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STATES OF JERSEY
r
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The Policy was not debated and was later withdrawn for another round of consultation.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 –
- W hatConvention rights are or maybeengagedwhentheMagistratehears a caseinwhich he needs to perform the "dualrole"?
- A r e thoseConvention rights breachedoratriskofbeingbreached by theMagistrateperforming the "dual role"?
- 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.
- ( 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?
- 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?
- 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?
- 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 –
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- N o Conventionauditwascarried out by either Home Affairs or the Attorney General priortoHome Affairs rejecting Rutherford's 4th recommendationinMarch 2003.
- 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.
- 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.
- C r iticism of the system wasmadeby the present Bailiff in the Royal Court in 1994 and 1996.
- 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".
- 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".
- 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.
- 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.
- 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.
- 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.
- 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.
- 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".
- 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".
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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).
- 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
- 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.
- 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.
- 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.
- 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
- 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
- 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
- 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.'
- 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:
- to beinformed promptly in a language which he understands and in detail, of the nature and cause of the accusation against him;
- to have adequate time and facilities forthe preparation ofhisdefence;
- 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;
- to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses onhis behalf underthesame conditions aswitnesses against him;
- to have the free assistance ofaninterpreterifhecannot understand orspeak the language used in court.'
- 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.'
- Additionally, alsoof relevance will be the right to respect for private life.
Article 8, ECHR
- Everyone has the right to respect for his private and family life, his home and his correspondence';
- 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.'
- 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
- 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.
- 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.
- 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]
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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
- 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.
- 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.
- 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.'
- 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.
- 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.
- 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.'
- 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:
In particular it is up to the Magistrate to cross-examine the defendant and his witnesses. Inevitably he cannot do this as effectively as a prosecutor because he is performing a judicial role and is not in a position to test a defendant's evidence in the manner of a prosecutor. Weaknesses in the defendant's version of events are therefore often not exposed.'[5]
- Asfaras I amaware the Royal Court has onatleasttwooccasionsexpressedtheirconcernabout the dual function ofthe Magistrate andtheconsequentialfairnessof particular trials.[6]
- The apprehension raised in Reports in 1990, 1998 and more recently 2002 clearly, in myview,establishes that thelegal system governingprocedure in criminal trials is significantly flawed as far as trials requiring the Magistrate toassume a dual function are concerned.Whenmeasured against the requirementsof Article 6, it is myfirmly held opinion that this system inJerseyis a violation oftheright to a fair trial andthe violation issystemic, i.e. notsomething just involving a oneoff violation.
The Right to a Fair Trial as Guaranteed by the European Convention on Human Rights
- In this section of this Opinion I will explain why as a matterofhuman rights law, I have reached this view. I amhoweverconscious that should this Opinionbeaccepted it will have a significant impact upon the criminal justice system in Jersey. Consequently, I havenot reached this opinionlightly.Inorder to assist the Panelinunderstanding how I havecometo this view,itis necessary to lay out some of the fundamental requirements for a fair trial asestablished by the Strasbourg Court.Oncethesehavebeenexplained,the Panel will have a better senseofwhy I feel so confidentinbeing able to pointemphaticallyto a violation of the rightto a fair trial. Also,as the Panelisprimarilyfocussedonthe implementation ofpolicyandmaybe less used to measuringpolicy against human rights standards, it is, also in myview,worth reflecting upon these fundamental human rights principles in detail before applying certain of them directly to the dual
function role of the Magistrate in Jersey.
- The Jersey Centenier system is, it shouldbeacknowledged, in myexperience, a uniquephenomenonand one that,intheory,hasmuchtocommend it. Therefore,if one of the consequencesof this system is that it causes a breach of the right to a fair trial, then it is important that the Panel fully understands the significance of the right to a fair trial in international human rights law before it adoptstheseconclusions.
- Also, there are nocases before the Strasbourg Court exactly onpoint in relation to the dual function of the Magistrate which has mergedas a consequence the Centeniersystem.As a result, my opinion that the system does cause a violation oftherightto a fair trial isbasedupon the applicationand interpretation of established and emerging human rights principles in relation to a fair trial. ForthePanel, therefore, to understand why I haveformed this opinion, they need to understand the backgroundand core principles of the rightto fair trial.
- Paragraphs 40 – 60 shouldbeseenas additional materialandtheir inclusion in this Opinion is to fully inform the Panelofthebackgroundto the right to a fair trial before there isananalysisofwhy core elementsof the fair trial guarantee are violated bythedualfunctionsystem. That analysis, which is central to this Opinion,takes place from paragraph 61.
