Opinions of Jonathon Cooper and Human Rights Conventions and role of Magistrate

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WRITTEN QUESTION TO H.M. ATTORNEY GENERAL BY THE DEPUTY OF ST MARTIN

ANSWER TO BE TABLED ON TUESDAY 9th OCTOBER 2007

Question

1. (a) Does the Attorney General share Mr.Jonathan Cooper's view inhisOpiniongiven to him by theformer Education and Home Affairs Scrutiny Panelon14thMay2007, that there is a systemic violation of Article 6 of the European Convention on Human Rights on the ground that the dual role' of the Magistrate doesnotgivetheimpression that the Court isindependent and impartial?

( b ) Does 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 ) Does 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 ) Does 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 ) Does the Attorney General share Mr. Cooper's view that there may be a systemic violation of Article 8

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

2. When the Attorney General appeared before the Social Affairs Scrutiny Panelon 6th November2006he suggested that there would need tobe two or three legal staff plus secretarial support and that salary costs for this staff would be round about£300,000 a year if staff in his department handled all cases in the Magistrate'sCourt,should the Centeniers' role in Court cease. WouldtheAttorneyGeneralprovide a detailedbreakdownofthisestimate?
3. Will the Attorney General state whether a role equivalent todesignatedcase workers, asemployedby the Hampshireand Isle ofWightCrown Prosecution Service on an average salary of between £27,000-£30,000, would in principle be acceptable in Jersey (this would require amendment to Legislation) and if so how the creation of such postswouldaffect the estimateof the salary costsmentionedin the preceding paragraph?
4. What capacity isthereforthe current legal advisers to take onadditionalworkin the Magistrate's Court?

Answer

1. The opinion ofMr.Cooper usefully contains some references to materialwhichis routine butnecessary in the analysis of the compatibility of a trial process with theEuropean Convention onHuman Rights. Mr.Cooper also expresseshoweverhis conclusions on the application of that materialtoour criminal justice system.As with manyhuman rights issues, it is possible for lawyerstoadvance different views – and theright place to adjudicate onthoseisincourt.

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 -

1. No.
2. No.
3. No.
4. No.
5. No.

2. I regret I have been away from the Island onStatesbusiness during the last week and have not had the time to deal with this question. However,theevidencewhich I gave to the Panelwas concerned with the cost of lawyers and support staff dealing with allcases before the Magistrate's Court. If one were dealing only with the twentyorsocases referred toinquestion 1 above, the additional cost would be considerably less than this.
3. Whatis acceptable in principle in Jersey as a prosecution process is primarily a matter for the States although they will undoubtedly wish to receive the views of the Crown through the Attorney General with his responsibility fortheprosecution 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.

4. All partsof the LawOfficers'Department work underpressure.Itisnosecret that I have frequently sought more resources. Untilthose are made available, the LawOfficers will continue to do the best they can. However, if the question is intendedto ask whether the Law Officers coulddoall the work of the Centeniers in the Magistrate'sCourtwithout any additional appointments, the answer is that wecouldnotdo so without adversely affecting other legal services givento the States and to Ministers.