Rutherford Report

REVIEW OF CRIMINAL JUSTICE POLICY IN JERSEY

Final Report prepared for the Home Affairs Committee

Andrew Rutherford

Assisted by Antonia Jameson

Further research assistance by

Mark Telford, Stuart Macdonald and Mark Bamford October 2002

Andrew Rutherford is professor of law and criminal policy at the University of Southampton. He has been Dean of the Faculty of Law since 1999. Before joining the University in 1979 he was involved for several years in criminal justice teaching and research at a number of academic institutions in the United States. Between 1962-1973 he served as a prison governor in the Home Office, apart from a 21 month secondment to the United States on a Harkness Fellowship. His undergraduate and graduate studies were carried out at the Universities of Durham and Cambridge.

He is author of Prisons and the Process of Justice (1984), Growing out of Crime (1986), Criminal Justice and the Pursuit of Decency (1992) and Transforming Criminal Policy (1996). He is co-editor of Capital Punishment, Global Issues and Prospects (1996) and Criminal Policy in Transition (2000). Between 1984-1999 he was chair of the Howard League for Penal Reform. He has served on the editorial boards of a number of criminal justice journals and over recent years has undertaken a variety of consultancy tasks, including being an expert member of the Council of Europe's Committee on the Prevention of Torture and Inhumane Treatment. Since 2001 he has been a member of the Parole Board for England and Wales.

Contents

1  Introduction   4 2  Profile of crime and criminal justice    11 3  Overview of the criminal justice process   21 4  Aspects of the social context   80

5  Recommendations   90 Bibliography   112

Appendices

1  Tables  115 2  Persons interviewed   122

1 INTRODUCTION

In November 2001, I was invited by the Home Affairs Committee to carry out a review of Jersey's criminal justice policy. By means of its terms of reference the Review was asked, "to concentrate on the following aspects of the criminal justice process:

the values that underpin criminal justice policy

local trends in crime, victimisation and the fear of crime

methods of preventing and addressing offending and recidivism, particularly amongst

young people

the significance of substance misuse offences

the structure of the criminal justice system and how effectively the agencies within it

interact

sentencing options and the balance between custodial and non-custodial measures

As part of the Review, recommendations may be made on any aspect of the above. As appropriate, comment may be made on any other areas which the reviewer considers to be relevant to criminal justice policy in Jersey."

I have been extraordinarily well served by the Review Team. Assistance of the highest order on all aspects has been given by Antonia Jameson LLB, MA and a barrister practising in England. Further research assistance has been ably provided by Mark Telford, LLB, MSc and PhD candidate, Stuart Macdonald, LLB and PhD candidate and Mark T Bamford, LLB. In the final stages the production of this report was superbly managed by Aloma Hack.

As Director of the Home Affairs Department, Steven Austin-Vautier played an invaluable role in facilitating the work of the Review. Always respectful of the Review's independence, he efficiently paved the way to persons and data. His sharp eye for detail and constant encouragement for the task at hand was crucial to our work.

The Review also greatly benefited from a Steering Group consisting of:

Senator W Kinnard - Vice-President, Home Affairs Committee Jurat P Blampied OBE - retired Jurat of the Royal Court

M Kirby - Governor, HMP La Moye

B Heath - Chief Probation Officer

Centenier E Gallichan - Chairman, Centeniers' Association

Crown Advocate C Whelan (representing the Attorney-General)

G Power QPM - Chief Officer, States of Jersey Police Service

R Fairhurst - Headmaster, Hauté Vallee School

I Rogan - Executive Officer, Crime and Community Safety Strategy C Audrain - member of the Youth Court Panel

S Austin-Vautier - Director, Home Affairs Department

The Steering Group's function was to provide information and to offer informed comment on the main issues under consideration. It is not the case that the Steering Group shared in the formulation of recommendations or that individual members support all of them. The Review commenced its work on February 1 2002 when I met with the Home Affairs Committee, followed later that same day by a well-attended meeting of invited persons in St Helier. Over the subsequent months more than thirty key participants from across the criminal justice process have been interviewed, discussions held with a variety of other individuals and groups and we have been able to observe aspects of the process including the courts, Parish Hall Enquiries and HM Prison La Moye. The Review also gained from the results of a survey of views held by a wider group of participants, from responses submitted by members of the public and from a survey organised at the request of the Governor by inmates at the Prison. Finally, an extensive amount of material relating to criminal justice and related policy issues was made available to the Review team. We are indebted to persons from across the criminal justice process who put together reliable sets of crime and criminal justice data. This effort was encouraged and co-ordinated by two meetings, attended by key officers, which were convened to examine the status and gaps with respect to data on crime and criminal justice in Jersey.

The absence of criminal justice policy

In large part, the Review was commissioned because it was widely agreed that the Island has no coherent criminal justice policy. We did not encounter any suggestion that challenged this presupposition. Traditionally, the Island has not perhaps been well equipped to develop strategic and co-ordinated policy.[1] This situation has been especially striking with reference to criss-crossing issues such as criminal justice where policy is most noticeable in its absence. Indeed criminal justice has been described to us as lacking in terms of both political responsibility and accountability and is as an arena perhaps least under control in terms of overall expenditure by the States.

An important although tentative step to address this situation was made at the end of 1999 with the placing of responsibility for the States of Jersey Police, the Fire and Rescue Service, the Prison, Customs and Immigration within the auspices of a newly established Home Affairs Committee. For budgetary but not for operational matters the Probation and After -Care Service was also placed within the ambit of the Committee. While the Home Affairs Committee has taken the lead for the Crime and Community Safety Strategy (initiated by the former Defence Committee and adopted by the States in November 1999) it was apparent that this initiative, a rare if not unique example of co- ordinated aspirations, has remained rather thin in terms of strategic implementation. Furthermore, despite a joint report by the Home Affairs and Health and Social Services Committees,2 the Crime and Community Safety and Substance Misuse Strategies have remained largely detached from progress made in addressing drug misuse.

These issues, expressed in general terms, were to the fore of considerations addressed by the Review Panel on the Machinery of Government in Jersey which reported in December 2000 and now the reforms flowing from this have been agreed by the States. A central feature of these reforms is the need for a more joined-up' form of government. The States accepted, and the debate about reform over the last two years has had as its starting-point, that the reforms arose from a widespread perception that the Island's government is inefficient, indecisive, poorly co-ordinated, and out of touch with the

demands and pressures of a modern society'.3 The States has now clearly agreed that this 'silo mentality' must be overcome by means of the proposed constitutional reforms and other measures. This Review, coming as it does two or perhaps three years before the proposed ministerial structure takes effect, may play a useful role that extends beyond criminal justice and tackles issues that cut across established policy domains.

Context for the Review

The Review was described as being especially timely by several of our interviewees. Brief mention has already been made of the constitutional reconstruction now being taken forward, the most comprehensive and radical since 1948. As a result of decisions now taken by the States, Home Affairs will be one of ten ministerial departments of Government with, inter alia, specific responsibility for criminal justice policy. The remit of the new Home Affairs Department is a matter of cardinal importance with regards to taking forward the matters considered by this Review.