Background to, and the importance of, the right to a fair trial
- The closely related principles of "due process" (i.e. fair trial) and "the rule oflaw" are fundamental to the protection of human rights. Such rights can only beprotected and enforcedif an individual hasrecourseto independent and impartial courts, which can resolve disputes in accordance with fair procedures. The protection of procedural due process is not, in itself, sufficient to protect against human rights abusesbut it is the foundation stone for "substantive protection" against violations of human rights. It is for this reason that theEuropean Court takes fair trial rights so seriously. The protection of human rights, it can be argued, begins but does not end with fair trial rights.[7]
- Fair trial rights are a fundamental safeguard to ensure that individuals are not unjustly punished under the criminal law. They are also indispensable for the protection ofotherhuman rights, including the right to freedom from torture and the right to life, and, especially in political cases, the right to freedom of expression and freedom of association.
- The implementationof the right to a fairtrialthereforeplays a crucial role in the maintenanceof order, the rule of law and confidence in the State authorities. If there is a system of fair trial in place, before independent and impartial judges, there is anassurance, in principle;
• that convictions are well-founded;
• that the executive arm of government can, if necessary, be held to account; and
• there is an effective dispute resolution system between private parties.
- Assuch,as well as being the corner stoneof a democratic society, the right to a fair trial is alsooneof the main bulwarks against chaosandanarchy.
The Right to a Fair Trial and How it Works
- As a general principle, whether dealing with criminal or civil law, the rightto a fair trial is considered to be fundamental to the whole schemeof human rights. It needs therefore to begiven a broad interpretation. To give it a restrictive interpretation would notcorrespondto the aim and purposeof the right to a fairtrial.[8]
- The crucial aspectof the right to a fair trial is that it isnotsimply a matter for theStateto respect the right to a fair trial. Governmentsmustalso put into place a legal and institutional framework to protect it. As such therightto a fairtrialrequires the Statetoprovide,amongstother things:
• availability of legal assistance, including legal aid,
• a prosecution service and
• a trained and independent judiciary.
Is the Right to a Fair Trial an Absolute Right or can it be Lawfully Interfered with?
- Takenas a whole, with the benefit of a review of the entire process,the right to a fair trial is anabsolute right. In this respect, the rightto a fair trial cannotbe circumscribed in, for example, the public interest. That said,under certain limited circumstances,itispossible to derogateat a time ofemergency from aspects of therightto a fair trial as long as that derogation does not undermine the whole notion ofdue process and the rule oflaw.
- Constituent fair trial rights (but not a fair trial as a whole) are sometimes subject to interpretation in the public interest. This does notmean that they are qualified rights.
- It isessential that anyattempttolimittheconstituent elements oftherightto a fair trial isseenas a different exercise to the approachtaken to qualify rights such as freedom of expression andprivacy.Those rights are intendedtobebalancedbetween the righton the one hand and the community's interest on the other, or in relation tocompeting rights.
- Whether there maybe a need tolimitcertain elements of Article 6, the motivation fordoingso,andthe process in carrying out this exercise, is different. The aim is to ensure the fairness of the trial, whilstatthe same timeacknowledging that toensurefairness to all involved, including the public interest, itmaybe necessary to adopt different procedures.Sexualabusecasesmaybe the most straightforward example. It may be necessary to ensure that alleged victims arenotrequiredto be directly confronted bythe defendant. Therefore the methods and content of cross-examinationcanbe limited toguaranteevictim's rights. If this happens, this must be balancedout to ensure that the defence is still provided a fair trial. For example, the tribunal which decides the guilt or innocenceofthe defendantmust take this into account and attach appropriate weightto the evidence.
The right to a fair trial in criminal proceedings
- The starting pointinrelationto the right to a fair trial in criminal proceedings is as follows:
• th e right to a fair trial requires the right to equal treatment by the courts;[9]
• th e defence and the prosecution are to be treated in a manner that ensures that both parties have
an equal opportunity to present their cases during the course of the proceedings;
• th e court or tribunal hearing the case is objective and subjectively independent and impartial; and
• th a t every accused person is entitled to be treated equally with other similarly placed accused people, without discrimination.
What is an independent and impartial tribunal?
- A fundamentalprinciple and prerequisite of a fairtrialis that the tribunal charged with the responsibility of makingdecisionsin a casemustbe established bylaw,and must be competent, independent and impartial and free from any interference by the State, the parties andexternalinfluences.[10]
- The right to an independent and impartial tribunal is now considered tobe an absolute andnon-derogable right in international human rights law. Therightto trial by an independent and impartial tribunalisso central tothedue process oflaw that a United Nation's specialist humanrightscommitteehas stated that it "is an absoluteright that may suffer noexception".[11]
Independence
- An independent tribunal requires independence of the executiveand the parties. In determining whether the requirementofindependence has beenmet,regardmustbehadamongstother things to whetherthe body presentsan appearance ofindependence.[12]
- Independencealsorequires that eachjudge and tribunalmemberbefree from outside instructions or pressure, whether from the executive, legislature, parties to thecaseorothermembersof the courtor tribunal.
