Criminal Justice Policy - audit of the need for a prosecution service

STATES OF JERSEY

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CRIMINAL JUSTICE POLICY - AUDIT OF THE NEED FOR A PROSECUTION SERVICE

Lodged au Greffe on 19th October 2007 by the Deputy of St. Martin

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

(a ) to request the Minister for Home Affairs to commission an independent audit of the human rights

implications of the decision to reject Recommendation 4 of the Review of Criminal Justice Policy in Jersey' prepared by Professor Andrew Rutherford in 2002 (the Rutherford Report), namely that a public prosecution service should be created under a Director responsible to the Attorney General and that the role of the Centenier in the Magistrate's Court should cease; and

(b ) to agree that no consideration by the States of paragraph (b) of the Criminal Justice Policy lodged

"au Greffe" by the Minister on 4th September 2007 should take place until the Minister has presented the findings of the independent audit to the States.

DEPUTY OF ST. MARTIN

REPORT

In November 2001 Professor Andrew Rutherford was invited by the Home Affairs Committee to carry out a review of Jersey's criminal justice policy. In October 2002 he presented his Report which contained 10 Recommendations. Following the presentation, Home Affairs entered into a series of consultation and in July 2005 it lodged a Criminal Justice Policy P.201/2005 with the intention of it being debated in October 2005.

The Policy was not debated and was later withdrawn for another round of consultation. In September this year Home Affairs lodged an updated Criminal Justice Policy, P.118/2007  which is due to be  debated on 20th November.

The Rutherford Report's 4th Recommendation suggested the "establishment of a public prosecution service." Home Affairs does not say a great deal as to why it rejected the recommendation, other than "Having taken advice at early stage in the policy setting process, the Home Affairs Minister will not pursue the Rutherford Report recommendation that a Public Prosecution Service be created. This could not be justified on cost grounds and would result in Centeniers losing their traditional role of presenting cases in the Magistrate's Court."

No explanation is given as to how the decision was arrived at or whether any Human Rights audit was carried out to ensure the decision was Convention compliant.

As mentioned above, the decision was subject to a Scrutiny Review. However it is apparent that when Home Affairs gave consideration to recommendation 4, there was inadequate examination of Human Rights implications. This view is supported by the Education and Home Affairs Scrutiny Panel in page 32 of its Report, S.R.18/2007 presented to the States on 28th September 2007. Unfortunately the Scrutiny Panel did not recommend that a Convention audit be carried before the States is to debate paragraph (b) of the Criminal Justice Policy. This is disappointing as the Panel's finding had been re-enforced following oral answers given to me by the Chief Minister, the Attorney General and the Home Affairs Minister at States Sittings on 19th June, 3rd July and 25th September 2007 respectively.

There was a period of almost 6 years between States approval of the Human Rights (Jersey) Law and its implementation. When the Appointed Day Act was considered by the States on 22nd November 2006, the Chief Minister, Senator Walker , explained that the delay had been due to a multiplicity of legislation needs. However, as mentioned above, not all the laws were audited, particularly those relevant to the running of the Magistrate's Court.

On 19th June 2007 during Oral Question Time I asked the Chief Minister, Senator Walker , whether audits of Loi (1864) Réglant la Procédure Criminelle, Criminal Procedures ( Connétable s and Centeniers) (Jersey) Law 1996 and the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 were undertaken prior to the approval of Human Rights (Jersey) Law 2000. The Chief Minister said that no audit had been conducted before the Human Rights Law was finally approved.

On 3rd July 2007 in answer to a similar question, the Attorney General said the decision not to audit the laws was taken on the grounds mostly of costs, but also, linked to the cost, the time that would be taken to review the entirety of the statute book.

On 25th September 2007 during Oral Question Time I asked whether prior to the lodging of P.118/2007, an audit was undertaken to ensure that the present prosecution arrangements in the Magistrate's Court are Human Rights Compliant. The Minister avoided answering my question but stated that Home Affairs was not responsible for implementing an audit of legislation relating to the Magistrates Court.

In April this year, when Chairman of the former Education and Home Affairs Scrutiny Panel, I wrote to the Attorney General and drew his attention to concerns regarding the "dual role" of the Magistrate which had been raised during the Le Quesne, Nicholls and Rutherford reviews. One significant development since those Reviews was that the Human Rights (Jersey) Law 2000 was now in place. In order for the Panel to make a full assessment of the decision to reject the Rutherford recommendation that the role of the Centenier in the Magistrate's Court should cease, the Panel wished to receive guidance on the human rights implication of that decision.

The Panel therefore sought the Attorney General's guidance on the following points –

1. W hatConvention rights are or maybeengagedwhentheMagistratehears a caseinwhich he needs to perform the "dualrole"?
2. A r e thoseConvention rights breachedoratriskofbeingbreached by theMagistrateperforming the "dual role"?
3. A s suming it isarguable that performanceof the "dualrole" breaches one or more Convention rights, is it legally acceptable forthe States ofJersey to adopt a policy that allowssuch a breach to continue for financial reasons (e.g. it would betoo costly forLegal Advisers to present all casesto the Magistrate's Court or for other reasons (e.g. the desireto maintain the role of the Centenierin its current form because this is importantinpreservingtheHonorary Police system)?