A second contextual feature of paramount importance is the agreed budget deficit of no more than £7 million in 2003 and which is resulting in 2% cuts by some committees, including Home Affairs.4 This new budgetary situation presents difficult fiscal choices which in turn enhance the need for a more strategic approach to policy-making. The days are  over  when  buoyant  reserves  enabled  Jersey  to  address  its  public  expenditure objectives with relative ease. In this sense, the implications of the current fiscal situation reinforce  the  far-reaching  constitutional  reforms  embarked  upon  in  the  wake  of  the Review  Panel  on  the  Machinery  of  Government.  The  situation  is  made  the  more challenging  because  of  growing  international  political  pressure  against  the  Island's "offshore" tax regime and its relationship in this and other respects with the United Kingdom Government. A commentary on micro-states' put the matter rather neatly. Somewhat  paradoxically,  Jersey's association with  the British Crown  preserved the Island's  distinctive  legal  and  political  systems,  which  became  valuable  assets  when

2Home Affairs Committee and Health and Social Services Committee, Presidents' Policy Group Report on the Crime and Community Safety and Substance Misuse Strategies 1999-2004

3 Policy and Resources Committee,  Machinery of Government: Proposed Departmental Structure and Transitional Arrangements, April 2002, 4

4 States of Jersey, Resource Plan 2002, 2002, iii-iv

Jersey set up as an offshore financial centre The micro-state's external relations, no less than its domestic policies, create significant tasks and stresses for its governing institutions.'[2]

Third, there is the distinctive nature of Jersey's rich cultural, constitutional and legal traditions, which were described to us as 'a patchwork of interacting threads'. Jersey's constitution (as is the case for the other Channel Islands) is both home made and sui generis.[3] To the forefront of this heritage are the Island's close, parochial qualities. Not only has Jersey been able to rely on concise intelligence networks throughout the local community but also upon endemic community systems that were designed to promote unity and tackle minor problems as they arose at the parochial level. Indeed, of particular relevance to the Review is the place of the twelve parishes with respect to governance, social control and the everyday life of the Island. While the power base may have now largely shifted to central government the Parish and the process of Parish Hall Enquiries remain a cornerstone of the Island's approach to tackling crime and anti-social behaviour. Further significant examples of active community involvement with regards to criminal justice are the role of the Jurats within the Royal Court and the Youth Panel members in the Youth Court. Overall at the start of the twenty-first century, the influence and contribution of persons who are not professionally qualified in law or criminal justice remain very significant. Achieving a workable balance between the professional and non- professional is a theme that runs throughout this Report and it represents one of the most important challenges facing the Island's criminal justice process today.

Fourth, it is noteworthy that several new appointments have recently been made at key junctures of the criminal justice process. In addition to the creation of the Home Affairs Department and the appointment of a Director, there are new chief officers at the Prison, the States of Jersey Police and the Probation Service. Additionally, a single chief executive officer has been appointed to head the Customs & Excise and Immigration and Nationality departments. These key players, some of whom have been recruited from the United Kingdom, have injected a variety of new ideas and enthusiasm. It is clear that this new generation of leadership bodes well for the development of coherent criminal justice policy.

Jersey has embarked upon an extraordinarily exciting period of self-exploration in terms of new governmental structures and approaches to policy formulation. Included is a new willingness to address criss-crossing issues such as criminal justice. The advent of human rights legislation provides a further dimension that impacts on all aspects of public policy. The Island's worsening fiscal position at the present time has added further impetus to the need for a more strategic approach to the policy-making process.

2 PROFILE OF CRIME AND CRIMINAL JUSTICE DATA

Crime and public order offences in Jersey

Acts are not, they become. So also with crime. Crime does not exist. Crime is created. First there are acts. Then follows a long process of giving meaning to those acts'.[4]

The point being made by Nils Christie that crime is by no means an uncontested social fact reminds us to proceed with caution when embarking upon a discussion of crime trends in any society. The main source of information on crime in Jersey is the States of Jersey Police recorded crime figures.[5] However, these data do not tell us the extent and nature of crime in Jersey. An act and/or an event occurring in Jersey will be subject to a range of judgements (moral and legal) from members of the public and from officials before it ends up being recorded as a crime in police statistics. An incident which, for whatever reason, the police do not hear about will obviously not feature in the recorded statistics.[6] Incidents or behaviour which the public or officials decide to control (or ignore) by more informal means may also not be included.[7] Moreover, police statistics will leave out those incidents where it has been decided, for whatever reasons, not to so record as crimes.[8] In essence, the States of Jersey recorded crime statistics represent the pool of incidents that form the starting point for the formal law enforcement process.

Accordingly, when considering the level of recorded crime it is imperative to maintain an awareness of the limitations of the data. A consideration of trends in such data presents further problems because the legal definitions and the administrative procedures for classifying incidents as crimes (for example, the counting rules) can, and

have, changed over time. It is noteworthy that new counting rules were adopted by the States of Jersey Police in 2002.

Recorded crime in Jersey

With these preliminary points in mind, a useful starting point is to examine the overall level of recorded crime in Jersey. Figure 1 shows the trend in recorded crime in Jersey between 1992 and 2001. Between 1992 and 1997 there was some fluctuation in the figures. Having fallen from 6,757 in 1992 to 5,993 the following year, recorded crime (excluding public order offences) rose to reach a peak of 7,037 in 1995. Between 1995 and 1997, recorded crime fell to a low of 5,752. Since 1998, the total number of recorded offences has not fluctuated to the same extent and has more or less levelled off to an annual total of around 6,200 crimes.

Figure 1 Recorded crimes: Jersey, 1992 - 2001

10000 9000 8000 7000 6000 5000 4000 3000 2000 1000 0

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

Source: States of Jersey Police Service

Public order offences

The States of Jersey Police also maintain a computerised record of offences against public order. Figure 2 shows the trend in public order offences between 1994 and 2001. There was a steady rise in public order offences recorded by the police between 1994 and 1997, rising from 1,031 to 1,719, representing a 67 percent increase. Since then, the recorded level has dropped off and in 2001 it was 1,108, which represents a return to 1994/95 levels. It is important to be particularly cautious when considering trends in public order offences as, in contrast to most of the crime categories, they are more likely to be a direct product of the process of law enforcement. Public order offences are most often a consequence of pro-active police work whereas most crimes (with the important exception of drug offences) tend to be reported to the police by the public. Accordingly, the level of public order offending may be determined as much by the nature and extent of police activity as by changes in the behaviour of the public.[9] Consequently, if police recorded figures are to be used to provide an indication of any changes in the nature and extent of actual behaviour (and the opening paragraphs to this report have cautioned against overdoing this) recorded crimes excluding public order offences are likely to provide a better indicator.[10]

Figure 2 Public Order Offences: Jersey, 1994 - 2001

2000 1800 1600 1400 1200 1000 800 600

400 200 0

1994 1995 1996 1997 1998 1999 2000 2001 Source: States of Jersey Police Service

Breakdown of recorded crimes

Crimes of larceny and malicious damage to property predominate in the recorded crime data for each of the years available (1992-2001). This can be seen clearly in Figure 3 which shows the distribution of the main offences recorded by the police in Jersey in 2001.  As shown in  Figure 4, larceny accounted for over one quarter of the crimes recorded between 1992 and 2001, while malicious damage cases represented 19 percent of the total. These categories are important in proportionate terms. Between 1992-2001 recorded larceny offences initially peaked and troughed from the 1992 figure of 1,998 to 1,642 in 1993 and then peaked again at 1,908 in 1996. There then followed a steep drop to a low of 1,415 in 1999, although by 2001 the figure had again climbed to 1,563. The overall effect of this fluctuating trend over the whole period 1992-2001 has been a decline of approximately 22 percent.

Recorded instances of malicious damage cases were 1,286 in 1999 and 1,289 in 2000 and 2001, showing a remarkably consistent pattern in recent years. Over the whole period between 1992-2001 there was an increase of approximately 14 percent.

Figure 3 Recorded crimes: Jersey, 2001

CHILDRENS (JERSEY) LAW 1969 TAMPERING WITH MOTOR VEHICLE T/A/D/A MOTOR VEHICLES

T/A/D/A BICYCLES SOCIAL SECURITY FRAUD

SEXUAL OFFENCES ROBBERY/MENACES RECEIVING/HANDLING

RAPE OFFENCES AGAINST THE STATE OBSCENE/ANNOYING PHONE CALL OBSCENE PUBLICATIONS

MALICIOUS DAMAGE LARCENY

HOMICIDE GRAVE AND CRIMINAL ASSAULTS FRAUD/FORGERY/UTTERING/OBTAINING FIRE SERVICE JERSEY LAW DANGEROUS DRUGS

COMMON ASSAULTS BURGLARY

ASSAULTS ON POLICE/PRISON ARSON

0 200 400 600 800 1000 1200 1400 1600 1800

Source: States of Jersey Police Service

Figure 4 Recorded larceny and malicious damage: Jersey 1992 - 2001

2500

2000

1500

LARCENY

MALICIOUS DAMAGE 1000

500

0

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

Source: States of Jersey Police Service

In respect of trends in other specific offences over the period the most significant increases are in the categories of assaults. 255 common assaults were recorded by the police in 1992. This increased steadily from 1993 to reach 620 in 1999. Since then, the number of assaults in the police statistics have levelled off and 627 were recorded in 2001. There were 372 more assaults in 2001 than in 1992 representing a 146% increase over the period. Similarly, assaults on police and prison staff rose from a base of 19 recorded crimes in 1992 to a peak of 93 in 1997 before falling to a level of 55 in 2001.

