Jersey Unreported Judgments

Hearing (Criminal) - common assault.

[2021]JRC052

Royal Court

(Samedi)

18 February 2021

Before     :

Sir William Bailhache, Commissioner, and Jurats Thomas and Hughes.

 

Advocate A. E. Binnie for the Appellant.

Crown Advocate L. B. Hallam for the Respondent.

judgment

the commissioner:

1.        On 21^st May 2020, the Appellant, then represented by Advocate Mark Boothman as Duty Advocate, entered a guilty plea to a charge of common assault on his wife.  Subsequently on 2^nd July 2020, the Appellant applied to the Assistant Magistrate to vacate his guilty plea, Advocate Binnie representing him on that occasion, but for various reasons the application was not heard until 9^th December 2020.  Having heard detailed submissions, the Assistant Magistrate refused to allow the Defendant to vacate the guilty plea and fixed a sentencing hearing for 6^th January 2021.    The material part of the Assistant Magistrate's decision reads as follows:

"[the Appellant] is charged with one offence of assault on [Redacted] (the Complainant) on 9 December of last year.  He first appeared before the Court on 21 May, represented by the Duty Advocate, Advocate Boothman, and entered a guilty plea.  That was on a basis, because he didn't accept, for example, that he put his hands around his wife's neck and that basis was submitted and accepted by the Crown.

The matter was remanded for sentencing but in the remand period he approached Advocate Corbett, with whom he had had previous dealings and the upshot of that was that he then instructed Advocate Binnie and an application has been made for leave to withdraw that plea.

The principles are well established in Jersey and had been recently set out in Articles 79 of the Criminal Procedure Law.  In essence, a defendant who has entered a guilty plea may, with the leave of the Court, withdraw that plea.

The most recent review was AG v Chereches.  This is a discretion to be exercised very sparingly, particularly when entered with the benefit of legal advice.

There is a detailed affidavit from Advocate Boothman.  I have considered that together with the affidavit from [B], the affidavit from Advocate Corbett and the Skeleton Arguments and submissions that I have heard this afternoon.

The facts relied by the prosecution do add up to the offence charged.  The witnesses were independent and clear and their positions, their interests, must be respected as well.

It is not suggested - and this is important, [B] - it is not suggested that you wanted or tried to hurt your wife, but that is not a necessary ingredient of the offence of assault.

Therefore, applying, as ever, the overriding objective, I exercise my discretion to reject the application and, therefore, refuse to grant leave to withdraw your guilty plea."

2.        At the hearing before the Assistant Magistrate, Advocate Binnie informed the Court that she considered it was appropriate and necessary for her client to be called and give live evidence.  He had already deposed an affidavit but she submitted that that was of a limited nature even though it had been obtained with the assistance of a speech and language therapist.  Her submission to the Assistant Magistrate was that she wished to call her client to give live evidence even though the prosecution did not want to ask him any questions.  Furthermore, because of reasons particular to the Appellant, it would be necessary to have an intermediary appointed to assist him; without an intermediary, she would not call her client to give evidence.  In making her submissions to the Assistant Magistrate, Advocate Binnie was clear that the appropriateness of the advice which Advocate Boothman gave the Appellant was not in dispute.  It seems to have been accepted in the Court below that if an intermediary had been appointed, that would have led to an adjournment of the application to vacate the guilty plea. 

3.        The substance of the submission below was that notwithstanding Advocate Boothman's clear advice, the guilty plea was not unequivocal as a result of the Appellant's difficulties with communication, information processing and potentially memory.  The Appellant had expressed to a number of different people that he did not assault his wife, and his guilty plea therefore did not represent a clear acknowledgement of guilt - in fact quite the opposite. 

