Jersey Unreported Judgments

Hearing (Criminal) - application by the defendant for a stay of the prosecution against him as an abuse of process.

[2016]JRC194

Royal Court

(Samedi)

25 October 2016

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

The Attorney General

-v-

Q

C. M. M. Yates, Esq., Crown Advocate.

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant applies for the prosecution against him for two counts of unlawful sexual intercourse with a female child, contrary to Article 4(1) of the Loi (1895) Modifiant le Droit Criminel (the "1895 Law"), to be stayed as an abuse of process.  Failing that, the defendant challenges the admissibility of certain admissions made by him. 

2.        The Indictment alleges that these two offences took place between 1^st December, 2006, and 30^th September, 2007, when the defendant was 18/19 years of age and the complainant was 14 years of age.  The complainant had already been in a sexual relationship with the defendant's step-brother, who was aged 15, and claimed that she had been at the defendant's home some 20 to 30 times, often in the presence of a friend of hers, and on 15 to 20 of those occasions, the defendant had sexual intercourse with her against her will, the defendant having threatened her with a sword, which he kept under the bed, not to tell anyone. 

3.        Six months after her last encounter with the defendant, the complainant made a complaint to the police and the defendant, who cooperated with the police, attended three interviews which took place on Sunday 3^rd February, 2008. 

4.        The defendant declined legal assistance and after initial denials and towards the end of the second interview, admitted consensual sexual intercourse with the complainant on two occasions.  At the end of that interview, he was arrested on suspicion of unlawful sexual intercourse, at which point he sought legal advice.  Advocate Rui Tremoceiro attended the third interview, in which the defendant maintained that the sexual intercourse he had admitted had been consensual. 

5.        On 19^th March, 2008, the officer in the case, Detective Constable Jeremy Percival, having completed his inquiries, prepared a comprehensive report which was submitted to the Force Legal Adviser, Mr Laurence O'Donnell, for advice.  The Force Legal Adviser is, I have been told, an employee of the Law Officers' Department. 

6.        The last three paragraphs of DC Percival's report read as follows:-

"41      [The complainant] has stated that when she was 14 years old she had sexual intercourse with two males, firstly with [the step-brother] who was 15 at the time and secondly with [the defendant] who was 18 or 19 years old at the time. One can imply that the relationship with the [step-brother] was consensual as she had not made a complaint against him and she has said that she was taking the contraceptive pill partly for this reason.  She has chosen to make a complaint against [the defendant] six months after her last encounter with him.  She has alleged that any relationship between them was against her will because of a threat of serious harm made by the defendant against her.  Why she has made this allegation is not clear though the timing of her initial complaint is close to an incident of rape that an acquaintance of [the complainant] suffered in September 2007.

42       Both males have admitted having sexual intercourse with the complainant on a consensual basis.  The [step-brother] openly admitted to having sex with the complainant as part of their boyfriend/girlfriend relationship over a period of 9 months.  [The defendant] eventually admitted to having sexual intercourse with the complainant on two occasions.

43       Having listened to all parties involved it would appear that [the complainant's] allegation that [the defendant] raped her between 15 and 20 times has no foundation.  Her evidence does not hold up to scrutiny.  Though both males have admitted having USI the differences in their ages with [the complainant] may have bearing on any possible prosecution.  For this reason this report is submitted to the Force Legal Advisors for review and advice."

7.        Following a discussion between DC Percival and Mr O'Donnell, of which there is no record, Mr O'Donnell then e-mailed DC Percival with this advice:-

"Further to our discussion, I am of the view that there is no realistic prospect of conviction in relation to the rape allegation made by [the complainant].  The incredible nature of her allegation seriously undermines her credibility as a witness/victim and I am certain that she would not come across well under cross-examination.  Accordingly, I advise you not to proceed against [the defendant] in respect of any charge.  I have not considered the public interest as there is no realistic prospect of conviction.

In respect of [the step-brother] I am of the view that it is unnecessary to charge him as there appears to have been a consensual sexual relationship which has been fully investigated and accordingly there is no public interest in proceeding against either party."

8.        Consistent with that advice, DC Percival then informed the complainant's mother, the step-brother and the defendant that there would be no prosecution.  The status of the police file was changed to "Complete (Discontinued)" and the paperwork filed. 

