UKPC 7
Privy Council Appeal No 0004 of 2012
Aidan Richard Sherry (Appellant) v The Queen (Respondent)
From the Court of Appeal of Guernsey
JUDGMENT DELIVERED BY
4 MARCH 2013
Heard on 24 January 2013
(Instructed by Bird and Co)
(Instructed by Alan Taylor & Co)
Permission to appeal out of time?
"Upon notice of appeal being given or being deemed to have been given by a convicted person and upon compliance by that person with the conditions contained in section 4 of this Law, the sentence pronounced upon that person shall be suspended until the disposal of the appeal and, if that sentence be a sentence of imprisonment with or without hard labour, without the option of a fine, that person shall be set at liberty unless the Police Court directs that he be retained in custody."
The appellant had served five days of the sentence imposed on 29 February 1980 when he gave notice of appeal on 5 March 1980. But on the reading of that section which was current at the time, his sentence was then suspended, and the remaining time he spent in custody was as a remand rather than a sentenced prisoner. Mr Jeyes now wishes to present an entirely new argument: that the words "unless the Police Court directs that he be retained in custody" govern, not only the immediately preceding words, "that person shall be set at liberty", but also the earlier words, "the sentence . . . shall be suspended until the disposal of the appeal". Thus the court could choose between suspension of the sentence combined with bail or retention in custody without suspension of sentence. This would produce a just and sensible result. But he accepts that this new construction requires one to imagine a comma after "set at liberty" and that it is contrary to the generally accepted meaning of the section throughout the period when it was in force.
"In any other case the Appellate Court shall dismiss the appeal and thereupon the sentence of the Police Court shall stand and shall take effect as from such date as the Appellate Court shall appoint."
Thus it is argued that the Royal Court should have exercised this power in such a way as to take account of the time spent on remand pending both conviction and appeal, or at least pending appeal, as well as the five days served of the sentence. A search of the records of the Royal Court between 1979 and 1983 does not reveal a consistent recorded approach to the treatment of time spent in custody pending appeals. An analysis of eight such cases revealed five in which only the time between conviction and notice of appeal was deducted, two in which the whole time in prison after conviction was deducted, and one case in which the time deducted related to neither.
Was the order of the Royal Court made in error?
"In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail."
"Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."