Jersey Unreported Judgments

Application to stay the orders of the Royal Court dismissing his appeal against conviction and allowing him to re-open the appeal.

[2012]JRC022

Royal Court

(Samedi)

26 January 2012

Before     :

Sir Christopher Pitchers, Commissioner, sitting alone.

Stuart Syvret

-v-

The Attorney General

Application to stay the orders of the Royal Court dismissing his appeal against conviction and allowing him to re-open the appeal.

Stuart Syvret appeared in person.

Advocate S. M. Baker for the Attorney General.

JUDGMENT

THE commissioner:

1.        This is an application by Stuart Syvret (the applicant) to stay the orders of the Royal Court dismissing his appeal against conviction and permitting him to re-open the appeal and to call new evidence.  From a legal point of view, the application is a novel one.  I therefore reserved judgment after hearing the argument.

2.        The factual background and the resolution of a number of legal issues have been set out in previous rulings and judgments that I have given in these proceedings and I do not repeat them here.  See in particular the judgment of this court following the hearing of the appeal against conviction reported at [2011] JRC 168.  An understanding of the present issues does, however, need me to set out a brief background to this application:-

(i)        17 November 2010:  the applicant was convicted by the Assistant Magistrate of two offences contrary to sections 55 and 21 respectively of the Data Protection (Jersey) Law 2005 and two motoring offences.  He was also convicted of three offences of contempt of court, one involving his leaving the jurisdiction for six months in breach of his bail and failing to attend hearings of his case.

(ii)       30 August 2011:  his appeal against conviction was dismissed save that the two convictions for contempt of court involving his behaviour at court were quashed.  The appeal against sentence was allowed and the sentences varied.

(iii)      Both in the Magistrate's Court and the Royal Court, he argued that the entire proceedings were vitiated by an abuse of process.  In respect of the offence contrary to Art. 55, he invoked the public interest defence provided in that Article.

(iv)      The Royal Court imposed a Community Service Order in respect of the failure to attend his trial.  He did not complete any of the order, it was revoked and a sentence of 8 weeks substituted by the Magistrate.  His appeal against that sentence was rejected by the Royal Court.  This conviction and sentence are not dependent on the failure of his arguments about abuse of process and would be unaffected by any re-opening of his appeal.

(v)       Since the dismissal of his appeal, two documents have come into the applicant's possession which he argues should now be admitted in a reconsideration of his appeal.  Those documents are:-

(a)       The statement of Mr Graham Power, former Chief Officer of the States of Jersey Police made to the Wiltshire enquiry into the conduct of the investigation of events at Haut de la Garenne children's home.

(b)       A witness statement made by a woman to whom I shall refer as Mrs A concerning her treatment in hospital in 1999.

3.        I note finally as a preliminary matter that since the conclusion of the hearing, the applicant has submitted further written argument by way of a letter dated 29 November 2011.  I would not normally be prepared to receive further argument after the conclusion of the hearing of an application.  However, bearing in mind that the applicant is a litigant in person and had to prepare his case in prison, I have considered the matters set out in that letter.  I have neither sought nor received any response from the respondent.  Some of that letter seeks to re-open matters that were raised in the appeal for example the suggestion that the prosecution was an abuse of process because Advocate Baker had been involved in decision-making during the Haut de la Garenne enquiry (and indeed prosecuted those cases that came to court.)  That was an argument that has always been without any merit and remains so.  To the extent that the applicant's letter raises issues which are relevant to this application, I will deal with them in context.

4.        I deal with one point as a preliminary matter.  The applicant argues that in hearing this application I am in effect hearing an appeal from my own decision.  This is simply not so.  The essence of the application is that relevant material which was unknown to the previous court was not before it.  By definition that does not contain any criticism of any conclusions of the previous court who can hardly have been expected to act on material of which they were unaware.  This application was rightly made to me.

The issues.

5.        This application raises three issues which need separate consideration:-

(i)        Is there jurisdiction in the Royal Court to re-open one of its decisions  determining an appeal against conviction in the Magistrate's Court?

(ii)       If there is such jurisdiction, what is the test to be applied where it is sought to re-open the appeal because of fresh evidence?

(iii)      Does the evidence relied on in this application pass that test?

Is there jurisdiction?

