Jersey Unreported Judgments

 [2011]JCA130

Court of Appeal

5 July 2011

	Before     :		M. S. Jones, Q.C. sitting as a single Judge.
Between		Stuart Syvret		Applicant
And		Her Majesty's Attorney General		First Respondent
		Connétable of Grouville		Second Respondent

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

joneS ja:

1.        On 3rd June and 8th July 2009, the applicant was charged with road traffic and data protection offences. His trial on these charges was due to commence in the Magistrate's Court at 10 a.m. on Monday, 27th September 2010. Late on Friday, 24th September, the applicant lodged with the Royal Court an application for Judicial Review of certain decisions relating to the prosecution. The Royal Court Rules 2004 provide that no application for Judicial Review may be made unless leave has been obtained. (Rule 16/2) In order to enable the applicant to apply for a stay of the prosecution in the Magistrate's Court at the start of the trial, the Commissioner, J. A. Clyde-Smith, sat at 7 a.m. on the Monday to hear an application for leave. The applicant represented himself, and the respondents were represented by the Solicitor General.

2.        At the outset of the hearing, the applicant invited the Commissioner to recuse himself.  The Commissioner declined to do so, for reasons which I discuss later in this judgment.

3.        The applicant then sought an adjournment, to enable him to file further material to meet an assertion, made by the Solicitor General in his skeleton argument, that the applicant had failed to provide any cogent evidence to support the allegations that he was making in his application. The Commissioner refused to grant an adjournment, on the basis that he would first consider two preliminary contentions advanced by the Solicitor General in his skeleton, 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. The Commissioner took the view, rightly, in my opinion, that, if the Solicitor General was well founded in these contentions, that would determine the matter.

4.        At the conclusion of the hearing, the Commissioner refused leave on the grounds (i) that there was an alternative remedy available to the applicant in the Magistrate's Court and (ii) that the application had not been made within three months of the date when the grounds for the application first arose, and there was no good reason for the application not having been made within that period. (See Royal Court Rules 2004 16/3) The Commissioner refused leave to appeal, and costs on the standard basis were awarded to the Attorney General.

5.        Thereafter, in the Magistrate's Court, the applicant applied for a stay of the proceedings against him, as an abuse of process. After sundry procedure, including the taking of evidence, that application was refused on 14th October 2010.

6.        By Notice, dated 15th October 2010, the applicant applied to the Court of Appeal for leave to appeal against the Commissioner's disposal of the application which had been before him on 27th September. A timetable was set by the court for the filing of contentions by parties and the application was listed for the January sitting of the court. The applicant's bundle was due to be lodged by 30th November. On 9th December, the Assistant Judicial Greffier reminded the applicant of the deadline, and asked him to file his bundle by noon the following day, with an application for an extension of time "setting out the reasons for the delay in filing". The applicant was invited to advise the Assistant Judicial Greffier if he had decided to abandon his appeal.

7.        By email, timed at 23:44 on the same day, the applicant advised that the appeal was not abandoned, and asked that the email be taken as "formal notice - and the application [for an extension of time] itself". The applicant added that it was not possible for him to submit a bundle by the following day, and gave reasons.

8.        The application for leave to appeal was re-listed for hearing on the third day of the sitting of the Court of Appeal which commenced on 21st March of this year. A new deadline of 14th February was set for the filing of the applicant's contentions. By application, dated 14th March, the respondents sought to have the case dismissed, on the grounds, among others, that -

(i)        The applicant was ordered to file his contentions by 14th February 2011, but had not done so;

(ii)       The applicant had chosen not to reply to various communications sent to him by the Court of Appeal since 1st February 2011;

(iii)      It was by then five months since the first instance decision was given on 27th September 2010 followed by written reasons on 6th October 2010. The appeal had been listed for the January Court of Appeal session but was moved at the request of the applicant;

(iv)      As a result of the applicant's decision not to comply with the Court of Appeal's directions, the respondents were not properly or fairly placed to file their contentions in advance of the 23rd March hearing;

(v)       There was no obvious ground of appeal in the Notice which challenged the Commissioner's principal decision - that there was an alternative remedy to be pursued;

(vi)      The applicant had run an abuse of process argument in the Magistrate's Court which failed because the applicant was unable to adduce any evidence to prove his allegations. He was subsequently convicted and had appealed.

9.        When the full court sat in this matter on 23rd March, there were still no written contentions for the applicant before it.  It was explained to him that, if he intended to insist in his application for leave to appeal, it would be necessary for him to apply for an extension of time for the lodging of his case.  The applicant informed the court that he wished to apply for an extension, and the matter was remitted to a single judge of the court for determination.

10.      By Notice entitled "Application for Permission to Make Appeal", dated 29th March 2011, the applicant sought to explain his failure to meet deadlines. In essence, he cited the fact that he had no legal representation, "health issues", death threats and "other harassments".

11.      The Solicitor General responded to the applicant's Notice on 5th April, submitting that the application for an extension of time should be refused because:-

(i)        The proposed appeal has no prospect of success;

(ii)       The applicant has offered no or no good explanation for his failure to comply with the Court of Appeal's directions; and

(iii)      The continued delay causes prejudice to the proper administration of justice.

12.      By the provisions of Rule 16(1) of the Court of Appeal (Civil) Rules 1964, the Court of Appeal or a judge thereof is empowered to extend time limits, even although the time appointed or allowed has expired.  The Court of Appeal has said that, in determining whether or not to exercise that power, "it is appropriate for the Court to take into account the extent of the delay, any explanation for it, the prospects for the Appeal and the risk of prejudice to the other parties." (Crichton v Parker-Smith [2008] JCA 039, at para 19)  In my view, it is self-evident that no useful purpose could be served by allowing this applicant an extension of time in which to present material in support of his application for leave to appeal, if it appears, at this stage, that the appeal would have no reasonable prospect of success.  I approach the application for an extension with that in mind.