The COPS database[11] shows that in 1992 there were a total of 292 drugs offences where a conviction (or other successful outcome') was achieved. This figure increased by 93% to 563 in 2001. Of these 563 drugs offences, the COPS data reveals that 350 (62%) were for offences involving cannabis. In 1992, 211 (72%) of the 292 drugs offences involved cannabis. Against this decline in the proportion of drugs offences involving cannabis is the increase which COPS reveals in offences involving heroin. While only 2 of the 292 drugs offences in 1992 involved heroin, this figure grew to 110 of the 563 offences in 2001 (20%). Figure 5 also shows a noticeable decline in the proportion of drugs offences involving amphetamine sulphate (8% in 1992 to 2% in

2001), and an increase in the proportion of offences involving MDMA (ie. Ecstasy, from 3% in 1992 to 10% in 2001).

Figure 5 - Prosecutions for Drugs Offences By Drug Type

1992 2001

Cocaine Other Amphetami 1.95% 3.91% 0N.5/3A%

N/A ne Sulphate

10.62% 1.60%

Other

5.82% MDMA

10.30%

Cocaine

0.34%

Amphetamine Sulphate 7.53%

MDMA Heroin

2.74% 19.54%

Cannabis Heroin

62.17% 0.68%

Cannabis 72.26%

Source: COPS data file, States of Jersey Police Service

Figure 6 shows that the number of convictions (or other successful outcomes') for possession of heroin has grown steadily each year since 1992, from just 1 in 1992 to 76 in 2001. Having peaked at 13 in 1996, the number of convictions for importation of heroin fell to 4 for each year from 1998-2000, but rose again to 11 in 2001. A similar trend can be seen in relation to intent to supply, which peaked at 6 in 1996, fell to 2 in 1997, but then rose again to 16 in 2001. Finally, the number of convictions for supply of heroin had not risen beyond 3 in any one year from 1992-1999. However, in 2000 the number of convictions rose to 6, and then again to 7 in 2001.

Figure 6: Heroin Offences 1992 - 2001

80

70

60

50

Possession Supply

40

Importation

Intent to Supply 30

20

10

0

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

Source: States of Jersey Police Service

The drug trends revealed by the COPS data may be compared to the figures for the number of persons appearing before the Magistrate's Court for drugs offences. As shown in Tables 1 and 2, in 1992 a total of 204 people appeared before the Magistrate's Court for either possession, possession with intent, supply or importation of drugs.[12] Of these, 171 (84%) appeared for offences relating to class B drugs. Whilst the number of people appearing before the Magistrate's Court for drugs offences has remained relatively stable, 206 in 1996 and 220 in 2001, the trend has been for people to appear for more serious offences[13]. So in 1996, only 146 (71%) defendants appeared before the Magistrate's Court in respect of offences relating to class B drugs, and by 2001 this figure had fallen to 116 (53%)[14]. However, the number of people appearing before the Magistrate's Court for offences relating to class A drugs had risen, from 33 in 1992 (16%) to 60 in 1996 (29%) and 104 in 2001 (47%). Of these 104, 56 appeared for possession of a class A drug, compared to 10 in 1992, whilst 29 appeared for importation of a class A drug, compared to an equivalent figure of just 6 in 1992. In contrast to this overall increase in the numbers of people appearing before the Magistrate's Court in respect to Class A drugs offences, only 4 people appeared for supply of a class A drug in 2001, compared to 10 in 1992.

Table 1 – Persons appearing before the Magistrate's Court for drugs offences by drug class

Table 2-Persons appearing before the Magistrate's Court for drugs offences by drug class and offence

Source: Magistrate's Court records

Criminal justice data

It has only been possible to incorporate a limited amount of criminal justice data into this report, primarily because of the paucity of available material. Due to the considerable efforts  of  the  Director  and  colleagues  in  the  Home  Affairs  Department  we  are  in possession of Magistrate's Court statistics for the three years 1992, 1996 and 2001, and the Youth Court from 1997 to 2001. These data sets describe the number of persons convicted in these courts and the use of the available sentences. The figures also provide a breakdown of the main offence that each defendant was convicted of in these years. These data permit us to say something about any changes in the numbers of people and the nature of offences passing through each of the courts. They also enable descriptions of any changes in the use of various penalties.

Obviously a limitation of these data is that we are prevented from saying anything about the practice of the courts for the years for which we do not have figures. Moreover, although we can study changes in the proportionate use of different sentences, these court data will not allow us to measure any changes there may have been in the length of sentence handed out by the courts over the period.

Along with the somewhat patchy state of the court data, a major problem we have in presenting an adequate statistical picture of criminal justice in Jersey is the paucity of statistical material on the work of Parish Hall Enquiries.

An attempt has been made, in collaboration with research officers in the States of Jersey Police Force, to make use of COPS. Although a potentially rich source of statistical material, at present the data are organised in such a way that it is only possible to produce figures for offences. The problem with this is that it is difficult to break these data down into, for example, the number of people who received a custodial sentence for a particular offence category. The problem arises because one person can commit multiple offences. An example may help to clarify this point. A figure produced from COPS as presently organised in Microsoft Excel produces a pivot table suggesting that in 2001 there were twenty-two offences of cannabis possession that resulted in custodial sentences. However, it is not possible to tell (at least without doing a manual count) what other charges each defendant may have faced at the same time and how these might have impacted upon the sentence imposed. Analyses of COPS data hold out some promise of useful disaggregation. Although, unless there is a way found to use COPS to count only the principal offence for which the defendant is charged and the principal sentence handed out by the court or disposition at the Parish Hall , it will be difficult to produce meaningful data for analysis.

Again, taking drugs as an example, COPS tells us that in 1992 there were a total of 292 drugs offences where a conviction (or other successful outcome') was achieved, with this figure increasing by 93% to 563 in 2001. This information from COPS may be contrasted with the recorded crime figures, which show a total of 457 dangerous drugs offences in 1992, with this number decreasing by 2% to 448 in 2001 (see Table 3).

Table 3 – Comparison between recorded crime figures and COPS (drugs offences)

Source: Recorded crime figures and COPS datafile, States of Jersey Police Service

A number of factors may contribute to these anomalous results. Firstly, offences are entered into the recorded crime data at the time of commission, whereas they are entered into the COPS database when a successful outcome is achieved. So the increase from 316 recorded dangerous drugs offences in 1998 to 543 in 2000 is apparently mirrored in the COPS data by the increase from 320 successful outcomes in 1999 to 563 in 2001. Secondly, where an offence involves several parties, this is entered in the recorded crime figures as one offence, whereas if successful outcomes are achieved against all the parties involved, this will be entered in COPS as several offences. Hence, the COPS figures for some years are higher than for the recorded crime data. Finally, it was found during the Review that for the period 1992-96 successful outcomes against drugs offences in Parish Hall Enquiries were not being entered into the COPS database. Hence, the number of drugs offences according to COPS may be artificially low for those years.

3 OVERVIEW OF THE CRIMINAL JUSTICE PROCESS

It is useful to view criminal justice as a process of decision-making stages from the initial response to an apparent offence through to the disposition of sentenced offenders. From this perspective, it becomes highly problematic to regard any notion of criminal justice as constituting a  system  capable of being co-ordinated and directed to achieve the instrumental aims of the state. The process perspective is also especially instructive in delineating underlying values and purposes and thereby highlighting choices for criminal justice policy.[15] For example, the criminal justice process might be identified as being on an escalatory or de-escalatory course and it is a matter for policy-makers to determine whether such a course is consistent with intended outcomes.

The process perspective of criminal justice also allows for an appreciation of the independence and inter-dependence inherent to its various stages. The independence of decisions, for example, made by the prosecutor and the courts, reaches to the heart of criminal justice arrangements in a liberal democracy. The inter-dependent nature of decision-making across the process draws attention to the various and sometimes neglected ways in which decisions connect with each other. The challenge for rational and coherent criminal justice policy-making is to eschew a simplistic pursuit of joined-up efficiency and rather to engage with the more complex task of taking full account of these inter-connections thereby ensuring that efficacy and efficiencies are not pursued at the expense of fundamental values.