6.        The Attorney-General as respondent to this application has conceded that there is jurisdiction.  The matter has therefore not been argued on both sides.  Although I have concluded that the concession was rightly made, this is new law so I set out my reasons for coming to that conclusion more fully than would normally be necessary where a point has been conceded in argument.

7.        There is no doubt that there can be no further appeal from a decision of the Royal Court on appeal from the Magistrate's Court.  The Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949 is clear:-

"Miscellaneous provisions

Any appeal or application under this Part may be heard and determined by the Royal Court either in term or in vacation.

Any judgment or order of the Royal Court under this Part shall be final and conclusive, and shall not be subject to appeal to any other court."

8.        There is equally clearly no statutory provision permitting the re-opening of a concluded appeal from the Magistrate's Court to the Royal Court.  There is no equivalent provision to that which permits the reconsideration of a conviction on indictment which has been the subject of an unsuccessful appeal from the Royal Court.  Under the Court of Appeal (Jersey) Law 1961 :-

"43 Prerogative of mercy

Nothing in this Part shall affect the prerogative of mercy, but, as respects the conviction of a person on indictment by the Royal Court or the sentence passed on a person so convicted, being a conviction or sentence against which an appeal lies under this Part to the Court of Appeal, the Lieutenant-Governor may, if he or she thinks fit, at any time either -

(a) refer the whole case to the Court of Appeal, and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b) if the Lieutenant-Governor desires assistance on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court shall consider the point so referred and furnish the Lieutenant-Governor with its opinion thereon accordingly."

9.        In these circumstances, the power to re-open a final decision on appeal must lie in the inherent jurisdiction of the Court.  Before looking at the authorities, it is helpful to step back and consider the important and competing principles that are in play here.  On the one hand, finality in litigation is important.  The public interest in the system bringing litigation to an end is obvious but there is more to it than that. A dispute before the courts, whether civil or criminal affects the lives of those involved both as parties and otherwise.  They need to know that when the process of trial and appeals has been exhausted they may get on with their lives and put the litigation behind them.  On the other hand, there is an equally clear public interest in ensuring that a manifest injustice can be put right.  This is particularly true where the injustice is a wrongful criminal conviction.

10.      The first principle was clearly expressed by Lord Woolf CJ in Taylor v Lawrence [2003] QB 528 at paragraph 6:-

"The rule in Ladd v Marshall is an example of a fundamental principle of our common law - that the outcome of litigation should be final. Where an issue has been determined by a decision of the court, that decision should definitively determine the issue as between those who were party to the litigation. Furthermore, parties who are involved in litigation are expected to put before the court all the issues relevant to that litigation. If they do not, they will not normally be permitted to have a second bite at the cherry - Henderson v Henderson (1843) 3 Hare 100. The reasons for the general approach is vigorously proclaimed by Lord Wilberforce and Lord Simon in The Ampthill Peerage case [1977] AC 547. Both statements deserve the most careful attention. However, for reasons of economy we will cite only Lord Wilberforce, who presided, but we give reference to Lord Simon's speech at p.575E to 576H. Lord Wilberforce said (at p.569A-E):

"English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.""

11.      Against the background of this powerful statement of the finality principle, the Court of Appeal nonetheless held in what was a civil claim for trespass that there was jurisdiction to re-open the appeal.  The reasoning of this five judge court which also included Lord Phillips MR. bears lengthy citation:-

"50 .......It is, however, wrong to say that it [the Court of Appeal] has no implicit or implied jurisdiction arising out of the fact that it is an appellate court. As an appellate court it has the implicit powers to do that which is necessary to achieve the dual objectives of an appellate court to which we have referred already (see para 26 above). ['this court was established with two principal objectives. The first is a private objective of correcting wrong decisions so as to ensure justice between the litigants involved. The second is a public objective, to ensure public confidence in the administration of justice not only by remedying wrong decisions but also by clarifying and developing the law and setting precedents.']

51. As to these powers, Lord Diplock, who perhaps speaks on a subject of this nature with the greatest authority of any judge, has dealt with the inherent power conferred on a court, whether appellate or not, to control its own procedure so as to prevent it being used to achieve injustice.

52. We would give an illustration of Lord Diplock's approach. It is taken from his speech in Bremer Vulcan v South India Shipping [1981] AC 909 at p.977C-H:

"The High Court's power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff's choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.-¨The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an "inherent power" the exercise of which is within the "inherent jurisdiction" of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice."

