Draft Criminal Procedure (Jersey) Law 201- p.118/2017 - Research - 19 January 2018

STATES OF JERSEY

r

DRAFT CRIMINAL PROCEDURE (JERSEY) LAW 201-

Lodged au Greffe on 5th December 2017 by the Council of Ministers

STATES GREFFE

2017  P.118

DRAFT CRIMINAL PROCEDURE (JERSEY) LAW 201-

European Convention on Human Rights

In accordance with the provisions of Article 16 of the Human Rights (Jersey) Law 2000, the Minister for Home Affairs has made the following statement –

In the view of the Minister for Home Affairs, the provisions of the Draft Criminal Procedure (Jersey) Law 201- are compatible with the Convention Rights.

Signed:   Deputy K.L. Moore of St. Peter

Minister for Home Affairs

Dated:  1st December 2017

REPORT Introduction

Jersey has a unique and effective Criminal Justice System, supported by able and committed public servants and a legal profession that is passionate about delivering justice for Islanders. While there are many aspects of the Criminal Justice System that Islanders  may  be  proud  of,  the  dated  nature  of  the  existing  criminal  procedure legislation  presents  a  number  of  challenges  to  the  delivery  of  justice  in  the 21st century, and elements can be a barrier to the modernisation of the Criminal Justice System as a whole.

Criminal procedure  legislation in Jersey has not kept pace with developments in criminal justice practices here and elsewhere in the British Isles. It is essential that practice in the criminal courts is underpinned by a legal framework that enables the courts, public bodies and the legal profession to deliver just outcomes for defendants, and that protects the interests of victims and witnesses.

Although our Laws have stood the test of time and have ensured that the Island has maintained a reputation as a fair and just jurisdiction, it is widely acknowledged that the Laws upon which the Criminal Justice System is based are in need of revision and modernisation.

The legislative provisions making up the criminal procedure framework have been compiled in a piecemeal way over a considerable period. This organic method of development has created a unique and effective Criminal Justice System, but one that experiences certain practical difficulties in the 21st century.

The nature of offences and offending has changed over time, but the principal law governing the conduct of criminal proceedings has remained the Loi (1864) réglant la Procédure Criminelle (the "1864 Law").

Written in French and for a different era of criminal justice, the 1864 Law does not provide the courts or the parties to criminal proceedings with all the legal tools they need to enable criminal proceedings to be dealt with expeditiously and efficiently. The need for expeditious and efficient criminal procedures is reflected in Articles 5 and 6 of the European Convention on Human Rights (the "ECHR"), given domestic legal effect by the Human Rights (Jersey) Law 2000.

All jurisdictions require a justice system that is, and is seen to be, modern and in touch with  local  communities,  efficient,  fair,  responsive  to  all  users  with  modern,  and effective  case  management  to  remove  unnecessary  delays  from  the  system. Importantly, the reports emphasize the need to streamline procedures to ensure cost- effectiveness in difficult financial times.

In  2011,  the  Jersey  Criminal  Justice  System  Board  ("CJSB")  determined  that  a wholesale re-writing of criminal procedure and evidence was required as opposed to a piecemeal  approach.  Consequently,  in  2012,  monies  from  the  Criminal  Offences Compensation Fund were allocated to this important project. H.M. Attorney General has acted as project sponsor having direct oversight of the project. The Draft Criminal Procedure (Jersey) Law 201- (the "draft Law") is the product of that project.

Governance for this project has come from the Legislation Steering Group who have been accountable, through the Criminal Justice Working Group, to the Jersey Criminal Justice System Board. The Legislation Steering Group has had the benefit of input from a range of stakeholders. As well as members of the Law Officers' Department, its members include the Magistrate, a representative from the States of Jersey Police,

the Law Society, the Viscount, and officials from the Community and Constitutional Affairs Department.

The draft Law will repeal the 1864 Law and a number of other 19th and 20th century enactments that currently regulate criminal proceedings. The draft Law will support an effective Criminal Justice System today, and ensure that there is flexibility for the System to adapt to the challenges of the future.

Why do we need the new legislation?

The Criminal Justice System may affect everyone at some point in their lives, whether as a person suspected of committing an offence, as a victim of, or witness to, a crime or as a member of a jury.