Impartiality
- The requirementforanimpartialtribunalembodies the protection against actual and presumed bias. The European Court has adopted a dualtestfor impartiality.
The Court examines:
• th e evidence of actual bias; and then
• m a king an objective assessment of the circumstances alleged to give rise to a risk of bias[13].
- The onus of establishing actual bias is a heavy one. The test adopted for bias is that membersof a tribunal must be "subjectively freeofpersonal prejudice orbias"[14].Thereis a presumption that thecourt has acted impartially which must be displaced by evidence to the contrary[15]. The European Court will inquire whether the tribunal offered guarantees sufficient to exclude such a doubt,[16] or whether there are ascertainable facts that may raise doubtsas to a tribunal's impartiality.[17]
- In making an assessment of a tribunal's impartiality, "evenappearancesmaybeimportant."[18] Where there is a legitimate doubt as to a judge's impartiality, either objective or subjective, she or he must withdraw from the case.[19]Anyallegationsof impartiality mustbe properly investigated by the tribunal itself, unless they are manifestly devoid of merit.[20]
The principal of impartiality demands that:
• b o th judges and juries be unbiased;
• p ro ceedings are conducted fairly; and
• d ec isions made solely on the evidence.[21]
Equality of arms
- The righttoequalityofarmsisfundamentalto the notion of a fair trial. Thisrighthas been read into fair trial rights. In essence, equalityofarmsguarantees that everyonewho is party to the proceedings musthave a reasonable opportunity of presenting their caseto the courtunder conditions whichdonotplacehimor her at a substantialdisadvantagevis-à-vishisor her opponent.[22]
- The principle imposesonprosecutingand investigating authorities an obligation to disclose any material in their possession, or to which they could gain access,whichmay assist the accused in exoneratinghimor herself orin obtaining a reduction insentence, including material which might undermine the credibility of a prosecutionwitness.[23]
- This principlehasbeen held toincludeaccessto all the materials that thejudgesees,including the court's amicus brief.[24]
Application of the Right to a Fair Trial to the Dual Function of the Magistrate in Jersey
- The system that has evolved in Jersey whereby elected Centeniers commencetheprosecutionofaccused persons before the Magistrate'scourt and then the Magistrate assumes the responsibility for drawingout the relevant factswithin the legalframework before decidingupon the guiltorotherwiseof a defendant
will violate the right to a fair trial as guaranteed by Article 6, ECHR. I have two substantive reasons for reaching
this conclusion. These are:
• th e system as it now functions does not give the impression that it is independent and impartial; and
• A r ticle 6, ECHR now requires there to be a professional prosecutorial system in place as part of the general obligation for fairness
- In my view either is sufficient to establish a violation of Article 6,ECHR. In relation to both points, Jersey cannot seek to justify a violation, or continuing violation on the basisoflackof available resourcesor traditional practices. Neither of these grounds can justify a violation of the right to a fair trial. Itisalso worth pointing out that the obligation to fund a properly functioning fair trial system applies (for these purposes) across the Council ofEuropewhich includes countries economicallydifferent from the islands makingupthe British Isles, suchas Albania and Moldova.The cost ofproviding a fair trial cannotbeused as a justification fornotguaranteeingone.[25]
Independence and Impartiality
- First, I stress that by asserting that in myopinion there is a violation of Article 6, ECHR in that there are insufficient safeguards to protect theindependence and impartiality of the Court isbynomeanstosuggest that the Magistrates in Jersey are not individually independent and impartial. From having read their evidence to the Panel, I can only emphasise that they are clearly Magistrates of the highest professional calibre.
- However, when presiding over a trial and carryingouttheirdualfunction,itismy opinion that under the requirements set out by Article 6,ECHR, a defendantcouldbeleft with the impression that as a result of this dual function, the Magistrate could appear to be not sufficiently independent and impartial (see paragraphs 51 – 57 aboveinrelationto the Strasbourg approachtoindependenceand impartiality of a court).[26]As identified above,in relation to this appearanceofindependenceand impartiality the applicable test is whether the public isreasonably entitled to entertain doubts as to theindependenceor impartiality of the tribunal.[27]The test, therefore, under the ECHRis a more generous one than the previous test under English law of real danger' of bias beingshown.[28]
- The High Court inAustraliahasdeveloped the following test: whether a fair-minded lay observermight have reasonably apprehended that the judge did not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide.'[29] This test, which is fully consistent with international human rights law, applies a vigilant approachto the possibility that the parties orthepublic might entertain a reasonable apprehension that a judge might not be impartial.
