Jersey Unreported Judgments

Renewed application for leave to appeal conviction and appeal against sentence.

[2022]JCA267

Court of Appeal

12 December 2022

Before     :

Ms Clare Montgomery, K.C., President; Sir William Bailhache K.C., and Mr Richard McMahon, K.C., Bailiff of Guernsey.

 

Advocate R. C. L. Morley-Kirk for Appellant

Advocate M. T. Jowit K.C., Solicitor General, for the Respondent

judgment

The President:

This is the judgment of the Court.

1.        On 6 May 2022, following an 8 day trial on indictment before the Royal Court (Sir John Saunders, Commissioner, sitting with a jury), the Applicant/Appellant (for ease of reference hereafter the Appellant) was convicted by a majority verdict (10:2) of murder (Count 1) and of attempted murder (Count 2).  The offences were committed at approximately 02:00 on 2 August 1990.  Mrs Barbara Griffin was stabbed to death at night by an intruder in her home.  Mrs Emma Anton, who was staying with Barbara Griffin, suffered life changing multiple stab wounds.  

2.        On 11 August 2022, the Appellant was sentenced to imprisonment for life on Count 1 for the murder of Barbara Griffin, and fifteen years imprisonment concurrent on Count 2 for the attempted murder of Emma Anton.  The Court (Sir John Saunders, Commissioner, sitting with Jurats Ramsden, Pitman, Christensen, Dulake, Austin-Vautier, Averty, Hughes and Le Heuze) noted that sentence on Count 1 was a mandatory life imprisonment sentence, and determined that the minimum period that the Appellant must serve before becoming eligible to apply for parole was one of twenty years, from which should be deducted the time spent on remand which was 431 days. 

3.        In 1991 the Appellant had been tried and acquitted of these offences ("the first trial").  The time spent on remand awaiting that trial gave rise to the deduction of 431 days.  These acquittals were quashed and a retrial was ordered on 22 November 2021, see AG v Tregaskis [2021] JCA 340.

4.        On 21 October 2022 the Appellant was refused leave to appeal his conviction in his second trial on the papers by Montgomery JA sitting as a single judge exercising the powers of the Court under Article 41 of the Court of Appeal (Jersey) Law 1961.  His application for leave to appeal against his sentence was granted.

Leave to appeal conviction

5.        The application for leave to appeal conviction has been renewed in oral submissions from Advocate Morley-Kirk.  Her first point is that the guilty verdicts were unreasonable on the evidence.  Advocate Morley-Kirk also contends that the Commissioner was wrong to refuse to admit details of the sexual component in offences committed by the prosecution witness, Marie Dean (who before her change of gender was known as Dean Marie), whom the Appellant claims committed the offences.  Finally, the summing up by the Commissioner was subject to detailed and sustained criticism on the basis that it was unfair, unbalanced and included a personal attack on Advocate Morley-Kirk. 

[1] The evidence

6.        Article 26(1) of the Court of Appeal (Jersey) Law 1961 provides that:

"...on any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the Appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal;  Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the Appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

7.        Advocate Morley-Kirk accepts that the relevant test for this Court is that articulated in Attorney General v Edmond-O'Brien [2006] JLR 133.  This Court cannot interfere with the verdict of a jury on appeal if "there is evidence to go to the jury ... and it cannot be said that the verdict is one which a reasonable jury could not arrive at." 

8.        Although the Appellant maintains that there was no case for him to answer, it is clear that there was a circumstantial case for him to answer even in his first trial.  Additional prosecution evidence in the form of witness evidence of confessions made by the Appellant was also available by the time of the second trial.  There was therefore evidence on which a reasonable jury properly directed could have convicted the Appellant.  In those circumstances the guilty verdicts from the jury cannot be unreasonable. 

9.        Advocate Morley-Kirk relied on the absence of corroborating forensic and identification evidence as well the contradictions and improbabilities in the prosecution case.  Contradictions are frequently present in a criminal trial and the tribunal of fact has to consider what effect, if any, they have upon its consideration of the verdict.  In this case, such contradictions as there might have been were before the jury in the second trial.  The jury were in the best position to determine the effect of the evidence. Their verdicts cannot be characterised as unsupported by the evidence. There is no such arguable ground of appeal here. 

[2] Marie Dean and the bad character evidence

10.      The Appellant claimed that Marie Dean was the person responsible for the attacks on Barbara Griffin and Emma Anton.  The defence sought to portray the attacks as being sexual in character and to suggest that Marie Dean had a propensity to commit offences of that character.  The Commissioner was invited to permit the admission of certain facts about convictions recorded against Marie Dean under Article 82J of the Police Procedures and Criminal Evidence (Jersey) Law 2003.

11.      Evidence of this aspect of Marie Dean's bad character was only admissible at trial if it had substantial probative value in relation to the possibility that Dean Marie (as he then was) may have been Barbara Griffin and Emma Anton's attacker in 1990.  Article 82J(3)(c) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 requires the court to consider, where evidence of misconduct is said to have probative value by reason of similarity between that misconduct and the offences charged, the nature and extent of the similarities and the dissimilarities.

12.      There was nothing in the draft agreed facts that established any similarities capable of evidencing a propensity on the part of Dean Marie to commit acts of sexual violence against women in dwelling houses.  Advocate Morley-Kirk accepted this in the course of argument.  Nor, despite the fears expressed by Mrs Anton in her witness statement at the time that she was going to be raped, was there any credible evidence of any sexual assault or attempted sexual assault on either her or Barbara Griffin.  At its highest, the evidence established that Dean Marie had a tendency to act in a sexualised fashion whilst burgling and that he had burgled domestic premises occupied by women.  There was no evidence that he had ever attempted any form of sexual assault.  There was therefore no similarity between the conduct of Dean Marie and the charged offences, so the proposed admitted facts had no probative value.  They provided no material support for the proposition that Dean Marie might have attacked the women in 1990.  In those circumstances we consider that the Commissioner was correct to conclude that the bad character evidence had no probative value and was therefore inadmissible. 

[3] The summing up

13.      Attack on Advocate Morley-Kirk.  At 15:27 on Day 7 of the trial, the Commissioner told the jury, immediately before asking them to retire to consider their verdicts; "if you get to ... 4:30 and you think 'I've had enough. I've been listening to two people droning on all day and it's really been very tiring, so I would prefer to go home and come back fresh tomorrow morning' just send me a note..."