The draft Law provides that the overriding objective of the new legal framework for the conduct of criminal proceedings should be to ensure that cases are dealt with justly. This means that Jersey's criminal procedures should continue to uphold and respect the rights of defendants, but also safeguard the wellbeing of victims and witnesses.

The draft Law is designed to ensure that all those involved in the Criminal Justice System can participate effectively in criminal proceedings that are conducted in a way that is, so far as is compatible with this objective, expeditious and efficient.

The draft Law aims to support a cohesive criminal courts system that ensures that effective case management takes place at an early stage, and that proceedings can be properly managed and transferred to the appropriate court for trial and sentence as efficiently as possible.

What does the draft Law do?

The Draft Criminal Procedure (Jersey) Law 201- is primary legislation setting out the procedure to be followed in connection with criminal proceedings against a person charged with an offence, or convicted of an offence. It provides for the quashing of acquittals by the Court of Appeal, and amends the Police Procedures and Criminal Evidence (Jersey) Law 2003 in connection with evidence in criminal proceedings.

The draft Law comprises 14 Parts and 5 Schedules.

Part 1 sets out provisions regarding the interpretation of the draft Law and provides core definitions and explanations of the expressions used throughout the draft Law. The draft Law applies to proceedings in the Magistrate's Court, Youth Court and Royal Court.

Part 2 sets out an overriding objective to ensure that cases in criminal proceedings are dealt with justly. This includes acquitting the innocent and convicting the guilty, dealing fairly with both the prosecution and defence, and respecting the interests of witnesses, victims and jurors. It obliges participants and the courts to further this objective.

Part 3 requires the courts to further the overriding objective by actively managing cases in criminal proceedings. This includes early identification of witnesses, monitoring the progress of cases, discouraging delay and making use of technology. It provides the courts with wide-ranging powers for this purpose.

The draft Law delivers important amendments to the Police Procedures and Criminal Evidence (Jersey) Law 2003.

Part 4 provides that, without prejudice to the powers reserved to a Centenier in respect of the power to charge, grant bail, conduct a Parish Hall Enquiry or present a defendant before the Magistrate's Court, the prosecution of criminal proceedings may

only be conducted by, or on behalf of, H.M. Attorney General. This Part also preserves the Attorney General's power to initiate proceedings directly in the Royal Court, and describes the procedures to be followed if any provision of an enactment or rule of customary law requires the consent of the Attorney General before criminal proceedings may be initiated.

Part 5 specifies the functions and jurisdiction of the Magistrate. It provides for the Magistrate to sit at any time and in any place to hear proceedings and to remand or release defendants on bail. It details the maximum penalties which may by imposed by the Magistrate. These may be amended by Regulations; the maximum is currently set at the imposition of a £10,000 fine, imprisonment for a term of 12 months; or a combination of both.

Part 6 explains how proceedings in the Magistrate's Court should function. It clarifies the procedure for summoning a person to Court who is to be charged with an offence, and the penalties for failing to answer to a summons without reasonable excuse.

This Part includes new provisions facilitating the proceedings between the Magistrate's Court and the Royal Court where that is appropriate in view of the gravity of an offence. Where a defendant enters a not guilty' plea, the Magistrate must decide whether the trial should take place in the Magistrate's Court or the Royal Court. Following a trial in the Magistrate's Court, provision is made for the Magistrate to send the defendant to the Royal Court for sentencing, where the gravity of the offence would require the imposition of a penalty in excess of the Magistrate's sentencing powers. Before doing so, the Magistrate is required to hear representations from parties and take into account all the circumstances of the case.

These provisions in this Part are designed to speed up the process of disposing of cases by ensuring that they can always be dealt with in the most appropriate venue. This Part also gives the Magistrate's Court powers to correct mistakes. It also makes provision in respect of appeals, including setting a time of 7 days within which a notice of appeal must be given after the defendant was convicted, sentenced or when an order was made.

This Part also provides for the payment of appropriate costs to appellants.

Part 7  details how proceedings in the Royal Court should function. Powers are included to amend indictments and send cases back to the Magistrate's Court. Provision is also made as to when a trial will be held in the Royal Court before a judge and jury, or before a judge and Jurats. The defendant may elect to be tried with or without a jury for an offence under customary law. If a defendant does not make a decision, the Court will decide the appropriate mode of trial. In the case of a statutory offence, the trial will take place before the Inferior Number of the Royal Court sitting without a jury.

