Jersey Unreported Judgments

[2011]JRC168

Royal Court

(Magistrate's Court Appeal)

30 August 2011

Before     :		Sir Christopher Pitchers, Commissioner, and Jurats Tibbo and Marett-Crosby.
Between	Stuart Syvret		Appellant
And	Her Majesty's Attorney General		First Respondent
	Connétable of Grouville		Second Respondent

Appeal to the Inferior Number of the Royal Court against conviction and sentences passed by the Magistrate's Court on 17^th November, 2010, after trial on the following charges:-

June 2009 Indictment

1 count of:	Having no driving licence, contrary to Article 4(1) of the Road Traffic (Jersey) Law 1956 (Count 1).
1 count of:	Failing to notify a change of address, contrary to Article 11(2) of the Road Traffic (Jersey) Law 1956 (Count 2).

July 2009 Indictment

1 count of:	Contravention of Article 55 of the Data Protection (Jersey) Law 2005 (Count 1).
1 count of:	Contravention of Articles 17 and 21 of the Data Protection (Jersey) Law 2005 (Count 2).

November 2010 Indictment

3 counts of:

Contempt of Court (Counts 1-3).

The Appellant represented himself.

Crown Advocate S. M. Baker for the Respondents.

JUDGMENT

the commissioner:

1.        On 17 November, 2010, after a trial spread over many days the appellant was convicted by Assistant Magistrate Shaw of two offences under the Data Protection (Jersey) Law 2005, one of disclosing personal data without consent, contrary to Article 55 and the other of processing personal data without being registered as a data controller, contrary to Articles 17 and 21.  He had earlier been convicted of having no driving licence and failing to notify a change of address.  At the conclusion of the hearing of the substantive offences, the appellant was also convicted by the Magistrate of three offences of contempt of court, one arising from his failing to answer to his bail and two of contempt in the face of the court during the hearings. 

2.        At the conclusion of the hearing of the appeals, we announced our decision both as to conviction and sentence and gave brief reasons.  What follows are the full written reasons in respect of the appeals against conviction. There should be no material discrepancy between the two but, in the event that any are thought to exist, these considered reasons should prevail.

Test

3.        The test on appeal against conviction from the Magistrates Court to the Royal Court is set out in Rushton-v-AG [2000] JLR 363 where the Court said this:-

"The court of course has on many occasions said that its duty in looking at an appeal on conviction from the Magistrate below is to examine the transcripts to see if there is evidence on which the Magistrate concerned could properly have come to the decision he did.  If there was that evidence, than even though the court might not necessarily have come to the same decision, the court does not lightly interfere with it.  The court has to be satisfied that there was insufficient evidence for the Magistrate to have come to the decision he did, or that he drew the wrong conclusions and inferences from the evidence before him."

Fact and law

4.        A number of issues arise in the case.  Some are pure matters of law.  They are for me alone.  For example, grounds of appeal based on allegations of bias, abuse of process, admissibility of evidence and procedural impropriety.  Some are clear matters of fact for the jurats, for example the sufficiency of the evidence to found a conviction and questions of sentence.  There is some overlap where findings of fact are relevant to issues of law and vice versa.  Although I will to some extent reflect that difference in roles by switching between the first person singular and plural, it would be tedious to indicate in  relation to each matter that I deal with in this judgment whether it was me or the jurats or a combination of both who have come to the conclusion that I announce.  I simply say that we have had very well in mind our different roles throughout. 

Background

5.        The appellant maintains a blog which publicises and examines what he sees as injustice and malpractice in Jersey.  It frequently contains extremely grave allegations against people living in the island, some public figures some not.  Many of the allegations, if not capable of justification, are highly defamatory.  It hardly needs to be said but I re-iterate that the law, both civil and criminal, applies to the appellant exactly as it does to any other citizen.  That cuts both ways.  If he publishes material that breaches the criminal law of this island, he must be held accountable in the normal way.  By the same token, he is not to be singled out for special unfavourable treatment just because he is a thorn in the side of the establishment. 