9.        In August 2015, some 7 years later, when the defendant was 26 and working as an IT consultant, he was arrested on suspicion of possessing, making or distributing indecent images of children.  In his interview with the police, the defendant eventually admitted sharing such images, but he denied any sexual interest in children. On the 24^th June, 2016, he was indicted for and pleaded guilty to distributing over the internet 12 indecent images of children, contrary to Article 2(1)(c) of the Protection of Children (Jersey) Law 1994.  On the 1^st July, 2016, he was indicted for these two offences of unlawful sexual intercourse with the complainant, some 8 years after being told that there would be no prosecution for these offences. 

10.      In a summary of the Crown case in relation to both indictments, the Crown said this at paragraphs 49 - 53:-

"49      The Defendant was subsequently charged in the Magistrate's Court, [with the indecent images offence] and was indicted on [24th June 2016].

50       By this stage, the Crown had become aware of the 2007 investigation, and the fact that no charges had ever been put to reflect the admissions made by the Defendant in relation to the 2 incidents of USI with [the complainant].The fact that those admissions did not form the basis of charges at that time was, the Crown contends, quite wrong.

51       Given that in his 2016 interview the Defendant has denied any sexual interest in children/young persons, the Crown contends that it is important to mark the fact that in 2007 he made admissions to two episodes of USI with a 14/15 year old girl, and hence an additional indictment containing two counts of USI was also put.

52       The Defendant entered a guilty plea to the distribution of IIOC but not guilty pleas to the two counts of USI.

53       It is understood that the Defendant intends arguing that:

(a)       it is an abuse of process for the Crown to pursue the USI counts;

(b)       that the interviews (and admissions) made in 2007 are inadmissible.

However, to date the Crown has not received any formal application from the Defendant in relation to the former."

Evidence

11.      I received affidavit evidence from the defendant, DC Percival and Detective Inspector Stephen Langford, who are the officers who interviewed the defendant in 2007, DI Langford then being a Detective Sergeant, and they were all called in order to be cross-examined.  Much of their evidence and cross-examination was concerned with the circumstances in which the defendant made admissions of unlawful sexual intercourse, but in so far as the stay application was concerned, the defendant said this in his affidavit at paragraphs 9 and 10:-

"9        In or about June 2008, about three months after the interviews, a States of Jersey police officer telephoned me.  I received that call on my mobile telephone while I was at home.  The officer told me that no action would be taken against me in respect of the matters about which I had been interviewed.  He added, however, that if anything similar were to happen in future, it would not be treated so lightly.

10       That was the last I heard about those matters, which I believed had been disposed of finally and completely, until my lawyer informed me, on or about 7 June 2016, about the proposed indictment reviving them in connection with an unrelated separate indictment which is the subject of other criminal proceedings pending against me in the Royal Court."

12.      He said in evidence that after this lapse of time he could not now remember precisely what the officer said to him, but his clear understanding was that it was all finished with - he was ecstatic that these allegations were no longer hanging over his head.  He did remember a warning, but not the precise wording used. 

13.      DC Percival's pocket book had a note of him informing the complainant's mother and the step-brother that there was to be no prosecution, but there was no note of any conversation with the defendant.  He accepted, however, that he did call the defendant and had no doubt that he did inform him that no charges would be brought.  He may have added the phrase "at this time" which he sometimes says, but he cannot remember whether he said that in this instance.  He doubted whether he would have given the defendant a warning as to his future conduct. 

The law

14.      The law has recently been considered by Sir Michael Birt, Commissioner, in the case of AG v M [2016] JRC 181.  In that case, the defendant, a teacher in his early thirties, had made admissions in 1985 of indecent assault in relation to a 14 year old male pupil.  In his report to the Attorney General, the Acting Deputy Chief Inspector of the States of Jersey Police said that with the limited evidence available, particularly the unreliability of the complainant, and the fact that the defendant, who he described as wholly unsuited to hold the position of a teacher, would be dismissed, he considered no real purpose would be served by a prosecution.  The Attorney General agreed with the recommendation and directed that the matter proceed by way of a written caution from a Centenier. 

15.      Now, some 30 years later, the Crown had charged the defendant with the offences to which he had made admissions, together with other historic offences involving other pupils, and indeed his own daughter, which were not known to the Attorney General in 1985. 