In the case of an indictment containing a mixture of customary and statutory offences, the court will decide upon the mode of trial.

Part 8  makes provision regarding preparatory and pre-trial hearings between indictment and the start of a trial. The Bailiff is able to make rulings on the conduct of the trial which bind the parties until the end of trial. These provisions have been consolidated into the draft Law with few amendments, and are taken from the Police Procedures and Criminal Evidence (Jersey) Law 2003. This Part restricts the reporting in publications of preparatory hearings and rulings, subject to certain exemptions, and creates an offence of unlawful publication. A person guilty of the offence is liable to an unlimited fine.

Part 9  makes provision in relation to jury and jury selection. This includes the provision that all persons over the age of 18 and under the age of 72, unless exempt or disqualified for a particular reason, are eligible to sit as a member of a jury. The procedures for jury selection are simplified, and there are provisions to ensure the good conduct of the jury. These provisions include powers for the court to order the surrender of electronic equipment by jurors while they are sitting as a jury. This Part enables, where a trial is expected to last longer than a week, the selection of reserve jurors who may be called to serve on the jury, if the original numbers of jurors is reduced.

Provision is made for the delivery of verdicts; in particular it includes a new provision regarding a hung jury'. Where neither a unanimous nor a majority verdict can be agreed by the required number of jurors, the prosecution will be entitled to request a re-trial in respect of the offence. If the prosecution does not wish to bring a re-trial, the defendant would be discharged from the proceedings. This Part also allows a majority verdict to be delivered by 9 jurors where there are less than 12.

Part 10  outlines a number of miscellaneous procedures in Magistrate's Court and Royal Court. These include a provision that gives effect to what is commonly referred to as a Newton Hearing', and sets out the procedure to be followed where a defendant pleads guilty but disputes the facts of the offence alleged by the prosecution. This Part also prescribes the process for discontinuance or withdrawal of proceedings in the Magistrate's Court and Royal Court.

This Part places duties upon the prosecution and defence in respect of disclosure. The draft Law places the prosecution's disclosure obligations on a statutory footing, with the extent of the obligation on the prosecution remaining similar to existing guidelines. The draft Law introduces a new obligation for the defence to provide a defence case statement setting out the particulars of the defendant's defence if he or she has entered a plea of not guilty'. The requirement to submit a defence case statement allows the courts to concentrate time and effort on the real issues in the proceedings, and will reduce unnecessary pre-trial burdens on the prosecution preparing to address issues that are not in dispute.

The prosecution's fulfilment of its initial duty to disclose unused material is a pre- requisite for the defence obligation to provide a defence case statement. There is a continuing duty on the prosecution to disclose unused material disclosure until proceedings are concluded.

The defence case statement does not interfere with the rights to silence. If a defendant is unrepresented, the court has the discretion to dispense with the requirement to provide a defence case statement. A defence case statement may be amended before trial, and the defence is under a duty to disclose any material change until proceedings are concluded.

However, where a defendant has legal representation and enters a not guilty' plea, there may be consequences for the defendant if they fail to serve a defence case statement or depart from the contents of the statement at trial. In such circumstances, there is the provision for the court to draw inference in deciding whether a defendant is guilty of the offence concerned.

This part of the draft Law also introduces a duty on the defendant to give notification to call witnesses and provide appropriate details.

A defendant is required to be present at court throughout a trial; although the court may conduct a trial in the absence of the defendant if the defendant is voluntarily absent from the proceedings.

Part 11 sets out provisions in relation to defendants and witnesses. This Part also introduces Schedule 1, which prescribes offences in respect of which a spouse or civil partner of a defendant is compellable to give evidence. The draft Law replaces an earlier enactment in respect of criminal proceedings, and includes a wider range of offences that would give rise to an exemption from the general rule that spouses and civil partners cannot be compelled to give evidence.

This Part makes provision for the summonsing of witnesses, and for penalties for a failure to comply with warnings to attend court.

This part also provides the courts with express powers to permit special measures to be put in place to enable witnesses to participate effectively in criminal proceedings. These measures include the pre-recording of video evidence and giving live evidence via a television link. The draft Law contains clear statutory provisions facilitating the use of special measures so as to provide  greater certainty for the  participants in proceedings about when special measures will be made available.

The draft Law provides that where a witness is a child, disabled or vulnerable due to fear or distress, then the courts must determine whether any special measures that are available would be likely to improve the quality of the witness's evidence. This may include the cross-examination of evidence in chief via a video link before trial.

