 'proceeding' is at an end.  But, as Lord Goddard C.J. pointed out in Card-v-Salmon [1953] 1 QB 392, 396, examining magistrates do not come to a final decision.  If they decide to commit for trial the case goes on, and if they decide not to commit that is not a ground for a plea of autrefois acquit.  I find this to be a question of difficulty.  But, in order to avoid having to hold that this consolidating Act did something which Parliament cannot possibly have intended to do, I think that it is possible to hold that section 87 has no application to committal proceedings because such proceedings do not lead to any final decision."

19.      May, LJ in his judgment in Streames-v-Copping, continued by stating:-

"In my opinion, therefore, this court is bound by the underlying ratio of the decision in Atkinson's case.  It follows that magistrates' courts on the one hand have no jurisdiction to state a case under section 111(1) of the Act of 1980 unless and until they have reached a final determination on the matter before them, and that this court has no jurisdiction on the other to consider or determine such a case if justices should nevertheless purport to state one. 

To summarise, I think that the legal position in this field is as follows.  Where either party contends that justices have no jurisdiction to hear and determine an information or complaint, and the justices uphold that contention, then the remedy available to the party aggrieved is to ask for leave to apply for judicial review seeking a finding from the Divisional Court that the justices were wrong to decline jurisdiction and an order for mandamus directing them to hear the information or complaint.  Where, upon such a contention, justices decide that they do have jurisdiction to hear and dispose of the matter, they should not accede to an application there and then by the party against whom they have decided to adjourn any further hearing and state a case on the jurisdiction point.  They should in general proceed to hear and determine the matter before them on whatever evidence is adduced and then, if either party is dissatisfied, he can apply to the justices to state a case under section 111(1).  The party against whom the justices decided that they did have jurisdiction at the outset of course always has the concurrent right to apply to the Divisional Court for leave to seek judicial review in the nature of prohibition.  In some cases, if the party aggrieved did take that course, it might be desirable for the justices to adjourn their further hearing of the substantive matter until after the determination of the judicial review proceedings; in most cases, however, nothing will be lost if the justices do complete their hearing.  It may be that on the facts they will decide the substantive issue in favour of the party contending that they had no jurisdiction.  If they do not, then all the issues can be determined by the Divisional Court on a case stated, at a substantial saving of time and money. 

Apart from questions of jurisdiction, where justices are asked to, and do rule on a point of law in the course of a hearing before them - for instance, on a question of the admission of evidence, or the construction of a statute or document - they should not at that stage, with nothing more, accede to an application by the party against whom they have ruled for an adjournment and for them to state what I can describe as an "interlocutory" case.  If they purport to do so, then for the reasons I have given I do not think that this court has jurisdiction to hear it.  The justices, having made their ruling, should complete the hearing and determination of the matter before them, and then state a case thereafter if they are asked to do so.  In a very special instance, if the party aggrieved sought and obtained leave to apply for prohibition, then the justices might be wise to adjourn the matter pending the hearing of the application for judicial review, but they should not state a case under section 111(1) until after their final determination of the information or complaint before them."

20.      The prerogative remedies of prohibition and mandamus do not appear to have been used in this jurisdiction under those names but there seems to me little doubt that this Court has an equivalent jurisdiction judicially to review a decision of the Magistrate where, for example, he proposes to exercise a jurisdiction which one of the parties considers that he does not possess, or alternatively refuses to exercise his jurisdiction by ordering a stay.  In England it has been accepted that, where the magistrate has made a decision going to his jurisdiction, that decision may be challenged either by judicial review or by case stated.  In R (on the application of Donnachie)-v-Cardiff Magistrates' Court the challenge was in fact brought by application for judicial review.  Nelson J stated, at paragraph 6:-

"6.      I am satisfied that this Court has jurisdiction to deal with the Claimant's applications and that the Magistrates' Court could have stated a case.  It is, as the District Judge ruled, correct to say that Examining Magistrates do not come to a final decision when committing a Defendant for trial and hence no case can be stated in respect of the decision to commit.  [See Atkinson-v-United States of America Government and Dewing-v-Cummings].  Where however the magistrate is acting not as an Examining Magistrate, but deciding a preliminary issue as to jurisdiction, his ruling upon that is final and can properly be challenged by way of case stated or judicial review.  R-v-Clerkenwell Metropolitan Stipendiary Magistrate ex parte DPP [1984] 2 AER 193.  The contrary has not been argued by the parties before this Court.  However, the more expeditious procedure now is to determine by way of judicial review the questions on which the case would have been stated."