16.      As Sir Michael Birt, Commissioner, said at paragraph 23 of his judgment, it is well established that the Court may stay criminal proceedings as an abuse of process in two very different situations.  These are conveniently summarised in the headnote of the case of Warren v AG [2011] JLR 424 which states:-

"(1)     The court had power to stay proceedings for abuse of process in two distinct categories of case: first, where it would be impossible to give an accused a fair trial; and secondly, where it offended the court's sense of justice and propriety to be asked to try an accused in the particular circumstances of the case (to avoid confusion, the issue in the second category should not be framed as whether it would be "fair" to try the accused).  In the first category, if the court concluded that an accused could not receive a fair trial, it would stay the proceedings without more.  No question of balancing competing interests would arise.  In the second category, the court was concerned to protect the integrity of the criminal justice system.  A balance had to be struck between the public interest in ensuring that those accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct did not undermine public confidence in the criminal justice system and bring it into disrepute...."

17.      AG v M, as with the case before me, was concerned with the second category, namely whether it offends the Court's sense of justice and propriety to be asked to try the defendant when, in the case of AG v M, the case was dealt with by way of caution back in 1985, and in the case before me, the defendant was informed there would be no prosecution in 2008.  Quoting from paragraphs 25 - 28 of the judgment in AG v M:-

"25     The courts in England and Wales have had to consider on occasion whether it would be an abuse of process if the prosecution has gone back on an assertion that there would be no prosecution.

26       I have been referred to the relevant passages from Archbold (2016 edition) at paragraphs 4-88 to 4-95.  Of particular relevance is the decision of the English Court of Appeal in R v Abu Hamza [2007] 1 Cr App R 27 where, having reviewed a number of cases, the court helpfully summarised the position at paragraph 54 as follows:-

'These authorities suggest that it is not likely to constitute an abuse of process to proceed with a prosecution unless (i)( there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted and (ii) the defendant has acted on that representation to his detriment.  Even then, if facts come to light which were not known when the representation was made, these may justify proceeding with the prosecution despite the representation.'

27       It is important to emphasise that the role of the court in deciding whether there is an abuse of process is not the same as that of the prosecution in deciding whether to reconsider a decision.  Nevertheless, it is helpful to bear in mind the current Code for prosecutors in England and Wales issued by the Crown Prosecution Service which, I was informed, is also the policy applied by the Attorney General in Jersey.

28       Paragraph 10 of the Code reads as follows:-

'10      Reconsidering a Prosecution Decision

10.1    People should be able to rely on decisions taken by the CPS.  Normally, if the CPS tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, the case will not start again.  But occasionally there are reasons why the CPS will overturn a decision not to prosecute or to deal with the case by way of an out-of-court disposal or when it will re-start the prosecution, particularly if the case is serious.

10.2    These reasons include:-

(a)       cases where a new look at the original decision shows that it was wrong and, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision;

(b)       cases which are stopped so that more evidence which is likely to become available in the fairly near future can be collected and prepared.  In this case, the prosecutor will tell the defendant that the prosecution may well start again;

(c)       cases which are stopped because of lack of evidence but where more significant evidence is discovered later: and

(d)       cases involving a death in which a review following the findings of an inquest concludes that a prosecution should be brought, notwithstanding any earlier decision not to prosecute.'"

The judgment continued at paragraph 30:-

"30     In my judgment, where the Attorney General directs that a matter should proceed by way of caution rather than prosecution, it would prima facie be an abuse of process to then bring a prosecution for the offence in question. Such a decision amounts, in my view, to an implicit and unambiguous representation that the offender will not be prosecuted.  There is an important public interest in people being entitled to rely upon a decision of this nature by or on behalf of the Attorney General as head of the prosecution service.  Where a significant period has expired, I would consider that to be an abuse even if there is no specific detriment to a defendant other than the lapse of time and in that sense, although the dictum in Abu Hamza is extremely helpful, it is not to be construed as a statute.  The ultimate test, as the Court of Appeal itself said earlier at para 50, is whether a proposed prosecution would amount to an affront to justice.  I consider that the proper starting point is that prosecution many years later for an offence previously dealt with by way of caution would normally be an affront to justice, regardless of whether the defendant had specifically acted to his detriment as a result of the caution.

31       I consider that this is so even where, as in this case, both the current Attorney General and this Court considers that the decision of Mr Tomes was clearly wrong, even in 1985.  The evidence before him disclosed a serious breach of trust by a teacher and should have been prosecuted.  However, the fact that the Court considers the decision to be clearly wrong does not of itself entitle the Court to say that it would not be an abuse of process for the prosecution simply to change its mind and seek to correct the error 30 years later.