14.      Advocate Morley Kirk points out that she and the Commissioner were the only two people who had spoken on Day 7.  She invites us to conclude that what the Commissioner said would have been liable to make the jury regard her speech on behalf of the defence as having little or no weight.  We do not accept this is a tenable conclusion.  The Commissioner's comment was light-hearted.  It would not have suggested to the jury that they should give less weight to either his summing up or the defence speech.  It was not in our view an attack on Advocate Morley-Kirk and it provides no proper ground for appeal.  The remark was not intended to, did not and could not reasonably have a tendency to cause the jury to give any less weight to the defence submissions. 

15.      The fairness of the summing up.  A number of complaints have been made about the tone and contents of the summing up.  Advocate Morley-Kirk accepts that she did not consider at the time of the summing up that there was anything in any of these points that appeared to her to require correction.  She argues however that, following a review of the transcripts, it is arguable that the summing up was unfair, unbalanced and inaccurate. 

16.      The Court observes that the reaction of Advocate Morley-Kirk to the summing up when it was delivered is likely to be a more reliable indicator of the fairness of the summing up and its accuracy.  If there had been any proper basis for criticising the summing up it could and would have been raised with the Commissioner at the time.  We do not consider that the criticisms taken individually or cumulatively reveal any unfairness or imbalance.  We propose to deal with some but not all of the individual complaints to illustrate how we have reached that conclusion. 

17.      Advocate Morley-Kirk relied on the failure by the Commissioner to repeat the direction given to the jury at the start of the trial about the need for caution in relation to the evidence of Emma Anton, who had died by the time of the second trial.  The Commissioner observed at the start of the trial that the defence had not had the opportunity to cross examine this witness and that it was not clear what if anything was in dispute in her statement.

18.      However it became apparent after the Appellant had given evidence that there was no dispute in connection with any part of the evidence of Emma Anton.  On the contrary the defence relied on her evidence that her attacker may have been clothed, that her attacker had bare hands, that she had lashed out at him and that he had been hit with a broom handle possibly causing injury where no injury was found to the Appellant.  All this evidence was said to support the defence case that the attacker had been someone other than the Appellant.  There was therefore no need to repeat the direction about the need for caution in the summing up in connection with Emma Anton.  No unfairness was caused by this.  No lack of balance can be seen in the failure to repeat the direction. 

19.      Advocate Morley-Kirk also expressed concern about the summing up in connection with the cross examination of the Appellant about his evidence to the effect that he had never committed domestic burglaries.  The prosecution put to him that he had admitted 2 domestic burglary offences to police in 1993 and asked for them to be taken into consideration in 1993.  

20.      It was submitted that the Commissioner was wrong to suggest in summing up that it was unlikely that the Appellant would have admitted the offences if they were not true since he had a lawyer to advise him when the offences were taken into consideration.  The Commissioner was in error in suggesting the Appellant had been represented at his sentencing hearing in 1993, but that was not an error that caused the Appellant any prejudice in our judgment.  

21.      The issue that was fairly and fully identified by the jury was whether, according to the prosecution, the evidence demonstrated that the Appellant had been caught in a lie when he told the jury that he had never committed domestic burglaries or whether, as the defence argued, this was an example of the Appellant being willing to admit offences that he had not committed to secure some perceived advantage.  We do not consider that the Commissioner's error or the way in which he framed the issue caused any conceivable prejudice to the Appellant. 

22.      The Appellant also gave evidence at trial that he would wear gloves when committing burglaries and would only ever wear socks on his hands if he was taking a car as it made it easier to drive a car.  The explanation was offered as part of the Appellant's rebuttal of the prosecution case that he had admitted to his sister that he had worn white sports socks on his hands when he entered Barbara Griffin's home and the evidence of a Mr Hare that he was in the habit of wearing socks on his hands when burgling to avoid leaving forensic traces.   

23.      The Commissioner asked the jury to consider whether the Appellant's evidence made any sense.  The Commissioner also said the defence was that this may sound "odd" but the distinction was likely to be true.  Advocate Morley-Kirk says that she did not use the term "odd" and that the Commissioner was wrong to use pejorative language in his description of the evidence.  

24.      However, on any view the evidence given by the Appellant about his use of socks on his hands to take away cars was a curiosity which the Commissioner was entitled to comment on.  The use of socks rather than gloves would reduce the manual dexterity of the user and was an unlikely choice of hand covering for any driver.  The fact that Advocate Morley-Kirk said nothing about the Commissioner's comment at the time suggests that the concerns raised now are more apparent than real.  We do not consider that any implicit adverse comment by the Commissioner undermined the fairness of the proceedings or was inappropriate. 

25.      Complaint is also made about the summing up insofar as it dealt with the evidence of Emma Anton.  The Appellant argued that Mrs Anton was correct in describing her assailant as covered in mesh.  The Commissioner outlined the dispute over the evidence but commented that it might not matter as the real question was whether the naked man or nearly naked man seen running away just after the killing was the killer.  In our judgment this was the real question. Whether or not the killer was covered in a mesh like substance did not assist the defence case to any measurable extent since the real issue was whether the naked man was or was not the Appellant.  The case that the running man was the killer was overwhelming and was a point relied on by the defence to argue that the running man could not have been the Appellant.  We do not consider the summing up on the evidence of Emma Anton caused any unfairness to the Appellant.  It was an accurate and balanced account of the evidence and the issues. 

26.      A related complaint was made by Advocate Morley-Kirk in relation to the evidence of Tracy Carré.  It is said that the Commissioner should not have commented on the fact that the prosecution took issue with the reliability of Tracy Carré's statement in 2013 that she did not think that the naked person she saw in 1990 was the Appellant since when she attended the first trial she saw the Appellant but thought he was shorter than the man she had seen.  In particular complaint is made that the Commissioner commented that Miss Carré's account, if reliable, could and would have been raised at the first trial rather than in 2013.  It is suggested that this comment lacks balance.  However the Commissioner was obliged to draw the attention of the jury to factors relevant to reliability including the existence (or absence) of any previous consistent statement.  In addition the Appellant had the option to call Miss Carré to give evidence.  He chose not to.  We do not consider the criticism of the Commissioner is justified in the circumstances. 