21.      The position in England can therefore be succinctly stated as follows.  Notwithstanding the very wide terms of S111 of the Magistrates Court Act 1980 (the equivalent statutory provision to article 21 of the 1949 Law), the jurisdiction of magistrates to state a case and of the Divisional Court to hear an appeal by case stated has been circumscribed.  If the magistrates have been sitting as examining magistrates, or if they have made an interlocutory ruling, they have no jurisdiction to state a case.  If, on the other hand, there has been a final decision, including a decision as to jurisdiction, that is amenable to the case stated procedure. 

22.      What then is the position in Jersey?  On close analysis of all the authorities cited by counsel for the appellant, it seems to me that all bar two can be reconciled with the stance of the English courts.  The two exceptions are AG-v-Campbell and AG-v-Freitas.  In Campbell the Magistrate had imposed a stay as a result of which the defendant had been discharged.  He had not, however, been acquitted, and the position seems to me to be analogous to that in Dewing-v-Cummings [1971] R.T.R. 1295.  In that case the defendant had stated, in response to a request to provide specimens of urine and blood 'No, not until I've seen my solicitor'.  Later, after receiving advice from his solicitor, the defendant had told the constable 'I've to give you anything you want'.  The constable took the view that there had been refusals, and charged the defendant with the offence of failing to provide a specimen for laboratory test.  The magistrates found that there was no case to answer.  The defendant was accordingly discharged.  In the Divisional Court Lord Parked CJ stated:-

"This is in form an appeal by way of case stated from a decision of Nottinghamshire Justices sitting at Nottingham.  The justices, as it is revealed by the case, were merely examining justices who, on the evidence before them, refused to commit.  The prosecution asked them to state a case, and the document which is before this court purports to be a case stated by them as examining justices as to whether they were right in refusing to commit. 

The preliminary objection has been taken that we have no jurisdiction in the matter because this was not a valid case stated.  Although the words of section 87(1) of the Magistrates' Courts Act 1952 on their face are wide enough to enable the examining justices to state a case, yet this matter has now been before the House of Lords in Atkinson-v-United States of America Government [1969] 3 All ER 1317.  In that case, Lord Morris of Borth-y-Gest dissenting, it was held that the Magistrates' Courts Act 1952 was merely a consolidating Act and that under the prior legislation there was no power in examining justices to state a case.  Accordingly, Atkinson's case concludes the matter so far as this court is concerned, and the court accordingly cannot entertain the matter."

By contrast, in Campbell this Court entertained the appeal by case stated, quashed the Assistant Magistrate's decision, and remitted the matter to the Magistrate so that the proceedings could continue. 

23.      In AG-v-Freitas, where, as a result of a ruling by the Relief Magistrate on a matter of interpretation of a provision in the 2003 Law, the prosecution offered no evidence and the charges were dismissed, the Court was prepared to assume jurisdiction to hear the appeal by case stated on the basis that it was arguable that the Magistrate had committed an error of law.  There seems to me no doubt that on those facts an English court would have refused jurisdiction on the basis that there had been no final determination of the charge or complaint in question. 

24.      It does not seem to me that these decisions can properly be regarded as having been given per incuriam.  On the contrary, in my judgement, the settled jurisprudence (la jurisprudence constante) of this Island shows that the Court has occasionally exercised jurisdiction pursuant to Article 21 of the 1949 Law to hear an appeal by case stated notwithstanding the fact that there has been no final decision in the court below.  It seems to me that the decision in Syvret-v-AG can be regarded as being founded upon the particular facts of that case.  It is clear from Commissioner Tucker's remarks that his decision on the merits would have been exactly the same irrespective of any question of jurisdiction.  The judicial policy expounded by Lord Reid in Atkinson-v-United States of America Government in limiting the jurisdiction of magistrates to state a case is not the policy of this Court. 