32       In circumstance where some 30 years have elapsed since the caution, I would, in the absence of the matter referred to in the following paragraphs, have had no hesitation in holding that it would offend the Court's sense of justice for the defendant now to be prosecuted for the offences for which he was dealt with by way of caution back in 1985."

18.      The Court in AG v M declined to stay the proceedings, because when the decision to proceed by way of caution was made in 1985, the Attorney General was not aware of evidence that the defendant had indecently assaulted five other pupils, together with his own daughter. 

19.      The burden of proof in relation to an application for a stay is on the defendant, but quoting from Archbold 2016 edition at paragraphs 4-102:-

"Burden of proof

The burden of establishing that the pursuit of particular proceedings would amount to an abuse of process is on the accused and the standard of proof is the balance of probabilities: R v Telford JJ, ex p. Badhan, ante; R v Crown Court at Norwich, ex p Belsham, 94 Cr.App.R.382, DC, and R v Great Yarmouth Magistrates, ex p. Thomas [1992] Crim. L.R.116, DC. How the accused is to discharge the onus upon him must depend on all the circumstances of the case: ex p. Badhan.  However, the language of burden and standard of proof has been said to be potentially misleading in the context of the decision whether or not to grant a stay because of delay, which is an exercise in judicial assessment dependent on judgment rather than on any conclusion as to fact based on evidence: R. v S. (S.P.) [2006]2 Cr.Ap.R.23, CA (ante paras 4-79)."

Decision

20.      DC Percival understandably cannot now remember what he said to the defendant in 2007, but in my view, it is likely that the defendant's memory of the import of what he was told is reliable, as it involved a matter of huge importance to him - whether or not he would be charged with serious criminal offences. 

21.      I find that the defendant was given an unequivocal representation by the police that he would not be prosecuted for any offences arising out of the matters for which he had been interviewed and in particular that he would not be prosecuted for unlawful sexual intercourse with the complainant.  That is consistent with the police file being closed and stored. 

22.      The English Court of Appeal in R v Abu Hamza, having reviewed a number of cases, suggested that the defendant must also have acted to his detriment, something which could not be shown in the case of AG v M and cannot be shown in the case of this defendant.  

23.      It is helpful to set out that review by the English Court of Appeal which led to the conclusion which is quoted in paragraph 17 above:-

"As the judge held, circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has been given an assurance that no prosecution will be brought.  It is by no means easy to define a test for those circumstances, other than to say that they must be such as to render the proposed prosecution an affront to justice ...  The duty to prosecute offenders cannot be treated as an administrative discretion, for it is usually in the public interest that those who are reasonably suspected of criminal conduct should be brought to trial.  Only in rare circumstances will it be offensive to justice to give effect to this public interest.

Such circumstances can arise if police, who are carrying out a criminal investigation, give an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance upon that undertaking, acts to his detriment.  Thus, in R v Croydon Justices Ex p. Dean [1994]  98 Cr.App.R.76, a 17 year old youth, who had assisted in destroying evidence after a murder had taken place, was invited by the police to provide evidence for the prosecution and assured that, if he did so, he would not himself be prosecuted.  He thereupon provided evidence against those who had committed the murder and admitted the part that he had played.  In these circumstances, which Staughton L.J. presiding in this Court described as "quite exceptional", it was held to be an abuse of process subsequently to prosecute him.

In R v Townsend, Dearsley and Bretscher [1997] 2 Cr.App.R.540 the Vice-President, Rose LJ, giving the judgment of this Court approved the propositions: where a defendant has been induced to believe that he will not be prosecuted this is capable of founding a stay for abuse; where he then co-operates with the prosecution in a manner which results in manifest prejudice to him, it will become inherently unfair to proceed against him.  He added that a breach of a promise not to prosecute does not inevitably give rise to abuse but may do so if it has led to a change of circumstances (549,551).  These propositions echo the observation of Lord Lowry in R v Horseferry Road Magistrates' Court Ex P. Bennett [1994] 98 Cr.App.R.114 at 35; [1994] 1 AC 42 at 74:

'It would, I submit, be generally conceded that for the Crown to go back on a promise of immunity given to an accomplice who is willing to give evidence against his confederates would be unacceptable to the proposed court of trial, although the trial itself could be fairly conducted.'