- This dual function of the Magistrate will enablethe publicto entertain such reasonable doubts. The evidence already heard by thePanel has acknowledged that thoseresponsible for the administration ofthe justice system inJerseyrecognise that there is a problem ofappearanceof fair trial. HM Attorney General, Mr Bailhache , whengivingevidence to the Panel, pointed out in relation to the current systemforthe prosecution of not guilty pleasthat, Of course theoretically that is very difficult tojustify'.[30] It ismy view that for the purposes of Article 6,ECHR such anacknowledgementis sufficient to satisfy the testof reasonable doubt that the current systemisnot sufficiently independent and impartial. Itmustalsobe recognised that this opinionof the Attorney Generalwassupportedby the Magistrate, Mr LeMarquand.
- Even though there is an opportunity toappealto the Royal Court, this will be insufficient to cure the damagedone by such a systemic weakness in the criminal justice process.[31]
The Requirement for a Professional Prosecutor as part of the Right to a Fair Trial.
- A further justification forreachingmyconclusion that the current system in Jersey falls below the standard required by Article 6, ECHR is that as it presently functions the system does not fulfil the criteria
demanded by the European consensus, as set out by the Council of Europe, for the necessary attributes of a
prosecutor. As has already been mentioned, the right to a fair trial has to be examined as a whole. Within the criminal context this includes the quality of the prosecution.
- European standardsin relation to a prosecution service require a consistently professional prosecutorial arm of the executive branchofgovernmentto deal with all prosecutions, regardless of the seriousnessof the offence. Guidelines for what isexpectedof a prosecutorial service produced by the CouncilofEurope are attached to this Opinion.[32] These guidelines make clear that the highest professional integrity is required from the prosecutor.Whilst it is not disputed that thepersonal integrity of the Centeniers is not in doubt, they are not professionalprosecutors.
- Anyattempt to draw a distinction betweenthe role of the Centenieras the presenterof a caseorthe prosecutor of a case will beunsuccessfulunder European human rights law. It has already been firmly established by Mr LeMarquand,theMagistrate, that in his view Centeniersareprosecutors, and whilstthe Centeniers Associationmay be of the view that its membersshouldnotbecomeprosecutors, the approach of the Strasbourg Court will betoapply the doctrine ofautonomousconcepts'. Under this doctrine a court, when examining human rights issues, is able to give the real meaning to words despite the State's classification. In my view anycourtrequiredto assess whether ornot the Centenierwas a prosecutorwould adopt the approachtakenbyMrLeMarquandwho has pointed out, with regard to thefunctionsof a Centenier, that they cannot possibly bedoing that unless they are a prosecutor'.[33]
- A requirement for a professionalprosecutorial service is inmy view now an essential elementofwhat is demanded for a fair trial under Article 6,ECHR. I get further support for this proposition from jurisdictions around theworldwhichmeldtogether different legal traditions with international human rights standards. For example, theSupremeCourtofZimbabwehas pointed out that therightto a fair trial embracesnotonly the impartiality of the court,butalsotheabsolute impartiality of the prosecutor,whosefunctionformsan indispensable part of thejudicial process and whose conduct reflects on the impartiality or otherwiseofthe court.[34]
- The elected and, at the same time unpredictable, nature of the Centeniers asprosecutors,could not, inmy opinion, besaid to accord with these values. The provision of training to Centeniers, or the creationof a special pool of prosecutingCenteniersas they are currently elected,wouldnotbe sufficient to remedytheir fundamental flawasprosecutors.To satisfy their obligations under the ECHR Jersey is requiredtohavein place a professional prosecutorial service whichdeals with all crimes. The fact that professionallegal advisers can be available to providesupport to Centeniersor that the Magistrate has a discretion to refer the caseto a legal adviser is not sufficient to discharge this obligation.
- It can nowarguedthat, as a minimumrequirementof international human rights law, a prosecutor, for the purpose of the right to a fair trial, regardless ofthenatureof the offence, must:
• d ed icate him/herself to the achievement of justice and pursue that aim impartially;
• s /h e must conduct the case against the accused with due regard to the traditional precepts of candour and absolute fairness;
• si n ce s/he represents the State, the community at large and the interests of justice in general the task of the prosecutor is more comprehensive and demanding than that of the defending practitioner;
• s/ h e has a special duty to see that the truth emerges in court;
• s/ h e must produce all relevant evidence to the court and ensure the veracity of such evidence;
• s/ h e must state the facts dispassionately;
• if s /he knows of a point in favour of the accused, that must be brought out;
• if the accused is unrepresented and the prosecutor knows of a credible witness which goes to
show the innocence of the accused, then the prosecutor must call that witness themselves;
• if t he defence is represented, then that witness must be tendered to the defence;
• fi n ally, if the prosecutor's own witness substantially departs from his/her written evidence the prosecutor should draw the attention of the court to this discrepancy or reveal the seriously
contradictory passages to the defence.
