J. A. Clyde-Smith, Esq., Commissioner, sitting alone.
Marcio Joel Pinto Mesquita
The Attorney General
Advocate L Sette for the Appellant.
J.C. Gollop, Esq; Crown Advocate for the Attorney General.
1. On 12th April, 2018, I dismissed an appeal by way of case stated against the decision of the Assistant Magistrate on 17th November, 2017, to refuse an application by the appellant to revoke a community service order imposed upon him on 7th July, 2017. The appeal was brought under Article 21 of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 on the grounds that the decision of the Assistant Magistrate was wrong in law. I now set out my reasons.
2. The facts are that on 7th July, 2017, the Magistrate's Court sentenced the appellant for one offence of common assault on ("the victim") ("the conviction"). The Court considered that the appellant had crossed the custodial threshold and imposed a 9 month probation order and a 70 hour community service order, of which some 30 hours remained outstanding at the time of his application for the order to be revoked. Those hours remained outstanding pending his appeal.
3. On 10th October, 2017, the appellant was charged with a quite separate common assault against the same person ("the charge"). The appellant entered a plea of not guilty, but bail was refused, on the basis that no conditions could be imposed that would manage the risk the Court believed the appellant posed to the victim. He was accordingly remanded in custody, and a further application for bail on 26th October, 2017, was also refused for the same reason. A trial date of Monday 13th November, 2017, was set.
4. On Friday 10th November, 2017, the last working day before the trial was due to commence, the appellant was presented in the Magistrate's Court where the prosecution offered no evidence in respect of the charge which was then dismissed, and he was released from custody.
5. As a result of the charge, and his consequential remand in custody, he had spent a total of four weeks and two days in custody, the equivalent of a sentence of six weeks and three days imprisonment. The appellant says he also suffered further prejudice from this time in custody, including the loss of his employment and the theft of his car. He says his life has been drastically and adversely affected as a result and he feels aggrieved for spending so much time in custody for an offence he adamantly denied committing.
6. The application was made under Article 6 of the Criminal Justice (Community Service Orders) (Jersey) Law 2001 ("the 2001 Law") which is in these terms:-
"6 Variation or revocation of community service order due to change in circumstances
(1) Where a community service order is in force in respect of any offender and, on the application of the offender or the relevant officer, it appears to the court which made the order that it would be in the interests of justice to do so having regard to circumstances which have arisen since the order was made the court may -
(a) extend the period described in Article 4(2);
(b) revoke the order; or
(c) revoke the order and deal with the offender for the offence in respect of which the order was made, in any manner in which it could deal with the offender if the offender had just been convicted by the court of the offence."
7. At the hearing before the Assistant Magistrate on 17th November, 2017, two questions were posed for him by Advocate Jones, acting for the appellant:-
(i) Did the Court have the jurisdiction to revoke the community service order, and
(ii) Was it in the interests of justice to do so?
Both Advocate Jones and Advocate Baglin for the Attorney General agreed that the Assistant Magistrate had the jurisdiction to revoke the community service order, and the bulk of the hearing was concerned with the second question, namely whether it was just to do so.
8. The case put by Advocate Jones to the Assistant Magistrate was that he should offset the time spent by the appellant in custody (or the equivalent in community service hours) in relation to the charge against the community service order imposed on the conviction, which would have the effect of expunging the community service order.
9. Advocate Jones submitted to the Assistant Magistrate that it was in the interests of justice to make such an order for the following reasons and quoting:-
"(i) that as a result of being remanded in custody [the appellant] had lost his employment;
(ii) that for the same reason he was deprived of the opportunity during that period of carrying out any further community service;
(iii) that granting the application would serve to focus the minds of the prosecution, when considering a charging decision, that such a consequence might ensure;
(iv) that it is something that would help focus the minds of complainants, and prevent a perceived imbalance of fairness and justice, particularly in cases of domestic violence; and
(iv) that if an alleged perpetrator is remanded into custody and later released without charges being pursued there is no form of redress for that period of 'unnecessary incarceration'"
10. The Assistant Magistrate declined to make that order and there are two aspects of his oral judgment on which the appeal is based, where he said:-
"Looking carefully at Article 6 [of the 2001 Law], it is my judgment that the intention there is to look at circumstances which have arisen since the order was made that relate to the order, in particular the offender's ability or willingness to continue with community service.
