Jersey Unreported Judgments

Ruling by Senior Ordinary Appeal Judge Beloff JA on the questions of time to appeal following conviction.

[2012]JCA153

Court of Appeal

22 August 2012

Before     :

The Hon. Michael Beloff, Q.C. sitting as a single judge.

John Tasker Lewis

Ian Michael Christmas

Russell Philip Foot

James Cameron

-v-

The Attorney General

Ruling by Senior Ordinary Appeal Judge Beloff, JA on the questions of time to appeal following conviction.

Crown Advocate M. T. Jowitt.

Advocate S. A. Pearmain for Lewis.

Advocate R. MacRae for Christmas.

Advocate R. Tremoceiro for Foot.

Advocate M. L. Preston for Cameron.

JUDGMENT

beloff ja:

1.        There has been drawn to my attention in my capacity as Senior Ordinary Appeal Judge of the Court of Appeal an issue concerning the prospective appeals of John Tasker Lewis (''Lewis;''), Ian Michael Christmas (''Christmas'') Russell Philip Foot (''Foot'') and James Cameron (''Cameron'') (''the putative Appellants'') who were found guilty of various offences against the Investors (Prevention of Fraud) Jersey Law 1967 by the Royal Court on 26th July 2012 (''the convictions'').  The issue concerns the time for the putative appellants to give notice of their appeal against conviction.

2.           On 3rd August 2012, in the wake of the convictions, Advocate Boothman for Cameron telephoned the Greffe and asked for an extension for giving such notice of appeal until 28 days after sentence, and was told that he should seek the views of the Crown.  Thereafter the following interchange took place on the same day between Advocates involved in the matter and the Greffe (they are set out in reverse order as is conventional for e mails):-

"Dear Caroline

Thanks for your e-mail.

Have a good weekend and enjoy the Olympics!

Mark

Mark Boothman

per pro: Voisin

Direct Dial:       +44(0) 1534 500362

Switchboard:    +44(0) 1534 500300

Fax:                    +44(0) 1534 500350

E-mail:                markboothman@voisinlaw.com

For further information about our firm and the services offered, please visit our web-site at <http://www.voisinlaw.com>

Voisin

Advocates Solicitors & Notaries Public

Templar House, Don Road, St Helier, Jersey JE1 1AW      

From: Caroline Coleman [mailto:C.Coleman@gov.je]

Sent: 03 August 2012 15:34

To: Mark Boothman; 'Sian Le Cocq'; robert.macrae@careyolsen.com; nicola.moore@careyolsen.com; Michael Preston; Sarah Cameron; rui@tremoceiro.com

Cc: Katie Ridley; 'Matthew Jowitt'

Subject: RE: AG v Lewis, Christmas, Foot & Cameron

Dear all

Further to the attached correspondence and the application on behalf of Mr Cameron, the Court of Appeal will extend the period to file a Notice of Appeal against conviction in the above case to 28 days after the date of sentencing. 

This applies to all defendants: Mr Lewis, Mr Christmas, Mr Foot and Mr Cameron

Yours sincerely

Mrs Caroline Coleman

Assistant Judicial Greffier

Tel: 01534 441319

Fax : 01534 441357

Email: c.coleman@gov.je

From: Matthew Jowitt [mailto:matthew@jowittlegalservices.com]

Sent: 03 August 2012 10:31

To: 'Mark Boothman'

Cc: Caroline Coleman; Katie Ridley; rui@tremoceiro.com; 'Sian Le Cocq'; robert.macrae@careyolsen.com; nicola.moore@careyolsen.com; Michael Preston; 'Sarah Cameron'

Subject: RE: AG v Lewis, Christmas, Foot & Cameron

Dear Mr Boothman,

Our position is entirely neutral.

Yours sincerely,

Matthew Jowitt

From: Mark Boothman [mailto:markboothman@voisinlaw.com]

Sent: 03 August 2012 10:09

To: Matthew Jowitt (matthew@jowittlegalservices.com)

Cc: c.coleman@gov.je; k.ridley@gov.je; rui@tremoceiro.com; Sian Le Cocq (sian@tremoceiro.com);robert.macrae@careyolsen.com;nicola.moore@careyolsen.com; Michael Preston; Sarah Cameron

Subject: AG v Lewis, Christmas, Foot & Cameron

Dear Crown Advocate Jowitt

As you are aware, it is our intention to make a request to the Court of Appeal that we be given an extension of time within which to file the notice of appeal on behalf of Mr Cameron.

I would be grateful if you would please confirm that you have no objection to an extension to allow us to file our notice of appeal against conviction within 28 days of the sentencing date.

You will note that this e-mail is copied in to the Court of Appeal Greffe.

Yours sincerely

Mark Boothman

per pro: Voisin

Direct Dial:       +44(0) 1534 500362

Switchboard:    +44(0) 1534 500300

Fax:                    +44(0) 1534 500350

E-mail:                markboothman@voisinlaw.com

For further information about our firm and the services offered, please visit our web-site at <http://www.voisinlaw.com>

Voisin

Advocates Solicitors & Notaries Public

Templar House, Don Road, St Helier, Jersey JE1 1AW"

3.        It is on 4th 0ctober 2012, pursuant to an order of the Royal Court also made on 26th July 2012  that sentencing of the putative appellants is due to take place.