- If these principles are readalongside the CouncilofEurope guidelines itis in my view clear that the Centenier system as carried out in Jersey does not meet these standards. It is precisely because the Centenier cannot meet thesestandards that thejudge is requiredtocarryouttheir dual functioninrelation to cases brought by Centeniers, thereby compromising their own appearance of independence and impartiality. Therefore, the system of Centeniers in relation to the conductof proceedings before thecourt needstobe replaced by a professionalprosecutorialservice.
- Further reasons why fair trial standards are not currently beingmet can alsobe put forward. Firstly, there is not full "equality of arms" between the prosecution and the defence under the present system (see paragraph 58above).Secondly, certain of the key safeguards contained in Article 6(3),ECHRin relation to criminal trials cannotbe guaranteed underthe present system. For example evidencehas been givenofthe poor quality ofsomeCenteniers,whichposesthequestion, are they able to satisfy their obligations under Article 6(3)(a) (and for that matter Article 5(2),ECHRin the context of liberty) and inform the accused fully of the charge against him/her? Similarly, is the defence given all the appropriate information necessary in order for them to havethetimeto prepare theirdefenceas guaranteed by Article 6(3)(b)?And finally, as a result of the dualfunctionof the Magistrate, is the defence fully able to have their witnesses examined and cross-examinedonthesame basis as the prosecution's witnesses?
Freedom from Discrimination
- The system that has been functioning since the mid-1990s with the appointmentoflegaladvisorsto prosecute the moreseriousoffenceswouldseemtodiscriminate against thosebeingprosecutedforless serious offences. This distinction is in violation of Article 14,ECHR.Human rights law does not drawsuch a distinction.
- The right to a fairtrial in the determination of a criminal charge, as guaranteed by Article 6,ECHR,is applicable to all criminal charges regardless of their severity. Article 14,whichisthe guarantee of freedom from discrimination in the enjoyment of Convention rights, can under certain circumstances permit a difference oftreatment and thus,thereisno violation ofthe Article. However, in the context oftheabsolute quality of the right to a fair trial, any attempts to justify treating people differently in relation to thefairness of their trial would inevitably fail, particularly if the justifications for treating peopledifferently were cost and tradition.
The Role of the Centenier within the Court Service
- A finalpoint,whichalsogoes to the fairness of a trial, is the emergenceofthe role that theCentenierplays in the fixing and listing of trials. As a prosecutor, it is wholly inappropriate that the Centenier shouldhave any role in this core functionof the court. Bybeing permitted to carry out such a role, there is a further confusion over the Centenier's role within the courtprocess. The impression will be left that not only is the Centenier a prosecutor,but s/he is also part of the judicial administration process, thus againblurringthe distinctions that arerequired to ensure a fair trial.
Positive Obligation to Protect Victims of Crime
- I amalsoofthe view that the failure to have inplacean efficient and effective prosecutorial system raises issues in relation to Jersey's positive obligations to protect the private life rights of those within the jurisdiction. Victimsof a crime, which is not effectively investigated andprosecuted,willbe able toargue that such a failure violates their right to respect for private life (Article 8, ECHR). That right, by guaranteeing physicalandmoral integrity, means that the Statehas to have in place propersystemsto protect against crime and its consequences. If it fails to do so, the State will become liable for the interference with the physicaland moral integrity of that victim ofcrime,whichmight even amountto subjecting them to inhuman and degrading treatment, contrary to Article 3, ECHR.[35] Part of this obligation will include a propertrialsystemwhich is fair to thedefence,butalsotakes into accountthe needsofvictims.
- The prosecutorial system as it currently functionsunder the Centenier system wouldappear not to take into account adequately the rights of victims of crime. Forexample,oneissue identified in the 1998 Report into the Magistrate's court's practice andproceduresconcernedthe use of screens for vulnerable witnesses. Such anexample is a classiccircumstancewhereby the Article 8 rights of victims and witnesses need tobe taken into accountinthecontextof the fair trial rightsoftheaccused.Aswas highlighted in that Report, because the Centenier system does notallow for a professionalprosecution service in all cases,victims' rights maynotbe properly guaranteed, thus leading,potentially,to a violation of Article 8,ECHR.
Consequences of an Ongoing Violation of Article 6
- A consequenceof the systemic flaw within the Jersey criminal justice system,which in and of itself amounts to a violation of the rightto a fair trial, will be that defendants before the Magistrate'scourt are able to argue successfully that unless they are prosecuted by professional legal advisors, with the Magistrate acting solely intheir judicial capacity, they will notget a fair trial and/or will not have had a fair trail.