53. In our judgment the final words of Lord Diplock, "the doing by the courts of acts which it needs must have power to do in order to maintain its character as a court of justice" express the situation here under consideration exactly. .....

54. Earlier judgments referring to limits on the jurisdiction of this court must be read subject to this qualification. It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.

55. One situation where this can occur is a situation where it is alleged, as here, that a decision is invalid because the court which made it was biased. If bias is established, there has been a breach of natural justice. The need to maintain confidence in the administration of justice makes it imperative that there should be a remedy. The need for an effective remedy in such a case may justify this court in taking the exceptional course of reopening proceedings which it has already heard and determined. What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy. The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations. Where the alternative remedy would be an appeal to the House of Lords this court will only give permission to reopen an appeal which it has already determined if it is satisfied that an appeal from this court is one for which the House of Lords would not give leave.

56. Today, except in a few special cases, there is no right of appeal without permission. The residual jurisdiction which we have been considering, is one which should only be exercised with the permission of this court. Accordingly a party seeking to reopen a decision of this court, whether refusing permission to appeal or dismissing a substantive appeal, must apply in writing for permission to do so. The application will then be considered on paper and only allowed to proceed if after the paper application is considered this court so directs. Unless the court so directs, there will be no right to an oral hearing of the application. The court should exercise strong control over any such application, so as to protect those who are entitled reasonably to believe that the litigation is already at an end."

12.       The applicability of these principles in a criminal jurisdiction was affirmed by the Divisional Court in Interfact Ltd v Liverpool City Council [2010] 2 Cr App R 29 albeit on very unusual facts.

13.      The possibility of a Jersey court recognizing inherent powers that are not provided in statute has been recognised by the Jersey Court of Appeal in both the civil and criminal jurisdictions:-

(i)        Mayo Associates SA v Cantrade [1998] JLR 173 at page 188:-

"In our view the vital clue to the nature of inherent jurisdiction in its procedural setting, and revealed in the two passages quoted, is necessity.   The court has a particular procedural power because it has to have it to be a court in any meaningful sense.   On this basis the power to require the attendance of witnesses whether to testify or produce documents, the power to control abuse of the process of the court, the power to dismiss claims for want of prosecution, the power to issue practice directions, the power to decide who may or may not appear before the court, the power to correct errors in its own orders, and many other powers may all be recognised as derived from a single pool not of powers but of power drawn upon as necessity dictates.

It will be observed that this approach is antithetical to a definition of inherent jurisdiction based simply on fairness or by reference to what is perceived in a particular situation to be just.   If inherent jurisdiction exists to enable a court to order that a thing be done fairness and justice will obviously be major factors to be taken into account when the court is deciding whether or not to exercise its discretion to so order; but the conclusion that it would be fair or just to order that that thing be done does not determine whether there is inherent jurisdiction to order it."

(ii)       Jones v Attorney-General [2000] JLR 103 at para 16:-

"The concept of necessity predicates a situation where the court has power to do something but can only achieve it by doing something else:  an inherent power can be invoked in such circumstances to enable the court to act effectively. The rationale for the existence of the power is the court's invocation of an implied power to do something which is ancillary to that which the court has an explicit power to do.

Plainly it is possible for an inherent jurisdiction to exist in respect to matters about which a statute is silent. Equally an inherent jurisdiction may supplement a permissive jurisdiction granted by statute. What it cannot do is to confer a power inconsistent with a statutory provision which is itself mandatory." 

14.      Following these principles, should the Royal Court be held to have the inherent jurisdiction to re-open a concluded appeal?  The first thing to note is that the need for a residual power to avoid serious injustice in cases which have been to the Court of Appeal is provided by Art. 43 of the 1961 Law set out above.  A similar residual power in England and Wales is given to the Criminal Cases Review Commission covering both Crown Court and Magistrate's Court convictions and sentences. . 