The court must also take into account –

• the nature and circumstances of the offence
• any matters that could be considered relevant –

• social and cultural background
• ethnic origin
• domestic and employment circumstances
• religious beliefs
• political opinions.

The court must also take into account –

• any behaviour towards the witness on the part of –

• the defendant
• family members or associates
• any other person who is likely to be a defendant or a witness in the same proceedings.

This Part of the draft Law prevents defendants from cross-examining witnesses to specified offences. In these cases, the court must invite the defendant to arrange for a legal representative to cross-examine witnesses. If the defendant elects not to do so, the court will consider whether it is necessary for the witness to be cross-examined and if so, must choose and appoint an advocate for that purpose.

This Part makes provision for the offence of intimidation or harm to jurors and witnesses. The penalty for these offences comprises a term of imprisonment of 10 years and an unlimited fine.

Part 12 makes provisions so that the defence, the prosecution, and in some cases, a third party, may be required to pay the costs of another party to proceedings, where those costs are incurred as a result of unnecessary or improper act or omission by that party.

Part 13 establishes the Criminal Procedure Rules Committee. The new Committee is given the power to make criminal procedure rules that will govern the practices and

procedure to be followed in criminal proceedings within the framework of the draft Law. The Committee will be chaired by the Bailiff and will include persons involved in a number of aspects of the delivery of the Criminal Justice System.

Part 14 includes miscellaneous provisions and introduces Schedules 2, 3, 4 and 5 of the draft Law.

Schedule 2 concerns the quashing of a person's acquittal and provisions for their retrial. It specifies the cases that may be retried and under what circumstances.

Schedule 3 amends the Police and Criminal Evidence (Jersey) Law 2003 and makes provision for the admissibility of statements not made in oral evidence in criminal proceedings. Schedule 3 also makes new provision in relation to the admission of bad character evidence, including whether this may show the defendant has a propensity to commit the type of offence the defendant is charged with.

Schedule 4 outlines the enactments that are consequentially amended by the draft Law.

Schedule 5 outlines the enactments that are repealed by the draft Law. Consultation History

Consultation has taken place within the Criminal Justice Systems Board, the Criminal Justice Working Group, the States of Jersey Police and the Law Officers' Department during the drafting of the new Law.

This offered interested parties the opportunity to comment on proposed changes and identify any particular concerns with the proposals. Engagement events have been held with the Law Society of Jersey and other interested parties.

A full public consultation was conducted between 24th July and 15th September 2017. There was a limited response to the consultation, which received 6 responses from a mixture of individuals and organisations with an interest in Criminal Procedure.

The Comité des Connétable s, the Council of Ministers, and the Home Affairs and Education Scrutiny Panel have received a briefing on the draft Law. The remainder of States Members were invited to a briefing on the draft Law.

Timetable for implementation

The implementation of this Law will require a change in working practices and procedures for the Honorary Police, the States Police and the Courts. These changes will be facilitated through the delivery of the Criminal Justice System Transformation Programme being delivered as part of the Public Sector Reform agenda across the States of Jersey. It is anticipated that the draft Law will be fully in force by the end of 2019.

Collective responsibility under Standing Order 21(3A)

The Council of Ministers has a single policy position on this proposition, and as such, all Ministers, and the Assistant Minister for Home Affairs, are bound by the principle of collective responsibility to support the proposition, as outlined in the Code of Conduct and Practice for Ministers and Assistant Ministers (R.11/2015 refers).

Financial and manpower implications

It is clear that there is a need for significant investment in time and resource across the Criminal Justice System to implement the many changes that will be brought about by the enactment of the new Law in 2018. In order to effect this change, a 2-year project funded by public sector reform monies has already been established to manage the development and implementation of the revisions that will be required by the draft Law.

There are no other financial or staffing implications arising. Human Rights

The notes on the human rights aspects of the draft Law in the Appendix have been prepared by the Law Officers' Department and are included for the information of States Members. They are not, and should not be taken as, legal advice.

APPENDIX TO REPORT Human Rights Notes on the Draft Criminal Procedure (Jersey) Law 201-

These Notes have been prepared in respect of the Draft Criminal Procedure (Jersey) Law 201- (the "draft Law") by the Law Officers' Department. They summarise the principal human rights issues arising from the contents of the draft Law and explain why, in the Law Officers' opinion, the draft Law is compatible with the European Convention on Human Rights ("ECHR").