4.        Before turning to the affidavit of Advocate Boothman, it is right to record briefly the allegations giving rise to the charge.  On the night in question, the Appellant and his wife had been out for a drink in a public house.  He had had three pints of beer; his wife had not been drinking alcohol.  They left the public house at approximately 10:00 p.m. in order to walk along La Motte Street towards their home.  The Police had evidence from two independent witnesses - one was out with his wife when he said he heard a female shout "you are not going to break my legs" and "get off me".  On closer inspection, the man could see that another man had a woman pressed against a wall and had his arms around her.  The woman was in distress.   A second independent witness was a Manager of a St. Helier  Hotel.  When he left the hotel at approximately 10:15 p.m., he told the Police that he heard a woman screaming "let me go".  He saw a man grabbing a lady, with his arm wrapped around her neck.   When the police attended the scene and arrested the Appellant, on arriving at Police Headquarters, the circumstances of the arrest were outlined to the custody sergeant and the Appellant stated "that's what I done.  I am allowed to do that to calm my wife down".  He was interviewed under caution in the presence of an appropriate adult.  He provided a full account of what had occurred prior to the arrest and was able to challenge the evidence that was put to him.  In particular, he explained that his wife had become upset for a reason which he was not able to articulate and had started to walk off the way that they had come.  He placed his hands on her shoulders in an attempt to calm her down.  He did not believe that the pressure he used was very great or could cause any injuries.  He denied that his wife had told him to let go of her, and he said that if she had done so, he would have stopped holding onto her.  His account to the Police was that he was trying to calm his wife down and that if her chest was hurting her, it would be because of her asthma and not because he had hurt her.  He denied assaulting her. 

5.        Advocate Boothman had no prior knowledge of the Appellant; he was not aware of his background history.  His advice to the Appellant had taken place at a time of the COVID-19 Jersey lockdown.  As a result, instead of physically attending on his clients, he was required to speak to them by telephone which of course makes it more difficult to form an opinion about the particular client.  Advocate Boothman explained that he received an amount of paperwork from the States of Jersey Police, including the Police report and relevant witness statements.  On the basis of the information he had, including the account which the Appellant had given him, Advocate Boothman advised that it would be sensible for the Appellant to plead guilty on a particular basis, namely, that he had never threatened his wife with breaking her legs and that he had never had his arm around her neck.  He informed the Appellant that there did not need to be a significant amount of force used for an assault to have taken place, and even if he was trying to prevent his wife from walking out onto the road, the offence might have been constituted if the level of force he used was unreasonable.  Accordingly, Mr Boothman indicated that the Appellant accepted the advice that it would be sensible to plead guilty on the basis set out.  In his affidavit, Mr Boothman said that he felt comfortable entering a guilty plea on behalf of the Appellant.  He thought that the Appellant had understood the advice which had been given and that he was able to provide him, Mr Boothman, with instructions.  Accordingly, on 21^st May 2020, the guilty plea was entered. 

The application to vacate the plea

6.        There was relatively little by way of delay in applying to vacate it, Advocate Binnie submitting such an application to the Magistrate on 2^nd July 2020.  The Probation Report, which was prepared for a hearing before the Magistrate on 29^th June 2020, contained the following information:

(1)       In 2002 a psychological assessment found that the Appellant's IQ was 58.  This constituted a significant learning difficulty.

(2)       The Appellant left school at the age of 16 having sat no examinations.  He had previously reported that he disliked school because he could not grasp the basic literacy and numeracy skills required to open the door to learning.  He is illiterate and unable to tell the time.  He has a general practitioner at the Island Medical Centre, but he did not know his name.  He was in a relationship with the complainant, but he was unsure when it started.  The complainant is now in the care of the Community Learning Disabilities Team and lives in designated accommodation with round the clock care. 

7.        The grounds for appeal were that the Assistant Magistrate was wrong to refuse the application to vacate the guilty plea because:

(i)      An intermediary should have been appointed to assist the Appellant during the course of the proceedings and to assist with the provision of legal advice and obtaining of legal instructions;

(ii)     The Court was wrong to refuse to appoint an intermediary to assess and make recommendations as to the Appellant's ability to engage in the process of providing live evidence at a contested hearing, whether that be the application to vacate the guilty plea or any potential trial;

(iii)    The Court ought not to have refused to adjourn the hearing of the application to vacate the guilty plea pending the appointment of an intermediary or to allow a case to be stated on the issue of refusing to appoint an intermediary. 

(iv)    Furthermore, in all the circumstances of the case it was unreasonable not to accept the application to vacate the guilty plea, having regard to the Appellant's issues with communication, information processing and memory.

8.        The Assistant Magistrate did have the benefit of a report from the Learning Disability Service, which made a screening assessment of the Appellant on 5^th August 2020.  The conclusion of that assessment was that the Appellant was not eligible for the Learning Disability Service because he had demonstrated skills and strengths historically and presently which one would not expect someone with a learning disability to have.  That included driving motor vehicles, running businesses and independently undertaking a range of activities of daily living such as cooking, cleaning, self-care and managing his finances. 