- This couldexpose the Jersey authorities to a series ofchallenges.These will even include caseswhichon their individual factsmay not be meritorious (i.e. for substantive reasons the conviction is justified), butthe defendant concerned would neverthelessbecome a victim of a human rights violation. Should these type of cases endup before the Strasbourg Court, I amconfident that the Court would offerno more to the victim than the just satisfaction ofhaving established a violation, but the Council of Europe would require the UK governmentto ensure a changeoflaw,practiceandprocedurein Jersey.
- Altogether different considerations will apply, however, if it canbe established that anindividualwas convicted (or even tried) in circumstances where s/he mightnothavebeenhad s/he had access to a fair trial in conformity with Article 6. That said, I amconfident that when the first challengearises in connection with the dual function of the Magistrate, the RoyalCourt will find a violation of Article 6 and Article 14for the reasonsgivenabove, and in an appropriate case, they will also find a breach of Article 8.
Parish Hall Enquiries
- Whilst I amloathto stray into theissues arising out of the Rutherford Report, particularly as they concern the meritsof PHEs, I would raise one issue of concern in relation to that process. If my understanding of PHEs is correct, those informal Enquiriescanleadtothechargingofan individual for various criminal offences. Atthe same time they can leadto a decision not to charge. To that extent they do not necessarily raise additional human rights issues that have not already been covered in this advice concerning the role of the Centeniers.
- If, however,those Enquiries can also fine peopleor in any other capacity determinetheircivil rights and obligations, evenif these fall shortof determining a criminal charge, then Article 6(1),ECHR, the right to a fair trial, will apply andthenecessityforfairness will have to be satisfied.
- This in theory will also include a public hearing with access to it by theMedia.It is worth reflecting upon PHEsin relation to the litigation that has been carried out in the United Kingdom concerning Anti-Social BehaviourOrders(ASBOs).[36]Whilst that litigation has accepted that the imposition of anASBOisnot a determination of a criminal charge, the courts have had no doubts that the giving of an ASBO is a determination of a civilright with consequential obligations upon the authorities.
- I raise this issue only assomething upon which the Panelmay wish toreflectin the future.
Conclusion
- The three reports, since 1990, that have in any capacity looked atthe dual function of the Magistrate, have all raised serious concerns in relation to the fairness of those proceedings.The professional expertise ofthe Jersey Magistrates notwithstanding, the evidenceof the Attorney GeneralandtheMagistratebeforethe
Panel has also raised similar concerns. From their evidence they are uneasy about the dual function process, they
are, however, pragmatic professionals.
- The Jersey authorities have chosento retain thedualfunction role oftheMagistrates in relation to minor crimes. As a matter of domestic lawprior to December 2006, regardless of the merits of that decision, they were entitled to reach this conclusion(subjectto the UK's obligations in relation to Jersey'scompliance with the ECHR). They did so on the basisof cost and a commitment to retaining the traditions of the Jersey community.
- Since the entry into forceof the HumanRights (Jersey) Law2000 the human rights implications ofany ongoing laws, practice and proceduresalso need to beassessed for compliance with the ECHR.TheJersey authorities by requiring the Magistrate tocarry out a dual function in certain trials are, in myview,clearly violating theright to a fair trial, as well as the obligation toensurenon-discrimination in the enjoyment of a fair trial. Additionally serious issues arise in relation toJersey's positive obligations to protect respect for private life. Thedualfunction practice must therefore be re-considered in this light.
- The advantageof a constitutional measuresuchas the 2000 Law,which is, to all intents andpurposes, a Bill of Rights for Jersey, means that peoples' rights[37] are properly factored into the equation when policy matters are beingdecided. I have no doubt that the LeQuesneReport,aswellas the other Reports, were asserting that the dual function role of the Magistrate rendered, systemically, trials to be unfair. However, in the absence of an enforceable right, LeQuesne'sconcernswere just policy considerations to betaken into account with a myriad of others. Assuch factors such as cost and tradition were able to trump the fair trial rights ofthose charged with minor offences.The2000 law changesthenatureoftheapproach to be taken. Onceitisestablished that the right to a fair trial hasbeen interfered with,taking into account that right'sabsolute qualities, those justifications cannotbe lawful reasons for an interference withthe right.
- It would seem self-evident that once the dual function of the Magistrate is removed in all cases, a consequence will bethe requirement for a professionalprosecutor'sinvolvementin all cases.Thequestion therefore iswhere does this leavetheCentenier?Within the constraints of this opinion, it is notpossiblefor me to do justice to this question. However, the notion of civil society oversight of policing and the prosecutorial service is an essential aspectofhuman rights policy and protection. My advice wouldbeto retain the position of Centenier, but toadapt the functiontoensure that its purpose is fully consistent with human rights standards, and its objective is to ensuretheguarantee of humanrightsto all within theParish and particularly thosewho are caughtup within the criminal justice system, either as victims or alleged perpetrators of crime. What this would meanin reality, I am afraid would require anotherAdvice.