27.      The last complaint identified by Advocate Morley-Kirk in her review of what she considered were the most egregious examples of unfairness in the summing up was the direction given by the Commissioner about the potential unfairness of the indeterminate sentencing regime.  Importantly the Commissioner disavowed any suggestion that the sentence had been unjust in the case of Dean Marie.  However, it was in our judgment essential for the purpose of the defence case (that Dean Marie was trying to curry favour with the authorities by falsely implicating the Appellant) that the jury understood that a person enduring an indeterminate sentence might well have a motive to attempt to curry favour.  It was therefore necessary for the Commissioner to describe the potentially draconian nature of indeterminate sentencing so as to explain the motive that the Appellant ascribed to Dean Marie in giving evidence against him.  Far from the Commissioner's comments being unfair we consider that they assisted the defence. 

28.      In the result we do not consider that any comments by the Commissioner were unfair or unbalanced.  Even if we are wrong about this, we do not consider any of them give rise to any arguable ground of appeal.  This is because the Commissioner gave clear and repeated directions on the importance of the jury forming their own view and if appropriate ignoring any judicial comments and the lack of significance in any judicial analysis of evidence.  

29.      The Commissioner directed the jury in terms:

"Decisions of fact are entirely for you and not for me.  If you think I am expressing a view on the facts, then ignore that view.  You decide the facts, not me, and I cannot emphasise that enough.  I shall not mention every part of the evidence.  If I do not mention something you regard as significant, you rely on it.  If l appear to emphasise something you regard as unimportant, then you disregard it.  You apply the law as I tell you it is to the facts as you find them to reach your verdicts, whatever they are.  Any view that you may think I have on the facts is irrelevant to your considerations.  The same goes for the way I have conducted the trial.  I have tried only to ask questions by way of clarification but if you think I have shown any view in that, then you ignore it as well."

30.      In the circumstances it is not arguable that any imbalance in the summing up adversely affected the jury or caused any unfairness to the Appellant.  

31.      The summing up was accurate and balanced and the Appellant's criticism of it is not sustainable.

32.      For these reasons we refuse the Appellant leave to appeal against his convictions.

Appeal against sentence

33.      On 18 May 2022, the Commissioner raised with the prosecution and the defence various questions in relation to sentencing and in particular the effect of the Criminal Justice (Life Sentences) (Jersey) Law 2014 ("the 2014 Law").  His note is set out in full:

"I have been looking at what the procedure would have been if Mr Tregaskis was to be sentenced in England or Wales for the offences for which he has been convicted.

I have found that the procedure is complicated and I thought it might be helpful if I shared the results of my researches with you.  I am not saying that I am correct.  You are perfectly entitled to disagree.  Apart from anything else, it is a procedure that I have never had to do.  You may know all of what is contained in this note already; if so I am sorry to waste your time.  It may be that you consider that it is irrelevant to any sentence passed in Jersey in any event and obviously the Court will consider any argument that is put forward.

I am not saying that the likely sentence in England and Wales should be a factor to be taken into account by the Jurats in deciding on the appropriate sentence but if that argument is put forward it may be useful to know what the sentence in England would be likely to be and how it would be arrived at.

Sentences for murder in England are now governed by Schedule 21 of the Criminal Justice Act 2003.  Schedule 21 considerably increased the starting point for the minimum terms for some types of murder.  By virtue of paras 9 and 10 of Schedule 22 of the 2003 Act, the Schedule 21 starting points did not apply to murders committed before the Act was passed.  Paras 9 and 10 were repealed by the Sentencing Act 2020 and replaced with para 12 of Schedule 21 of the Sentencing Act 2020.  That provides that for a murder committed before December 2003 the minimum term must be 'no greater than that which, under the practice followed by the Secretary of State before 2002 the Secretary of State would have been likely to notify'.  Prior to the 2003 Act it was the Secretary of State who determined the minimum period having considered recommendations from the trial judge and the Lord Chief Justice.

As the sentence for the type of murder committed by Mr Tregaskis was increased by Schedule 21, if sentencing took place in England and Wales an exercise would be undertaken by the Court to work out what the likely sentence would have been in 1991.  There is some assistance to be found for determining this from Lord Bingham's letter to judges in 1997 and from the case of Sullivan [2004] EWCA Crim 1762.

In some cases such as R - Shaid Mohammed [2020] EWCA Crim 766 the prosecution carried out some research into sentences in similar offences to assist the Court.

I hope this is of some help. "

34.      As a result of that note, the prosecution and the defence made a number of written submissions to the Commissioner following which, prior to sentence, the Commissioner gave a judgment on 11 July 2022 containing guidance in the form of the directions he intended to give to the Jurats on the criteria to be used in fixing the minimum term.  The relevant extracts from that guidance are these:

"4.  The sentence for murder is a mandatory life sentence and that sentence must be passed on Mr Tregaskis.  In addition, the Court must decide on the minimum period that he has to serve before he is eligible for parole.  It does not follow that he will be released when the minimum period is completed.  He will only be released if a panel of the Bailiff and two Jurats are satisfied that it is no longer necessary for the protection of the public that he should be confined in prison.  Even if released on parole, Mr Tregaskis will remain on licence for the rest of his life and subject to recall to prison if he were to breach his licence conditions or were to be considered dangerous again.  It is important to remember that the sentence that the Court will pass is imprisonment for life.

5.  At the time that Mr Tregaskis committed the offence of murder, the procedure in Jersey was, so far as I can determine but I welcome correction, that the minimum term was set by the executive following recommendations from the trial judge and, if he or she was different, the Bailiff.  That changed following rulings from the European Court of Human Rights and the Supreme Court in England (R v Anderson [2003] 1 Cr. App. R. 523) which ruled that decisions as to how long a prisoner serving a life sentence should serve before being eligible for parole should be for the trial judge and not for the executive.

....