9.        However, the report also indicated that there were numbers of skills which the Appellant did not have - specifically reading, writing, and telling the time.  Furthermore, the Appellant throughout the assessment had difficulty accessing both his long- and short-term memories.  He did not remember his siblings, the number of and names of his children, nor indeed of the general practitioner he saw the day before the assessment.  He presented with word finding problems and frequently cut himself off in mid-sentence.  He presented with suicidal ideation, tearfulness and low mood which would be likely to impact his processing of information.

10.      The recommendations therefore were that the Appellant should be referred to Adult Social Care for a social needs assessment regarding financial vulnerability and social isolation; also to the Neurology Service to explore possible physical or neurological underpinnings to his change in presentation, specifically regarding memory and information processing; and to the counselling service at Jersey Hospice which specialises in loss and grief, in the hope that that would support him to discuss his experiences of the loss of his father, but also the loss of this role of husband and carer of his wife, his business and his home.  The report concludes that the Appellant has "evident language processing difficulties, both receptive and expressive, which may be linked to a cognitive decline and/or change.  He also has memory deficits....  It should be noted that all communication with [the Appellant] should be undertaken in person, not over the telephone, to better enable him to process the information".

Discussion

11.      We note that this is an appeal against the decision of the Assistant Magistrate to refuse the Appellant leave to vacate his guilty plea.  As such it is not in terms an appeal against conviction, which raises the question as to whether this appeal falls within Article 17 of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 ("the 1949 Law").  This issue was considered in Harding v AG [2010] JRC 167.  Both the Appellant and the Crown in that case conceded that there was jurisdiction in the Court to hear an appeal in circumstances where the guilty plea was doubtful.  As the Court said at paragraph 10 in that case:

"In our view reference in Article 17(1)(a) of [the 1949 Law] to a person pleading guilty must be a reference to a plea properly entered ....."

12.      In that case the Appellant was treated as unfit to plead and as if she had not entered a guilty plea.

13.      That is a more extreme case than the present one, where there is no suggestion that the Appellant was unfit to enter a guilty plea; by contrast, the submission is that while he was fit to enter a plea, for various reasons, his guilty plea was equivocal. 

14.      We do not consider that the matters come before us in procedurally the correct way.  The notice of appeal against conviction states that the Appellant was convicted on 9^th December 2020, when the application to vacate the guilty plea was refused.  That is not right, because the conviction took place on the date the guilty plea was entered, namely on 21^st May 2020.  Accordingly, it would have been more appropriate to appeal by way of case stated under Article 21 of the Assistant Magistrate's refusal to permit a change of plea.  If that appeal had been successful, then of course the conviction would have been set aside because the guilty plea would no longer be extant.  It would follow that the provisions of Article 21(3) would not apply because there was at that stage no conviction. 

15.      That has not occurred on this occasion even though it is clear that counsel considered an appeal by way of case stated in relation to a failure by the Assistant Magistrate to appoint an intermediary. 

16.      We have considered whether F v AG [2019] JRC 012 prevents us from proceeding with the appeal in this case.  In F, the Appellant wished to appeal against a refusal of the Magistrate's Court to award costs.  The appeal was brought pursuant to Article 18 of the 1949 Law but it is plain from Article 18(3) that such an appeal is not possible in relation to an order for the payment of costs.  The Court therefore found that as this was an appeal which was prohibited by the express terms of the statute, it was not possible to move between the distinct procedures provided for within the 1949 Law, nor would it be just to do so because the Magistrate had not been afforded the opportunity of setting out in full why he formed the view that he did. 

17.      By contrast in this case, the effect of hearing the appeal will be to have the conviction set aside if the appeal is successful.  That would not have been the case with F.  In substance, therefore, this is an appeal against conviction and the question is whether or not we should extend the approach which this court took in Harding.  The principal reason for not doing so would be the absence of any case stated by the Assistant Magistrate.  On the other hand, we have a full transcript of the hearing, and the Assistant Magistrate adjourned to consider the arguments before returning with a reasoned, if ex tempore, decision.  In the circumstances, we think we can properly continue to hear the present appeal.   

18.      We note of course that the conviction was entered in May 2020, and the appeal notice only entered in December 2020.  The notice of appeal was dated 17^th December 2020, and therefore is in time in connection with a decision on 9^th December 2020 but not in respect of a conviction on 2st May.  In the circumstances, to the extent that it is necessary to grant an extension of time within which to appeal - and we note it would not have been necessary with an appeal by case stated - we grant that extension. 