The description which follows of the various stages of Jersey's criminal justice process is largely based on our interviews and observations. It is, of course, important to recognise not only the dynamic nature of this process but also the mix of formal and informal influences which shape content and direction. As a general rule, we have also resisted the temptation to compare what we have found with the situation in other jurisdictions. While comparative analyses can play a useful part, it is not always helpful to be comparing this or that situation with what is said to exist in England and Wales or any other jurisdiction. After all Jersey, as a European 'micro-state', is in the enviable position of being able to choose its own criminal justice future.

Policing

In effect, the Island is policed by thirteen different police organisations represented by the States of Jersey Police Service and the twelve forces located at the parish level of government.

States of Jersey Police Service

The States of Jersey Police Force comprises some 240 police officers and 90 civilian employees. This represents a relatively high ratio of States Police officers to the general population of 1:353, compared, for example, to 1:461 for provincial forces in England and Wales.[16] A succinct history of the "paid police", as the force was known until 1960, is included in the report of the Independent Review Body on Police Services in Jersey[17] (hereinafter referred to as "the Review Body"). The Review Body was in large part concerned with the relationship of the States Police and the honorary police, which is explored at the close of this section. Since the appointment of the present chief officer some two years ago, a more proactive, strategic style of policing has been introduced to target particular problems. An example is Operation Focus, which largely addresses public order problems. The aim is to address genuine public concerns about crime generally, particularly drunken behaviour, using and dealing in drugs and speeding which had been highlighted, along with other matters, in the recent Public Satisfaction Survey.[18] The new policing initiative has received the operational co-operation of the honorary police, but there has been no honorary involvement at a strategic level. This development  reflects a notable difference between the States and the honorary services: the States police are embracing rather more proactive methods of policing in contrast with the honorary police who traditionally operate reactively.

Until 1998, the States of Jersey Police had, as noted by HM Inspector of Constabulary, unsophisticated and unreliable methods of data collation.[19] During the last 18 months an off-the-shelf information technology system has been purchased for the Force to record information from point of arrest to prosecution. This system has the potential to link to other criminal justice agencies and to the Parishes. It forms part of a two-year criminal justice IT strategy by the States Police and may herald the start of a process that shares and co-ordinates information across other agencies.

The States of Jersey Police have a degree of discretion when dealing with individuals who challenge the law. It is this initial discretionary judgement that determines whether a person is to be reprimanded for his/her actions and, if so, whether the matter stops with the police or whether it is to be pursued further. Individuals that the police believe not to be a threat to the community but which they consider require more than a police reprimand, are referred to the appropriate Parish Hall for an Enquiry. States Police do not have the power to charge suspects and their discretion ceases when they make their recommendation to the centenier.

The States Police are actively involved in local schools: each school shares a School Liaison Officer, supported by local community officers. The focus is on policing' rather than community' and officers attend schools when shift patterns permit. The Chief Officer is emphatic that the community policing initiative is intended to provide communities with a policing service.

As in other aspects of Jersey life, the States of Jersey Police suffer from a lack of training and career development opportunities on the Island. Isolation is the essential problem: the service is nurturing promising officers but they need more diverse experience. Secondments to the United Kingdom have helped to address the problem but as well as being costly, they are fraught with legal difficulties and there is a lack of alternative forces to send officers to for experience. Recruitment of officers from the UK is made difficult by the Island's housing and employment regulations. Since the creation of the Home Affairs Committee, the States Police have been provided with some positive support in this respect.

The Honorary Police Services

Each of the twelve parishes has a constabulary comprising a connétable (constable), centeniers, vingteniers and constables' officers, all of whom are elected by the people of the parish to a three-year term. They are elected on the basis of the abilities and life experience they are able to bring to policing. The connétable is responsible for overseeing the daily running of the parish and is a member of the States of Jersey Assembly. In practice, the connétables' policing responsibilities and authority are delegated to centeniers, in particular those who serve as the chefs de police in their parish, and who are supported by vingteniers and constables' officers. Officers of the honorary police operate on the basis that they know their parish and their parishioners. In this context centeniers will, for example, attend domestic disputes within their parish, deal with road traffic incidents and meet with various departments to discuss and resolve parish issues in the wider Island context. Centeniers from every parish are incorporated into the Centeniers' Association. Vingteniers and constables' officers form a separate Association. The existence of these Associations, however, does not guarantee consistency between the parishes or any view about policing with which the connétables might agree. As concluded by the Review Body, the root of what is unsatisfactory about the honorary police is the inability to see themselves as one force serving one community. In sharp contrast to this conclusion is the response to the recommendation of the Report of the Working Party on Policing of the Island[20] that there be a chief of the honorary police: this recommendation was considered to be too radical. It was thought that such a sudden shift to centralisation would inflict considerable damage on this ancient service.

It is the duty of every honorary police officer to exercise personal discretion, under

the

authority of the Attorney-General, in dealing with offenders and reporting offences. Not every identified offence is reported for prosecution: matters of training and personal decision founded upon the oath of office dictate the course of action that an officer takes. As such the honorary police service acts as a filter for the criminal justice process.

A centenier is empowered to search, charge, investigate, grant bail, conduct Parish Hall Enquiries and present matters in the Magistrate's Court. As members of the local community who are not trained specifically in criminal justice procedures, they are widely considered to be of significant benefit in dealing with minor public disputes or relatively minor infractions of the law. Above all, the honorary police service plays a key part in the Island's criminal justice process in that it operates as a gate-keeper, determining who should, and who should not, enter into the criminal justice process.

It was put to the Review that a consistent approach may not always be followed by honorary police forces with regard to road traffic incidents and domestic violence. Certain procedures adopted by the States Police, for example on the use of breathalysers, are not invariably applied by their honorary counterparts. As to domestic violence, constables' officers will speak to their respective centeniers, but information is rarely forwarded to Victim Support. Indeed, there is very little in the way of contact between the honorary police services and Victim Support or with the Women's Refuge. There is a possibility that such incidents are reported by the perpetrator of the violence within the home and that the centenier decides not to pursue the matter or report it to the States Police.

Island-wide policing

The honorary and States forces have the potential to combine to provide a balanced service to Islanders that strives to detect instances of crime and protect the community. While the relationship between the two services has taken some useful steps in recent years, there remains a running debate as to the meaning and merits of integrated policing'. There are, as the aftermath to the Review Body demonstrated, significant political and constitutional ramifications in any movement towards a more unified honorary system. Nonetheless, the States Police have attempted to promote an integrated and consistent policing service for the Island. One of the difficulties facing the States

Police in this regard is that there is no single voice uniting the twelve parishes and representing the views, ideas, and perspectives of the honorary service as a whole. There is a lack of consistency in the various Parishes' approach to the States Police generally: some members of the honorary police are keen to pursue a common agenda, others are not. These factors combined thwart any attempt at aligning performance measurements, professional standards, or specific objectives. While some degree of co-ordination between honorary and States Police is apparent at operational level the real difficulties arise at strategic level.

A working party was set up in the light of problems anticipated in implementing some aspects of the Review Body. It would appear that the principal difficulty, as seen by the working party, was that it is not possible to impose radical changes on individuals who give their time on an honorary basis. By taking forward one of the findings of the Review Body, that an independent body be created, the working party were able to reach agreement about the institution of a Police Authority 'to modernise and co-ordinate policing strategies and resources across both the States and honorary police forces'. It was envisaged that the Police Authority would be chaired by someone of independence, stature and diplomatic energy.

While a shadow Jersey Police Authority has been established, this has had limited success in overseeing or supporting the Island's policing bodies. It had been anticipated that, once fully operational, the Authority would advance the move towards one association and one voice to represent and promote the honorary services. A Chairman of the Committee of Chefs de Police has been appointed and meetings have taken place with the Chief Officer of the States of Jersey Police. The Authority has also funded a training programme for the honorary police which has been delivered by a recently-retired chief inspector.[21] But overall, very little progress has been made since the Review Body in this respect or in the direction of integrated policing more generally.