- If thePanel have further questions arising from this Opinion, or require further clarification ofanypoints within it, pleasedonot hesitate to contact me.
Jonathan Cooper Doughty Street Chambers
8 May 2007
WRITTEN QUESTION TO H.M. ATTORNEY GENERAL BY THE DEPUTY OF ST MARTIN
ANSWER TO BE TABLED ON TUESDAY 9th OCTOBER 2007
Question
- ( 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 the independence and impartiality of the Court?
( c) D o es 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, insofar 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?
- 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 would be roundabout £300,000 a year if staffinhis department handled all cases in the Magistrate'sCourt, should the Centeniers' role in Court cease.WouldtheAttorneyGeneralprovide a detailedbreakdownofthisestimate?
- W i ll the Attorney General state whether a role equivalent to designatedcase workers, as employedbythe 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?
- W h at capacity isthereforthe current legal advisers to take onadditionalworkin the Magistrate'sCourt? Answer
- T h e opinionofMr.Cooper usefully containssome references tomaterialwhich is routine butnecessary in the analysisof the compatibility of a trial process with the European ConventiononHumanRights.Mr. Cooperalsoexpresseshowever his conclusions on the application of that material to our criminal justice system. As with manyhumanrights issues, it ispossible for lawyers to advance different views – and the right place to adjudicate onthose is in court.
Mr. Cooper's opinion has been useful in stimulating a review in my Department on human rights grounds of what is a very small number of cases each year where the Magistrate has a dual rôle in determining guilt or innocence – I am advised this number is approximately 20 of which in excess of 50% are likely to be the disputed administrative offences of parking infractions.
It is also appropriate to reflect that where there is an allegation of bias, whether actual bias or an objective perception of bias, the determination of the matter by the court will be heavily influenced by the facts of the case before it.
It is also appropriate to recall that the Magistrate is a public authority under the Human Rights (Jersey) Law, 2000, and that he can always call upon a Legal Adviser to present a case if he considers that in that case he is unable to perform his judicial duties without infringing a person's Convention rights.
Against that background, the answers to the questions are –
- N o .
- N o .
- N o .
- N o .
- N o .
- I re gret I have been away from the Island on States businessduring the last week and have not had the time to deal with this question. However, the evidencewhich I gave to the Panel was concerned with the cost of lawyers and supportstaff dealing with all cases before the Magistrate'sCourt. If onewere dealing only with the twentyorsocases referred to in question 1 above, the additional cost would beconsiderably less than this.
- W h atis acceptable in principle in Jersey as a prosecution process isprimarily a matter for the States although they will undoubtedly wish to receive the viewsof the Crown through the Attorney General with his responsibilityfortheprosecution service.
There is undoubtedly more than one way in which the prosecution process could be structured. The job of dedicated case workers, as I understand it, could be viewed as very similar to that which could be performed by a cadre of trained Centeniers.
No costings have been prepared for what is at present a speculative outcome but this work can be done if the States, the Home Affairs Minister or the Education and Home Affairs Scrutiny Panel so require.
- A ll parts of the LawOfficers'Department work underpressure.Itisno secret that I have frequently sought more resources. Untilthosearemade available, the Law Officers will continue to do the best they can. However,if the questionis intended to ask whether the Law Officers could doall the workof the Centeniers in theMagistrate'sCourt without any additional appointments,theanswer is that wecould not do so without adversely affecting other legal services given to the States and to Ministers.
Jonathan Cooper Curriculum Vitae
From Doughty Street Chambers website (www.doughtystreet.co.uk)
Prior to returning to full time practice at the Bar at Doughty Street Chambers, Jonathan was Assistant Director of JUSTICE. He continues to work on a project-by-project basis for a number of organisations including JUSTICE, Interights and the National Aids Trust.
Jonathan has taken several cases to the European Court of Human Rights and written numerous publications on human rights topics. He is the editor of one of the leading human right law journals, the European Human Rights Law Review (Sweet & Maxwell) and co-editor of: Legislating for Human Rights, a guide to the Parliamentary Debates on the Human Rights Act 1998 ( Hart Publications, 2000); Understanding Human Rights Principles ( Hart Publications, 2001) and Delivering Rights ( Hart Publications, 2003).
Jonathan is a human rights specialist and is able to advise on all aspects of domestic and international human rights law. He has been instrumental in training public authorities and lawyers in the UK on the implementation of the Human Rights Act 1998 and was responsible for devising and carrying out human rights training for various government departments, including the Foreign & Commonwealth Office (FCO) and, what is now, the Ministry of Justice (MoJ). Additionally, he has trained a number of public bodies including all the equality commissions and the Information Commissioner. He has also advised the MoJ and the Home Office on aspects of UK government human rights policy. Similarly, he has advised on aspects of Jersey's criminal justice system for compliance with international human rights law.