The Panel sought the Attorney General's guidance as legal adviser to the States of Jersey. It pointed out that in doing so, the Panel was obviously aware that in March 2003 he had told the Home Affairs Committee that he was opposed to the Rutherford proposal that the role of the Centenier in the Magistrate's Court should cease: and that this was an influential and probably decisive factor that lead the Committee to reject that aspect of the Rutherford review.

The letter continued "We make no criticism of the fact that you offered advice on the merits of the policy proposal to the Committee: indeed it would have been astonishing if the Attorney General in his capacity as head of the Island's public prosecution service and also perhaps as Titular Head of the Honorary Police had not done so. In these circumstances, do you regard it as appropriate for a scrutiny panel to seek guidance on legal aspects of that decision from the Attorney General?

We are of course aware of the continuing debate about access to and use of legal advice by scrutiny panels. Against this background, I should say that it is our wish to publish your responses to the questions outlined above on the Panel's web pages and draw upon then in the final version of our report. We accept that it is generally undesirable for scrutiny panels to involve themselves in considering legal questions except in exceptional circumstances. There are, however, two justifications for our interest in the questions of law outlined above.

First, the only way in which the Panel can fully scrutinise the decision taken in March 2003 to reject Rutherford recommendation on Centeniers is if we can assess-from the perspective of politicians who are not lawyers- whether or not the current arrangements are broadly speaking compliant with Convention rights. Our report will not be able to make any sort of definitive ruling on the point but your guidance on questions (a) to (c) above will help us to make sense of the criticisms levelled at the "dual role" by the Le Quesne, Nicholls and Rutherford reviews in the context of the Human Rights (Jersey) Law 2000.

Secondly, we are seeking guidance from you on broad issues of Convention rights law-not narrow, technical. "lawyer's law". The Chief Minister's official web pages state that "the hope is that the Human Rights (Jersey) Law will help create a society in which the rights and responsibilities of individuals are properly balanced, and in which an awareness of the Convention rights permeates the States and our Legal system at all levels" If this human rights culture is indeed to be encouraged, scrutiny panels will need guidance from time to time on the proper interpretation and application of Convention rights. Our consultant, professor Le Sueur has pointed out to us that it is common in the United Kingdom Parliament for committees consisting predominately of non-lawyers (especially the joint Committee on Human Rights and the House of Lords Select Committee on the Constitution)to be called upon to consider human rights points".

The Attorney General replied on the 11th April 2007 stating that he noted the Panel's concerns that it may not be appropriate for it to seek guidance on legal aspects of a submission he made to the Home Affairs Committee in March 2003. The panel should seek advice elsewhere. If it should become necessary to give advice to the States of Jersey in the future on the matter, then, of course he would give legal advice on such points as requested to address.

The Panel therefore invited expressions of interest from several local lawyers and two barristers specialising in Human Rights in London. On the basis of the timeliness, cost and expertise the Panel decided to commission an opinion from Mr. Jonathan Cooper of Doughty Street Chambers in London. The Panel received Mr. Cooper's opinion on the 8th May 2007. Mr. Cooper – stressing that he was making no criticism of the Magistrates or the Centeniers individually – came to the firm conclusion that there were a number of respects in which the current system did not comply with the minimum requirements laid down in the European Convention on Human Rights.

On 14th May 2007 the Panel wrote to the Attorney General and forwarded a copy of the Cooper Opinion inviting him to answer a series of questions which are listed below and subsequently asked on 9th October 2007. (On 22nd May 2007 following a request from the Attorney General's office, the documentation which Jonathan Cooper formed his Opinion was forwarded to the Attorney General to assist in analysing Mr. Cooper's view).

The Cooper Opinion (as published on the official Scrutiny website) is attached as Appendix 1. The Questions tabled on 9th October 2007 are attached as Appendix 2.

Mr. Jonathan Cooper's CV is attached as Appendix 3.

Unfortunately the answers to the questions posed on 14th May 2007 were not received by 4th June 2007 when I resigned as Chairman of that Panel. However at the States Sitting on 19th June during Oral Question Time I asked the Attorney General if he would confirm that the present arrangement in which the Centeniers present cases in the Magistrate's Court is compliant with the Human Rights (Jersey) Law 2000. The Attorney General, in summary, said that he had no significant concerns about the overall fairness of the system. He stated that "I expect to advise the Panel on the usual basis broadly within that timescale, and in those circumstances I do not propose to answer the question today". The present Panel has not made it known whether it has received the answers.

On 9th October 2007 the following questions referred to above were tabled as Written Questions.

1. ( a ) D o es the Attorney General share Mr.JonathanCooper's view in his Opinion given to him by the former EducationandHome Affairs Scrutiny Panelon 14th May2007, that there is a systemic violation of Article 6 of the European ConventiononHuman Rights on the ground that the dual role' of the Magistrate does not give theimpression that the Court is independent and impartial?

(b ) D o es the Attorney General share Mr. Cooper's view that the role of Centeniers in relation to fixing and listing trials in the Magistrate's Court gives rise to a systemic violation of

Article 6 on the basis that it compromises theindependence and impartiality of the Court?

( c ) D oes the Attorney General share Mr. Cooper's view that Article 6 now requires

there to be a professional prosecutorial system in place as part of the general obligation for fairness?