R v Bloomfield [1997] 1 Cr.App.R.135 was a case where it was held to be an abuse of process to proceed with a prosecution in the face of an unequivocal statement by counsel for the Crown to the court that the prosecution would tender no evidence.  In that case there was no change of circumstances which might have justified departing from that statement."

24.      In R v Croydon, the defendant had given evidence on the assurance that he would not be prosecuted and in R v Townsend, the defendant had cooperated with the police in a manner which resulted in manifest prejudice to him.  In R v Bloomfield, there had been no detriment to the defendant but the prosecution had made an unequivocal statement to the court.  As can be seen from this review by the English Court of Appeal, none of these cases involved significant delays of the kind which the Court was concerned with in AG v M, namely 31 years, or which I am concerned with here, namely 8 years. 

25.      Crown Advocate Yates sought to distinguish this case from that of AG v M and the views expressed in that case about the need to show detriment, on the grounds that the defendant in that case received a caution at the direction of the Attorney General himself, the acceptance of which involved him in an acknowledgment of guilt, and the length of the delay namely 31 years against the delay here of 8 years. 

26.      I see no material distinction in this context between a decision made by the Attorney General himself as head of the prosecution service or someone else on his behalf.  In this case it seems clear the decision was effectively taken by Mr O'Donnell, the Force Legal Advisor, who works within the Law Officers' Department.  As far as the defendant was concerned the decision was communicated to him by the appropriate authorities, namely the police. 

27.      Nor do I see any material distinction in a defendant who is told he will not be prosecuted and one who is cautioned on the same basis; both amount to an unequivocal representation that there will be no prosecution.  As to the difference in the period of the delay, 8 years is still a considerable period of time, particularly in the context of someone who was young when given an unequivocal representation.  In AG v M the defendant was a mature man in his early thirties. 

28.      I respectfully agree with Sir Michael Birt, Commissioner, that significant delay is sufficient, regardless of whether the defendant has acted to his detriment.  It seems to me that irrespective of detriment, the longer a person is left to believe that he will not be prosecuted, the more unjust it becomes for the prosecution to renege on that unequivocal representation. 

29.      It is necessary to examine, therefore, why the Crown in this case has gone back on the unequivocal representation made by the police on its behalf. 

30.      The Code for Prosecutors referred to in AG v M and set out above, provides that decisions not to prosecute can be overturned where a new look at the original decision shows that it was wrong and in order to maintain confidence in the criminal justice system.  Crown Advocate Yates was critical of the decision effectively taken by Mr O'Donnell of the Law Officers' Department for the following reasons and this by reference to his e-mail set out above:-

(i)        The first paragraph refers to "no realistic prospect of conviction in relation to the rape allegation".  There was no apparent analysis of whether a charge of unlawful sexual intercourse might be pursued as appears to have been considered in relation to the step-brother. 

(ii)       The first paragraph also then states "I advise you not to proceed against [the defendant] in respect of any charge.  I have not considered the public interest as there is no realistic prospect of conviction."  Crown Advocate Yates contends that it is not clear whether the words "any charge" relate to "any charge of rape" or "any charge whatsoever".  PC Percival stated in his affidavit that he believed it to mean the latter and proceeded accordingly, but Crown Advocate Yates contends that the interpretation conflicts with the fact that far from there being no realistic prospect of conviction, the police had a confession from the defendant. 

(iii)      The conclusion to be drawn from the wording of the second sentence is that Mr O'Donnell was advising in relation to the allegation of rape alone in so far as the defendant was concerned. 

(iv)      Furthermore, Mr O'Donnell confirmed in the e-mail that he had not even considered the public interest, but the Crown contends that it certainly would have been in the public interest to pursue prosecution against the defendant for knowingly having sexual intercourse with a 14 year old girl. 

31.      This is not a clear case where it can be said as forcefully as it was in AG v M that the decision not to prosecute was wrong. It is equally arguable, in my view, that Mr O'Donnell did consider pursuing charges of unlawful sexual intercourse against the defendant (it arose very plainly in the police report before him), but the lack of the complainant's credibility may have been thought to undermine any prosecution case based on her evidence, notwithstanding the admissions, the admissibility of which might well be challenged as it is being in this case. 