The honorary service provides an opportunity for those who want to contribute to the community and also serves as a mechanism to keep people away from the criminal justice process. While the general view appears to be that the honorary police service should be retained, the question is how to retain a modern honorary police service that serves a modern society. Some consider the term police' in the context of the honoraries to be anomalous: very rarely does a member of the honorary service get involved in the investigation of crime. The Island is nevertheless steeped in tradition and the centenier's position remains highly regarded. Members of the public, particularly in the rural parishes, will often call the centenier rather than the States Police.

The Review Body suggested that the honorary police take on a more professional role. While individual members of the service need to maintain an appropriate level of proficiency in their dealings, a professional role is not widely considered to be within their proper remit: they benefit the Island by bringing a non-professional, independent element to the system. Jersey has a body of volunteers that represent a relatively unique secondary source of law enforcement and an informal procedure for the administration of justice.

Parish Hall Enquiries

The Parish Hall Enquiry is presided over by a sworn honorary police officer: a centenier. It is not a court but represents a local means of addressing anti-social behaviour which may divert individuals away from the formal criminal justice process. On identification of a suspect, a police officer, be it honorary or States Police, decides whether the matter should go to Parish Hall or directly to court. In reaching the decision, a Criminal Records Office check is run and the matter is referred to the States Police for investigation. Where a Parish Hall Enquiry is considered appropriate, the officer will give the individual a written warning to attend on a specified date, which records in brief what the individual is reported for. Where a Parish Hall Enquiry is considered inappropriate, because for example the offence is too serious to be dealt with at that level, a centenier will be called in to charge the individual and warn him/her for court. If the centenier disagrees with the recommendation to charge he/she retains the option to give the individual a written warning to attend a Parish Hall Enquiry instead. A centenier must offer bail pending the Parish Hall Enquiry or court appearance unless the offence is so serious, there is concern that the individual might not appear, will re-offend or will interfere with witnesses. There is no power for centeniers to impose conditions on bail, save a condition that the individual produces money.

There is no compulsion to attend a Parish Hall Enquiry, nor can an individual be compelled to answer questions relating to the charges or make or sign a statement during the course of the Enquiry. Non-attendees lose their chance to be dealt with at Parish Hall and will receive a summons to attend court. If an individual attends, it is the centenier's responsibility to enquire into the case and decide whether to instigate a formal prosecution or deal with the matter at Parish Hall level.

All attendees are instructed to attend at the same time and are seen by the centenier on a first come, first served basis. The centenier conducting the Enquiry is assisted by one or two duty officers who take a note of attendees and keep a record of the results in the diary. There is an investigative and administrative burden on the States Police to prepare a full file of evidence and a report for the Enquiry. This is essential at this early stage because only the centenier can decide whether to charge or not and this decision must be based on all the available evidence. This report is prepared by the investigating officer and checked over by the custody sergeant before it is sent to the Parish Hall . This operates as a safeguard to ensure that any recommendation for charge is founded on proper grounds. If the centenier considers that the investigation has been inadequate, then he/she will request further investigation. The preparation of a full file for the purposes of Parish Hall Enquiry increases the resources involved and can serve to delay the process. The States Police maintain that a full file of evidence should be produced only where the evidence is likely to be challenged.

At the enquiry, the police report is read out by the centenier so that the individual has full knowledge of the evidence against him/her. The individual is asked to comment on the contents of the report. Having considered the material the centenier decides whether there is sufficient evidence to justify a prosecution or whether the Enquiry should be adjourned to allow further information to be gathered. If the centenier concludes that there is sufficient evidence to justify a prosecution, then he/she considers (with due regard to the Attorney General's  Code on the Decision to Prosecute)[22], whether prosecution is in the public interest or whether it is appropriate to deal with the case outside the court system.

A centenier cannot find an individual guilty, and in order for the matter to be dealt with at Parish Hall level the attendee must accept the facts. If he/she does not accept the facts then the matter will be sent to Court. If the facts are accepted, then the attendee is invited to give his or her version of the events in question. The attendee is entitled to be accompanied by a lawyer should he/she so wish. It is a matter for the centenier as to what part the lawyer is allowed to play.

Included in the police report is the States Police's recommendation, but the centenier is not bound by that recommendation. Any decision not to prosecute is made in the knowledge that the Attorney General can override it and order a prosecution. The centenier will indicate how he/she intends to deal with the matter. If the matter is to remain at Parish Hall level, then the attendee will be asked whether he/she is willing to be dealt with by the centenier. If the attendee is so willing the centenier will deal with the matter in one of four ways:

take no further action: this is not recorded. It is utilised where the attendee accepts

the facts and the centenier considers it inappropriate to proceed. It may involve words of advice or a verbal warning/caution;

impose a fine: the maximum fine has recently been increased for road traffic offences

to one fifth of a level 2 fine on the standard scale of fines (currently £100). A record of the fine is kept by the police and may be made available at any future appearance in court or at a Parish Hall Enquiry, although it will not amount to a conviction. Fines can only be imposed if specified by statute, mainly for offences under the Road Traffic Law. As far as the payment of fines is concerned, payment must be made within the centenier's duty week. Payment in instalments is not permitted as this would be unworkable. The fines system operates in this way largely because enforcement would be problematic: a fine issued by a centenier is unenforceable because the centenier cannot issue an enforceable judgment. The problem is resolved if the centenier requires payment and gives the alternative of being summonsed in the event of non-payment.

give a written caution: this is entered onto the CRO and will appear on the Honorary

Police records. It does not constitute a conviction. It will nevertheless be produced at future matters dealt with at Court or Parish Hall and so forms part of an individual's criminal record.[23]

defer the decision for a period of up to six months (but the practice is usually three

months), possibly with conditions. All options remain open to the centenier following a period of deferment. The course of action taken depends upon what transpires during that period. If the individual re-offends during that period, then he/she will be dealt with for both offences. The deferred decision is considered to be a most useful tool for centeniers in dealing with both juveniles and adults.

In deferring a decision, centeniers can impose a condition of voluntary supervision. Voluntary supervision includes the Pitstop and other programmes. Class C and B drugs offences (mostly cannabis) and drunk and disorderly can also be dealt with in this way. In respect of these types of offences, the centenier may ask the individual to attend the Alcohol & Drug Service in order to participate in a Drugs Awareness Course.[24] The Service has a designated worker to deal with the youths that are referred for voluntary supervision. There are about ten such referrals each month. The Service has developed a sound working relationship with centeniers so that referrals are expeditious. A youth has between one and six sessions with the Service. The Service reports to the Parish Hall before the individual is seen again by the centenier.

If the matter is to be sent to court, then the attendee will be charged. A formal caution will precede charge and the attendee will be warned for court. Guidelines specify that the court appearance must be on the first available date after the Parish Hall Enquiry, so as to avoid further delay. The centenier may also admit the attendee to bail in such sum as the centenier may reasonably determine, pending appearance at court. Once charged, a centenier should inform the attendee of the availability of legal aid and the procedure for obtaining such assistance if required.

The centenier is not obliged to hear every matter in a Parish Hall Enquiry. For serious cases that will inevitably end up in court it is an unnecessary delay. Moreover, guidelines dictate that some cases cannot be dealt with at Parish Hall level (for example, persons charged with speeding 15 mph or more over the limit). Conversely, many offences are ideally dealt with at a parochial level. There is considerable potential for inconsistency throughout this process, both in the recommendations of the States Police and the actions of the honorary police. Perceived inconsistencies within the honorary service threaten its credibility and thereby its continued existence: consistent application across the Island is considered by some to be of paramount importance for the maintenance of a credible process. With a view to assuring consistency within the Parish Hall Enquiry process, the Attorney General issues guidance notes for centeniers that should be displayed in every Parish Hall . The guideline process, like the Parish Hall Enquiry process as a whole, is not determined by legislation or rules and regulations and remains relatively informal. There was a move towards a more formal system of guidelines in 1997, with a suggestion that they be called Directives and numbered so that they could be easily listed and referred to, but this has not been systematically followed through. Indeed, at times members of the honorary service appear to look elsewhere for guidance on particular issues.