7.  Schedule 21 [of the Criminal Justice Act 2003 (the "2003 Act") which contained the arrangements made following Anderson in England and Wales] was prospective in accordance with the normal rule as to when acts of Parliament take effect and only applied to murders which happened after December 2003.  The reason for this, according to the explanatory note, was concerns that to apply the new minimum terms retrospectively would offend Article 7 of the ECHR.  The relevant part of Article 7.1 for our purposes prohibits the imposition of a heavier penalty 'than the one that was applicable at the time the criminal offence was committed'.

8.  Transitional arrangements for those who committed murder before December 2003 but were sentenced after December 2003 were introduced in schedule 22.

[The guidance then recited practice in England and Wales and then referred to the passage of Jersey legislation and in particular the Criminal Justice (Life Sentences) (Jersey) Law 2014 which the Commissioner said was made retrospective by Article 23]

12.  The normal rule of interpretation is that all Acts will be prospective in their effect unless they are clearly made retrospective by their terms.  In my view the aim and effect of Article 23 is to make the application of minimum terms retrospective.  The words are clear and unambiguous.

13.  A consequence of this, applying the strict words of the Act, is that the starting point for minimum terms set out in Articles 5, 6, 7 and 8 of the Act will apply to offences committed before the commencement of the 2014 Act.  The effect of that is likely to be that minimum terms imposed after 2005 for offences committed before that Act came into effect will be longer than the minimum terms which would have been imposed at the time of the offence.

14.  The prosecution submit, supported by the defence, that to apply the Criminal Justice (Life Sentences) (Jersey) Law 2014 to this case would be unlawful.  They say that the starting points for minimum terms set out in the 2014 Law do not apply to the sentence to be imposed on Mr Tregaskis for the offence committed in 1990 as to apply them retrospectively would contravene Article 7 of the European Convention of Human Rights.  If that argument is correct then it means that Article 23 would have little or no effect as starting points for minimum terms had generally increased since the new starting points were introduced.

15.  The prosecution argument involves two propositions which it is necessary to establish if Article 7 is to apply.  First, that the setting of minimum periods is a penalty, as Article 7 only applies to penalties, and secondly, that those minimum terms were heavier than the ones that were 'applicable' at the time the offence was committed.

16.  While I have had some hesitation in reaching this conclusion, I am satisfied that the minimum terms set out in the 2014 Law are penalties.  My hesitation is because there are cases both domestically in England and Wales and also in Europe that suggest that issues of parole are not concerned with the severity of the sentence but with the administration of it.  That seems to be the effect of the decisions in the European Court in Hogben v UK and, to a more limited extent, Uttley both in the European Court and in the Supreme Court.  The decision of the Supreme Court in Uttley is reported at [2004] 1 WLR 2278.

17.  Having considered those decisions with care, I am nevertheless satisfied that similar principles should not apply to minimum terms imposed with a mandatory life sentence for murder.  In the case of R v Bell [2016] 1 WLR 1 the Court of Appeal held that Schedule 21 introduced an entirely different structure for minimum periods for murder and so minimum sentences for murder under that schedule had to be considered differently from, in that case, a life sentence passed for manslaughter.

18.  Further, I consider that to categorise the requirements of schedule 21 for minimum periods as anything other than a penalty would be to pay no regard to reality and Article 7 is intended to deal with realities not legal fictions.  The minimum term is often for the prisoner the most relevant part of the sentence as it prescribes the time that he or she must spend in custody before release into society becomes a possibility.

19.  On the basis that a minimum term for murder is a penalty, then Article 7 is engaged which means that a 'heavier penalty shall not be imposed than the one that was applicable at the time the criminal offence was committed'.  The question then arises as to what is meant in Article 7 by 'applicable'.

20.  There is no doubt that the minimum period starting point set out by the 2014 Life Sentences Law of Jersey for offences such as the one committed by Mr Tregaskis are longer than those which would have been imposed if he had been sentenced at the time of the offence.  In England and Wales, Schedule 22 of the Criminal Justice Act 2003 avoids any possible breach of Article 7 by proscribing that a minimum period which is no longer than would have been passed in 2003 has to be imposed which is likely to be shorter than the one which would be imposed if Schedule 21 applied.  That does not mean that it is necessary in law to have a similar provision as Schedule 22 in Jersey law.

[The Commissioner then referred in detail to the case of Sullivan, the case of Uttley and the case of Jackson]

26.  While I understand and can see the force in the position taken by the prosecution and the defence, I do not agree with it.  In my judgment the restrictions on sentence proscribed by Article 7 in sexual offences is clear from the various cases I have quoted.  The prosecution and defence argue that there is a different interpretation for Article 7 in cases of murder where a mandatory life sentence has to be imposed.  I can't see any justification for that in any of the cases nor in the terms of Article 7 itself.  It is difficult to place too much reliance on the judgment in Sullivan as the point which we are considering was not directly raised.  It was not argued.  There was no doubt that the provisions of Article 22 had to be applied and the issue in that case was how that should be done in practice. 

27.  I will therefore direct the Jurats that they must identify a starting point in accordance with Article 4 of the 2014 Jersey Law.  They must then go on to consider aggravating and mitigating features.  Having done that by virtue of Article 11(1) the Jurats can order a minimum period of any length.

......"

35.      When it came to the sentencing remarks of the Court on 11 August 2022, it is clear from what the Commissioner said that the Court approached the question of sentence exactly as he had directed - having recited the facts, the Commissioner referred to the 2014 Law, indicating that he had already ruled that the retrospective nature of that rule was lawful and applied to the present case in fixing the minimum term.  The Court then went on to fix the minimum term by taking a starting point of thirty years and considering a number of mitigating factors before concluding that the appropriate minimum term was one of twenty years imprisonment, less time spent on remand of 431 days.

The Notice of Appeal

36.      The application for leave to appeal against sentence was based on the following grounds of appeal:

(i)        In calculating the starting point in accordance with present day legislation, the Royal Court was wrong in law and in principle.  The offence took place in 1991 (sic) and the starting point should have been calculated in accordance with the regime which was in place at that time.

(ii)       The starting point and the minimum period imposed on Count 1 was manifestly excessive.

(iii)      The Jurats failed to have sufficient regard to the mitigation advanced by the defence.

(iv)      The sentence imposed on Count 2 (attempted murder) was manifestly excessive.