He continues to create human rights training programmes which are used around the world. He works closely with the FCO, governments in other jurisdictions, from Ireland to Turkey, as well as international organisations, such as the Council of Europe, on how to implement human rights standards. He is often asked to train judges and lawyers in other countries. These have included Syria, Turkey, Ukraine, Serbia, Croatia, Albania, Lithuania, Cameroon, the Gambia and the Sudan. In June 2007 he carried out a comprehensive human rights training programme for judges and prosecutors in the Turkish Military.
Jonathan devised the human rights and terrorism programme and manual for the Organisation for Security and Co-operation in Europe (OSCE). He has carried out counter-terrorism and human rights training programmes in Azerbaijan, Kazakhstan, Kyrgyzstan, Serbia and, regionally, for the Balkans as a whole.
He is the Director of the Human Rights Programme for the Centre on International Courts and Tribunals (UCL) and the course convener for the highly acclaimed Certificate in International Human Rights Law and Practice organised by the LSE. He is a member of the FCO's rule of law panel.
Jonathan is the chair of the Executive Committee of the Human Rights Lawyers' Association (HRLA).
[1]
See for example, R v Special Adjudicator ex parte Ullah [2004] UKHL 26
[2]
See Evidence of Mr I. Le Marquand (Magistrate) to the Social Affairs Scrutiny Panel, 19 September 2006
[3]
Magistrate's Court Guidance Note, Procedure for the Progression of Cases presented by Centeniers and Legal Advisors, 17 January 2000.
[4]
Para 5.1.
[5]
Para 5.3
[6]
Tracy 19 December 1996; Reid 21 March 1994.
[7]
Clayton, R. and Tomlinson H. Fair Trial Rights (2001)
[8]
Delcourt v Belgium (1970) A 11
[9]
Article 14(1) of the ICCPR.
[10]
Findlay v UK (1997) 24 E.H.R.R. 221; Ocalan v Turkey (2003) 37 E.H.R.R. 10; McGonnell v UK (2000) 30 E.H.R.R. 289
[11]
Gonzalez del Rio v. Peru (Human Rights Committee).
[12]
See for example, Langborger v Sweden (1990) 12 E.H.R.R. 416; Campell and Fell v UK (1984) 7 EHRR 165; Findlay v UK; Incal v Turkey (2000) 29 E.H.R.R. 449.
[13]
Piersack v Belgium (1983) 5 E.H.R.R. 169
[14]
Findlay v UK
[15]
Hauschildt v Denmark (1989) App. no. 10486/83
[16]
Piersack v Belgium; Incal v Turkey (2000) 29 E.H.R.R. 449 [17]
Hauschildt v Denmark
[18]
Piersack v Belgium
[19]
Hauschildt v Denmark
[20]
Remli v France (1996) 22 E.H.R.R. 253
[21]
See the Human Rights Committee decisions: Karttunen v. Finland (HRC) and Collins v. Jamaica (HRC), and Fey v. Austria (HRC).
[22]
Rowe and\ Davis v UK (2000) 30 E.H.R.R. 1; Jasper and Fitt v UK (2000) 30 E.H.R.R. 441
[23]
Jespers v Belgium (1981) App. no. 8403/78
[24]
Goc v Turkey (2000) App. no. 36590/97
[25]
Sander v UK (2001) 31 E.H.R.R. 44
[26]
Further support for this proposition can be found in Recommendation No. R (94) 12, Council of Europe, Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges (Adopted by the Committee of Ministers on 13 October 1994 at the 518th meeting of the Ministers' Deputies)
[27]
Campbell & Fell v UK
[28]
R. v Gough [1993] AC 646
[29]
Johnson v Johnson [2000] 5 LRC 223
[30]
Social Affairs Scrutiny Panel, 6 November 2006
[31]
Findlay v UK
[32]
The Role of Public Prosecution in the Criminal Justice System, Recommendation Rec (2000) 19, Adopted by the Committee of Ministers of the Council of Europe on 6 October 2000 (https://wcd.coe.int/com.instranet.InstraServlet? Command=com.instranet.CmdBlobGet&DocId=366372&SecMode=1&Admin=0&Usage=4&InstranetImage=62157)
[33]
Social Affairs Scrutiny Panel, 19 September 2006
[34]
Smyth v Ushewokunze, Supreme Court of Zimbabwe [1998] 4 LRC 120.
[35]
MC v Bulgaria (2005) 40 E.H.R.R. 20
[36]
R (McCann and Others) v. Crown Court at Manchester; Clingham v Kensington and Chelsea Royal London Borough Council [2002] UKHL 39.
[37]
Rights which have been accepted by the international and national communities as those providing the basic requirement
for human dignity and accountability of government.