15.      It can be argued that since the power in Art 43 is expressly limited to decisions appealed from the Royal Court in its first instance capacity, I should hold that the legislators deliberately omitted cases originating in the Magistrate's Court.  I do not take that view. Statute forbids further appeals but is silent as to re-opening existing appeals.  There is no other statutory remedy available.  It would be odd if there were no power to put right a gross injustice, for example when it could later be shown that the conviction had been obtained by bribery of prosecution witnesses.  This represents, to repeat Lord Diplock's words, "the doing by the courts of acts which it needs must have power to do in order to maintain its character as a court of justice"

16.      Applying the principles set out in the Jersey cases referred to in paragraph 11 above, I find that the Royal Court does have jurisdiction to permit the re-opening of a concluded appeal from the Magistrate's Court and admit fresh evidence.  I do not find it necessary to consider an possible alternative route to the same end via the Human Rights (Jersey) Law 2000.

What is the test?

17.      I consider next the test that the Royal Court should apply in considering an application to re-open a concluded appeal.  This will generally take the form of an application to admit new evidence but it need not.  Occasionally for example a fundamental legal flaw in the original conviction, now acknowledged by all, may have been overlooked by all at the time.  The nature of the new evidence sought to be relied upon may also vary from, for example, evidence severely undermining the credit of a key witness (I have already given the example of evidence of bribery of witnesses) or, as in the present case, evidence said to be directly relevant to the issues that the original court had to determine.

18.      In cases such as the present, the test for admitting fresh evidence on appeal provides a starting point. The test in the Court of Appeal was set out by that court in Hume v AG [2006] JLR N 36 at para 17 of the full judgment:-

"The principles to be adopted by a court in exercising its discretion under Article 32(b) of the Court of Appeal (Jersey) Law 1961 in considering applications for the reception of fresh evidence in Jersey are set out by the Court of Appeal in Barnes v Attorney General CA 1988 and further formulated in Evans and Phillips v Attorney General 1997 JLR 94.  The principles to be applied are:

(i) the evidence sought to be adduced should have been unavailable at the trial....;

(ii) that evidence had to be relevant;

(iii) it had to be capable of belief; and

(iv) if the evidence met these criteria the Court would go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the Appellant's guilt had that evidence been given at the trial.  Each case had to be considered on its own facts but in general the reception of fresh evidence before the Court of Appeal should be considered wholly exceptional."

19.      The principles apply equally on appeal from the Magistrate's Court.  See Knapp [1991] JLR N 7b.

20.      I describe this as a starting point because it relates to the admission of fresh evidence in proceedings where the appellate phase has not yet been exhausted.  The principle of finality in litigation should mean that any application at a later stage should be even more carefully scrutinised.  If the reception of new evidence before a final appeal should be considered as wholly exceptional, then a fortiori after that appeal has been concluded.  This test also does not deal with those applications to re-open an appeal which do not involve new evidence.  In applying any test, a court should bear in mind that the purpose of this power is, while respecting the need for finality in litigation, to provide a remedy where there is a real danger that an injustice has occurred.  It is not intended to provide a pretext for a disgruntled litigant to seek endlessly to re-open a concluded case.

21.      Since, as I shall find, the evidence in this case does not pass the test for new evidence to be received on appeal, it is unnecessary for me to decide whether a further test has to be applied where it is sought to re-open a concluded appeal or in those cases which do not depend upon the admitting of fresh evidence.  Were I to do so, I would have found assistance in the test for the UK Criminal Cases Review Commission set out in section 13 of the Criminal Appeal Act 1995:-

13 Conditions for making of references

(1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless-

(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,

(b) the Commission so consider-

(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal  or application for leave to appeal  against it, or

(ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and

(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.

(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it."

Does the new evidence satisfy the test?

22.       I turn now to examine whether the two new matters relied upon by the applicant satisfy the criteria set out in paragraph 18 above.  I repeat that for the present purposes I am considering the test for new evidence to be admitted in a current appeal.  As I have indicated, the test at this stage of the proceedings cannot be less stringent than that.

23.      I repeat the four criteria. The new evidence must:-

(i)        have been unavailable at the trial;

(ii)       be relevant;

(iii)      be capable of belief; and

(iv)      be such as might have caused the original tribunal of fact to have a reasonable doubt as to the defendant's guilt.

24.      In practice, I need to consider only three of those four criteria.  It is not suggested that the evidence of either Mr Power or Mrs A is not capable of belief.  Whether their recollection is accurate or their comments and conclusions are well founded would only be clear after an examination of their evidence in any proceedings that might follow its admission.