These notes are included for the information of States Members. They are not, and should not be taken as, legal advice.

These Notes will firstly explain the relevant ECHR rights and principles that are engaged by the draft Law. It will then explain how the provisions of the draft Law ensure that they are compatible with the ECHR.

Article 5 – Right to liberty and security

1. Article 5 ECHR protects the physical liberty and security of the person. Its aim is to ensure that no one is deprived of their liberty in an arbitrary or unjustified fashion.
2. Article 5(1) of the Convention provides that –

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...".

3. Article 5(1) ECHR permits a deprivation of liberty in a number of specific cases, where that deprivation is lawful and in accordance with a procedure prescribed by law. Six situations are set out in Article 5(1) in which the deprivation of a person's liberty may be permissible. The European Court of Human Rights ("ECtHR") has stated that the list of exceptions to the right to liberty secured in Article 5(1) is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim and purpose of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty.
4. The exception of primary relevance to bail is Article 5(1)(c), which permits the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
5. The ECtHR has held that Article 5(1)(c) of the ECHR must be read in conjunction with Article 5(3). Article 5(3) is intended to minimise the risk of a detention under Article 5(1)(c) being arbitrary. Article 5(3) provides that –

"Everyone arrested or detained in accordance with the provisions of paragraph (1)(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

6. The first requirement introduced by Article 5(3) is to ensure "prompt and automatic judicial control of police or administrative detention ordered in accordance with the provisions of Article 5(1)(c)". What is prompt must be assessed in each case according to its special features, but the Strasbourg jurisprudence confirms that ordinarily the period should be no longer than 4 days. Strasbourg Jurisprudence also confirms that the "judge or other officer" must be independent of the prosecuting authorities, must consider the circumstances militating for and against continued detention and have the power to order that the accused person be released.
7. The second pair of requirements introduced by Article 5(3), read literally, appear to give the national authorities a choice between 2 courses of action, either of which will satisfy the requirements of the ECHR: either to bring the defendant to trial "within a reasonable time" or to release the defendant pending trial. However, it has been established that Article 5(3) confers a right both to trial within a reasonable time and a right (albeit not an absolute right) to release pending trial.
8. With regard to the right to release pending trial, the approach of the ECtHR is that the persistence of reasonable suspicion that the person arrested has committed an offence is essential for the validity of the continued detention of the person concerned. However, after a certain lapse of time, it is no longer sufficient on its own. Pursuant to Article 5(3) of the ECHR, subsequent detention will be found to be justified only if it was necessary in pursuit of a legitimate purpose.
9. The ECtHR has recognised that pre-trial detention may be compatible with the defendant's right to release under Article 5(3) ECHR where it is for the purpose of avoiding a real risk that, were the defendant released –

"a. he or she would:

1. fail to attend trial;
2. interfere with evidence or witnesses, or otherwise obstruct the course of justice;
3. commit an offence while on bail; or
4. be at risk of harm against which he or she would be inadequately protected; or

b.  a disturbance to public order would result."

10. Although these purposes (or grounds as they are often referred to) are capable of justifying pre-trial detention, the detention of an accused person will only be justified in the public interest if the existence of concrete facts outweighing the rule of respect for individual liberty has been convincingly demonstrated.
11. Moreover, the circumstances in which some grounds can be relied upon are more restricted than in the case of other grounds. If, for example, there is good reason to suppose that the defendant would abscond if granted bail, the ECtHR is likely to accept that a remand in custody is justified. Detention on the grounds of a supposed risk to public order or a need to protect the defendant, however, will be appropriate only in exceptional circumstances.
12. The States Assembly has recently enacted the Criminal Procedure (Bail) (Jersey) Law 2017 (L.20/2017) (the "Bail Law"); and the draft Law contains powers for the criminal courts to grant bail or remand a defendant in custody. These provisions include Article 15(2)(b), which sets out the Magistrate's power to grant bail or remand a defendant. Article 1(6) of the draft Law makes it clear that the requirements in the Bail Law, including the right to bail and the limits in respect

of the imposition of conditions on bail grantable under the draft Law apply to bail granted under the draft Law, unless express provision is made to the contrary in the draft Law.