32.      As to maintaining confidence in the criminal justice system, this is not a case as far as I am aware in which the complainant (or her mother) has raised any criticism of the decision in 2008 not to prosecute or as an adult has renewed her complaint, as happened in the case of AG v Gasulla-Sole [2014] JRC 171A.  In that case, no representation of any kind had been made to the defendant, who had mental health issues, that he would not be prosecuted for unlawful sexual intercourse with the complainant (in that case).  He was sentenced for other offences and then admitted to a psychiatric hospital in the U.K. where he was detained under the Mental Health Act 1983 for some 5½ years.  On his return, he started harassing the complainant, who had assumed that his time in a secure unit in the U.K. was connected to her complaint.  Discovering that this was not the case, she renewed her complaint.  The stay application was refused.  

33.      In the case before me, the complainant appears to have been approached by the Crown after the decision was taken to indict the defendant for the offences against her.  I therefore have some difficulty with the suggestion that a prosecution now, 8 years later, is required to maintain confidence in the criminal justice system.  That is not in any event how the Crown puts its case. 

34.      The Crown case summary makes it clear, written on notice of the stay for abuse application that the two counts of unlawful sexual intercourse were laid in order to rebut what the defendant said in his interview in 2016 in relation to the wholly unconnected indecent images offences, namely that he had no sexual interest in children.  It is worth setting out what the Crown said again:-

"51      Given that in his 2016 interview the Defendant has denied any sexual interest in children/young persons, the Crown contends that it is important to mark the fact that in 2007 (sic) he made admissions to two episodes of USI with a 14/15 year old girl, and hence an additional indictment containing two counts of USI was also put." (my emphasis)

35.      Crown Advocate Yates pointed to the standard disclaimer at the start of the Summary, but that merely says that it is not an opening speech and does not tie the prosecution counsel as to the manner in which the case is put at trial. 

36.      The defendant has pleaded guilty to the indecent images offences, but if he pleaded not guilty and maintained that he had no sexual interest in children, then it would have been open to the Crown to seek to adduce evidence of his admissions in 2008 of unlawful sexual intercourse with the complainant, although as Advocate Landick pointed out there was an age difference of some four years only between the defendant and the complainant in 2007 whereas there is a 13 year age difference between the defendant now and any girl under 16.  In any event it was not necessary for the purposes of the indecent images offences, to which the defendant had already pleaded guilty, for the defendant to be charged subsequently with the unlawful sexual intercourse offences and this against the unequivocal representation made to him 8 years before. 

37.      As the English Court of Appeal said in Abu Hamza, it is by no means easy to define a test for the circumstances in which it would be an abuse to prosecute a man for conduct in respect of which he has been given an unequivocal representation that no prosecution will be brought.  Each case will depend on its own facts, but on the facts of this case, which involves significant delay which did not feature in Abu Hamza:-

(i)        There has been an 8 year delay from the giving of an unequivocal representation to a young person that he would not be prosecuted. 

(ii)       There is no evidence of any other offending at the time that the unequivocal representation was given. 

(iii)      There is no evidence of any criticism from the complainant (or her mother) as to the decision taken in 2008 or of any renewal of the complaint. 

(iv)      The Crown has expressly tied the decision to prosecute the defendant with the offences of unlawful sexual intercourse, to the rebutting of a possible defence contention in unconnected criminal proceedings for offences to which the defendant had already pleaded guilty, and not to the need to maintain confidence in the judicial system.  

38.      In these circumstances, I find that the bringing of this prosecution is an affront to justice and the application to stay is therefore granted.  As a consequence, the application to exclude evidence of the admissions from the trial falls away.  

Plea in bar

39.      Advocate Landick has also applied for leave to make a plea in bar to the effect that unlawful sexual intercourse is a non-statutory offence and should not be indicted as being contrary to a statutory article; the statutory offence being described in the indictment in this way:-

"Statement of Offence

Unlawful sexual intercourse, contrary to Article 4(1) of the Loi (1895) Modifiant le Droit Criminel."

40.      In his skeleton argument, Advocate Landick submitted that as Article 4(1) of the 1895 Law merely modified the customary law, it did not create a customary law offence itself; the two offences for which the defendant had been indicted did not therefore exist in law and the defendant should be acquitted. 