Mr Jones stressed the point that [the appellant] has suffered financially and has no redress. I do not dispute that is the case but I do not think that this detracts from the principle that the provisions of Article 6 [of the 2001 Law] [,,,] are not intended to address that point."
11. The appellant's grounds of appeal are set out in paragraphs 19 and 20 of Advocate Sette's skeleton argument as follows:-
"19 Having deliberated, the Assistant Magistrate seemingly found that he had no jurisdiction to grant the Application. The Assistant Magistrate has seemingly looked beyond and/or behind the wording of the Law and had reference to the intention of the legislature when construing Article 6(1) of the 2001 Law by inserting the words 'that relate to the order" and 'in particular, the offender's ability or willingness to continue with community service.' The 2001 Law as it is drafted does not restrict the scope of Article 6(1) in this way or at all. The 2001 Law simply requires the Court to have regard to the circumstances which have arisen since the making of a community service order.
20 [The appellant] contends that there is nothing ambiguous or unclear in the wording (and therefore the scope and meaning) or Article 6 of the 2001 Law. [The appellant] submits that the Assistant Magistrate did not have cause to look behind the plain meaning of the wording of the 2001 Law and to do so in the way he did or at all was an error of law. The Assistant Magistrate therefore should not have had any regard to the intention of the legislature so as to interpret and in the event restrict the scope of the 2001 Law. In the circumstances, given that the terms of the 2001 Law are unambiguous, the Assistant Magistrate's reference to 'intention' and decision to interpret the 2001 Law in the restrictive way he did was erroneous."
12. Advocate Sette therefore asked this Court to revoke the community service order or to remit the matter back to the Magistrate's Court with a direction that it should be revoked.
13. In his case stated, the Assistant Magistrate said it was implicit that he had jurisdiction to make the order sought, and I agree, but put simply, he was not prepared to allow "a system of bartering or offsetting to arise".
14. There is nothing to suggest that the appellant's remand in custody was improper in any way and the refusal to grant bail was not appealed. The appellant, like any other defendant in that position, has no redress for the time he had spent in custody in relation to the charge. The unusual feature in this case is that it is the same complainant in respect of both matters, and no doubt in the appellant's mind, if the second complaint was false, it would seem just to him for a sentence on the conviction to be reduced. The Court has no information as to why no evidence was offered on the charge, but certainly, there has been no finding that the allegation against him was false.
15. By granting the application, the Assistant Magistrate would have been finding that the appellant's remand in custody was improper and that he was entitled to be compensated. There is no basis upon which such a finding could have been made, but even if the appellant was entitled to compensation in some way, it bore no relation to the conviction and it would have been quite wrong for any kind of set off to be applied. As the Assistant Magistrate said, it is in the interests of justice that offenders serve, and are seen to serve, the punishment imposed upon them for offences they have committed.
16. I entirely agree with the Assistant Magistrate that Article 6 was not intended to provide compensation in that way, and it would be a misuse of the Court's powers to use Article 6 for that purpose. The Assistant Magistrate did not find that he had no jurisdiction to make the order. He clearly had jurisdiction, but he was perfectly entitled to have regard to the intention of the legislature and to refuse to exercise that jurisdiction for the purposes put forward by Advocate Jones, namely to provide the appellant with compensation for the time spent in custody on a quite separate matter.
17. The appeal was therefore dismissed.
Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949.
Criminal Justice (Community Service Orders) (Jersey) Law 2001.