13. The Bail Law is compatible with Article 5 of the ECHR because Article 7(1) of the Bail Law requires a court to consider whether to grant bail on each occasion that the defendant appears in criminal proceedings and Article 7(2) of the Bail Law provides that the defendant has the right to be granted bail, subject to the exceptions to that right introduced by Article 8 of, and Schedule 1 to, the Bail Law, and the requirement for the court to be satisfied that there are "substantial grounds" justifying the denial of bail should ensure that these grounds are convincingly demonstrated, satisfying the requirement in Article 5(3) ECHR.
14. Further, Article 10(1) and (2) of the draft Law place restrictions on the maximum length of adjournments during the course of criminal proceedings.

"(1) Where the Magistrate's Court adjourns a hearing in the exercise of case

management powers, or under any other provisions of this Law regardless of whether or not the defendant has legal representation, that hearing shall be adjourned for a period not exceeding 30 days.

(2) Where the Royal Court adjourns a hearing in the exercise of case management powers or under any other provisions of this Law and the defendant has no legal representation, that hearing shall be adjourned for a period not exceeding –

1. 42 days in respect of a defendant in custody; and
2. 60 days in respect of a defendant on bail."

15. These limits ensure that a defendant's case must be regularly reviewed by the courts. This will ensure that the grant or refusal of bail is reviewed at appropriate intervals during the course of proceedings, further ensuring compliance with Article 5(3) ECHR.
16. Of note is that the right to bail does not apply for the purposes of Article 39 (Bail on appeal or case stated), however there is no issue of compatibility with Article 5 of the ECHR because a defendant seeking bail in these circumstances would be lawfully detained following conviction by a competent court and would therefore fall within the exception from the right to liberty in Article 5(1)(a) of the ECHR, and so it is not necessary to extend the right to bail to these circumstances or justify refusing bail in the same way.

Article 6 of the ECHR right to a fair trial

17. Article 6 of the ECHR guarantees the right to a fair trial. It provides that –

"1. In the determination of his civil rights and obligations or of any criminal

charge against him, everyone is entitled to a fair and public hearing within a reasonable time by 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.

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

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

1. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
2. to have adequate time and facilities for the preparation of his defence;
3. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
4. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
5. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

18. Article 6 of the ECHR guarantees, inter alia, the rights of a defendant in criminal proceedings along with additional implied rights. The requirements of Article 6 of the ECHR have informed the whole of the framework for the conduct of criminal proceedings reflected in the draft Law so to provide a full account of every aspect of the draft Law where Article 6 ECHR is engaged would be impractical. Instead, this memorandum will focus on a smaller number of areas of the draft Law where significant or complex Article 6 ECHR compliance issues are raised and addressed by the draft Law.

The overriding objective and active case management

19. Part 2 of the draft Law makes provision for what will be termed the overriding objective'. This will ensure that criminal cases are dealt with justly; and Article 3 of the draft Law sets out a non-exhaustive list of the things that would constitute dealing with a case justly. Article 4 sets out the duties of a participant in criminal proceedings to –

1. progress the case in accordance with the overriding objective;
2. comply with procedures set out in the draft Law and the Criminal Procedure Rules ("CPRs") and practice directions made under Articles 112, 113 and 114; and
3. inform the court expeditiously of any significant failure to follow the relevant procedures, rules or directions.

20. Article 5 of the draft Law requires the criminal courts to ensure that the overriding objective is implemented every time it exercises its powers. This requirement is supplemented by Part 3 of the draft Law, including the requirement for the court to actively manage cases in criminal proceedings and Article 8 of the draft Law requires the parties in criminal proceedings to actively assist the court in fulfilling its active case management duty.
21. Article 6(1) of the ECHR provides that the defendant is entitled to determination of any criminal charge against him within a reasonable time. The creation of the overriding objective and the obligations and powers to actively manage cases reflect and implement the reasonable time requirements of Article 6 of the ECHR.

Disclosure of unused material

22. One of the requirements that arises from Article 6(1) of the ECHR is the requirement for there to be adversarial' proceedings, which entails having an opportunity to know and comment at trial on the observations filed or evidence adduced by the other party. A more specific requirement of adversarial

proceedings in a criminal trial requires the disclosure to the defence of evidence for or against the accused. Access to materials of a nature "vital" to the outcome of the case therefore must normally be granted by the prosecution to comply with Article 6 ECHR, (although the right to disclosure is not absolute).