19.      Turning now to the substance of the grounds of appeal, there is no doubt that the Magistrate's Court had power to appoint an intermediary to assist the Appellant in the early stages of the proceedings and in particular when the guilty plea was entered on 21^st May 2020.  It is also true that the Assistant Magistrate could have appointed an intermediary on 9^th December 2020.  It is noteworthy from the transcripts of 9^th December 2020, that from time to time the Assistant Magistrate turned to the Appellant and spoke to him directly to indicate that he could contribute if he wished to do so.  On each occasion, the transcript shows that the Appellant made no audible response; so, it is unclear whether he understood what was being said to him.  There is absolutely no criticism of the Assistant Magistrate for asking the questions of the Appellant as he did, and we have taken from the fact that he asked those questions that the Assistant Magistrate himself was anxious to ascertain if the Appellant understood fully what was going on in Court on that day. 

20.      The Assistant Magistrate refused to adjourn the hearing of the application to vacate the guilty plea pending the appointment of an intermediary and indeed it is clear from the transcript that he considered that it was better to proceed speedily in order to deal with this particular application.  At page 10 of the transcript, he said "I think it is in [B's] best interest that we progress the matter today.  Already nearly 12 months have passed and there is no, no blame attached to him about this, but we are getting on for the first anniversary of the incident ..... and part of the overriding objective in the Law is that one of the things the court should always try to do is to deal with things without delay".

21.      We entirely understand the Assistant Magistrate taking the view that the delay in getting the matter on to trial was a factor which he ought to consider.  The Magistrate's Court has a large number of cases coming before it and it is important that they are dealt with expeditiously.  Whether or not the delay in this case was the conclusive factor, however, is a different matter.  Article 3 of the Criminal Procedure (Jersey) Law 2018 ("the 2018 Law"), sets out the overriding objective which is to ensure that cases are dealt with justly - acquitting the innocent and convicting the guilty, dealing fairly with both the prosecution and the defence, respecting the rights of all interested parties, recognising the rights of a defendant to a fair trial pursuant to Article 6 of the European Convention on Human Rights.    The Court assesses those factors having regard to the gravity of the alleged offence, the complexity of what is an issue and the other matters referred to in Article 3(2) of the 2018 Law.  There are undoubtedly circumstances in which the delay in getting a criminal matter onto trial would be critical to the decision which has to be taken; but it is also very relevant to have regard to the principle that where an equivocal plea has been entered such that there is real doubt as to whether the Defendant intended to plead guilty to the offence charged, the Court should be assiduous to allow a change of plea.  These would be entirely different circumstances from those reviewed by this court in the case of Chereches, on which the Assistant Magistrate relied.  In that case, the Court decided that there had been unequivocal pleas of guilty by an advocate who was properly instructed on behalf of the defendant.

22.      In the present case, there are concerns as to the plea which was entered:

(i)        The personal circumstances of the Appellant as set out above;

(ii)       The fact that the Appellant was given legal advice by Advocate Boothman over the telephone meant that the latter was unable assess the extent to which his advice was fully understood.  Indeed, had Advocate Boothman been aware of the nature of the man he was dealing with, he might well have approached the matter differently, as he says in his affidavit - as he put it, "had I been aware of the issues set out in Advocate Binnie's email at the time I spoke to him, it is right to say that I would have certainly considered not entering a plea at that stage if the Court had allowed it.  This would have been so that [B] could obtain legal representation so that he could discuss matters more fully with his appointed lawyer as opposed to me in my role as Duty Advocate." 

(iii)      The not guilty plea which the Appellant wishes to enter is entirely consistent with what he has said to the Police from the very beginning.  Indeed, the transcript before the Assistant Magistrate in December seems to indicate that the Assistant Magistrate himself did not consider that the Appellant had any intention to harm the Complainant.  In the passage set out above, the Assistant Magistrate said that "it is not suggested that you wanted or tried to hurt your wife."