Any guidance in respect of Parish Hall Enquiries has the potential to shape criminal justice policy on the Island, particularly because of the centenier's prominent position within the process. Increased formality in this respect may afford greater credence to the process, avoid the potential for other criminal justice officials attempting to standardize the actions of the centeniers and ensure that issues which arise are referred to the Attorney General. Guidelines as to the nature of the penalties and the level of fines to be imposed for various offences are issued by the Centeniers' Association and circulated between the parishes to promote consistency.

Many professionals involved in the criminal justice process value the Parish Hall Enquiry system as a useful process that provides an independent, lay assessment as to whether prosecution is in the public interest. For a significant number of people, it is their first and last brush' with the law. The process acts as a filter for minor offences and provides a diversion mechanism in cases that might otherwise result in court proceedings, convictions and the associated stigma. Centeniers strive to deal with the individuals that come before them fairly, justly and courteously. They get a sense that many go away with confidence in the proceedings, avoiding the stigma associated with the formal court process. It is unfortunate that its contribution in this respect appears to have been eroded in recent years in a drive for speed and consistency.

For young people, the Parish Hall Enquiry is considered to have particular value, offering a paternalistic approach that avoids a criminal conviction. The process has the potential to divert youths away from the criminal justice process and may provide youths with an opportunity to attend the Probation Service voluntarily, thereby delaying the decision as to whether to prosecute. Not only does it serve as an early caution to juveniles of the consequences if they persist with their anti-social behaviour, it also serves to inform parents, who are sometimes unaware, of what their children are up to. If a centenier intervenes at the right time in a young life, he/she can turn the child's life around. Schools have been known to provide evidence for Parish Hall Enquiries, safe in the knowledge that the Enquiry can offer constructive alternatives that will not result in a criminal record. [25]

At first glance Parish Hall Enquiries, as closed tribunals where people are subject to sanctions, would appear to raise human rights concerns. In the Review Body a number of such issues were expressed which arose from a fog of confusion'. The point was made that the presiding centenier may be the same person who investigated the incident under scrutiny; and that the centenier will often proceed to make a disposition without adequate enquiry as to whether the alleged facts are admitted. The Review Body also concluded that the existing manual was contradictory as to whether or not the proceedings constituted a court. In accordance with the Review Body's recommendation, some progress has been made through the guidance issued by the Attorney General which is aimed at ensuring that Parish Hall Enquiries abide by appropriate and consistent procedures.

A critical issue to be addressed is whether the Parish Hall Enquiries should be recognised, as was proposed in the Review Body, as a court or be unequivocally located outside the criminal justice process. While rejecting the path recommended by the Review Body, the report of the Working Party on Policing of the Island has attempted to locate a mid-way point for the Parish Hall Enquiry as an adjunct of the courts. Maximum fines have been increased and penalties (including written warnings) appear in the criminal record of an offender. This may not be the most satisfactory way forward from a human rights perspective. Furthermore, with appropriate training, there may be opportunities to exploit the relative informality of Parish Hall Enquiries, by for example, using them as a forum for non-stigmatising resolutions across the Island.

A great strength of the Parish Hall Enquiry, which has evolved over many years but which has stood the test of time, resides in its parochial grass roots. The Review Body has been particularly impressed by the proposals in the Crime and Community Safety Strategy,[26] as to how this ancient institution might best be further developed, so as to effectively divert individuals away from the formal processes of criminal justice. The conclusion reached by the Review Body is that the Parish Hall Enquiry should not be afforded  the  status  of  being  a  court.  This  stance  is  in  line  with  many  of  the  local responses to the Review Body on this point, which were usefully summarised in the Report of the Working Party on Policing of the Island.[27] The Working Party did welcome what it described as the 'positive observation' by the Review Body that more important cases could he handled by Parish Hall Enquiries. It urged that the Police Authority consider the level of awards for current cases and the range of categories handled. Although the Police Authority has not, as yet, carried out this review some movement in this general direction has flowed from guidelines issued by the Attorney General. In addition to an increase in the level of fines, the Attorney General issued a Directive (1/98) on personal amounts of Class B and C controlled drugs which might be dealt with by the Parish Hall Enquiry by means of a written caution instead of prosecution.

Statistics pertaining to the work of Parish Hall Enquiries are sparse and not easily available. The only Island-wide source relates to attendances by probation officers at Parish Hall Enquiries with respect to persons aged 17 and younger. These data are set out in Table 4.

Table 4-PHEs involving persons aged under eighteen attended by the Probation Service

PHEs attended  Referrals to Probation Service 1996  374

1997  400

1998  381  29

1999  384  31

2000  381  25

2001  358  24

Source: Probation and After-Care Service, Annual Report for 2001 and Business Plan 2002 February 2002. Commenting on the 2001 figures, the Report describes the decline in attendance of probation officers as odd' given the increasing caseload of the youth court. The fact that no adults received voluntary supervision orders as an alternative to prosecution is described as disappointing' (ibid. 5)

In just two years the number of people attending St. Helier Parish Hall Enquiries fell by 23%, from 3,665 in 1999 to 2,814 in 2001 (see table 5). Whilst there was a significant decline (18%) in the number of juveniles attending, from 467 in 1999 to 383 in 2001, the greater  decline  was  in  the  number  of  adults  attending.   The  fall  from 3,198 adults attending in 1999 to 2,431 in 2001 represented a 24% decrease.

Table 5 - Number of Persons Attending St Helier Parish Hall (excluding those who failed to attend)

Source: St Helier Parish Hall records

Despite this decline in the number of people attending St Helier Parish Hall Enquiries, as shown in Table 6, the numbers referred to court remained relatively stable, with a total of 764 referred to court in 1999, compared to 745 in 2000 and 743 in 2001.

Table 6 - Cases Referred to Court By St Helier Parish Hall

Source: St Helier Parish Hall Records

Figure 7 - Cases Referred to Court by St Helier Parish Hall Enquiries

30%

25%

20%

1999 2000 2001

15%

10%

5%

0%

Juveniles Adults Total

These two trends show that St Helier Parish Hall increased its referrals to court, as illustrated by figure 7. Whilst in 1999 21% of attendees were referred to court, this figure had grown to 26% by 2001. This increase was even greater in relation specifically to juveniles; whereas 19% of juvenile attendees had been referred to court in 1999, this figure had grown to 28% in 2001.

These  figures  suggest  that  Parish   Hall  Enquiries  are  being  used  less  to  divert individuals, particularly juveniles, away from the formal processes of criminal justice.

These trends may be compared to the equivalent statistics from St Brelade Parish Hall . Unlike the available data for St Helier Parish Hall Enquiries, which date back only to 1999, the data from St Brelade Parish Hall , as shown in Table 7, are available from 1990  onwards  (although  these  statistics  do  not  differentiate  between  juveniles  and adults).

Table 7 – Numbers attending St Brelade Parish Hall Enquiries and numbers sent to court

Source: St Brelade Parish records

The statistics show that, like St Helier, the number of attendees at St Brelade has been falling for the last two years, from 383 in 1999 to 275 in 2001, a decrease of 28%. The greater statistics available allows us to see that the number of attendees peaked in 1999, following a low of 214 in 1995. Although the number of attendees in 1999 was still far fewer than the numbers in 1990-92, when there were consistently around 500 attendees per year. Figure 8 illustrates the fluctuating levels of attendees, which suggest some confusion regarding the precise role of the Parish Hall Enquiry.

The proportion of attendees sent to court has, again like in St Helier Parish Hall Enquiries, risen since 1999, from 43% to 52%. Figure 8 shows that the 1999 figure was in fact the lowest percentage of any of the years for which data is available, with the proportions in 1991, 1993, 1994 and 1996 all being around 56%. The fluctuating levels in the percentage  of attendees sent to court, illustrated by Figure 8, again suggests confusion regarding the precise role of the Parish Hall Enquiry. One conclusion which

Figure 8 - Percentage of attendees at St Brelade's Parish Hall Enquiries sent to court

60%

50%

40%

30%

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

can be drawn, however, is that since 1999 St Brelade Parish Hall Enquiries, like St Helier, have been used less, as shown in Figure 9, to divert individuals away from the formal processes of criminal justice.