6.        The broad chronology of events is as follows.  We will examine parts of the history in more detail at the relevant point of this judgment. 

(i)        In early 1999, the police received information concerning the conduct of a nurse at the General Hospital.  We will refer to that nurse hereafter as Nurse X. 

(ii)       They began an enquiry which ultimately led to Nurse X's conviction for stealing drugs from the hospital, possessing cannabis, and possessing firearms without a licence.  He was placed on probation and ordered to do community service.  The enquiry also looked into much more serious offences but there was held to be insufficient evidence to prosecute him for those offences. 

(iii)      One of the documents generated by the enquiry was a preliminary report by the SIO, then DI Faudemer which was presented to a meeting to discuss the case on 12th May, 1999. 

(iv)      In about 2005, the appellant came into possession of the report in his capacity as President of the Health and Social Service Committee.  He spoke to DI Faudemer about it and he reassured the appellant that an enquiry had been carried out but there was insufficient evidence to prosecute. 

(v)       On 19 March 2009, the appellant published the Faudemer Report with a commentary.  We will return to the detail of that later. 

(vi)      On 6th April, 2009, he was arrested and the house at which he was then living searched.  He was kept in custody for several hours. 

5.Grounds of Appeal

6.7.        The theme of the appellant's argument both before us and in the court below is to seek to challenge the whole system of government in the Island.  Mr Syvret's view of Jersey is that those in power are an interconnected and corrupt group.  He therefore believes that decisions taken in one area which do not seem on their face to have anything to do with this case in fact are part of a general conspiracy to silence him for political reasons.  He therefore finds it difficult to accept that the Magistrate was right when she limited disclosure and cross-examination strictly to those matters which bear directly on his present prosecution.  He has found it equally difficult when I have made similar rulings in the course of this appeal.  He cannot accept, as this court has done, that Advocate Baker for the prosecution has applied the correct test when considering disclosure and has properly disclosed what is relevant. 

7.Bias

8.        I deal first with the ground of appeal alleging that the Magistrate was biased.  This has two strands which I deal with separately. 

9.Refusal to recuse herself

9.        At the commencement of proceedings, the appellant invited the Magistrate to recuse herself on the grounds that her acquaintance with people whose names would figure in the case made it impossible for her to be impartial.  I use the expression whose names would figure in the case because the appellant wished to include not only those who were directly involved but also those who fell into his broad category that I have described. 

10.      This is an application which he has made in respect of every court in front of whom he has appeared in Jersey: Magistrate, Commissioners, Jurats and Court of Appeal.  Of course, in a small jurisdiction where it is inevitable that those in senior positions will be acquainted with others in senior positions, particular care must be exercised by those acting in a judicial capacity to ensure that there is no knowledge or acquaintance by them of someone involved in the case such that, to quote the test to be applied, "a fair minded and informed observer might be led to conclude that there was a real possibility of bias against a party." 

11.      In her ruling on 18th June, 2009, the Magistrate applied the correct test which is an objective one.  She concluded that there was no reason to recuse herself.  In my judgment, that was a proper conclusion. 

12.Bias during the hearing

12.      On analysis, this ground relates to what are in truth allegations that the Magistrate was wrong in law in a number of her rulings.  The majority of those fall within the general point to which I have already alluded namely limiting the evidence to matters which were directly relevant.  Two further matters require separate consideration.  I deal with them below. 

13.Abuse of process

14.13.      Mr Syvret argues that the Magistrate should have stopped the case before it started because it was an abuse of process.  She heard evidence on this issue over several days.  Much but not all of that submission was based upon his general argument of wide and interlocking conspiracies in respect of all sorts of issues that the Magistrate ruled and I have also ruled are not relevant in this case.  I have set out in detail during a preliminary ruling on disclosure my views as to relevance and abuse of process in this case.  I do not repeat those views here save to say that the hearing of the appeal does not cause me to alter them.  See [2011] JRC 060A paragraphs 1-15. 

15.14.      Other matters were included in the appellant's submissions below, and repeated during these proceedings.  I have dealt with some already.  For example the question of the appellant's legal representation as to which see my ruling of 18th March, 2011, reported at [2011] JRC 060A, paragraph 22 et seq.   The Magistrate dealt with these matters very fully in her ruling. 

16.Arrest and search

15.      One important matter does remain which the Magistrate considered in detail as do we.  On 6th April, 2009, a full search team attended at the premises at which the appellant was living which were owned by his then partner.  The team even included two officers trained in breaking down the doors of recalcitrant suspects.  The appellant was arrested, taken to police headquarters and kept in custody for 7 hours.  The Magistrate in her judgment was highly critical of this procedure.  So are we. 

17.16.      Consider for a moment what the position was on the morning of the arrest.  Any offences committed by the appellant were complete when he published the Faudemer Report on his blog on 19th March, 2009.  Those offences are not punishable with imprisonment.  It was no doubt highly desirable to recover the copy of the Report that appeared to be in his possession but the prosecution was in no way dependent on that.  Similarly an unannounced raid was not necessary to prevent the commission of further offences.  Even without the actual document, the appellant had the full relevant content of the report on his blog.  In any event, it was only the publication of the name that is said to be unlawful. 

18.17.      The Data Protection (Jersey) Law 2005 provides in Schedule 9 the power to enter and search premises.  That power is exercised after notice.  If they really wanted to search, this gave the police the power.  Giving notice would not have led to the destruction of evidence for the reasons just set out. 

19.18.      However, in truth no search or arrest was necessary.  What did need to be done before prosecution was to interview the appellant to receive his account of the events and to investigate, based on that account, whether any of the defences provided by the Law might apply.  All of that could have been achieved by inviting him to attend for interview under caution bringing his copy of the Faudemer report with him.  Of course, if he failed or refused to do so he could be arrested. 

20.19.      The test in this area of the law is contained in the recent case of Warren-v-AG for Jersey (2011) UKPC 10:-

"It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case.  In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more.  No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system.  Here a stay will be granted where the court concludes that in all the circumstances a trial will 'offend the court's sense of justice and propriety' (per Lord Lowry in R-v-Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 74G) or will 'undermine public confidence in the criminal justice system and bring it into disrepute' (per Lord Steyn in R-v-Latif [1996] 1 WLR 104, 112F)."

21.20.      Since no evidence was discovered in the course of the search and no part of the prosecution relied on the search and arrest, there could have been no basis for an argument based on the first category.  What of the second? 

22.21.      In Warren the Judicial Committee considered the case of Grant [2005] 2 Cr App R 28.  They said this:-

"The Court of Appeal in Grant recognised at para 55 that it is "not in general the function of criminal courts to discipline the police".  That was a reflection of the words of Lord Lowry in Bennett at p 74H: "the discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct....'pour encourager les autres'".  It may not always be easy to distinguish between (impermissibly) granting a stay "in order to express the court's disapproval of official conduct pour encourager les autres" and (permissibly) granting a stay because it offends the court's sense of justice and propriety.  But it is difficult to avoid the conclusion that in Grant the proceedings were stayed in order to express the court's disapproval of the police misconduct and to discipline the police."

23.22.      Mr Power, former Chief Officer of the States of Jersey Police, in his statement submitted by the appellant as part of his appeal has set out the matters that he would have considered had he been in charge in April 2009.  In the course of the hearing, the Attorney General, prompted by the court as part of its and his continuing duty in respect of disclosure, has disclosed some of the police policy files containing decisions concerning Operation Chute.  They show that the police did consider the matters which they should and which Mr Power set out.  They considered the balance between the human rights of the victim and the app's rights as a politician with constituents.  They considered the right of freedom of expression.  They considered the question of proportionality bearing in mind that this was not an imprisonable offence. 

24.23.      That led them initially to the conclusion that the correct course was to invite the appellant to attend voluntarily at the police station for interview and only if he refused to arrest.  That was the right decision.  Later in March, after receiving legal advice, they changed their decision to one of arrest and search.  It is not clear why. 

25.24.      As we have indicated, in our judgment, it was wrong to arrest the appellant and keep him in custody as they did.  However, there is nothing in the policy log to suggest that that was for improper ulterior motive.  We bear in mind that no further evidence accrued from the search nor from the appellant's interview.  Simply because it was wrong to take the course that they did does not make the prosecution an abuse of process justifying a stay. 

26.25.      In a very full judgment on this issue, the Magistrate applied the correct tests and considered all relevant evidence.  In my judgment, she was right to come to the conclusion that she did that the prosecution should not be stayed as an abuse of process. 

27.26.      This is sufficient without more to dispose of the appeals against conviction for the motoring offences because they are based solely upon an argument that the whole prosecution was an abuse of process. 

28.Rulings concerning evidence

29.Not permitting cross-examination

27.      There is little evidence of the appellant being stopped from cross-examining.  He was allowed to pursue, to some extent, in cross-examination lines of enquiry which the Magistrate had rightly ruled irrelevant.  The reality of this ground is that the appellant complains not so much about cross-examination being stopped but about the evidence that he wished to adduce not being permitted.  There is one major area of this to which I now turn. 

31.Allowing the prosecution to adduce evidence of the robustness of the 1999 enquiry

12.28.      In my earlier ruling, I explained why the adequacy or otherwise was of limited relevance to these proceedings. 

27."Secondly, the details of the 1999 investigation.  It is very important to understand the issues in the present case   The appellant is not being prosecuted for disclosure of the Faudemer report in itself; had that been done with names omitted he would not have been prosecuted.  The Prosecution rests and stands or falls upon his disclosure of the name of Nurse X.  For this reason the adequacy of the investigation in 1999 is not an issue.  Had the investigation been impeccable, and still concluded there was insufficient evidence to prosecute Nurse X, exactly the same issues would have arisen had the appellant disclosed Nurse X's name ten years later.  That is an essential point when it comes to relevance, which unhappily, the appellant does not grasp.  The consequence is that an examination of that enquiry is irrelevant to the appeal save in one very limited respect.  That very limited respect is in relation to whether any enquiry at all was carried out, adequate or inadequate.  The Prosecution assert and indeed the Magistrate found, that the appellant had been deliberately misleading in the way that he represented the status of the Faudemer report in his blog.  Of course, what is sauce for the goose is sauce for the gander; it was equally [ir]relevant for the Prosecution to seek the proof that the investigation was impeccable, save to the very limited extent that I have referred to.  If in fact they placed before the Magistrate irrelevant evidence at the trial, that is something which the appellant can complain about when mounting his appeal on the merits, and he can seek to demonstrate, if he wishes, that the Magistrate was influenced by irrelevant material but so far as disclosure is concerned, in my judgment it is not necessary for the Prosecution to disclose what remain of the records in relation to the 1999 investigation."

28.29.      Mr Syvret has drawn our attention to a number of passages in the opening for the Crown which were mirrored when the police witnesses gave evidence designed to demonstrate the thoroughness of the 1999 enquiry.  For the reason I have given, only a limited amount of that evidence was relevant unless Mr Syvret was allowed to meet it with his own evidence.  As I said in my earlier ruling what was sauce for the goose was sauce for the gander.  The prosecution did lead some evidence which went further than was necessary in supporting the robustness of the 1999 enquiry.  Equally, although he was not allowed to call his expert evidence, the appellant was given considerable latitude in challenging that evidence. 

30.      The crucial question on appeal is whether the Magistrate in coming to her conclusions was influenced by the prosecution presenting more evidence than they should have been permitted to of the extent of the 1999 enquiry.  An examination of her judgment shows that she was not.  See in particular her observations at paragraph 69 where she says rightly that the scope of the 1999 enquiry is relevant only to a limited extent (69.1.2) and correctly identifies the question for the court as being not whether it was necessary for the investigation to be re-opened or reviewed but whether the appellant needed to name Nurse X in order to bring that about. (69.1.7). 

Sufficiency of evidence for the charges under the 2005 Law

30.31.      Charge1:-

"Article 55 Unlawful obtaining etc. of personal data

(1)       A person shall not knowingly or recklessly, without the consent of the relevant data controller -

(a)       obtain or disclose personal data or the information contained in personal data; or

(b)       procure the disclosure to another person of the information contained in personal data.

(2)       A person who contravenes paragraph (1) is guilty of an offence.

(3)       A person does not contravene paragraph(1) if the person shows that -

(a)       the obtaining, disclosing or procuring was necessary for the purpose of preventing or detecting crime, or was required or authorized by or under any enactment, by any rule of law or by the order of a court;

(b)       the person acted in the reasonable belief that the person had in law the right to obtain or disclose the data or information or, as the case may be, to procure the disclosure of the information to the other person;

(c)       the person acted in the reasonable belief that the person would have had the consent of the data controller if the data controller had known of the obtaining, disclosing or procuring and the circumstances of it; or

(d)       in the circumstances of the case, the obtaining, disclosing or procuring was justified as being in the public interest.

Article (1) "personal data" means data that relate to a living individual who can be identified -

(a)       from those data; or

(b)       from those data and other information that is in the possession of, or is likely to come into the possession of, the relevant data controller,

(c)       and includes any expression of opinion about an individual who can be so identified and any indication of the intentions of the data controller or any other person in respect of an individual who can be so identified;"

32.      As a preliminary point, the appellant argues that it was unlawful and/or an abuse of process for the Information Commissioner to proceed straight to prosecution without going through the steps set out in Part 5 of the Law.  I disagree.  Prosecution under Art 55 is quite separate from the enforcement process envisaged in Part 5.  Had the legislators wished to make the following of that process a condition precedent to prosecution under Art 55, they could have done so with the addition of a few words to the Article.  They did not do so and there is no basis for the court to write the words into the Law. 

33.      The appellant admits that what he did amounts to disclosing personal data.  He argues that his conduct falls within exceptions (a) and (d).  On the facts of this case we can look simply at (d) because public interest clearly includes, though is not of course limited to, disclosing to prevent crime. 

b.34.      He puts his public interest argument in two separate though related different ways:-

(i)        Disclosure was necessary to get the authorities moving in relation to minimising the risk that Nurse X presents. 

(ii)       It was necessary to alert the Jersey public to the risk that he presents.  And, in particular, to avoid his being employed as a nurse in a private care home. 

35.      The first of these propositions is easily disposed of.  The authorities knew exactly to which enquiry he was referring.  The appellant had contacted the police about it in 2007 and did so again on the day following the blog entry.  There was no need to include the name of Nurse X to provoke them into action.  The fact of the disclosure of the report triggered the Metropolitan Police review of the 1999 enquiry.  When asked by the appellant in cross-examination whether this review would have taken place without his disclosure, Acting DCO Taylor said "Not necessarily, no.  At that time.  It may have occurred later."

36.      That review recommended that a risk assessment be done.  It was done.  It also led to further contact with the NMC in London when the risk assessment was passed on. 

d.37.      The second way in which the argument is put needs closer examination.  The test under this Article is objective.  Looked at objectively what was the position on 19th March, 1999?

(i)        Nurse X had been diagnosed with PTSD following service in the Army. 

(ii)       He had been convicted of serious offences including stealing potentially lethal drugs from his place of work.  He had given inconsistent explanations for that theft. 

(iii)      The SIO regarded him in 2000 as "deceitful, manipulative and dangerous" and posing a threat to terminally ill or infirm patients. 

g.(iv)      He was banned from working in homes run by the States of Jersey but had worked in private homes as a nurse in 2001, 2002 and 2007.  He had tried unsuccessfully to obtain a licence to set up a nursing agency. 

(v)       Whilst working at a private home in 2001, he had had an inappropriate sexual relationship with a patient. 

(vi)      In 2007, he had falsely claimed to the NMC that he had worked 450 hours in a care environment in the last three years. 

(vii)     Although his registration with the NMC had lapsed and is shown as having lapsed on their register, his name can still be found on that register. 

38.      Those facts demonstrate clearly, in our judgment, that Nurse X should not be permitted to work in any capacity as a nurse in Jersey (or indeed elsewhere) and that there was evidence that, although now not working in a nursing environment, he was still interested in returning to such employment.  It was clearly in the public interest that X should not be able to work as a nurse in Jersey.  This is not based at all on any suggestion that he caused deaths of patients but on the series of objectively demonstrable facts that we have outlined above.  It is undoubtedly true that by branding him a serial killer the appellant achieved that desirable objective.  The appellant argues that that is the end of the matter.  The public interest has been served whatever the means used to achieve that end.  Is this right?

39.      The Crown's first suggestion is that the answer lies in the wording of the definition of "personal data": "includes any expression of opinion about an individual who can be so identified".  That cannot be right.  Those words are intended to refer to the keeping of the opinion of others as a data controller, for example annual appraisals of an employee.  Those words are not apt to include an expression of opinion of the author in the course of a disclosure. 

40.      The second argument by the Crown is that the surrounding material places the disclosure in context and must in reality be part of the disclosure.  The appellant argues that only the disclosure of the name can be looked at and all the surrounding circumstances must be ignored.  This can be tested by posing deliberately extreme examples.  At one extreme, simply publishing Nurse X's name and saying that he had been a nurse at the hospital would theoretically have been a breach of this section subject to the "defences".  That would have involved publishing the name and occupation alone.  It would have achieved nothing.  It is only by providing context that the disclosure makes any sense.  At the other extreme, making a completely false allegation that Nurse X had been proved regularly to have stolen money from terminally ill patients would no doubt have achieved the desirable goal of ensuring that he never worked as a nurse again.  However, I am sure the appellant would not claim that it was in the public interest to make such manifestly false claims. 

41.      In my judgment, as a matter of law, the using of Nurse X's name must be looked at in the context in which it was disclosed.  That we now do.  

42.      The headline of the blog makes clear the allegations that the appellant is making: "IN THE JERSEY HOSPITAL.  A Death-Delivering Maniac? Jersey's then Attorney-General Michael Birt pulls the plug on the police investigation".  He names Nurse X whom he refers to as Jersey's version of Harold Shipman.  He sets out the Faudemer report dated 12th May, 1999.  Some names of nurses and the names of patients are anonymised but not Nurse X nor Nurse Y who is said to have been told of the concerns of other members of staff but not to have taken them seriously.  The Faudemer Report contains a list of suggested actions.  The implication from the appellant's introduction to it is that the Attorney General stopped the enquiry before these actions were undertaken.  He later speaks of "other phases [of the investigation] not being fully seen through".  He said that he had not spoken to Faudemer but that the officer was very, very unhappy that the enquiry had been brought to an end. 

43.      The Magistrate found that the appellant deliberately misled his readers as to the extent of the enquiry and also in relation to his assertion that he had not spoken to Faudemer about the report.  She had heard the evidence of both Faudemer and the appellant and on the evidence was entitled to make that finding.  Whether he regarded the investigation as inadequate and determined prematurely or not, the appellant knew that considerable work had been done and it was misleading to state that it had not.  He also knew that he had spoken to Faudemer about it and had been reassured by him. 

44.      The way in which the appellant published this report including the name of Nurse X caused distress to some of the readers of his blog and potentially to the relatives of those who had died during the time that the report referred to.  One of the relatives of one of the deceased had made a statement to the police about his distress.  The public interest is served by measured, responsible and accurate reporting.  The way that the appellant dealt with the information that he had was none of these. 

45.      The appellant has not put forward any serious justification for naming Nurse Y who was accused, if not of actually covering up the suspicions about Nurse X, then not taking them seriously and not acting as she should in relation to them. 

46.      The Magistrate was right to find that the disclosure of personal data in the appellant's blog was not in the public interest.  The appeal against conviction for this offence is dismissed. 

47.      Charge 2:-

"Article 17:- No processing without registration

(1)       Personal data shall not be processed unless an entry in respect of the data controller who determines the purposes for which and the manner in which the data are so processed is included (or taken to be included) in the register." 

48.      The appellant had been written to on a number of occasions pointing out that he fell within the wording of the Article.  He does not argue that he does not nor does he argue that he has not processed personal data.  It is not interfering with journalistic freedom to require compliance within this section.  Many others must also fall within this section however unexpectedly.  We remark in passing that this is an area where the Data Protection Commissioner must be astute to treat all in the same way.  It is, as the Crown suggest, a technical offence which requires no guilty mind but technical or not, the appellant is clearly guilty of it. 

49.Contempt of Court

50.49.      There are three allegations.  On 12th October, 2009, towards the end of the hearing, the appellant turned his back on the Magistrate and walked out of court as she was speaking.  Before he left, she told him that he was bailed to 9th November, 2009.  A possible hearing date on 21st October had been discussed.  That date was later confirmed and the appellant notified.  At the time the hearing was to commence, the appellant sent an email saying that he would not attend as he was in London.  The Magistrate adjourned the hearing and varied the appellant's bail to the new date of 23rd November, 2009. 

51.50.      The appellant remained in England until May 2010.  On his return he was arrested and was brought before the court on 4th May.  His behaviour then was, to put it mildly, ill-mannered.  He pretended that he was unable to stand.  He confirmed that he intended to be contemptuous of the court.  He said that the hearing had descended into manifest criminality and was part of a broader criminal enterprise involving conspiracy to pervert the course of justice and misconduct in a public office by the Magistrate. 

52.51.      From this course of conduct the three charges of contempt of court arose.  The first was straightforward.  Failing to answer to bail is, in Jersey, dealt with as a contempt of court.  The appellant knew of his requirement to attend.  He deliberately absented himself and has never put forward any explanation capable in law of being an excuse.  Although the formal charge was notified to him only 24 hours before the final hearing, he would have had no difficulty in meeting what was a clear admitted allegation.  It was dealt with at the time of sentence for the substantive offences which was the correct time.  His appeal against conviction for this offence is dismissed. 

53.52.      The second matter relates to two instances of what was undoubtedly rudeness by the appellant to the Magistrate.  The first, walking out of court on 12th October, was capable of being contempt in the face of the court though there might have been an argument for saying that it was the beginning of the unlawful absenting of himself in breach of bail.  The second, his comments on 4th May, beyond question were capable of being contempt in the face of the court.  However, before considering the substance of what happened it is necessary to look at the procedure adopted by the Magistrate. 

54.53.      The power to treat conduct in or near the court as a contempt is an important, indeed essential, weapon in the armoury of the tribunal to ensure that litigation whether criminal or civil proceeds in an orderly manner.  It may well be the case that such conduct must be dealt with immediately by way of summary procedure.  For example, if the proceedings are being disrupted by disorderly behaviour in court or if a witness is harassed before or during the giving of evidence.  The summary procedure is very much sui generis in that the judge may well be in effect witness, investigator and judge in the same matter.  For that reason, strict procedural fairness is essential. 

55.54.      The principles upon which the court should proceed were recently set out by the Court of Appeal in England in R-v-Grant [2010] EWCA Crim 215.  They are equally applicable here:- 

"Over the years the courts, particularly in R-v-Moran 81 Cr App R 51, have established certain principles which should ordinarily be observed when dealing with contempt cases.  These include that: (a) a judge has the power to order the immediate arrest and detention of the suspected offender; (b) the decision to try a suspected offender summarily should be taken only when it is necessary to do so to preserve the integrity of the trial or the dignity of the court; (c) such a decision should never be taken too quickly and that time should always be allowed for reflection, if necessary overnight; (d) the suspected offender must be distinctly and clearly told what acts or conduct are alleged against him; (e) he should be allowed the opportunity of legal representation; (f) he should be allowed a reasonable opportunity properly to investigate the circumstances; and (g) the contemnor should be given an opportunity to apologise, which in an appropriate case might obviate the need for further action.  We add that no one should be convicted of contempt unless they distinctly admit it, or if they do not unless it be proved against them beyond reasonable doubt."

56.55.      In this case, the Magistrate did not deal with the matters summarily.  That did not mean that they could not later be dealt with as contempts but it did mean that the short-circuiting of the procedure which inevitably follows with a summary consideration of the conduct was not necessary and ordinary rules of procedure could apply. Indeed, if matters of the present sort are dealt with by the same judge, even after the passage of time, the oddities of the judge being witness, investigator and judge in the same matter remain.  Thus particular care to ensure procedural fairness must be taken. 

57.56.      Of particular relevance in this case among the principles set out in Grant are that (d) the suspected offender must be distinctly and clearly told what acts or conduct are alleged against him and (f) he should be allowed a reasonable opportunity properly to investigate the circumstances. 

58.57.      What happened here was that the day before the final hearing, Advocate Redgrave on behalf of the Attorney General sent an email to the appellant enclosing two new charges which were to be dealt with the following day.  One was the contempt arising out of the failure to attend; the other was an allegation of breach of reporting restrictions imposed under the Police Procedures and Criminal Evidence (Jersey) Law 2003 Article 106 in repeating Nurse X's name on his blog.  In a further exchange of emails, Advocate Redgrave, in answer to a question by the appellant said that if he did not admit the offences of contempt, it was likely they would be adjourned for trial. 

59.58.      The next day, after giving judgment on the main charges, the Magistrate herself raised the two new allegations of contempt.  There was a brief adjournment while charges were drafted and the appellant spoke to the duty advocate.  The charges did not particularise the contempt referring merely to the dates although discussion in court had indicated what was alleged.  When the matters were put to him, the Magistrate said in relation to the contempt charges that they were not something upon which the court would take a plea because it was a matter of enquiry by the court and determination by the court of matters which happened within the court's knowledge. 

60.59.      This would have been true had the matters been dealt with summarily though the court would still want to know whether the defendant admitted the facts or not.  Once they were set out in formal charges, taking a plea would have been appropriate.  In any event, the appellant was given the opportunity to apologise and declined to do so.  The duty advocate who had remained made several helpful observations about the procedure including making the point that the appellant had only received notice of the charges at court and inviting the Magistrate to consider whether it was right that she should sentence for matters in respect of which she was the victim. 

61.60.      I have set out the importance of procedural fairness where these sorts of contempt hearings are to take place.  In the present case, the summary procedure and the more measured procedure of preparing charges, and serving them in advance like any other charges became muddled.  There was no longer any urgency.  It was not appropriate for the appellant to be faced with these two contempt charges unexpectedly on the morning of the final hearing.  Even though he had transcripts of all the hearings and, no doubt, remembered his outbursts in general terms, he was entitled to consider the allegations with proper notice so as to decide away from the emotions of the final hearing in his case whether he would apologise and what considered arguments he might advance about them either as to liability or in mitigation.  Whatever the rights and wrongs about the way in which he had behaved, these were important flaws in the procedure adopted by the Magistrate. 

62.61.      For the above reasons, the appeals against conviction for the two contempts in the face of the court are allowed. 

Authorities

Data Protection (Jersey) Law 2005.

Rushton-v-AG [2000] JLR 363.

Syvret-v-AG [2011] JRC060A.

Warren-v-AG for Jersey [2011] UKPC 10.

Grant [2005] 2 Cr App R 28.

R-v-Grant [2010] EWCA Crim 215.

Police Procedures and Criminal Evidence (Jersey) Law 2003.