Récusation

13.      The test for recusal is well-known. It is whether a fair-minded observer, informed of all of the relevant facts and circumstances, would conclude that there was a real possibility that the judge was biased. (See In re Esteem Settlement [2001] JLR 169, per Vaughan JA, paragraph 21, as endorsed by the Court of Appeal at paragraph 6 of its judgment in Baglin v Attorney-General [2005] JLR 180, and at paragraph 12 of the judgment of Montgomery JA in Syvret v Attorney-General [2009] JLR 330) The test is an objective one.

14.      At paragraph 4 of his judgment, the Commissioner records that the applicant sought his récusation on the ground that the Commissioner knew the respondents.  The Commissioner pointed out that it was inevitable, in a small jurisdiction such as Jersey, that a Commissioner appointed locally would know, for example, the Crown Officers. He held that a fair minded observer knowing of such acquaintanceship would not conclude that there was a real possibility of bias. I agree, and, in my judgment, there is no reasonable prospect that the applicant could succeed in an appeal against the Commissioner's refusal to recuse himself.

Refusal of Leave to Bring Proceedings for Judicial Review

15.      The law is clear that leave will not be granted to bring proceedings for Judicial Review where there is an alternative remedy. The relevant authorities are recorded in the Commissioner's judgment.

16.      In his application for leave to apply for Judicial Review, the applicant qualifies his interest to bring proceedings as his being "a direct and immediate victim of the unlawful policies, decisions, nature, structure, and actions of" the respondents. On the third page of the application, in the first paragraph, he elaborates, saying that he is:-

"a victim of a malicious prosecution being conducted for the purposes of the concealment of a wide range of serious crimes committed by others, including senior public employees, various public authorities - and crimes committed by the Office of Attorney General itself."

17.      What is referred to as "crimes committed by the Office of Attorney General itself" is further elaborated as, among other things:-

"The unlawful failure to prosecute a number of senior civil servants who engaged in an evidenced and overtly criminal conspiracy to engineer the dismissal of the applicant from the Office of Minister for Health & Social Services".

18.      The relief which he seeks is set out in his application in these terms:-

"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.

7: (sic) A declaration that the above-described actions were disproportionate.

9: 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.

10: 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."

19.      It can be seen that at the heart of the challenge to the criminal proceedings are allegations of abuse of process, unlawfulness, including unlawful seizure of evidence, and breach of the applicant's human rights.  (Relief sought, paragraphs 1 to 4 and 6 to 9, as numbered in the application) It is clear from the terms of his application for leave that the applicant regarded, and intended to invite the Royal Court to regard, the relief sought at paragraph 5 as part of his challenge to the lawfulness of the prosecution. That view is confirmed by the fact that, in his application to the Magistrate to stay the criminal proceedings as an abuse of process, the applicant argued that the prosecution which he faced "was brought to cover up the failings of the past and present AG's in not prosecuting a number of individuals over the years" and "The prosecution is brought to cover up offences allegedly committed by senior Civil Servants ... ..." (Magistrate's judgment on the abuse of process application, paragraphs 59.2 and 59.5) The Magistrate refused to order a stay and held, among other things, as follows:-

"No link has been established between the decisions to prosecute the Defendant in 2009 and his dismissal as a Minister for Health & Social Services in 2007." (Magistrate's judgment on the abuse of process application, paragraph 95)

20.      The Commissioner deals very fully with what is described as the "Alternative Remedy" point at paragraphs 9 to 21 of his judgment, and concludes that there was an alternative remedy. I agree. It was open to the applicant to invite the Magistrate to stay the proceedings before her as an abuse of process, on the basis of the alleged unlawful actings of the prosecuting authorities and other persons, and of the alleged breaches of his human rights. In the event, as I have noted above, that is what the applicant did. The damages claim is consequent upon the measures of relief sought which precede it. When they fall away, the damages claim falls away. If the applicant is dissatisfied with the outcome of his application before the Magistrate, his remedy is to seek to appeal her decision.

21.      In the result, I have no doubt that an appeal against the Commissioner's refusal both to recuse himself and to grant leave, for the reasons which he gives and with which I agree, would have no reasonable prospect of success. Accordingly, the applicant's request for an extension of time within which to file written contentions is refused. In light of what I have found on the alternative remedy issue, there is no need for me to address arguments advanced by the Solicitor General on delay and lack of reasonable excuse for delay.

Costs

22.      The respondents seek an order for costs against the applicant on the indemnity basis "justified by the failure to comply with the Court of Appeal's directions or communicate with the Court's officials when asked to do so." Indemnity costs may be awarded in cases where there is "some special or unusual feature in the case" sufficient to justify the making of such an order. (See Leeds United v Admatch [2011] JCA 110) I am far from persuaded that there is any such special or unusual feature in this case. Costs, except insofar as already dealt with, will be awarded to the respondents on the standard basis.

Authorities

Royal Court Rules 2004.

Court of Appeal (Civil) Rules 1964.

Crichton v Parker-Smith [2008] JCA 039.

In re Esteem Settlement [2001] JLR 169.

Baglin v Attorney-General [2005] JLR 180.

Syvret v Attorney-General [2009] JLR 330.

Leeds United v Admatch [2011] JCA 110.