Figure 9 - Numbers attending St Brelade Parish Hall Enquiries

600

500

400

300

200

100

0

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

Numbers attending PHE Numbers sent to court

Prosecution

In introducing this section, a word is required regarding the pivotal position occupied by the Attorney General within Jersey's criminal justice process. The considerable number of functions brought together within this office extend well beyond the arena of prosecution and include being titular head of the honorary police services, ordering and leading investigations, deciding whether intrusive and covert operations are appropriate, ultimately deciding whether prosecution is appropriate and in the public interest and providing sentencing guidance in the form of conclusions' to Royal Court. It is evident that the office of Attorney General is crucially significant in terms of the strategic development of criminal justice policy.

The decision-making process in respect of prosecution relies upon guidelines from the Attorney General. If an incorrect decision is made, whether by a centenier or a legal adviser, this can be over-ruled by the Attorney General who is, in effect, the director of public prosecutions. Until recently, centeniers presented all cases in the Magistrate's Court. The issue was under constant review for much of the 1990s following recommendations reached by the Jersey Judicial and Legal Services Review Committee which saw the way forward in terms of centeniers being better equipped and trained to perform prosecutorial duties.[28] This and other recommendations were further considered during 1997-98 by a working party which agreed that the status quo was unacceptable and that centeniers could not be expected to act as prosecutors. It was acknowledged by the working party that if all cases were presented by a prosecutor this would lead to a clear and unambiguous adversarial system, to more accurate and appropriate charges being brought and to the more effective screening out of charges where the evidence was insufficient. Furthermore, the working party accepted that the concerns of victims would be better represented. Against this, the working party concluded (with two of its members dissenting) that in most cases the centenier was able to adequately present the facts to the court. Moreover, it was reluctant to see the end of the historical role of the centenier in the Magistrate's Court.[29]

Since 1998 legally qualified personnel, have, at the request of centeniers, prosecuted trials, guilty pleas and objections to bail of a complex nature, and committals, with centeniers dealing with the rest of the lower court's caseload. At the time this move towards professional prosecution was strongly resisted by the Centeniers' Association. The move also represented a shift away from an inquisitorial' style of court, where the Magistrate tended to play a part in leading the evidence and questioning witnesses and the accused, towards a more adversarial system.

There are now two full-time and two part-time legal advisers based at the States of Jersey Police Headquarters, who occupy posts established within the Law Officers' Department. Problems still arise where unqualified, inexperienced centeniers present the facts for guilty pleas. There can be a situation where the only lawyer present in the court is the Magistrate. With the increasing sophistication of prosecution in all areas, trained prosecutors are becoming increasingly necessary. If centeniers are to continue prosecuting, consideration needs to be given to creating a branch of the honorary police service that specialises in prosecuting and that receives specific training in that regard. Such an arrangement would ensure better co-ordination of the honorary service and greater efficiency in respect of time. Alternatively, legally qualified prosecutors should present all cases in the Magistrate's Court.

In the Royal Court, all prosecutions are presented by, or on behalf of, the Attorney General. Traditionally, it was the Attorney General or Solicitor General who prosecuted but, in 1987, legislation created the position of Crown Advocate, who is a member of the local Bar to whom powers are delegated by the Attorney General. The Attorney General also draws some twelve individuals from the private bar who have been sworn into office and are available to prosecute most routine cases. These advocates are employed by the Law Officers' Department on a daily basis. There remains some difficulty in placing trials as they have to find time away from private work, usually at a lower rate than they would otherwise command.

Legal Aid

Before turning to the Jersey courts, a brief account is required about the arrangements for legal aid in Jersey. Legal aid, as it exists today in Jersey, dates back to the beginning of the last century. The Scheme is designed to make legal services in respect of both criminal and civil matters quickly and easily available. It is not regulated by legislation, operates with minimum formality, employs no staff and utilises minimum public funds.

The Scheme relies upon the good will of Jersey lawyers. All new Jersey lawyers, whether advocates or solicitors, take an oath which, inter alia, requires them to look after the interests of all persons requiring legal aid. This obliges them to accept legal aid clients for the first 15 years of practice. Each newly qualified lawyer is added to the list – the tour de role'- of legal aid lawyers. The system is administered manually, on a rota basis. The Acting Bâtonnier, who is an advocate nominated by the Bâtonnier, allocates the next case to the next lawyer on the list. An individual who uses the Legal Aid Scheme has no choice of lawyer. Generally, no consideration is given to the suitability of the nominated lawyer to the particular case and so, for example, a criminal case can be assigned to an advocate who specialises in commercial law. In practice, there is some flexibility within the Scheme: cases of exceptional gravity are nominated to lawyers with suitable experience; a lawyer who has done an unusually long and demanding legal aid case may be exempted from 1 or 2 nominations; criminal matters have to go to an advocate. The nominated lawyer is not obliged to take the case on him/herself, although he/she is responsible for ensuring that another lawyer does the case.

The granting of legal aid is not dependent upon an individual's means, nor is it dependent upon the strength or seriousness of the case: a legal aid certificate will be issued in the name of the nominated lawyer as long as the Acting Bâtonnier is satisfied that the individual requires legal advice. The Acting Bâtonnier does not undertake a detailed investigation of an individual's means before issuing the certificate. The lawyer nominated under the Scheme is nevertheless entitled to charge a fee: he/she will therefore investigate the individual's means so as to ascertain what is a reasonable fee. Services provided under the Scheme are generally only free for those who have no income.[30] Everyone else is billed on the basis of loose guidelines and details of their financial status. Limited funds are available from what is called the legal aid vote'. These funds are provided by the Finance and Economics Committee and are used to pay experts and lawyers involved in complex and excessively long trials.

The Acting Bâtonnier sees the majority of applicants in person and informs them that the nominated lawyer is entitled to make a reasonable charge. Applicants are also told that requests for unreasonable fees should be referred back to the Acting Bâtonnier or the Bâtonnier. Unfortunately, not everyone appreciates that they might be billed. Problems arise particularly when the Acting Bâtonnier does not have the opportunity to meet a defendant in person so as to explain the Scheme, and the fact that he/she is likely to receive a bill at the end of it. Where an individual is in custody, for example, a legal aid application form will be faxed to the prison. The result is that many of those in custody do not appreciate the unique nature of criminal legal aid in Jersey.

Legal aid clients express dissatisfaction at the fact that many of the lawyers required to undertake legal aid work are young and inexperienced, some never having appeared in Court before. The system is such that it is often more cost effective for law firms to send unqualified legal assistants to do most of the research, and take instructions from the client. The consequence is that many defendants have limited pre-court contact with their advocate. Such practices are also a source of dissatisfaction for legal aid clients.

There are two voluntary schemes under legal aid that operate in addition to the tour de role':

Duty advocate scheme

Every day that the Magistrate's Court sits there is an advocate on duty. The duty advocate is available to give basic advice and represent individuals where necessary. Work under the scheme is rewarded with credit under the tour de role', so that the volunteer misses a turn in the list. If the volunteer is not on the tour de role' then the credit will go to someone in the law firm who is on the role.

Duty lawyer scheme

Legal aid does not cover attendance at the police station: if arrested all that an individual can demand under the Legal Aid Scheme is a telephone call. If arrested during the day then the suspect can ring the duty lawyer. In practice it tends to be the Acting Bâtonnier or an advocate in the firm in which the Acting Bâtonnier works who gives police station advice during the day. Every night from 1700-0830 hours another rota operates, under the duty lawyer scheme. A duty lawyer is on-call to give telephone advice and reassurance during these hours, for one week at a time. Volunteers for this scheme are either solicitors or advocates. They are not necessarily specialists in criminal law. Again, benefit from volunteering for this Scheme accrues in respect of the tour de role'. It is very difficult to give advice over the telephone. In practice, a lawyer will usually attend the police station if someone is being questioned on really serious matters or if it is clear that they really need a lawyer, for example, because they are particularly vulnerable. There is, however, no written policy or obligation in this regard. Moreover, there are no guidelines for dealing with people with mental health problems. Sometimes the Acting Bâtonnier will intervene to try and persuade a lawyer that it is necessary to attend the police station.