(d ) D o es the Attorney General share Mr. Cooper's view that there is a systemic violation of Article 14

in relation to Article 6, in so far as a distinction is drawn between more serious offences (dealt with by Legal Advisers) and less serious offences (dealt with by Centeniers)?

(e ) D o es the Attorney General Share Mr. Cooper's view that there may be a systemic violation of

Article 8 on the grounds those victims' rights may not be properly guaranteed?

2. W h enthe Attorney Generalappeared before the Social Affairs Scrutiny Panelon 6th November2006he suggested that there would needtobetwoorthreelegal staff plus secretarial support and that salary costs for this staff wouldbe round about£300,000 a year if staffinhis department handled all casesin the Magistrate'sCourt, should the Centeniers' role in Court cease.WouldtheAttorneyGeneralprovide a detailedbreakdownofthisestimate?
3. W i ll the Attorney General state whether a role equivalent to Designated case workers, as employed bythe Hampshireand Isle ofWightCrown Prosecution Serviceonanaveragesalary of between £27,000- £30,000, would in principlebe acceptable in Jersey (this would require amendment to Legislation) and if so how the creation of such postswould affect theestimateof the salary costsmentioned in thepreceding paragraph?
4. W h at capacity isthereforthe current LegalAdvisersto take on additional workin the Magistrate'sCourt?

The Attorney General's response is attached as Appendix 2. In summary, his answer to questions (a) to (e) was that as with many human rights issues, it is possible for lawyers to advance different views and the right place to adjudicate on those is in court. Mr. Cooper's opinion had been useful in stimulating a review in his Department on human rights grounds of what is a very small number of cases each year where the Magistrate has a dual role in determining quilt or innocence. However the Attorney General did not share Mr. Cooper's opinion.

Unfortunately the Attorney General did not offer any explanation as to why he did not share Mr. Cooper's opinion. As one can see the questions tabled were not just about the dual role of the Magistrate and I believe my questions deserved proper consideration and answers. The failure to fully answer all my questions and the absence of an explanation is unsatisfactory and unacceptable.

Whilst the Attorney General is of the view that Mr. Cooper's Opinion might be useful in stimulating a review in the Law Officers' Department, it was paid for by the public. I believe the public and States Members are entitled to a reasoned response to questions formerly tabled, particularly when they relate to something as basic as the right to a fair trial. It is apparent that the Attorney General has taken every opportunity to avoid answering questions asked by me or the former Scrutiny Panel of which I was Chairman.

I believe there is sufficient evidence to suggest that the present Magistrate's Court arrangements are not Convention compliant or at least so suspect that the matter should not be dismissed without an independent audit. This should be conducted before the States Members are asked to debate paragraph (b) of the Criminal Justice Policy. Also the Law Draftsmen are in the process of drafting the Criminal Procedure Law. I believe that work on that Law should not continue until the States is satisfied that our present Magistrate's Court arrangement is Convention compliant.

My reasons for concern and why the States should defer debating part (b) are as follows –

1. A s can been seenabovethe Attorney General did think it appropriate to answerquestions asked by the former EducationandHome Affairs Scrutiny Panel in a letter dated 10th April 2007, so it is not known what his responsewouldhavebeenhadhethoughtitappropriateto have responded.
2. O n May 14th theformerEducationandHome Affairs Scrutiny Panelofwhich I was Chairman forwarded a copy of the CooperOpinion to the Attorney Generaland Minister ofHome Affairs informing them that the Panel did not wish to proceed with the completion of its report without providing them the opportunity to offer further evidence to the Panel dealing with the points raised byMr.Cooper. Both were asked to respondwithintwoweeks.From the Minister's reply dated31stMay2007 it isapparent that she had discussed the request with the Attorney General.In declining to respond the Minister stated that further consideration of the issues raised bythelegal opinion would necessarily dependupon her seeking the AttorneyGeneral'sadviceinorder that any policy implications could beproperlyconsidered.
3. T h e reis no mention in P.118/2007 of anyadvicebeing received orwhether in lightof the Cooper Opinion the Attorney General advised the Minister regarding pursuing paragraph (b). What is apparent is in Home Affairs first proposition, P.201/2005 it states "Havingconsultedthe Attorney General at an early stageof the policy setting process,theHome Affairs Committee will not pursue that a publicprosecutionbe set up". However in P.118/2007 reference to consultation with the Attorney General has been deleted butno explanation is given. TheStates is entitled toknowwhat consultation if anyhasensuedbetween the Attorney General andHome Affairs Minister.Given that both had been giventheCooper Opinion surely there must have been some consultation and advice soughtbeforedecidingto proceed withparagraph (b) of the proposition.
4. U p on receipt oftheformerPanel's letter of 14th May 2007, the Attorney General replied the following day stating that some ofthepointsraisedwerenewtohimandin any eventwas serious and weighty and he would respond as soon ashe reasonably could. Although the Panel had requested a response within 14 days,theAttorneyGeneralgaveno indication as to how long hewouldtake. It is apparent that hedidnot want to commit himself and has still failed tofullyaddresstheissues raised in the Cooper Opinion.
5. A s theAttorneyGeneralhadnotrespondedby the time the former Panelmeton 4th June 2007toconsider its final draft report, the Attorney General was contacted and asked when his response would be available? He replied that it wouldbe available intwo to three weeksbutthoughtitwouldbeappropriate for himtomeet in private with just the elected membersof the Panelto discuss theCooperOpinion.He was most specific that thePanel's Adviser, ProfessorAndrewLeSueur, would notbe able to attend. The

Attorney General also said the earliest he could meet the Panel was in three weeks, 25th June 2007. It has been

well documented that my three fellow Panel Members agreed to the meeting on the Attorney's General's terms which led to the Panel's Adviser and me resigning from the Panel.

