Jersey Unreported Judgments

Application for the Applicant to be present at the hearing, in March 2014, of his application for leave to appeal the confiscation order imposed by the Royal Court.

[2014]JCA038

Court of Appeal

12 February 2014

Curtis Francis Warren

-v-

The Attorney General

Application for the Applicant to be present at the hearing, in March 2014, of his application for leave to appeal the confiscation order imposed by the Royal Court. 

Advocate S. M. Baker for the Applicant.

H. Sharp, Q.C., Solicitor General for the Crown.

JUDGMENT

beloff ja:

1.        I have considered Mr Warren's application to be present at the hearing in March 2014 of his application for leave to appeal against the confiscation order imposed upon him by the Royal Court, and Advocate Baker's submissions dated 27th January, 2014 in response to the Solicitor-General's letter of 16th January, 2014 proposing that Mr Warren be present by video link.  I have had the advantage of comments on that application from my colleagues Sir Hugh Bennett JA and Sir David Calvert Smith JA.  We are all of the same mind.

2.        The relevant law is fully canvassed in my own decision in the matter of Warren v the Attorney-General [2012] (2) JLR 286.(''the previous decision'')  There I had to consider Article 72 of the Loi (1864) Reglant la Procedure Criminelle which provides:-

"L'accusé sera présent aux débats et à tous les jugements qui le concernent, et le Verdict de l'enquête sera rendu en sa présence:

Néanmoins, si par une conduite violente ou désordonnée l'accusé trouble l'ordre et empêche la Justice d'avoir son cours, la Cour pourra le faire sortir de l'audience, et en ce cas les débats pourront être continués en son absence, et l'Acte de la Cour en fera mention."

Now I have to consider Article 36 of the Court of Appeal (Jersey) 1961 Law which provides so far as material-

"Right of appellant to be present

(1) An appellant, notwithstanding that he or she is in custody, shall be entitled to be present (if the appellant desires it) -

(a) on the hearing of the appeal under this Part; and

(b) on the hearing of any application for leave to appeal under this Part.[42]

(1A) However, an appellant shall not be entitled to be present at proceedings preliminary or incidental to the appeal, except where -

(a) rules of court provide that he or she shall have the right to be present;

(b) the Court of Appeal gives the appellant leave to be present;

.........

(2) The power of the Court of Appeal to pass any sentence under this Part may be exercised notwithstanding that the appellant is for any reason not present."

3.        I ruled in the previous decision that "presence" can be by video link as well as "in person'' since the relevant statutory provision only guaranteed physical presence at contested proceedings and verdict before a jury and that neither natural justice nor the ECHR imposed a higher standard.  The same reasoning, mutatis mutandis, applies here.

4.        Mr Warren will be able, if necessary, to give instructions to Advocate Baker even if (I would accept) less conveniently than if he were physically adjacent to him or in his vicinity.  Advocate Baker has, however, realistically acknowledged that "the appeal hearing will be principally concerned with issues of law" and has not as yet been able to identify what new issues of fact will or could arise, given that the Court of Appeal will conventionally adjudicate upon the basis of the record of proceedings below.  It does not appear accordingly that Mr Warren could contribute much by way of instructions to Advocate Baker.

5.        The high profile of Mr Warren's case is neutral; the same principles apply to him as to any other appellant in a confiscation appeal, albeit the figures are of an unusual scale but what is abundantly clear is that to arrange for Mr Warren's physical presence would involve substantial logistical difficulties, costs and would have considerable security implications (''the relevant factors'') (See generally para 16 of the previous decision).  There has been no material change in relation to such considerations between the time to which the previous decision applied and the present.  This is not, I repeat, a case where Mr Warren has a right to be present.  Nonetheless if fairness dispositively required Mr Warrens physical presence in any proceedings, the relevant factors might be trumped but it is not necessary to consider whether and if so when they could, be so because in my clear judgment in the present case they are not,

6.        It follows that arrangements should be made for the best available video conferencing facilities to be provided for the forthcoming application.

Authorities

Warren v the Attorney-General [2012] (2) JLR 286.

Loi (1864) Reglant la Procedure Criminelle.

Court of Appeal (Jersey) 1961 Law.

European Convention on Human Rights.