4.        In consequence the present position is that, with the consent of all parties and the concurrence of the Greffe any notice of appeal would not need to be served before 1st November 2012 ,with obvious impact on the date for hearing of any appeal.  The questions before me are whether the extension was validly granted; if not what, if any extension I should grant in lieu;(''the first question'') and, if it was validly granted, whether I have power to vary it and, if so, in what way, if any, I should do so.(''the second question'').

5.        The Court of Appeal (Jersey) Law 1961 (''the 1961 Law'') provides so far as material as follows:-

"32    Time for appealing

(1)    A person who wishes -

(a)     to appeal under this Part; or

(b)     to obtain leave to appeal under this Part,

shall give notice of appeal or (as the case may be) notice of application for leave to appeal, in such manner as may be prescribed by rules of court.

(1A)      Notice of appeal against conviction, or notice of application for leave to appeal against conviction, shall be given within 28 days of the date of the conviction.

(1B)      Notice of appeal against sentence, or notice of application for leave to appeal against sentence, shall be given within 28 days of the date on which the sentence is passed.

...

(3)    The time within which notice of appeal or notice of an application for leave to appeal may be given may be extended at any time by the Court of Appeal.

...

41.    Powers under Part 3 which may be exercised by a single judge

The powers of the Court of Appeal under this Part to give leave to appeal, to extend the time within which notice of appeal or of an application for leave to appeal may be given, to grant or revoke bail or to allow the appellant to be present at any proceedings in cases where the appellant is not entitled to be present without leave, and such other powers to determine matters preliminary or incidental to an appeal as may be prescribed, may be exercised by any single judge of the Court in the same manner as they may be exercised by the Court, and subject to the same provisions; but if the judge refuses an application on behalf of the appellant to exercise any such power under this Part in the appellant's favour, the appellant shall be entitled to have the application determined by the Court as duly constituted for the hearing and determining of appeals under this Part."

6.        The Court of Appeal (Criminal) Rules 1964 ''(the 1964 Rules'') provide so far as material:-

"6      Time to appeal after conviction

The time within which a person convicted shall give notice of appeal or notice of application for leave to appeal against his or her conviction shall commence to run from the day on which the verdict was returned, whether the court of trial passed sentence or pronounced final judgment on the person on that day or not.

7      Time to appeal after sentence

The time within which a person convicted and sentenced shall give notice of application for leave to appeal against sentence shall commence to run from the day on which such sentence was passed on the person by the court of trial."

7.        It is therefore clear that the default or presumptive position established by these instruments is that notice of appeal against conviction must be given within 28 days of the conviction itself irrespective of whether or not sentence has been passed, and that it is envisaged that notices of appeal against conviction and sentence may be separately given.  The Court of Appeal itself may extend time and for that purpose may act by a single judge.  There is, however, no provision for the Greffe to extend time.

8.        I am informed by the Greffe that that practice of the grant of such agreed extensions by the Greffe without recourse to the Single Judge predates the incumbency of the present Assistant Judicial Greffier and dates back certainly to the time of Barry Sergeant.  There is no written record of the origins of or reason for the practice, and it has in fact rarely been put into operation - the last occasion being in 2009 in the well-known case of Warren.  I can well appreciate the convenience of the practice allowing ,as it does, simultaneous giving of notice of appeal against conviction and sentence, and recognize the desire of the Greffe to avoid unnecessary engagement of the Single Judge, but in my view the practice lacks foundation in law.  The grant of such extension is a judicial, not an administrative act; and the power to grant it is vested in the Court of Appeal itself acting, it may and can be by the Single Judge.  This reflects the fact that considerations wider than the wishes of the parties, including the proper despatch of Court business, may be relevant to a decision whether or not to extend time and it is, therefore, for a member of that Court to evaluate them.

9.         The distinction between judicial and administrative acts in this context is neatly illustrated  by the provisions of Rules 15 and 20 of the 1964 Rules describing the separate roles of Judicial Greffier and single Judge:-

"15    Proceedings before a single judge

(1)    When any power of the Court has been exercised by a single judge under Article 41 of the Law, the Judicial Greffier shall notify the appellant or applicant of the decision in Form 6 and, in the event of the judge refusing all or any of the applications made to the Judicial Greffier, the Judicial Greffier on notifying such refusal to the appellant or applicant shall forward to the appellant or applicant Form 7.

(2)    If the appellant or applicant desires to have his or her application determined by the Court as duly constituted for the hearing of appeals, he or she, or his or her advocate, shall complete and return the said Form 7 to the Judicial Greffier within 5 days from the date of the notification of such refusal and, if the Form is not completed and returned within the said period of 5 days, the refusal of the application by such judge shall be final and conclusive.

(   

)   

(5)    For the purpose of constituting a Court, the judge who has refused any such application may sit as a member of such Court and take part in determining such application.