(iv)      The Assistant Magistrate went on to say that the lack of intention to hurt the complainant was not a necessary ingredient of the offence of assault.  The question of the mental element required to be proved beyond reasonable doubt by the prosecution was considered by the Court of Appeal in De la Haye v AG [2010] JLR 218.  That case involved a prosecution where the Appellant was charged with a grave and criminal assault committed by driving her car when very intoxicated, hitting and badly injuring three pedestrians.  The issue was whether recklessness was sufficient for the purposes of the mens rea required to be proved for a grave and criminal assault.  Before the Royal Court, by way of concession, the Crown did not argue that it could prove a deliberate assault or hostility by the Appellant.  The Crown's case was that although she had no intention of striking or even of driving towards the three victims, she had been reckless in her driving through intoxication.  The legal issue which the Royal Court considered was whether, for an assault charge to be made out in Jersey, it was sufficient that the Defendant was reckless as to the application of force to the other person or whether the Crown had to prove an intentional hostile act towards the victim, recklessness not amounting to mens rea in the case of assault. 

23.      The Royal Court concluded that recklessness was sufficient, and that view was upheld in the Court of Appeal.  The question of mens rea is considered between paragraphs 37 and 66 in the Court of Appeal's judgement.  In the last of those paragraphs, Sumption JA said this:

"We are of the view that in Jersey Law the element of mens rea in the offences of assault and grave and criminal assault is satisfied by proof that the Defendant intentionally or recklessly applied force to the person of another."

24.      It may be that that paragraph has led to a view that as long as a defendant applied force to the complainant intentionally or recklessly, that is an end of the matter and the application of force amounted to an assault.  To reach that conclusion is to misconstrue that part of the Court of Appeal's judgment.  Its focus was on whether the application of force recklessly was sufficient for the purposes of making out a criminal offence; but there was no extensive focus on cases where what the Defendant did was done intentionally but did not amount to the criminal offence of assault.  That the Court of Appeal recognised that this was possible is clear from paragraphs 50 - 54 of its judgment - there is reference to the English case of Coward v Baddeley [4 H & N at 480 - 481: 157 E.R at 928] where Bramwell J referred to Hawkins, I Pleas of the Crown at 263 where it was said:

"Any injury whatever, be it never so small, being actually done to the person of a man in an angry, or revengeful, or rude, or insolent manner, as by spitting in his face, or in any way touching him in anger, or violently jostling him out of the way, are batteries in the eye of the law."

25.      This approach has been adopted in Jersey for many years - see the summing up of Ereaut, Deputy Bailiff in Vaughan, where he said:

"I am going to begin by telling you the meaning of a grave and criminal assault.  Now in Jersey Law, an assault is a touching or laying hold by one person on another in an angry, revengeful, rude, insolent or hostile manner, and it includes an attempt to do so, provided that the person who is threatened is led to anticipate an attack ....."

26.      The Court of Appeal commented that this summing up focussed on what was necessary in that case but did not amount to an all-encompassing definition of assault or grave and criminal assault which would have been wholly inappropriate and unnecessarily confusing.  The point is this.    There will be occasions where a defendant has intentionally applied force to the person of another but it is done in a way which is not remotely hostile - as one example only, where a child is restrained from running out into the road to chase a bouncing football.  In our judgment, it is therefore of some concern that the Assistant Magistrate appeared to take the view that the intentions of the Appellant were not relevant to the question of whether he had or had not committed an offence beyond his intention to apply force to the person of the complainant.  The expressed intentions of the Appellant were therefore a potentially material question on which the court of trial would have to take a view on the evidence and it appears that this was overlooked by having regard to the summary of the position in De la Haye.

27.      As is clear on the authorities, it was necessary for the Assistant Magistrate to consider on an application by a defendant to change his plea what the merits of the case might be.  In this case, we think that the Assistant Magistrate reached the conclusion that there would be no defence to the charge which had been brought even though he was satisfied the Appellant did not want or try to hurt his wife.  That can only be on the basis that he intentionally applied force, and that was sufficient for the criminal offence of assault.  We think in this respect the Assistant Magistrate fell into error and it follows that his decision to refuse the Appellant leave to change his plea is one which cannot stand.  It is also apparent to us from the evidence that the Appellant may well not have understood that what he admitted to taking place could on one analysis amount to an offence.  In those circumstances the plea which he entered would indeed leave him with a sense of injustice.  The fact that an individual defendant has a sense of injustice arising out of the Court proceedings which leave him convicted of a criminal offence is not of itself conclusive; but where objectively a reasonable bystander would accept that the defendant might have a sense of injustice in all the circumstances, then that is a relevant consideration for an appellate court.