25.      The underlying rationale for the policy of the English courts, namely the improbability of the legislature having intended to allow criminal proceedings to be held up while appeals on interlocutory matters, e.g. the admissibility of evidence, were taken by case stated, is, however, equally compelling in this jurisdiction.  Indeed, this Court stated very recently in De Figueiredo-v-AG in the context of the doléance procedure, that case management decisions were a matter for the judge's discretion and not apt for review under the doléance procedure other than in very rare circumstances to remedy a grave injustice.  How then can the Court prevent abuse of the case stated procedure by appellants seeking to appeal interlocutory and/or case management decisions of the Magistrate?  In my judgement, the answer to that question lies in the discretion accorded to the Magistrate by Article 21 of the 1949 Law rather than in denying a jurisdiction to state a case where no final determination in the proceedings before the Magistrate has been made.  The magistracy in Jersey is composed entirely of professional judges rather than lay magistrates as in England, and they are perfectly competent to exercise that discretion sensibly and in accordance with the law.  I therefore reject the first submission of counsel for the Attorney General that the Magistrate had no jurisdiction to state a case in the absence of a final determination and that this Court has no jurisdiction to hear it.  I turn to the second submission. 

Is the appeal frivolous?

26.      Article 21(4) of the 1949 Law empowers the Magistrate to refuse to state a case other than where the request is made by or under the direction of the Attorney General, where the Magistrate is of opinion that the application is frivolous.  As counsel for the Attorney General rightly submitted, the word "frivolous" is not to be construed in the sense of lacking seriousness or being silly.  Its proper construction is the first meaning given in the new shorter Oxford English Dictionary, viz. "of little or no value or importance, paltry; (of a claim) having no reasonable grounds".  Mr Baker drew my attention to the case of R (on the application of Forest Heath District Council)-v-North West Suffolk (Mildenhall) Magistrates' Court [1997] EWCA Civ.1575.  The facts are unimportant for our purposes, but there is a very useful explanation of the word "frivolous" in the context of the case stated procedure which I respectfully adopt.  Lord Bingham of Cornhill, then Lord Chief Justice, stated:-

"I think it very unfortunate that the expression "frivolous" never entered the lexicon of procedural jargon.  To the man or woman in the street "frivolous" is suggestive of light-heartedness or a propensity to humour and these are not qualities associated with most appellants or prospective appellants.  What the expression means in this context is, in my view, that the court considers the application to be futile, misconceived, hopeless or academic.  That is not a conclusion to which justices to whom an application to state a case is made will often or lightly come.  It is not a conclusion to which they can properly come simply because they consider their decision to be right or immune from challenge.  Still less is it a conclusion to which they can properly come out of a desire to obstruct a challenge to their decision or out of misplaced amour propre.  But there are cases in which justices can properly form an opinion that an application is frivolous.  Where they do, it will be very helpful to indicate, however briefly, why they form that opinion.  A blunt and unexplained refusal, as in this case, may well leave an applicant entirely uncertain as to why the justices regard an application futile, misconceived, hopeless or academic.  Such uncertainty is liable to lead to unnecessary litigation and expenditure on costs."

27.      The Magistrate is entitled, therefore, to refuse to state a case where, in his opinion, the application is futile, misconceived, hopeless or academic.  Applications to state a case in relation to interlocutory or case management decisions would ordinarily be properly regarded as misconceived and/or hopeless.  The application of Mr Syvret could equally have been refused by the Magistrate on that ground, as indeed was suggested by Commissioner Tucker when he stated that "in any event, even without assistance [from the Divisional Court in Streames-v-Copping] I would have had to question whether this was an appropriate situation where a case stated should be considered.....".  The Magistrate is not obliged to state a case, and should not do so, when the application can properly be characterised as "frivolous" in the sense explained by Lord Bingham. 