6. O n 14th June 2007, a week after myresignationand a week before the election of the new Scrutiny Panel's Chairman,the Acting Chairman, Deputy Mezbourian andherPanelattended a private meeting with the Attorney General.As the meetingwas private and every time the newPanel,whichconsistsof the threeformerPanelMembersunderthe Chairmanship of Deputy Mezbourian has metto discuss the Centeniers' Review it has done so in camera. Thereforeit is not known if the Attorney General ever responded or if he did, whatadvicewas given.
7. I n reply to an Oral Question askedbymeon 19th June 2007 whether the present arrangements at the Magistrate's Court were Convention compliant, the Attorney General declined toanswer,howeverhe stated that his comments on theCooperOpinion would be available in 2 to 3 weekstimeandhewould expect to advise thePanelon the usualbasis broadly within the timescale. Hemadenomentionof his meeting with the Acting Panel 4 days previously.
8. M r . Jonathan Cooper is an eminent Human Rights specialist andis able toadvise on all aspects of domestic and international humanrightslaws.HisCVis attached at Appendix3.Hewas awarded the OBEin this year's Birthday Honoursfor services to Human Rights. His Opinion is deservingofmore respect and analysis.To assist theAttorneyGeneralat his request hewasgiven the same documentation that Mr.Copper was given to form his Opinion. I accept that lawyers can, anddo, offer different viewson certain matters.However it is usualtoreadvia a Report what the different pointsareand see the evidence supporting the particular points. The Attorney General is entitled to a different view;howeverthe States and the public are entitled to know whathisviews are in a formalandreasoneddocument.
9. W h ilst it is notknownwhether the Scrutiny Panelor indeed the Minister ofHome Affairs has received any adviceon the abovematter from the Attorney Generalit is apparent that the Minister is satisfied that the present arrangementsat the Magistrate'sCourt are Conventioncompliant.Otherwiseshe would notbe asking the States to agree to paragraph (b)of her Proposition.However I believe itisincumbenton the Minister to satisfy States Memberswhyshe is of that opinion.
10. A s a resultof answers givenat the States Sitting it is a fact that noConventionaudit has been carried out on the laws relevant to the role of the Magistrates and the Centeniers in relation to the present Magistrate's Court arrangements.
11. N o Conventionauditwascarried out by either Home Affairs or the Attorney General priortoHome Affairs rejecting Rutherford's 4th recommendationinMarch 2003.
12. A l thoughthe Minister ofHome Affairs wasin possession of the Cooper Opinion, noConvention audit was conductedonRutherford's 4th recommendationbyHome Affairs priorto lodging P.118/2007.
13. T h e present Magistrate Court's arrangement has been subject of concern when reviewed by the Le QuesnePanel in 1990,theNichollsWorking Party in1998 and Rutherford in2002.
14. C r iticism of the system wasmadeby the present Bailiff in the Royal Court in 1994 and 1996.
15. A t the Scrutiny Hearingon 19th September2006 the current legislation appertaining to the Magistrate Court was described as"Whollydefective" by Mr. Ian LeMarquandwhoadded "If you hadtheAttorney General in frontofyouhewouldsay exactly the samething".
16. A t the Scrutiny Panel Hearing on 6th November2006,the Attorney Generalsaid "I am sure what he (Mr. Le Marquand)meantby that is that it is difficult to justify today, in 2006, a Magistrate acting asold-style juge d'instruction wherehe extracts the evidence himself as a prosecutor and then sits back and judges it as a Judge. This is only relevantfornot guilty pleas. Of course, theoretically, that is very difficult to justify. Soto that extent I would agree with him [Mr.LeMarquand] entirely. I am sure that is whathe

meant when he said it is a defective system, but it works and it would very expensive to change it".