28.      The challenge to the Assistant Magistrate's refusal to allow a change of plea was based on the refusal to appoint an intermediary and the refusal to agree an adjournment.  We have to say we did not find these challenges to be well founded.  As to the possibility of an adjournment, the transcript shows that no application to adjourn was actually made.  It may well be that the possibility of an adjournment was referred to in correspondence in the three or four weeks prior to the hearing of the application to vacate the plea, and indeed that the Assistant Magistrate knew of that correspondence, but that is not the same as an application for an adjournment actually being made.  If none is made, it is impossible to challenge a refusal to allow it. 

29.      As to the question of the intermediary, our view is that this Court will not generally interfere with the exercise of a discretion by the Magistrate in taking such a decision.  It will do so if it is clear that the decision has been taken on a wrong factual basis or by failing to apply the right principles which should have guided the exercise of discretion.  It is always a difficult judgment call to make as to whether an intermediary should be appointed, balancing the public interest in ensuring a fair trial and in preventing a waste of public resources, and on the other side protecting the rights of the defendant to a fair trial.  Sometimes these will be very finally balanced decisions.  It is not necessary to examine the basis of the Assistant Magistrate's decision in this case as a result of the conclusions which we have already reached. 

Conclusion

30.      For the reasons we have given, we are not satisfied that the original guilty plea was entered on an unequivocal basis.  We are also concerned that the Assistant Magistrate took his decision to refuse the application for a change of plea upon the basis that there was no possible defence to the charge, which in our judgment is clearly not so.  In the circumstances we consider the appeal must be allowed and the Assistant Magistrate's decision cannot stand.

31.      Article 20(3) of the 1949 Law provides:

"On any appeal under Article 17, the Royal Court may by order confirmed, reverse or vary the decision of the Magistrate's Court, or may remit the matter with its opinion thereon to the Magistrate's Court, or may make such other order in the matter as it thinks just, and may by such order exercise any power which the Magistrate's Court might have exercised, and any order so made shall have the like effect and may be enforced in like manner as if it had been made by the Magistrate's Court."

32.      The options before us were either to send the matter back to the Assistant Magistrate in order that arrangements could be made for the trial of the Appellant or, in effect, to discharge him from the prosecution by ordering a stay on its further progress.  Given that the Magistrate's Court has not heard any evidence at all so far in relation to this charge as a result of the guilty plea, which was first entered, it might normally be thought unusual to order that the prosecution be stayed.  However, we were in no doubt that this was the right order to make for these reasons:

(i)        The alleged assault took place on 9^th December 2019, some 15 months ago.  There were two independent witnesses who made statements reasonably soon after the event, but the complainant and the Appellant, both of whom are vulnerable in different ways, might be expected to give very unreliable evidence in relation to what took place.  The personal features of the Appellant are such that it is probable that he would be unable to recall very much by way of detail of the events of that evening at all.  We have real doubt as to whether any fair trial could take place at this stage. 

(ii)       It does not appear that this charge was initiated by any complaint by the Appellant's wife, albeit that she has been described in this judgment as the complainant.  The police were called by one of the independent witnesses.  The Crown had accepted the Appellant's version of events, as indeed the Assistant Magistrate clearly did, namely that the offence was committed simply because the Appellant had applied force to prevent his wife from walking out onto the road, without any intention or desire to hurt her in any way.  The Crown accepted that he had never threatened to his wife with breaking her legs and that he had never had his arm around her neck.  Any criminal offence is of course serious, but this offence was at the bottom end of the scale of a criminal assault, even if proved.

(iii)      That the offence as charged did lie at the bottom end of the scale is shown by the fact that the Assistant Magistrate subsequently sentenced the Appellant to a period of probation.  Advocate Binnie confirmed on the Appellant's behalf that he was willing to undertake a similar period of voluntary probation, which we think would be a desirable outcome.  In the circumstances, we do not think that the events of 9^th December 2019, concerning the Appellant and his wife ought to trouble the criminal courts of this Island any further.  We understand and respect entirely the natural and proper decision of prosecutors to bring on policy grounds a charge involving domestic assault where the evidential test is met, and we agree that this would normally be a matter which merits a full judicial inquiry.  However, for the reasons which we have given, we do not think that would be appropriate in this case and accordingly we have ordered a stay on any further prosecution of this charge. 

33.      The Appellant is awarded legal aid standard costs in relation to the appeal.

Authorities

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

Harding v AG [2010] JRC 167

F v AG [2019] JRC 012

Criminal Procedure (Jersey) Law 2018

European Convention on Human Rights

De la Haye v AG [2010] JLR 218

Coward v Baddeley [4 H & N at 480 - 481: 157 E.R at 928]