28.      I turn therefore to the application in this case which, counsel for the Attorney General submitted, was futile and academic.  The appellant has been discharged from the prosecution and awarded her costs in the court below.  There is no order that this Court can sensibly make because the proceedings in the Magistrate's Court have been concluded in favour of the appellant.  Mr Baker submitted that the futility of the application was evidenced by the inability of the appellant to specify the order which she seeks from this Court.  Counsel's skeleton argument concludes with the request that "the Court should make such order under the provisions of Article 22 of the Magistrate's Court (Jersey) Law 1949 as it thinks fit".  When pressed by the Court for an explanation of what order the Court might make, Miss Fogarty stated that her client wished to bring a civil action against the police and that a ruling that the Relief Magistrate had misinterpreted Article 29 of the 2003 Law would assist her in that regard.  Attractive as that might be from the appellant's perspective this does seem to me to be entirely academic in the context of this appeal.  The Court cannot make legal rulings in a vacuum.  The proceedings in which the Magistrate's interpretation of the 2003 Law was relevant have come to an end.  The Court cannot make declaratory pronouncements other than in very restricted circumstances which do not obtain here.  Such pronouncements cannot in any event be made in the context of a purported appeal in criminal proceedings which have been discontinued.  The Court asked Miss Fogarty whether she thought that an appeal by case stated would lie if the Magistrate had allowed a confession to be admitted in evidence, had subsequently acquitted the accused, and the accused wished, nonetheless, to challenge the decision to admit the confession.  Counsel would not be drawn on that hypothetical scenario, but it seems to us to be indistinguishable in principle from the facts of this appeal.  I conclude, therefore, that the appellant's appeal is futile and academic and that the Relief Magistrate should, in the exercise of his discretion, have refused to state a case.  Given that a case has been stated for the opinion of this Court, I find that the appeal is frivolous within the meaning of Article 21 of the 1949 Law and it is accordingly dismissed. 

Postscript

29.      Having regard to my conclusion in paragraph 28 above, any remarks that I might make on the Relief Magistrate's interpretation of Article 29 of the 2003 Law are clearly obiter.  Nonetheless, in the interests of preventing the expenditure of further sums by way of costs, I think that it is desirable to indicate that, in my judgement, the Relief Magistrate was correct in his interpretation of the relevant statutory provision.  The powers conferred by paragraphs (1) and (2) of Article 29 are free standing powers which relate to three different sets of circumstances.  The first set of circumstances is where the arrested person has been arrested at a place other than a police station and the police officer has reasonable grounds to believe that the arrested person may present a danger to himself or others (Article 29(1)).  The second set of circumstances is where the person has been arrested at a place other than a police station and the officer wishes to search that person for anything which the person might use to assist him or her to escape from lawful custody or which might be evidence relating to an offence (Article 29(2)(a)).  The phrase "in that case" in the opening lines of paragraph (2) relates back to the clause "the case where the person to be searched has been arrested at a place other than a police station" in paragraph (1).  The third set of circumstances is where the person has been arrested at a place other than a police station and the officer wishes to "enter and search any premises in which the person was when arrested or immediately before the person was arrested for evidence relating to the offence for which he or she has been arrested" (Article 29(2)(b)).  In each of those situations, Article 29 of the 2003 Law confers a power of search (subject of course to the other provisions of Article 29) upon a police officer. 

30.      Miss Fogarty told us that the appellant wished to complain about the way in which the police conducted the search of her house as well as about the legality of the search.  Nothing in the above remarks should be taken as indicating any view on the manner of the police search, about which the Court has heard no evidence.  I conclude by expressing my gratitude to both counsel for their detailed and very helpful submissions. 

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Syvret-v-AG [2009] JRC 165.

Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949.

Attorney General-v-Kelly and Others (1982) JJ 275.

Romeril-v-AG 2001/71.

Cahors-v-AG 2001/253.

AG-v-Campbell [2004] JRC 060.

Streames-v-Copping [1985] 1 QB 920.

AG-v-O'Driscoll (2003) JLR 157.

Magistrates Court Act 1980.

Magistrates Court Act 1952.

Atkinson-v-United States of America Government [1971] AC 197.

In R (on the application of Donnachie)-v-Cardiff Magistrates' Court.

R (on the application of Forest Heath District Council)-v-North West Suffolk (Mildenhall) Magistrates' Court [1997] EWCA Civ.1575.