17. A t the Scrutiny Hearing on5th October 2006, Ms TracyEaston the then District Crown Prosecutor for the HampshireandIsle of Wight Prosecution Service drew the Panel's attention to the organising of the running order of cases at the Magistrate'sCourt.Shesaid "In England listing is not controlled by any parties, so it is impartial, if you like,in that it is controlled entirely by the courts. It isfeltto be a judicial function. Because ofequalityofarmsunderthe European Convention, what it is believed is neither the prosecution nor defence should have undue influence over theway a court is listed". Ms Easton is now Chief Crown Prosecutor for Devon and Cornwalland the Islesof Scilly.
18. In Mr.Cooper'sOpinionhedescribed the running order for sittings at the Magistrate'sCourtas "wholly inappropriate" as they give the impression that police are involved in the organisation of the court,so calling into question its impartiality andindependence.
19. In a written submission to the Social Affairs Scrutiny Panel dated 24th June 2006, AdvocateTimothy Hanson drew the Panel's attention to the lack of impartiality in the runningofcases at theMagistrate's Court and to the impartial way the listing ofthecases are conducted intheU.K. are run.
20. N o t only does the AttorneyGeneralnotagreetopoints raised about the court listing by Mr.Cooper,but he has failed to explain why.Given the points also raised byMsEastonandAdvocateHansonsurely States Members and the public are entitled to a full explanation.
21. T h e Attorney Generalwasaskedwhetherhe shared Mr.Cooper's view that Article 6 nowrequiresthere to be a professionalprosecution system inplace as part ofthe general obligation for fairness. Again the Attorney General does noshare that view butnoexplanationis given. It is apparent that Article 6 has been of interest in the Isle ofMan.
22. I n respect ofconcernsregarding police involvement inthe investigation andprosecutionprocess, the matter was discussed inTynwaldon 22nd February 2006. In answer to a questiononthematteraskedby the Chief Minister,the Attorney Generalsaid "Mr. President, I think that, as a matter of principle, it is wrong that the police shouldbeinvolved, both in investigation andprosecution.That is a principle which I think has been endorsedbytheCouncilof Ministers over a long periodof time anditisalso reflected in directions which have come from theEuropean Commission from time to time".
23. T h e reason for rejecting Rutherford's 4th recommendation was based on cost and the loss of the Centenier'straditional role in the Magistrate'sCourt.On 3rd July during Oral Question Time I asked the Attorney General if he would agree that if the HumanRights Law has to be complied with,itisdownto the States to ensure that it hasfundsto meet Lawor the requirementsof the Law.The Attorney General replied "I quiteagree with the Deputy to the extent that he says that cost is no answer to making sure that your administrative and legalsystemsarehuman rights compliant".
24. O n page 5 of P.118/2007 reference ismadetotheEducation and Home Affairs Scrutiny Panelreview. Home Affairs isof the view that the review does not interfere with the Policy as drafted. Although the Scrutiny Panel has almost ignored the Cooper Opinion, it has neverthelessrecommended that detailed consideration should begivenby the AttorneyGeneral and the Minister for Home Affairs whether the current system, wherebyCenteniers present casesintheMagistrate'sCourt,meets the requirementsofthe European ConventionofHumanRights. I believe itincumbent on both the Attorney Generaland the Minister to undertake a Conventionauditbeforeit debates paragraph(b)ofP.118/2007.
25. O n page 72 of P.118/2007 reference is again made to the Scrutiny Panel review and it not interfering with the Policyas drafted, howevershould any concerns arise whichmight have policy implications, they can be considered at a laterdate.Asmentioned previously, because the present Education and Home Affairs Scrutiny Panel has conducted its review in private, it is not knownwhether any consultation has taken place with the AttorneyGeneral or HomeAffairs.Howevergiven that all three parties were aware of the relevance of the Review to the Criminal Justice Policyonequestionswhy they are all silent on the merits of the CooperOpinion.ForHome Affairs to state that is only preparedto address any concernsafterithas

had its policy approved is totally unacceptable.

26. I f Mr.Cooper had been of the view that our Court system wasConvention compliant, no doubt the Minister ofHome Affairs, the AttorneyGeneral and the present Education and Home Affairs Scrutiny Panel would have made it publicly known andtheCooper Opinion more easily accessible.Unfortunately Mr.Cooper is of the view that our Court system is not compliant.Howeveritshouldnotbeignored because itmakesuncomfortablereadingforthosewho believe that costs and tradition are moreimportant than justice and the Island'sreputation.
27. D u ring the HumanRightsLawAppointedDay debate on22ndNovember 2006, the Minister ofHome Affairs said "I just wantedtosaywhat a day it is - and a delightful day - for me. I was the person who stood here 6 years ago taking that Law through the House. Little known to meat the time that I was then going to be the personwhohad to deal with all the other pieces of legislation that came afterwards in order to get to this tremendous day. It is indeed, I believe, a tremendousdayforpeoplein our Island who will be able tohave their rights asserted and dealt with in ourowncourts". Given the Minister's strong support for HumanRights, it is disappointing that she does not believe itwould also be a tremendousday for people inourIsland if she was able to giveher assurance that she has done everything possible to ensure that ourcourt system isConvention compliant.
28. In England and Wales it has come to be recognised that as a matterof principle the police shouldnotbe involved intheconduct of prosecutionsby presenting cases in court. The Crown Prosecution Service now has the responsibility for prosecuting criminal cases investigated by the police in EnglandandWales.If it transpires that Centeniers lose their role in the Magistrate'sCourt,theHonoraryPoliceinJersey will be in no different a position from theirprofessional counterparts in Englandand Wales andtheIsleofMan. There, policingandadvocacyarenowregarded as separate functions that need tobe carried outby different people. It does not follow that ifCenteniers lost their role in the Magistrate'sCourt that they would be held in any less respect than they are now.Theywould continue to carry out core policing activities intheircommunities and atParish Hall Enquiries. Nordo I believe that re-defining the role of Centenier  to  remove court work would  necessarily make it  more difficult  for   Connétable s to  find parishioners willing to stand for election. Onthecontrary,itispossibletoenvisage that some able people are currently reluctant to take on the responsibilities of serving as a Centenier because ofthe court work aspects oftherole,which involve public speakingand regular commitmentsduringnormalworking hours.
29. M  y assertion is supportedbytheEducationandHome Affairs Scrutiny Panel.(Seekey finding 3.3.6. S.R.18/2007).