37.      In the written contentions filed for the Appellant, these potential grounds for appeal are expanded upon.  The Appellant contends that Article 23 of the 2014 Law should be read down to ensure its compatibility with Article 7 of the Convention.  The Appellant noted the response of the Crown to one of the Commissioner's notes to the effect that its position was if the minimum term was to be treated as a penalty for the purposes of Article 7, then it could not be heavier than the penalty which could have been imposed at the time the offence was committed.  The Crown had also submitted that in real terms the minimum term dictated the length of the offender's penalty.  Essentially, the Appellant adopted the reasons set out by the Crown in the contention that the Commissioner's decision as to the criteria to be used in fixing the minimum term was wrong in law.  Reliance was placed upon Maktouf and Danjanovic v Bosnia and Herzegovina [2014] 58 EHRR 11 at paragraph 65-67, and to paragraph 53 of the guide on Article 7 of the Convention in its reference to Jidic v Romania (Application No 45776/16) (18 February 2020) and in particular the following extract from what was said from both precedents:

"The assessment of which criminal law is more lenient or favourable to a defendant does not depend on an abstract comparison of the two criminal laws in question.  What is crucial is whether, following a concrete assessment of the specific acts, the application of one criminal law rather than the other has put the defendant at a disadvantage as regards the sentencing."

38.      Thus it is said by the Appellant that the application of the 2014 Law placed him at a considerable disadvantage as the difference in the starting points between the two regimes was some ten years.

39.      In his contentions on behalf of the Crown, the Solicitor General did not resile from the position he had advanced prior to sentencing in the Royal Court.  He recognised that the question of the correct approach to identifying the starting point was not clear cut and that the Commissioner's solution was a cogent one.  In essence however, his submission was that the correct minimum term has been reached regardless of whether the Jurats started from a thirty year starting point and worked their way downwards for mitigation, or took a starting point of fourteen years and worked upwards for aggravating circumstances. 

The correct approach to Article 23 of the 2014 Law in respect of offences committed before 2005

Historical context

40.      Before considering the submissions in more detail, it is right to establish the historical position.  Until the passage of the Homicide (Jersey) Law 1986 ("the 1986 Law"), a person convicted of murder faced a mandatory death penalty.  The last time the death penalty was enforced was in relation to the defendant, Francis Huchet, in October 1959.  Between that date and the time when the 1986 Law came into force, those convicted of murder were still sentenced to the death penalty, but that penalty was commuted by the Home Secretary to a sentence of life imprisonment, the Home Secretary exercising the prerogative powers of the Crown as an act of mercy in each case.  Although English judges sentencing convicted murderers to life imprisonment had jurisdiction to make orders as to the minimum term to be served, the Royal Court had no such power - indeed it would be wholly inconsistent to sentence a convicted man to death and at the same time to say that the minimum period of imprisonment which he would serve would be a specified number of years.  To do so would be to pre-empt the exercise of the Royal prerogative which would be inappropriate.  It is not clear what, if any, contact there was between the insular authorities and the Home Secretary in the period between 1959 and 1986 (or indeed thereafter) by which the Home Secretary might inform himself of island views before reaching his own conclusions as to the minimum term to be served. 

41.      The death penalty was removed by the 1986 Law and by Article 1(2) of that Law, the Court was given the discretion to make a recommendation for a minimum term.  Fortunately, there have not been very large numbers of murders committed in the island, and it does not appear that the discretion to make a recommendation as to a minimum term under Article 1(2) of the 1986 Law has ever been exercised.  It is apparent in the case of Newall (1994) that the Court expressly resolved not to make any such recommendation.  In other cases, the sentencing remarks have been brief and merely indicate that the sentence for murder is a mandatory life sentence. 

The Convention

42.      It is clear that a sentence of life imprisonment is not incompatible with the European Convention on Human Rights.  This is because the operation in practice of an indeterminate sentence for murder does not constitute arbitrary or disproportionate punishment - see R v Lichniak, R v Pyrah [2002] UKHL 47 [2003] 1 AC 903.  This is so even if the Court, when passing a life sentence, makes a 'whole life order' under which the early release provisions do not apply, or if the Court makes an order for a minimum term.  Such orders are not incompatible with Article 3 of the Convention as long as there is some review as to whether detention can continue to be justified on the grounds of punishment and deterrence - see, for example, R v Bieber [2008] EWCA Crim 1601 [2009] 1 WLR 223. 

43.      The consequence of the decision in R (Anderson) v Secretary of State [2003] 1 AC 837 was that the Home Secretary could no longer fix the minimum terms of imprisonment to be served by life prisoners before any application could be made to the parole board.  That in turn had the result that there was no tribunal with the jurisdiction to make a recommendation for a minimum period to be served in relation to prisoners serving a mandatory life sentence from Jersey.  The difficulty was addressed by the passage of the Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment) (Jersey) Law 2005, ("the 2005 Law") which in effect adopted the majority of the provisions which had been included in the 2003 Act in England and Wales in this respect.  The 2005 Law charged the Court which sentenced an offender to life imprisonment as fixed by law to adopt an appropriate starting point in relation to the offender, setting out the guidance for doing so at Articles 5 to 8.  The same rules have essentially been replicated in the 2014 Law.  The discretion contained in the 1986 Law to make a recommendation for a minimum term to be served was repealed: the Court was now obliged to do so.

44.      Although it was not thought at the time that there were any prisoners serving mandatory life sentences who had not been granted parole, Article 21 of the 2005 Law enabled any person serving such a sentence, or the Attorney General, to apply to the Royal Court to order a mandatory minimum period of imprisonment.  In that event, the Court was required to deal with the person as if it had just sentenced him or her to life imprisonment for the offence in respect of which the application was made - see Article 21(4).

45.      The 2005 Law also made it plain that the law was retrospective.  Article 20 provided that 'Nothing is to be taken to prevent or limit the application of this Law to a person who commits an offence before this Law comes into force'.

46.      As is clear from the report from the Minister for Home Affairs introducing the 2005 Law to the States, prisoners transferred from La Moye Prison to one of Her Majesty's Prisons in England and Wales were so transferred by authorisation of the Secretary of State using powers conferred on him by the Crime (Sentences) Act 1997.  In the case of life sentences for murder, these were unrestricted transfers, which had the effect that the rules of the receiving jurisdiction (England and Wales) applied for the purposes of any release on licence notwithstanding that the incarcerated person had not been convicted before a Court of England and Wales.  As a result, the Jersey legislation at that time, in providing for the recommendation for a minimum term, in effect replicated the information which would be available were the convicted prisoner serving a sentence from a Court of England and Wales.