...

20    Applications

Except where otherwise provided in these Rules, any application to the Court may be made by the appellant or by his or her advocate orally or in writing, but an appellant who is represented and is in custody and is not entitled or has not obtained leave to be present before the Court at proceedings preliminary or incidental to the appeal, shall make any such application by forwarding the same in writing to the Judicial Greffier, who shall take the proper steps to obtain the decision of the Court thereon."

10.      I have grave doubts whether it would be possible for the Court of Appeal, consistently with the 1961 Law, to delegate its powers in this area to the Greffe, a fortiori for the single judge to do so The principle delegatus non potest delegare is particularly potent where judicial acts are concerned. See Wade and Forsyth Administrative Law 10th ed (''Wade'') pp.259-60; but in any event no such purported delegation has appears ever to have taken place.  It follows that the purported extension explicably granted on 3rd August 2012 is, in my view, devoid of legal effect.

11.      I note too that there was in this instance non-compliance with the practice direction 3A.2 which specifies:-

"Any application under Rule 3 of the Court of Appeal (Criminal)(Jersey) Rules, 1964 (the '1964 Rules') for further extension beyond this period of 28 days is to be made in writing to a single Judge of the Court of Appeal, with a brief statement of the reasons why a further extension of time is sought. Form 2 set out in the Schedule to the 1964 Rules is to be used for this purpose."

No application was made in writing by or on behalf of the putative appellants other than Cameron; and even in his case the only e mail sent by his Advocate signalled an intention to make a request, and was not itself, literally construed, a request, nor were any reasons supplied by anyone as to why an extension should be granted..  This itself reinforces the conclusion that not only was no consideration given by the correct person as to whether such extension should be granted, but no individualised consideration was - or could - have been given to the merits of the application at all.  I emphasise that I am not blaming those involved-and in particular not the Assistant Judicial Greffier who thought that she was sensibly and swiftly following established practice without apparent disadvantage to anyone.

12.      There is, however, in this matter a special feature.  One of the putative Appellants, Christmas, is himself the holder of judicial office as the Magistrate.  There is a palpable public interest in resolution of his appeal at the earliest moment consistent with justice ,given, in particular, the possibility - I consciously put the point no higher - that his case may - and again I stress the contingency - require consideration in some other forum once his criminal appeal has run its course.

13.      On the premise that no valid extension has hitherto been granted I have to decide myself what, if any, extension should now be granted.to the putative Appellants, assuming as I do that such is still desired by them.  I have already noted in paragraph 11 the absence hitherto of any explanation from any putative appellant as to why time (which would ordinarily expire on 28^th August 2012 i.e. 28 days after 26th July 2012) should be extended beyond that date and in paragraph 12 the special feature .Furthermore the Appellants and their Advocates have known since 26th July 2012(or shortly thereafter) what basis there is for any appeal against conviction., I do not consider nonetheless that I can ,acting judicially, simply indicate that the normal period should apply and refuse any extension at all..  This would be to ignore the fact that all parties have in good faith been acting since August 3rd 2012 on the premise that the period for giving notice of appeal does not expire until 1st November 2012..  Weighing all these matters and conscious in particular of the need to be fair to the putative appellants, I am minded to grant them a further 14 days from receipt of this order to file their notices of appeal, but will grant them until 5pm on 28th August 2012..to indicate whether, and, if so why, a further extension should be granted; upon receipt of which indication (if any) I shall decide whether to vary this order nisi.

14.      In the light of my resolution of the first question, the second question does not arise. A possible source of a power to vary a valid order is in Section 11(1) of the Interpretation (Jersey) Law 1954 which provides:-

"11    Construction of provisions as to exercise of powers and duties

(1)    Where an enactment, whether passed before or after the commencement of this Law, confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires."

(see discussion in Wade pp194-6).It may also be that the Court of Appeal could deploy its inherent jurisdiction to the same end( see the  discussion about the ambit of such jurisdiction in Jones v AG [2000] JLR 103.The 1964 Rules do not appear to contain an express power of the specificity of that contained in 1/5 the Royal Court Rules 2004 in relation to variation or abridgment of time, other than Article 18(2)which provides:

"1/5      Power to extend and abridge time

(1)    The Court or the Viscount may, on such terms as either thinks just, by order extend or abridge the period within which a person is required or authorized by rules of court or by any judgment, order or direction to do any act in any proceedings.

(2)    The Court or the Viscount may extend any period referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

(3)    The period within which a person is required by rules of court or by any order or direction to serve, file or amend any pleading or other document may be extended by consent in writing without an order being made for that purpose."

But analysis of the scope of these various powers can be postponed until it becomes necessary.   

Authorities

Investors (Prevention of Fraud) Jersey Law 1967.

Court of Appeal (Jersey) Law 1961.

Court of Appeal (Criminal) Rules 1964.

Wade and Forsyth Administrative Law 10th edition.

Jones v AG [2000] JLR 103.

Interpretation (Jersey) Law 1954.

Royal Court Rules 2004.