Conclusion

The Home Affairs Minister is aware of the Cooper Opinion. Concerns about the present Magistrate's Court system have been regularly raised since 1990. At a Centenier Association's Executive Committee Meeting on 18th July 1991 during an Address by the Attorney General it was suggested that the requirements of the European Convention on Human Rights by which Jersey must abide will not permit a system where both prosecution and judgement are carried out by the same individual. It has been said the Home Office had made it plain to the Crown Officers that they would not be prepared to defend Jersey's present system should it be challenged at the European Court of Human Rights.

The use of Courts to resolve problems should be the last resort. It is inconceivable that given the overwhelming evidence that is readily available that the Attorney General and Home Affairs Minister are prepared to risk the Island's reputation by waiting for a Court challenge before taking steps to address such a longstanding problem. During the debate on the Sexual Offences (Jersey) Law 200- (P.196/2005) the issue of Human Rights were raised. Both the Chief Minister and Home Affairs Minister spoke forcibly on the dangers of ignoring our Human Rights responsibilities.

The Home Affairs Minister said "It seems to me far more sensible and less painful to do it now while we can

without having to, if you like, hang our dirty washing out in the public for all and sundry to view".

The Chief Minister, Senator Walker was also concerned about the Island's reputation stating; "We would, in effect, be breaking our word if we did not embrace the Convention in every way, not as I have suggested, picking and choosing, which is not an issue. If we really want to avoid serious international damage to Jersey, and I mean serious international damage, which would effect everyone in the Island, and if we really want to continue to add to and to strengthen our international personality and our ability to stand up for ourselves internationally and to defend our position in a whole host of ways and if we really want the respect that we believe we are entitled to internationally then, in my view, we have no choice other than to comply with the European Convention on Human Rights".

In view of the points I have raised in my report I believe the Home Affairs Minister is under an obligation to accept the views expressed in the Cooper Opinion and should withdraw paragraph (b) of her proposition and take immediate steps to establish a public prosecution service.

If the Minister does not share my view, then I urge Members to support my proposition before some aggrieved person takes the matter to court and in all probability succeeds. Such action will lay our Island open to widespread criticism and condemnation.

Manpower and Financial Implications

There are no manpower implications. The cost of the brief prepared by Professor Le Sueur and the Opinion provided by Mr. Cooper was not in excess of £3,000. It is probable that an alternative Opinion would cost in the same region.

APPENDIX 1

Extract from Official Scrutiny website (www.scrutiny.gov.je)

IN THE MATTER OF THE DUAL FUNCTION OF THE MAGISTRATE IN JERSEY

OPINION

Instructions

1. I am asked to advise the States of Jersey Education and Home Affairs Scrutiny Panel (the Panel)onthe compatibility of the dual role' of the Magistrate in Jerseyforcompliance with the European Conventionon Human Rights (ECHR) when presiding over cases involving the participation of Centeniers. That Convention forms part of the law of Jersey bywayof the HumanRights(Jersey) Law 2000 (the Law), which entered into force in December 2006. In all importantrespects that Law is identical totheUnited Kingdom's(UK)HumanRightsAct 1998 (HRA).
2. This Opinion will therefore address the question,whether it is possibleto have a fair trial in Jerseyunder circumstances whenonly the Centenier isresponsible for bringing a case against a defendantbeforethe Magistrate andtheMagistrate in thesecircumstances,and only thesecircumstances, then assumes a dual function intheprocess?Thatdualfunction requires the Magistrate tositas a judge in thecommon law understanding of that function,aswell as toprobe the evidencefor and against the defendantin a manner more associated withtheprosecution.

Summary of conclusions

3. In my view thecurrent functioning oftheMagistrateCourt system when dealing with low level crime, where the Magistrate assumes a dual functionandpresidesovercriminal matters in the absenceof a legal adviser acting on behalfof the prosecution, is a violation of the rightto a fair trial as guaranteed by Article 6, ECHR. Furthermore, I am of the opinion that defendants under such circumstances are being discriminated against in violation of Article 14, ECHR, freedom from discrimination, when read in conjunction with Article 6, ECHR.
4. Additionally, I amconcerned that the system ofprosecutions, in the absence of a legal adviser acting as prosecutor, does notadequately take into account the rights of victims ofcrimein violation of the right to respect for private life, provided forby Article 8,ECHR.Underthesecircumstances, Jersey is failing in its positive obligations to guarantee Article 8 rights for victims ofcrime,as well as ensurethose that are victims oflow-levelcrime are not discriminated against.
5. As a separateand discreet point, the current role playedby Centeniers in the fixing and listing of trials and other matters before the Magistrate is a violation oftherightto a fair trial.
6. Finally, additional to my instructions, I draw attention to the humanrights implications of Parish Hall Enquiries and suggest that thePanel considers thesein the near future.

Obligation to Act Compatibly with Convention Rights

7. Article 7(2)(a) ofthe Jersey Lawmakesclear that courts and tribunals are public authorities for the purposes of that Law.Therefore a court is required to act compatibly with the ECHR. Centeniers, intheir capacity as Honorary Police, will alsobe considered a public authority for thepurposesof the Jersey Law, and they will therefore have a similar duty to act compatibly with their Conventionobligations.Forthe purpose of this Opinion, as far as I understand, neither the institution of Magistrate nor Centeniers are compelled by principal legislation to act in a way which would beincompatible with their human rights obligations.