Mr Power's statement.

25.       This statement was made by Mr Power, former Chief Officer of the States of Jersey Police in 2009 to officers from the Wiltshire Constabulary who were investigating potential disciplinary proceedings against him.  The existence of this statement has long been known to the applicant and was regularly referred to by him during the appeal proceedings.  His complaint then was that he had not been provided with a copy of it and that Advocate Baker had asserted that there was nothing relevant to the appeal to disclose from it.  Since the hearing of the appeal the applicant has received a copy of it.

26.      Unavailable at the trial.  It is important to understand the status of this document.  It is not evidence itself.  It sets out in writing the evidence that Mr Power could give were he called as a witness.  Analysed in this way, it is clear that what is described as new evidence fails to satisfy the first criterion set out.  Far from his evidence being unavailable at the appeal, Mr Power gave evidence in the proceedings in the sense that a 10 page statement dated 2 May 2011 was placed before the court by the applicant and accepted by the court as evidence in the case to the extent that it was relevant.  That statement was prepared for the applicant.  It could have included anything that the applicant or Mr Power then wished to raise including those matters set out in the Wiltshire statement, a copy of which Mr Power obviously had.  Indeed, it does cover part of the same ground.  Mr Power refers to his Wiltshire statement and includes two long quotations from it.  In paragraph 1 of his statement for the appeal, Mr Power says:-

"The request [for a statement] from Mr Syvret is wide-ranging and I have therefore sought to refer only to matters which appear to me to be relevant to the proceedings and helpful to the court."

27.      Accordingly, in no sense can the matters contained in Mr Power's Wiltshire statement be said to have been unavailable at the appeal.

28.      Relevant.  Although my findings in the previous paragraph are sufficient to dispose of this part of the application, I will consider the content of the Wiltshire statement.  I defined what I regarded as relevant, in my ruling on disclosure during the appeal as to which see my previous rulings.

29.      Bearing in mind the purpose for which it was produced, it is not surprising that it contains a wide-ranging review and discussion of Mr Power's time as Chief Officer and the difficulties that arose both within the force and between the force and politicians during the last years of his service. He deals with the matters that had been raised about his oversight of the Operation Rectangle enquiry. What the statement does not contain is any new material relevant to the prosecution of the applicant for these offences.  To the limited extent that he has relevant evidence to give in relation to that, he had already set it out in his statement for the appeal.

30.      I add, simply for completeness, that the applicant's argument about what Advocate Baker did or didn't say about when he had read the statement has no bearing on its admissibility or otherwise at this stage of the proceedings.

31.      Raising a reasonable doubt.  Since I find that the Wiltshire statement contains no new relevant material, it follows that it could not have raised a reasonable doubt had it been before the Magistrate's Court or the Royal Court.

The statement of Mrs A.

32.      On 24 August 2011, Mrs A made a statement to the police concerning her stay in hospital in March 1999 on the ward on which Nurse X worked.  This was during the period covered by the police investigation.  Her existence as a potential witness was not known to the prosecution nor the applicant until she made this statement. Accordingly, her evidence is properly described as unavailable at the trial.  That statement gives details of her treatment and her employment.  I will describe those only in general terms so as to preserve her anonymity.

33.      She sets out in her statement how she was admitted to hospital with a serious acute condition.  Amongst those doctors and nurses caring for her was Nurse X.  During the night, she developed serious complications which a treating doctor described as a reaction to something.  She remained in hospital for several days but happily in due course made a full recovery.

34.      In 2009, she read the police report on the applicant's blog, the publication of which led to his prosecution.  She was at that time working within the court system in Jersey.  She was shocked to recognise the name of Nurse X.  Over the following months she mentioned casually to colleagues that Nurse X had nursed her 'on the night she nearly died'.  As the prosecution of the applicant progressed, her work brought her legitimately into contact with the details of his case.  She had a breakdown which she attributes to a number of things including the stress of learning of the allegations against Nurse X.  She finished working in the court system in February 2011.  At that time her superior advised her to go to the police with her concerns about Nurse X.  She did not at that stage.  She contacted the appellant after the report of the dismissal of his appeal.  He advised her to go to the police which she then did.