The duty lawyer scheme is not much used. A number of reasons for this have been advanced, for example, suspects do not see the point, they are intending to plead guilty anyway or they are going to reserve their plea. Some defendants feel pressured in to answering police questions without the benefit of satisfactory legal advice from a lawyer in person. The availability of legal advice before questioning by the police is something that will have to be seriously considered in the context of Jersey's Police Procedures and Criminal Evidence (Jersey) Law provisions and its forthcoming human rights law.

There is no legal aid for Parish Hall Enquiries: the majority of attendees have received no legal advice in respect of the Enquiry. The implications of individuals being dealt with by non-legally qualified centeniers and without the benefit of legal advice need to be considered carefully. While the current system might not allow for better advice to be given at an earlier stage, the provision of such advice might instil greater confidence in the Parish Hall Enquiry process.

As regards the administration of the Scheme, every 2 years the position of Acting Bâtonnier passes to the next big law firm on the list of Jersey's 10 largest law firms. The firm then appoints an employee as Acting Bâtonnier. The Acting Bâtonnier's name and the names of 2 other lawyers in the firm are taken off the tour de role in return for administering the Legal Aid Scheme.

At present, there is nothing to inform the new Acting Bâtonnier of how to operate. The current Acting Bâtonnier is in the process of writing a policy handbook. The Scheme makes very great demands on the Acting Bâtonnier, who continues to practise within his/her speciality: at present between 5-7 hours per day is spent on legal aid.

The Magistrate's Court

The Magistrate's Court, the lowest level of judicial authority in the Island's criminal justice process, is presided over by one of the two legally-qualified Magistrates, assisted by a non-legally qualified court clerk. Where a defendant is legally represented, the legal representative will specify whether a plea is to be entered and, if so, what the plea is. Otherwise, the defendant is asked whether he/she reserves their plea, or pleads guilty or not guilty to the matter. In respect of non-attendees, an arrest order' is made, which can be with or without bail.

As regards bail, an application is made by or on behalf of the defendant. The prosecution, whether a centenier or a legal adviser, responds. The prosecutor gives reasons for any opposition to the application. Reasons for opposing bail include, risk of absconding, risks of re-offending and risks of interfering with witnesses. In deciding on bail, the Magistrate balances the interests of the defendant against the interests of the community and, where appropriate, the victim. In an attempt to address concerns about absconding, re-offending or witness interference, conditions of bail can be imposed. Conditions which are tailored to the nature of the offence and defendant may include surety, exclusion from licensed premises, reporting to a police station, surrendering passports and avoiding contact with witnesses. If bail is granted, defendants are released on warning to attend the next court hearing. There is no Bail Law to regulate the use of bail, nor are there custody time limits. Until very recently the seriousness of the offence was a main factor in deciding whether to grant bail. Practice is now more similar to England and Wales, with the presumption being in favour of bail and with consideration given to the likelihood of re-offending, absconding or interfering with witnesses. It seems likely that this development has contributed to the recent reduction in the number of persons held on remand at HMP La Moye.

A probation officer attends every Magistrate's Court hearing where issues of sentencing are likely to arise. The probation officer is available to provide on-the-spot' assessments of defendants and to obtain information that is required by the presiding Magistrate: in this regard the Magistrate will specify matters that require to be investigated.

The powers of the Magistrate's Court were increased in October 2000 to a £5,000 fine and/or 12 months' imprisonment. As a result, more cases were expected to be retained in the Magistrate's Court, including some assaults and small-scale supply of

Figure 10 - Number of people appearing at the Magistrate's Court

0 500 1000 1500 2000 2500 3000 3500 4000

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

cannabis.[31]

Where an offence warrants a greater penalty (including confiscation orders in the context of drugs) the case must be committed to the Royal Court.

The Youth Court

The Youth Court (which since 1994 has jurisdiction over persons aged from ten up to eighteen) comprises one of the Magistrates and two members of the Youth Panel who are not legally qualified. More youths are entering the Youth Court rather than being diverted away from the formal process and through the Parish Hall Enquiry. This reflects a view within the Youth Court that the Parish Hall Enquiry has been over-used (especially in some  parishes) and that more formal  interventions are  in  order. In the view of the Magistrate, the Parish Hall Enquiry should issue no more than one caution and perhaps consider one other minor matter. At that point, any further referral should be to the Youth Court. It follows, if the Parish Hall Enquiry is to be regarded as an adjunct of the Youth Court, there cannot be inconsistency from one parish to another.

The Youth Panel

The Youth Panel, which was introduced under the Children (Jersey) Law 1969, has twelve non-qualified members. Currently, eight of these are women. The statute prescribes that at least one of the Youth Court tribunal be a woman. The Panel is very much in the tradition of Jersey's spirit of community service and the position attracts high quality applicants. Appointments are for a three year period which may be renewed twice. Some Panel members feel that this ceiling results in experience being wasted. The Magistrate, however, contends that the turn-over is beneficial, with most Panel members being appointed at around the age of 40.

The Magistrate and the two Youth Panel members enjoy an equal say as to adjudication and sentence. The Magistrate, who is relied upon for matters of law and procedure, seeks to serve as a "moderator" rather than to impose his own view. If necessary, and in practice rather rarely, any disagreement is settled by means of a vote. Where only one Youth Panel member is present, the Magistrate holds the casting vote. Panel members are rostered to take part in about one out of every six sittings. While the Magistrate considers that this degree of involvement is about right, some Panel members believe they sit too infrequently.

Sentencing powers of the Youth Court

The Magistrate considers that the sentencing powers with respect to persons under the age of 15 are inadequate. The options are: a probation order with or without a condition of residence;[32] a bind-over or conditional discharge. The young person also has to consent to a bind-over (or conditional discharge). For persons of 15 and over, a sentence of youth detention may only be passed if the court considers that no other method of dealing with the youth is appropriate because there is a history of failing to respond to non-custodial

penalties and an inability or unwillingness to respond, only custody would be adequate to protect the public from serious harm, or the offending behaviour is so serious that a non- custodial sentence cannot be justified. The reasons for imposing a sentence of youth detention must be stated in open court. The criteria should ensure that thought is given to the use and objectives of imprisonment and to the possible advantages and disadvantages of prison over and above other sentences. There is no equivalent statutory guidance for the sentencing of adults.

Until quite recently the Youth Court was regarded as rather lenient in stance, imposing small fines, compensation orders and bind-overs. However, practice has changed and speed is now considered to be of the essence. The average time between offence and first court appearance in May and June 2002 was 24 days and 11 days respectively, and to completion from offence was 44 and 39 days respectively. By- passing the Parish Hall Enquiry and getting youths to court more quickly is considered to be a significant achievement but the Youth Court Magistrate nonetheless feels that there is further progress to be achieved in speeding up the process.[33] To this end, priority A and B lists of youths, who have offended repeatedly or most seriously, have been compiled by the Magistrate and made available to centeniers and the States Police. The A List consists of young people who are seen as being at high risk of re-offending. These are the "hard- line offenders" and "ring-leaders". If these youngsters keep out of court for 6 months they are relegated to the B List which constitutes a slightly lower risk. Those on the B List who avoid offending for 3 months are removed from the List. As of 10 July 2002, there were 23 persons on the A List and 20 on the B List, compared with a total of 59 on both Lists combined in July 2001. Of the 43 youngsters on the A and B Lists in July 2002, 30 were aged between 14-16.

Partly as a consequence of these local policy initiatives, the Youth Court is now dealing with more young people and at an earlier stage of their offending than previously. While this increase in the Youth Court's caseload (especially sharp since 2000, as shown in Table 8) does not appear to be linked to any increase in crime as recorded by the States

Police, its effect has been to perpetuate the perception of a growing problem of youth crime.[34]

Table 8

Total number of persons appearing at the Youth Court, 1997-2001 1997  162

1998  172

1999  140

2000  189

2001  251

Source: data assembled from court records for the Review

The Royal Court

The Bailiff and Deputy Bailiff are the two permanent judges in the Royal Court, although "qualified  persons"  can  be  appointed  as  Commissioners  for  a  specified  term  or  for particular cases where necessary.[35] In 1990, it was generally agreed that the appointment of a third permanent judge was not necessary.[36]