Sources of Law for this Opinion

8. The focusof this Opinion will be the approachtakenby the EuropeanCourtofHumanRights (the European Court and/or the Strasbourg Court)when interpreting and applying the ECHR. Further guidance from the Council ofEuropeondevelopinghuman rights standards will alsobe relied upon. Where relevant the approach taken within the jurisdictions of the UK and other Commonwealth and common law jurisdictions, will be considered. This is consistent with developing English caselaw concerning the application of international human rights standards.[1]

The Relevant Articles of the European Convention on Human Rights

9. The Articles oftheECHR that are ofmostrelevanceto this Opinionare: Article 6(1), ECHR

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair a public hearing within a reasonable time before an independent and impartial tribunal established by law. Judgment shall be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.'

10. Specific guarantees are providedin Article 6(2) and 6(3) in relation to criminal trials.Theseare: Article 6(2), ECHR

Everyone charged with a criminal offence shall be assumed innocent until proved guilty according to law.'

Article 6(3), ECHR

Everyone charged with a criminal offence has the following minimum rights:

1. to beinformed promptly in a language which he understands and in detail, of the nature and cause of the accusation against him;
2. to have adequate time and facilities forthe preparation ofhisdefence;
3. to defend himself in person or throughlegal assistance ofhisownchoosing,orifhe has not sufficient meansto pay for legal assistance, to begivenitfreewhen the interests of justice so require;
4. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses onhis behalf underthesame conditions aswitnesses against him;
5. to have the free assistance ofaninterpreterifhecannot understand orspeak the language used in court.'

11. The freedom from discrimination contained intheECHR will alsobe relevant. Article 14, ECHR

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground, such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.'

12. Additionally, alsoof relevance will be the right to respect for private life.

Article 8, ECHR

1. Everyone has the right to respect for his private and family life, his home and his correspondence';
2. Thereshallbeno interference with the exercise of this rightexcept such as in accordance with the law and is necessaryin a democratic society in the interests of national security, public safety or the economic well-beingofthecountry,for the prevention ofdisorderor crime, for the protection ofhealthormorals,or for the protection of the rights and freedoms ofothers.'

13. It may well be that on a case-by-casebasisotherConvention rights couldalsobeapplicable, such as the right to liberty (Article 5,ECHR) and the peacefulenjoymentofpossessions(Article1,First Protocol, ECHR), however, as this Opinion is more concerned with broadpublic policy considerations these Articles will notbe examined in any detail.

The Role of the Centenier within the Jersey Criminal Justice System

14. Before assessing the compatibility ofthe current systemof Magistrate Court hearings concerning cases not involving legal advisers, first the role of the Centenier within the criminal justice system must be understood.
15. Centeniers, in many respects, are the lynch-pinof the criminal justice systemin Jersey. As that system is currently organised they play a crucial role inensuringcommunityand democratic participation in policing in general and the prosecutionofoffenders in particular. Theirkey functions include the power to charge people and grant bail pending appearance in a Magistrate's court. Centeniers, as honorary police, are the only authority vested with thesepowersonthe Island. Theyalsoconduct Parish Hall Enquiries(PHE). While this Opinion will not address PHEsin any particular detail, certain observations will bemadeabout them.In addition, Centeniers are responsible for presenting less serious cases before theMagistrate'scourt. Furthermore,within the court system Centeniers have assumed the central role in the organisationand managementof the court'sworkload.
16. Centeniers are elected by their parish for a three-year term. They are not required to possess any qualification other than having the mandate ofthepeopleoftheParishwhich they represent. Itwould appear that a criminal records check is carried outon them and that a criminal conviction wouldbe a barto assuming the position ofCentenier.[2]
17. As a result of the methodof selection of Centeniers, it is not controversial topoint out that their quality can be variable.It can alsobethecase that individuals are actively encouraged to put themselves forward tobe elected in the absence of other candidates. Failure to haveelected Centeniers within a Parish will resultin that Parish being fined. Theturn-outfor the electionof Centeniers would appeartobe low andit is rare,if ever, that suchelections are contested.
18. Once elected Centeniers perform their dutieson a voluntarybasis,and the work can beonerous.Ineffect, Centeniers are on24-hour call, and those within theurbanareasof Jersey can have a significant workload, whereas those in ruralParishesmaybe called upon to act in their official capacity as Honorary Police less often, although it can be the case that residentsmayprefer to turn to the localCentenier than the paid' or professional police. Centeniers can, as Honorary Police, carry outtheirown investigations into crimes.
19. Ashas already been stated, itisonlythe Centenier who has the powerto charge and theCentenier sets bail. As a result of this latter function, issues may arise on a case-by-casebasisunder Article 5,ECHR (the right to liberty). Itisalso possible for a Centenier to have carried out investigations into a caseandalsobe responsible for bringing this caseto court.
20. In principle itis the Centenierwhomustbring cases to court. The reality is that since the mid-90s, following therecommendationsoftheLeQuesne Report, in relation to more serious crimes, professional

legal advisors from within the Offices of the Attorney General prosecute these offences before the Magistrate.

These legal advisors would appear to play a more or less similar function to that of the Crown Prosecution Service in England and Wales. They are professional prosecutors. It is worth pointing out that the Le Quesne Report recommendations concerning the need to appoint professional prosecutors that were adopted were done so because of concerns that trials were not being conducted to the standards expected in the late twentieth century for a criminal justice system.