47.      The regime changed with the 2014 Law in as much as the power to release on licence devolved upon the panel set up pursuant to Part 4.

48.      The transitional provision referring to the application of the legislation to offences committed before it came into force is set out at Article 23:

"Nothing is to be taken to prevent or limit the application of this law to a person who commits an offence before 24th October 2014 or to a person who, having been charged with an offence (regardless of the plea entered) has not been sentenced before that date."

49.      The first question which arises on this appeal is therefore whether, as the Commissioner found below, that Article unequivocally has retrospective effect.  Both parties accepted before us that it did and we agree.  The language is unequivocal.

50.      It is also common ground that the 2014 Law falls to be read and given effect in accordance with the provisions of the Human Rights (Jersey) Law 2000, which include the following:

"4. Legislation

(1)        So far as it is possible to do so, principal legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.

..."

"Principal legislation", for these purposes, includes any Law: Article 1(1). Article 4 applies to principal legislation whenever enacted: Article 4(2). The 2014 Law is accordingly "principal legislation" for these purposes.

"7. Public authorities and the States Assembly

(1)        It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)        In this Article "public authority" includes -  

(a)        a court or tribunal ...

...

(6)        Paragraphs (1) and (4) do not apply if -

(a)        as the result of one or more provisions of principal legislation, the authority ... could not have acted differently; or

(b)        in the case of one or more provisions of, or made under, principal legislation which cannot be read or given effect in a way which is compatible with Convention rights, the authority ... was acting so as to give effect to or enforce those provisions.

              

8. Proceedings

(1)        A person who claims that-

(i)         a public authority has acted, or proposes to act, in a way which is made unlawful by paragraph 7(1)

... 

may -

...

(b)        rely on the Convention right in any legal proceedings,

but only if the person is (or, in the case of proposed action by a public authority, would be) a victim of the unlawful act.

...

10         Judicial acts

(1)        Proceedings under Article 8(1)(a) in respect of a judicial act may be brought only -

(a)        by exercising a right of appeal;

(b)        on an application for judicial review; or

(c)        in such other forum as may be prescribed by Rules of Court made by the Royal Court."

51.      The Convention rights are set out in Schedule 1 to the 2000 Law.  The Appellant relies on Article 7.1:

"Article 7

1.     No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

52.      It is the second sentence of Article 7.1 which may be engaged on this appeal.

53.      The Appellant argues that the penalty that was imposed by the Royal Court was heavier than the range of penalties that would have been imposed in 1990 and argues the sentencing guidance given by Bingham, LCJ on February 10, 1997 and the later adjustments to it in Practice Direction (Sup Ct: Crime: Mandatory Life Sentences) (No.1) [2004] 1 WLR 1874 indicate that the starting point for any sentence in 1990 would have been 14 years imprisonment and that this would have been subject to a modest upward adjustment to 15-17 years (17 years was said to be the outer limit) and that a figure within this range would then have been notified to the Appellant (on this counter factual sentencing exercise) as the minimum period considered necessary for him to serve for the purposes of retribution and deterrence.  The process in England and Wales was described in the decision of the House of Lords in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531.

54.      It is clear that the statutory penalty for murder was fixed in the 1986 Law as life imprisonment and that has not changed.  At one level, it can be safely said that the penalty is no different today than it was at the time of Mrs Griffin's murder in 1991.  However, as was said in Doody, everyone knows that the sentence of life imprisonment does not necessarily mean incarceration for the rest of the defendant's life.  The courts in England and Wales, which have grappled with the exercise of discretion by the Home Secretary to permit the release of prisoners serving life sentences for murder over the last 60 years, have looked at the substance of what is done rather than the theoretical life sentence imposed.  There is a crucial distinction between setting a date for release and setting a date for the first consideration of release.  This has led to the use of the "tariff" to describe the minimum period of imprisonment which the defendant must serve before he or she can apply for parole.  It is said to reflect the punitive element of the sentence before the risk assessment is made as to whether the defendant in question may safely be released.  Fixing that tariff was, until Anderson, a question for the Home Secretary. 

55.      One can see this reflected in Jersey in the terms of Article 1(2) of the 1986 Law - the word "recommended" shows the legislature did not intend the court to have the final say on when a prisoner could be released.  It was a matter for executive decision and successive Home Secretaries have from time to time made pronouncements as to how their discretion is likely to be exercised, albeit in the broadest terms.  

56.      Although it is obviously arguable that the actual sentence and the minimum term cannot both be penalties for the purposes of Article 7 of the Convention, neither the prosecution or the defence have taken that approach and we are encouraged to treat the minimum term which the court imposes under the 2014 Law as a penalty.  That is of course consistent with the statutory structure which allows a defendant to appeal against the minimum term set by the sentencing court.  We have taken that course, as indeed did the Commissioner in his decision to which we have referred, not least because, as the Commissioner put it, Article 7 of the Convention deals with realities and not legal fictions. In doing so, we emphasise that it is the minimum term which is the penalty and not the starting point.  As the expression says, "starting point" is where the court starts, before consideration of aggravating and mitigating circumstances.  

57.      The question which we then have to consider for the purposes of Article 7 of the Convention is what was the comparator in 1991 with the minimum term fixed in 2022.  That is not a straightforward exercise.  The Appellant argues that the comparator may be ascertained from the guidance given by Lord Bingham in 1997 which demonstrates that the recommendations of trial judges were already moving upwards at that date, as indeed was the tariff set by the Home Secretary.  It is argued that one can take Lord Bingham's guidance as setting what the minimum term would have been in 1991. 

58.      We do not accept that Lord Bingham's guidance is a true comparator.  The minimum term set by the Royal Court under the 2014 Law provides a statutory judicial decision which can be seen as a penalty and has a substance or reality to it which is fixed.  The recommendations made by the Royal Court under the system in force in 1991, or indeed endorsed or recommended by the Lord Chief Justice who was advising the Home Secretary as the mandatory life prisoner on transfer from Jersey was treated as if sentenced in England and Wales on the application of the Crime (Sentences) Act 1997, had no binding force on the Home Secretary and therefore provide no direct comparator to the minimum term.