35.      Following the making of her statement, the Attorney General submitted it and her medical notes to a consultant physician in England who, having reviewed them, concluded that, in relation to the complications of Mrs A's treatment, they may well have occurred as a result of "pathophysiological mechanisms" (functional changes associated with or resulting from the disease) but that 'the possibility of foul play could not be completely ruled out'.

36.      Before turning to the substance of this part of the application, I deal with a point raised by the applicant in his written submission dated 29 November 2011.  In those submissions he claims that "Her potential relevance to my case was known by the judicial authorities who advised her not to contact the police".  This is a misrepresentation of what Mrs A says in her statement which needs to be corrected lest there should be any repetition of it.

37.      As I have set out, she had spoken to colleagues in a general way.  She adds in her statement:-

"At no time did I raise concerns officially to my colleagues or supervisors at that time. At the time I did not want to speak out as I did not think anyone would have listened or believed me and an official investigation had been done."

When she came to leave, she describes what was said to her as follows:

"Mr. [her superior] ...told me to go to the police about my concerns regarding [Nurse X] to put my mind at rest.  Again I did not feel I wanted to come to the police as I did not have any evidence, an official investigation had been done and I was afraid they would not believe me."

38.      Applying the further criteria for the admission of new evidence on appeal to Mrs A's evidence, I find that it was relevant to the issues in the appeal in relation to the public interest defence to the charge under Art55 of the 2005 Law.  It had no relevance to any of the other charges nor to the allegations of contempt of court.  The question remains whether it could have caused the raising of a reasonable doubt in the minds of the magistrate or the Jurats on appeal.

39.      The applicant's argument is that Mrs A would not have come forward had his blog not named Nurse X.  Even without the name, the dates and details in the blog were such that it would not have been difficult for Mrs A to work out that it dealt with the period of her stay in hospital.  However, it is certainly arguable that it was the naming of Nurse X that caused her to come forward. 

40.      The second part of his argument is that Mrs A's statement fundamentally changes the nature of the information available to the police and thus the way in which the 1999 investigation should be looked at.  In particular, he sets great store by the recent expert opinion set out above.

41.      In my judgment, this argument demonstrates a fundamental misunderstanding of the state of the evidence and police opinion about it in 1999.  It has never been suggested that the enquiry exonerated Nurse X and demonstrated that he was certainly innocent.  The final paragraph of the final police report dated 11 February 2000 from which I quoted in the judgment of the court dismissing the applicant's appeal includes the following:-

"Considerable suspicion still hangs over the conduct of [Nurse X].....the Investigating Officer is firmly of the view that he poses a threat to women he befriends and terminally ill or infirm patients. The circumstantial evidence falls short of securing the opportunity to launch a prosecution at this stage but the enquiry papers, including the policy log, will be stored carefully to facilitate any further investigations."

42.      It follows that in 2000 when the investigations ended, the police had concluded in relation to the cases then under examination that foul play could not be completely ruled out.  Then as now, a prosecution could only be mounted if there was a reasonable prospect of a jury being sure on the evidence that Nurse X was guilty.  As juries are always told, the prosecution have to prove his guilt.  He does not have to prove his innocence.  There was not such a prospect then and the addition of one more case in respect of which foul play could not be completely ruled out would have made no difference at all to the decision-making. 

43.      The statement of Mrs A if before the trial or the appellate court would have made no difference to the outcome.  It did not materially strengthen the applicant's argument as to public interest. The main consequence for Mrs A of drawing her attention to the fact that she had been a patient of Nurse X has not been to provide her with the peace of mind that she says in her statement she understandably sought but to raise fresh doubts that cannot be resolved about what must have been a traumatic and distressing episode in her life.

Conclusion

44.      For the reasons set out above, this application is dismissed.

Authorities

Syvret v AG and Connetable of Grouville [2011] JRC 168.

Data Protection (Jersey) Law 2005.

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

Court of Appeal (Jersey) Law 1961.

Taylor v Lawrence [2003] QB 528.

Interfact Ltd v Liverpool City Council [2010] 2 Cr App R 29.

Mayo Associates SA v Cantrade [1998] JLR 173.

Jones v AG [2000] JLR 103.

Human Rights (Jersey) Law 2000.

Hume v AG [2006] JLR N 36.

Knapp v AG [1991] JLR N 7b.

Criminal Appeal Act 1995.