21. For less serious crimes theCentenier still carries out this role. Their roles asprosecutors include guilty pleas within the Magistrate'scourt's jurisdiction (unless involving complicatedlegalargument)and dealing with not-guiltypleas in appropriate' cases; inother words taking the caseto trial.
22. Appropriate' cases include minor publicorderoffences, resisting or violently resisting arrest or minor assaults. Otherappropriate' cases are possession of Class B drugs and minor road traffic offences. Centeniers can alsoprosecuteother minor statutory offences.[3]The Magistrate always retains the discretion to refer the matterto a legaladvisor.Similarly the Centenier can also request the assistance of a legal adviser. At the same time, the legal adviser canofferhisor her services to the Centenier.
23. In reality approximately 90% of all cases before the Magistrate's court involve a guilty plea. The remaining 10% will involve casesbeingpresented by legaladvisors and Centeniers.

The Role of the Centenier in the Magistrate's Court

24. With regard to guilty pleas, the Centenier will readout the charge against the defendantand give a summaryof the facts according to himorher that led to the charge. It shouldbe stressed that in relation to most matters the professional police are involved in the investigation ofoffences and the arrest ofoffenders and the Centenier is broughtin at the point of chargeand/or to settle the conditions ofbail. That said, on the basis of the Centenier's report the Magistrate will carryout their sentencing functionand/orotherwise dispose of the defendant.
25. Where a defendantis pleading not guilty, the Centenier will againread out the chargeand present the facts, as they are understood, that led to the charge. At this point the Centenierto all intents andpurposes withdraws from the processand the Magistrate assumes a dualfunction in relation to the restof the trial.

The Dual Function of the Magistrate in Contested Cases

26. Once the charge has been readand the background facts have been explained, the Magistrate then seeks to elucidate the "truth" (as best any criminal process can) by way of examination in chief and cross- examination of prosecution witnesses (whichcould in theory include the Centenier) and defence witnesses.
27. In his 1990report into judicialandlegalservicesin Jersey, Sir Godfray LeQuesneQC highlighted the problems that arise whentheMagistrateisrequired to assume these functions normally associated with the prosecutor. Thatreportalso clarified any misconception that the Magistrate at this stagewas (or couldbe) acting as a juge d'instruction in themanner of continental (and notably French) criminal justice systems.As is made clear in that report, the Magistrate is still presiding over the court within the Anglo-Saxon, common law tradition and adversarial system. It just happens that at this stage in the proceedings the Magistrate hasalso been requiredtoassume an investigative function.It is for this reason that itwas recommendedin that report that, for policy reasons,itwas necessary to institute some form ofprofessional prosecutor. Althoughnotmentioned in terms that policy change proposed bytheLeQuesneReport was, and remains, completelyconsistent with Article 6,ECHRand the right to a fair trial. Nevertheless, whilst this policy wasadopted it wasnot applied to all crimes.
28. Thereareclearconcernsabout the fairness ofthetrialwhen the Magistrate is sitting in this dual function. These have been rehearsed elsewhere and I need notrepeat them in detailhere,howevertwo issues of unfairness, that go to the heartof a fair trial, need to be stressed. These include the fact that the Magistrate will have before himor her all the materials that would normally be in the possession of a prosecutor.This could include inadmissible evidence. The system itself would appear to acknowledge that it cannot

guarantee the requirements of a fair trial or the appearance of a fair trial. The Magistrate's Court Guidance Note

(17 January 2000) points out that:

Once a legal advisor has conduct of a case, the Magistrate's court Greffier will ensure the case papers are not put before the presiding Magistrate. Thus in such cases Magistrates will be able to revert to a judicial role rather than their traditional dual role.'

29. Secondly,where a witness gives evidenceincourt that is not ascomprehensiveas their written witness statement (which the Magistrate will have), the Magistrate mayberequiredtocross-examine the witnessin such a way as to draw out further evidence from them.
30. It is acknowledged that a Magistrate will be professionally adeptatknowingwhat it is required ofhimor her to ensure they arenot prejudiced bymaterial that they becomeaware of, but can put outof their mind. It is, however, an altogether different proposition for them tohavetoteaseoutevidence, in the absence of a professional prosecutor. Even if this does not create any bias in the mind of the Magistrate, the perception for thedefendant and the courtas a whole is likely to bevery different.
31. Concerns about the fairnessof a dual function trial were also emphasisedbythe Nicholls Report(1998). Picking up on the LeQuesnes' findings, the 1998 reportalso emphasises that anotherconsequence of the absence of a prosecutor is that there is nobody to make submissions to theMagistrateon behalf ofthe public on the issues oflaw and fact that arise'.[4]Again without mentioningJersey's obligations under the ECHR, that report, as will beexplainedbelow, enunciates principle that is consistent withJersey'shuman rights obligations. The 1998 Report continues, the defendant is often legally represented. There is therefore no one to counter any points, whetheroffact or of law, madeby the defendant'sadvocate.The Magistrate has to dohis best without any assistance from the prosecution.'
32. Both of these points areidentifyingconcerns,ifnotviolations,in relation to Article 6 and Article 8, ECHR.Thereportadds that a legally qualified prosecutor would also havedutiestowards the defence (again an Article 6 point). That report highlights the weaknesses of the dual function system in the following way: