Jersey Unreported Judgments

[2011]JRC115A

Royal Court

(Samedi)

17 June 2011

APPLICATION FOR LEAVE TO BRING JUDICIAL REVIEW PROCEEDINGS.

Stuart Syvret appeared in person.

Advocate S. M. Baker for the Respondents.

judgment

the commissioner:

1.        The first question that needs to be answered is this, what is the nature of today's application?  It is not a criticism of Mr Syvret who is a litigant in person, but it is not clear on the papers whether this is a renewal of his application to dismiss the proceedings for abuse of process or whether in fact these are separate applications for Judicial Review.  A careful reading of the emails that Mr Syvret sent to the Court, enclosing documents, indicates that this is intended, and indeed he has confirmed it in argument, to be an application for Judicial Review.  I therefore treat this as an application for leave to bring those proceedings, even though it is not on the correct form.

2.        It is clear from his argument that he seeks judicially to review two decisions taken in the course of the police enquiries and subsequent prosecution of him, that is to say the decision to search his premises, strictly speaking Ms Labey's premises where he was then living, and arrest him, and thereafter the decision to charge him.  He seeks to argue a very much wider point, namely that the Office of the Attorney General is incapable in any case of giving a truly independent decision. iI my judgment that is not susceptible to Judicial Review proceedings, outside the context of the examination of a particular decision by Attorney General. 

3.        During the adjournment I have been provided, by the Greffier, with a copy of the application that Mr Syvret made for Judicial Review of various aspects of the proceedings in the course of the Magistrate's Court hearings.  I have also been supplied with a copy of the judgment of Commissioner Clyde-Smith, dated 6^th October.  It is worth looking at the relief that was sought by Mr Syvret in those earlier applications and I quote now from his application under the heading "Reliefs sought":-

"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 matter 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 to declare and admissibility of evidence - to the Attorney General as the relevant public authority for re-consideration.

3. A declaration that the involvement of Advocate Stephen Baker, given the decision-making power by which he exerts great influence over the proceedings in the case in the Magistrate's 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 required tests of impartiality.

4. A declaration that the involvement of the Office of the Connétable of Grouville in the charging and the prosecution of the applicant is unlawful, on the grounds that the Connétable 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."

4.        That recital of the relief that was sought indicates that it covers very much the same ground as the applications today.  The ruling by Commissioner Clyde-Smith on 6^th October rejected his applications for leave to bring Judicial Review on a number of grounds, some, but not by any means all, relating to the stage of the proceedings at which they had been brought.  I suspect that the short answer to this application today would be that I am not the Court of Appeal to the decision of Commissioner Clyde-Smith and that the appropriate remedy for the applicant would have been to have appealed that decision, and that would be so, even if he sought to re-open the matter of the grounds of their being new evidence in the form of the affidavit of Mr Power.  However that hasn't been argued because it was only during the adjournment, after the conclusion of oral argument, that I saw the application and its exact detail and I do not think it would be right summarily to reject the present application on a ground that has not been argued.  So, without deciding whether it is open to Mr Syvret to, as it were, have another go, I will consider the case on the basis that I have power to reconsider the matter in the light of the fact that there is the further evidence of Mr Power's affidavit and that this is a different stage of the proceedings. 

5.        As I have indicated, as a preliminary matter I find that the Judicial Review is not an appropriate way in which the structural position of the office of the Attorney General, which Mr Syvret argues is incapable in any case of giving an unbiased decision, can be dealt with.  It can be relevant of course to an individual decision and the examination of that, but a wide-ranging review of whether the Attorney General's office should be reformed in the Island of Jersey is beyond the remit of Judicial Review.  There are therefore two decisions that need to be looked at potentially:-

(i)        The search and arrest; and

(ii)       The decision to prosecute.

6.        The approach to applications for leave to bring Judicial Review proceedings in Jersey has been dealt with in a number of cases. In Welsh v Deputy Judicial Greffier [2009] JLR N 37 the Court of Appeal through The Hon Michael Beloff QC, said this:-

"Leave to apply for judicial review will ordinarily be refused unless the court is satisfied that there is an arguable ground for judicial review having a realistic prospect of success and it is not subject to a discretionary bar such as delay or the availability of an alternative remedy (Sharma v. Brown-Antoine [2007] 1 WLR 780, applied; Yates v. Planning & Environment Minister [2006] JRC 167, considered)."

The facts of Welsh were quite different, it involved the review of a decision to grant or not to grant legal aid.  I might add amongst the discretionary bars that are suggested there of delay and the availability of an alternative remedy, I would add the futility of the Judicial Review, there being no benefit to the applicant accruing were it to take place. 

7.        In addition to the case of Welsh the Courts in Jersey have cited, with approval, the case of Sharma v Brown-Antoine [2007] 1 WLR 780, which was a decision of the Privy Council where an application was made by the Chief Justice of Trinidad and Tobago to judicially review the decision of the Director of Public Prosecutions in Trinidad and Tobago, to prosecute him for attempting to pervert the course of justice, on the grounds that the Director'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 adequately be dealt with in the criminal process.  The Privy Council said this:-

"That although a decision to prosecute was in principle susceptible to Judicial Review on the ground of interference with a prosecutor's independent judgment, 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 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."