59.      It is relevant to note too, as the Commissioner did, that the 2014 Law does not contain the same rubric as is to be found in the transitional provisions of Schedule 22 to the 2003 Act, which are in these terms:

"  9. Paragraph 10 applies where ... the offence to which the sentence relates was committed before the commencement date.

10. The court-

(a)        may not make an order under subsection (2) of section 269 specifying a part of the sentence which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify as mentioned in paragraph 2(a), and

(b)        may not make an order under subsection (4) of section 269 unless the court is of the opinion that, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to give the prisoner a notification falling within paragraph 2(b)."

60.      Section 269 of the 2003 Act is in these terms so far as is relevant:

"(2)     The court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as "the early release provisions") are to apply to the offender as soon as he has served the part of his sentence which is specified in the order.

(3)       The part of his sentence is to be such as the court considers appropriate taking into account-

(a)        the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it,..."

61.      This is a different statutory regime, albeit the purpose of these provisions is presumably to ensure that the terms of the legislation do not breach Article 7 of the Convention.  Our task is equally to ensure that Article 7 of the Convention is not breached, while at the same time to apply our own statutory provisions. 

62.      Having regard to these features, we turn next to the question of what the sentence would have been in 1990 when the offence was committed.  It is clear from what we have been shown that the mandatory life sentence imposed by the court would not have been accompanied by any recommendation by the court as to a minimum sentence to be served.  The murder cases which there were between 1991 and 2002 show that the Court imposed life sentences but made no such recommendation.  In our judgment, that carries the implication that there is no direct comparator between the minimum term under the 2014 Law and the position in 1990.  That being so, it is not possible to say that the minimum term imposed by the Royal Court in this case would have been more severe than that which would have been recommended in 1990. 

63.      We are not convinced that it is legitimate to have regard either to the approach taken by judges in England and Wales under the legislation in force there or to the guidance of Lord Bingham in 1997 as indicating what the sentencing regime would have been in Jersey in 1990.  However, we have undertaken that comparative exercise to see whether any conclusions can be firmly drawn. In doing so, we reiterate that the issue is not whether the starting points are any longer but whether the minimum term which must be served is longer. 

64.      Advocate Morley-Kirk has taken us to a handful of English sentencing cases - Beynon [2007] EWHC 1387 (QB), Beechey [2006] EWHC 471 (QB), Ligus [2007] EWHC 1224 (QB), Paton [2007] EWHC 1221 (QB) and Williams [2007] EWHC 786 (QB) - for the proposition that the minimum terms in England and Wales for offending equivalent to that of the Appellant would have been about 15 years or so in 1990.  The cases are said to provide reliable guidance as to the range of sentences that might have been imposed on cognate offences in 1990.  

65.      In our judgment this exercise did not provide any sufficiently reliable guidance.  It only served to demonstrate that there would regularly be a range of periods proposed as the tariff with significant variations between the periods suggested by the trial judge, the Lord Chief Justice and the Secretary of State.  They also suggest that even in a case where the offender was relatively young and the murder was no more than a single killing in the context of a burglary 'gone wrong' a minimum tariff period of up to 16 years might have been imposed even where the offender pleaded guilty and was therefore entitled to a reduction in the minimum period of up to 5 years.  

66.      These cases were examples of sentencing decisions under s 276 of the 2003 Act where the court was fixing sentencing minimum terms in respect of defendants convicted before the Act came into force who had referred the tariff fixed by the Secretary of State to the court under the provisions of that Act. This was said to show what the tariff would have been for the Appellant. 

67.      It appears to us to be impossible to draw any reliable conclusion from the cases.  These were cases out of no doubt many which the Home Secretary had to consider over a period.  We know what the likely statutory minimum term would be if fixed under the 2003 Act in those cases, and we know what tariff the Home Secretary thought in fact was the right figure when fixing it under the old system.  However, if as is true, the court discourages factual comparisons  from case to case as providing no meaningful assistance in fixing the appropriate sentence, how much more so is that the case where one not only does not have a full case file in relation to the cases we are asked to compare, but we also do not have the recommended minimum terms suggested by the judiciary or the factors which the Home Secretary took into account politically when fixing the tariff?  Even giving the benefit of those reservations to the Appellant, the fact remains that the tariffs fixed in those cases were so fixed having regard to all material circumstances, including the fact of a guilty plea, which would be worth a considerable discount.  We do not think it is possible to say with any degree of certainty whether a similar tariff would have been fixed by the Home Secretary in respect of the Appellant, had this case been referred to him in 1991. 

68.      It is appropriate now to turn to the Bingham guidelines.

69.      In our judgment, there was ample ground for thinking that the 20 years minimum term chosen by the Royal Court in this case fell within the Bingham guidelines.  There was little by way of mitigation, albeit perhaps some credit might have been available for residual youth.  The Appellant was not of good character having already one serious conviction for grave and criminal assault at that time.  He broke into the home of two women at night, one of them elderly, murdered one with a knife he was carrying and attempted to murder the other.  Whether the gratuitous violence was premeditated is not clear but the taking of the knife might suggest it.  The motive for entry is also not clear but it does not appear it could have been anything other than an intent to gain by stealing, an intent to commit a sexual offence or an intent to commit a violent offence.  All of those possibilities would aggravate the offences.  Accordingly, starting at 14 years as the Lord Chief Justice suggested in his guidance could easily lead to a recommended minimum term of 20 years when the aggravating circumstances are taken into account.  In the circumstances we are unable to conclude that the penalty that was imposed by the Royal Court was heavier than the range of penalties that would have been imposed in 1990.  The evidence and material relied on by the Appellant is not capable of establishing this fact which would be the necessary finding to trigger any reading down of Article 23.  Accordingly for reasons that differ from those provided by the Commissioner we have concluded he was correct to direct that the Appellant should be sentenced in accordance with the regime established by the 2014 Law. 