41.      In discussion, Advocate Landick accepted that unlawful sexual intercourse was an offence known to customary law.  It would seem that historically, it applied to a girl under 12 and that, following the lead of English legislation, the customary law was modified, in increments, so that under the 1895 Law, it provided as follows:-

"Article 4

Quiconque sera trouvé coupable d'avoir eu ou tenté d'avoir rapport charnel illicite -

1         avec une fille âgée de 13 ans accomplis, mais qui est au dessous de 16 ans ; ou

2         avec une fille ou femme idiote ou aliénée d'esprit

sera passible d'un emprisonnement pour un terme n'excédant pas 5 années.

Cependant nul accusé sera condamné pour le délit mentionné dans la première section de cet Article, s'il est démontré, à la satisfaction de la Cour, qu'au moment de commettre l'acte il avait des raisons suffisantes pour croire que la fille était âgée de 16 ans accomplis."

42.      The unofficial translation is as follows :-

"Article 4

Any person who shall be found guilty of having or attempting to have unlawful carnal knowledge of -

1         a girl who has attained 13 years but is under the age of 16 years; or

1         a girl or woman who is mentally retarded

shall be liable to imprisonment for a term not exceeding 5 years.

Provided that no accused shall be found guilty of the offence mentioned in the first section of this Article if it is shown to the satisfaction of the Court that at the moment of the commission of the act, he had sufficient reason to believe that the girl had attained the age of 16 years."

43.      Advocate Landick conceded in discussion that his point was not one of substance in that the defendant knew precisely what offence he was facing under the indictment.  In essence, Advocate Landick was seeking an amendment to the indictment so that it read:-

"Statement of offence

Unlawful sexual intercourse contrary to customary law as modified by Article 4(1) of the Loi (1895) Modifiant le Droit Criminel".

44.      Crown Advocate Yates pointed out that this analysis ignored the fact that Article 4(1) not only provides for penalties and a defence, but also modifies the customary law by setting the age parameters within which the offence currently applies (combined with Article 2).  The offence of unlawful sexual intercourse had always been indicted in this manner - an example is the case of AG v Gasulla-Sole.  There are numerous instances of where the offence had been described in this way in legislation; for example:-

(i)        Article 2(1)(d) of the Sex Offenders (Jersey) Law 2010.

(ii)       Article 2(3) of the Sexual Offences (Jersey) Law 2007.

(iii)      Article 2(i)(b)(ii) of the Criminal Justice (Evidence of Children)(Jersey) Law 2002.

(iv)      Article 2 of the Criminal Justice (Anonymity in Sexual Offences)(Jersey) Law 2002.

45.      Take by way of illustration, Article 2 of the Criminal Justice (Evidence of Children)(Jersey) Law 2002:-

"Evidence through television links

(1)       A person to whom this Article applies may, with the leave of the court, give evidence through a live television link in any criminal proceedings if the accused is charged with -

(a)   An offence which involves an assault on, or injury or threat of injury, to a person;

(b)   An offence under -

(i)            Article 35 of the Children (Jersey) Law 2002,

(ii)           Article 1,2,3,4 or 6 of the Loi (1895) modifiant le droit criminel,

(iii)          Article 37 or 38 of the Mental Health (Jersey) Law 1969, or

(iv)          The Protection of Children (Jersey) Law 1994;

(c)   rape, buggery, bestiality, incest, gross indecency, procuring an act of gross indecency, or indecent assault; or

(d)   an offence which consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within sub-paragraphs (a) to (c). "(My emphasis)

46.      It is clear from these pieces of legislation that customary law offences "proper" are referred to distinctly, such as rape, but the offence of unlawful sexual intercourse is referred to by reference to the 1895 Law. Article 4 specifically refers to the offence as a "délit", triable therefore before a criminal assize pursuant to Article 1 of the Loi (1864) Réglant La Procédure Criminelle. 

47.      Although I did not have to decide the point and leaving aside the need for pleas in bar to be heard before the Inferior Number (see Turner & Others 37 PC 221), I would not have been minded to amend the indictment which, in my view, is not defective in this respect. 

Authorities

Loi (1895) Modifiant le Droit Criminel.

Protection of Children (Jersey) Law 1994.

AG v M [2016] JRC 181.

Warren v AG [2011] JLR 424.

Archbold 2016 edition.

AG v Gasulla-Sole [2014] JRC 171A.

Mental Health Act 1983.

Turner & Others 37 PC 221.