That case has been followed in the Jersey Courts in, for example, the Court of Appeal in Trant v AG and Others [2007] JCA 073 and by the Royal Court in AG v Bhojwani [2010] JRC 042, See also Gichuru v States of Jersey Police [2008] JLR N 39.

8.        Turning then to the present case, it is of course obvious to say that these applications are way out of time, the time for application of Judicial Review being 3 months. However the Law provides, at paragraph 16/3(3) that that time can be extended:-

"An application may be made after the end of the period of 3 months if the Bailiff is satisfied -

a) that there is good reason for the application not having been made within that period; and

b) 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 prejudice the rights of any person, or be detrimental to good administration."

9.        It would be obviously open to me to say that these are so far out of time that I should not grant leave.  However I would rather the application be considered on its merits than be dismissed simply on the grounds of it being out of time, and I will therefore consider whether, in any event, it is appropriate to grant leave to apply for Judicial Review bearing in mind the new evidence provided by the affidavit of Mr Power.  I should say as to that, an affidavit whose contents I have no difficulty in accepting, as Mr Power is a distinguished long-serving police officer whose word I most certainly would accept on his oath, does not contain material nearly as dramatic as Mr Syvret contends for.  It gives no direct evidence of any of the matters of complaint.  What it does set out is what he would have done had he been Chief Officer of Police at the time of the operation that lead to Mr Syvret's arrest, the questions he would have asked of his officers and the enquiries he would have made, all entirely sensible and understandable points.  He also recounts a somewhat acrimonious exchange that he had with the Attorney General indirectly on the subject matter of a complaint that had been made to the Police by Mr Syvret's then partner Deputy Labey, concerning allegations that she had had passed to her of corruption in relation to planning.  This took place some 5 or 6 months before the raid, whether the interpretation of what was said in the course of that conversation that is put on it by Mr Power is accurate or not, of course I have no way of judging, I simply indicate that of course absent strong evidence to the contrary I accept the word of a man such as him on his oath.  But that was months before the raid on Mr Syvret's premises and there is nothing to suggest that the two are connected, the fact that one came in terms of time several months after the other does not indicate a connection between them.  Nonetheless I do look at the matters afresh in the light of that affidavit from Mr Power. 

10.      What then of the discretionary bars to leave, particularly the question of an alternative remedy?  So far as the search and arrest is concerned, those would not have been decisions by the Attorney General or his office.  It may well be that the Police would have taken advice before going down the course that they did, but they are in reality decisions of the Police not of the Attorney General.  There is no question but that the Police had power to do what they did.  The issue, and this will be an issue which no doubt Mr Syvret will be advancing in the course of his appeal, is why it was necessary for them to do it.  The Magistrate in the Court below, in my judgment entirely understandably, had grave concerns about the fact that the Police acted in the way that they did and did not, to use my words not hers, simply knock on Mr Syvret's door and ask for their report back.  However this Judicial Review proceeding, in my judgment, does not provide any remedy which cannot be found by an alternative route.  It is open to Mr Syvret to bring, and indeed he has indicated that he is considering bringing, a civil action against the Police, presumably, and I use here the English terms which assume to be applicable in Jersey also, for trespass to goods in relation to the search and trespass to the person in relation to his remand in custody for a few hours.  As I say I have not heard full argument in relation to this, at first blush it would seem that the Police were acting within their powers in doing what they did and the question would be whether it was necessary for them to behave in the way they did.  This was extensively canvassed during the trial and no doubt the decision of the Magistrate will be examined in the course of the appeal and rulings as to the impact of her findings in relation to it on the criminal proceedings. 

11.      In my judgment Judicial Review proceedings would also be futile because any decisions that were taken were taken long ago and cannot be undone.  This is not a case where, for example, a public body has taken a decision in relation to a citizen which can be reversed if it is found to be unlawful and quashed on Judicial Review.  That is long in the past and in my judgment Judicial Review proceedings would be futile.  If Mr Syvret wishes the issues to be adjudicated upon by a Court he can obtain that relief in civil proceedings. 

12.      So far as the charging decision is concerned, whether there was sufficient evidence to charge Mr Syvret and whether he had any of the statutory defences will of course be examined in the course of the appeal.  He can also argue that the charges were an abuse of process.  He argued that before the Magistrate and he can have that decision of hers examined in the light of the evidence that she had before her and, as I have indicated, he can also apply to adduce the evidence of Mr Power.  That has not formally been done yet and obviously any application will be considered and ruled on in due course, but in my judgment the charging decision, for the reasons set out in the authorities, including Sharma, is something which is properly and much better examined in the course of the criminal proceedings, as it has been to some extent in the Magistrate's Court and will be again on appeal.

13.      So for those reasons these applications are dismissed.

(Mr Syvret seeks leave to appeal)

14.      Leave is refused because the real answer was that this application should not have been heard at all, the correct remedy was to appeal the decision by Commissioner Clyde-Smith.  If you wish to renew your application for leave to appeal you have the right to do so before the Court of Appeal.

Authorities

Welsh v Deputy Judicial Greffier [2009] JLR N 37.

Sharma v Brown-Antoine [2007] 1 WLR 780.

Trant v AG and Others [2007] JCA 073.

AG v Bhojwani [2010] JRC 042.

Gichuru v States of Jersey Police [2008] JLR N 39.

Royal Court Rules 2004.