Manifestly Excessive

70.      The alternative case advanced on behalf of the Appellant is that, even if the 2014 Law applied, the Court were wrong in principle to select a starting point of 30 years under Article 6.  It was submitted that there was insufficient evidence of financial gain and that in those circumstances the appropriate starting point was 15 years although Advocate Morley-Kirk accepted that this might be subject to upward adjustment under Article 9.  

71.      Advocate Morley-Kirk did however accept that the attempt to murder the second victim was an additional factor which the court could take into account for the purposes of its consideration of Article 6(2) of the 2014 Law.  We note that the introductory language in Article 6(2) shows that the examples given are indeed merely examples - the list is inclusive.  In our judgment the appropriate starting point was 30 years, there being a number of reasons for considering the offence of murder and the offence of attempted murder associated with it as particularly serious.  The Appellant had entered a dwelling house occupied by 2 elderly ladies at night with a knife.  He struck the women intending to kill them.  His motive for entering the dwelling (if not for gain) must on any view have been a malign one.  

72.      Advocate Morley Kirk also criticised the sentencing approach on the assumption that the 2014 Law was to be applied according to its terms, contending the result was manifestly excessive.  We invited submissions on what the correct sentence would have been if the starting point was 30 years.  However, Advocate Morley-Kirk declined the opportunity to give a figure that might represent an appropriate sentence in those circumstances.  When pressed on this aspect of the appeal, Advocate Morley Kirk came close to accepting that the 30 year starting point was not unreasonable.  We think it was.  For the reasons given above, this offence of murder was particularly serious.  Those factors help one in assessing the seriousness of the offence; but if by way of cross check they were to be disregarded and a 15 year starting point taken, in our judgment the same factors would come to be taken into account as aggravating factors which with such little mitigation as there is would lead to a similar conclusion as to the minimum term.

73.       The remaining mitigating factors identified by Advocate Morley Kirk did not in our view assist the Appellant in arguing that his sentence was excessive.  As to the question of totality, he was sentenced in Truro for a second murder he committed in 1997.  At that time, he could not have the Jersey offences taken into consideration because he had been acquitted of them.  If he had pleaded guilty to them, as he should, then he would have been in custody and the Truro murder would not have been committed at all, so no question of totality would arise. Nor today can he have the later offences taken into account.  He has been sentenced for them and there is no reason in principle to reduce what would otherwise be proper sentences in Jersey on account of his sentence in Truro for the subsequent killing of another innocent human being. It is also said that the Truro minimum sentence recommendation was influenced by the acquittal in Jersey.  There is no evidence that this is so; it would have been inappropriate had that been a factor in the trial judge's recommendation and if so it could have been appealed.  But there was no appeal, and it is not for us to speculate what the outcome might have been had there been an appeal.  

74.      As we have indicated, we consider that the Appellant's age at the time of killing Mrs Griffin has already been factored into the assessment of mitigating and aggravating factors. 

75.      It is also said that the Appellant has suffered a delay in the taking forward of this prosecution.  We do not think that is accurate. Having been acquitted in 1991, he could not be tried again for the same offences until the law was changed to permit that course of action.  That occurred with the passage of the Criminal Procedure (Jersey) Law 2018, the relevant Article 114 and Schedule 2 coming into force in 2021.  The prosecution made an application to this Court in November 2021 and the retrial was heard in April/May 2022.  We cannot see any merit in this objection.

76.      Finally, Advocate Morley Kirk urged us to the view that the minimum term recommendation was too high because the consequence, given the Appellant's poor state of health, is that he is likely to die in prison.  We do not think that is a factor which we should consider.  If the proper consequences of his actions are that the Appellant will die in prison, that derives from his own conduct.  He has murdered two people and attempted to murder a third.  If his state of health should deteriorate markedly, then that is a factor the authorities are able to take into account as a matter of discretion when that state of affairs comes about, if it does.

77.      The Solicitor General made some succinct but relevant submissions.  He contended that 20 years minimum term was likely to have been notified in the 1990s; that it was reasonable to anticipate that the Lord Chief Justice of England and Wales would have made some recommendation to the Secretary of State in relation to sentences imposed by the Royal Court because the Home Secretary would have wanted some judicial guidance. Indeed, it was quite possible that there was also some informal contact with the trial judge through the Bailiff's Chambers.  He also submitted that it made little difference whether one started at 15 years and increased for aggravating circumstances, or at 30 years and reduced for mitigation.  As we have said, we find there was little mitigation available to the Appellant here, and we think the Royal Court was if anything generous to the Appellant in allowing the discount from 30 years which it did. 

78.      Advocate Morley-Kirk's submissions on the Appellant's challenge to the sentence of 15 years in respect of Count 2 (attempted murder) were predicated on there being a reduction in the minimum term in respect of Count 1.  Because we are satisfied there should be no such reduction, it follows that we do not have to consider further whether this sentence was manifestly excessive. 

79.      In our judgment, upon examination there is nothing of substance in the appeal against sentence. The appeal is dismissed. 

Authorities

AG v Tregaskis [2021] JCA 340.

Court of Appeal (Jersey) Law 1961.

AG v Edmond-O'Brien [2006] JLR 133

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Criminal Justice (Life Sentences) (Jersey) Law 2014.

Maktouf and Danjanovic v Bosnia and Herzegovina [2014] 58 EHRR 11

Jidic v Romania (Application No 45776/16) (18 February 2020).

Homicide (Jersey) Law 1986.

European Convention on Human Rights.

R v Lichniak, R v Pyrah [2002] UKHL 47, [2003] 1 AC 903.

R v Bieber [2008] EWCA Crim 1601, [2009] 1 WLR 223.

R (Anderson) v Secretary of State [2003] 1 AC 837.

Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment) (Jersey) Law 2005.

Crime (Sentences) Act 1997.

Human Rights (Jersey) Law 2000.

Practice Direction (Sup Ct: Crime: Mandatory Life Sentences) (No.1) [2004] 1 WLR 1874.

R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531.

Beynon [2007] EWHC 1387 (QB).

Beechey [2006] EWHC 471 (QB).

Ligus [2007] EWHC 1224 (QB).

Paton [2007] EWHC 1221 (QB).

Williams [2007] EWHC 786 (QB).

Bingham guidelines.

Criminal Procedure (Jersey) Law 2018.