23. So an issue arises where the use of confidential material is unavoidable. The question of non-disclosure must be put before the domestic courts, who must only approve the non-disclosure where that is strictly necessary. In this regard, challenges caused to the defence by non-disclosure must be sufficiently counterbalanced by safeguards adopted by the court, such as the release to the defence of a summary of the undisclosed evidence.
24. Article 83 of the draft Law sets out the prosecution's ongoing duty to disclose to the defendant any unused prosecution material which has not previously been disclosed to the defendant, and which might reasonably be considered capable of undermining the case for the prosecution against the defendant, or of assisting the case for the defendant. That duty does not apply if, on the application of the prosecution, the court is of the view that it would not be in public interest to disclose that material.
25. The power for the court to limit the extent of the duty to disclose unused material will therefore be compatible with Article 6(1), as long as the discretion is exercised in an Article 6(1) ECHR-compliant manner on the assessment of individual cases.

Duty to provide a defence case statement

26. The right to remain silent and not to incriminate oneself arises from the "fair trial" requirement in Article 6(1) of the ECHR. This right prevents the prosecution from obtaining evidence it could otherwise gain by requiring the accused to testify against himself.
27. Article 84 of the draft Law requires the defendant to provide to the prosecution and the court a defence case statement, which is a written statement setting out matters such as the nature of the defendant's defence and the matters of fact relied upon by the prosecution which the defendant disputes. Article 87 of the draft Law provides that the court may comment upon, or draw adverse inferences, if a defendant has failed to comply with the requirements with respect to defence case statements.
28. The requirement to provide a defence case statement does not infringe the rights in Article 6(1) and (2) ECHR to remain silent and be presumed innocent. The purpose of the defence case statement is to ensure that there is consistency and clarity as to the nature of the defence that the defendant wishes to put forward at trial, and no adverse inference may be drawn pursuant to these provisions where the defendant simply refuses to give evidence at trial.

Defendant's duty to attend trial and trial in absence

29. Article 6(1) and 6(3) provide a right for a defendant to be present at his or her trial, but this does not mean that there is an obligation on the authorities to bring a defendant to a hearing if the defendant decides not to participate in the proceedings. A defendant may be tried in his or her absence without infringing Article 6(1) and (3) of the ECHR.
30. Article 88 of the draft Law enables the court, with the consent of the defendant with respect to trial, or after hearing representations from the parties with respect to any other hearing of the court, to treat the defendant as if he or she is present in court if that defendant is able appear by way of a live television link. The

requirement for the consent of the defendant with respect to trial ensures that this provision does not infringe Article 6 of the ECHR.

31. Article 89 of the draft Law provides that the court may proceed to try a defendant in his or her absence if the defendant chooses not to exercise his or her right to be present at trial by voluntarily absenting himself or herself from the court at the beginning of, or during his or her trial. This will only take place if the court has considered a range of factors as noted in the draft Law.
32. Further, a defendant convicted in his or her absence may appeal against the conviction. In each case, the Royal Court or the Court of Appeal will have the power to order a re-trial either under Article 36 of the draft Law or Article 28 of 1961 Law respectively. Article 89 is therefore compatible with Article 6(1) and (3) of the ECHR.

Special measures

33. To be fair', the State must make provision to enable the defendant in a criminal trial to participate effectively in a court hearing. Where a defendant requires special assistance, he or she is required to bring the relevant physical or other deficiency to the attention of the trial court to enable the court to choose the best means of ensuring effective participation.
34. Article 101 of the draft Law sets out, for the purposes of Article 102, the meaning of "special measures" which may be provided under that Article to an "eligible witness" as defined under Article 101. An eligible witness may include the defendant.
35. Article 102 of the draft Law enables the court to order that special measures are put in place to assist an eligible witness. In respect of an eligible witness, the court must determine whether any of the special measures reasonably or practically available in relation to the witness would be likely to improve the quality of evidence given by the witness. The court is also given a discretion to order that special measures are put in place for a person who is not an eligible witness.
36. These provisions will provide the necessary assistance to defendants and other witnesses to help them give their best evidence, ensuring compliance with Article 6(1) and 6(3) of the ECHR.

Cross-examination of witness

37. There is an overlap between the right to adversarial proceedings and equality of arms arising from Article 6(1) of the ECHR and Article 6(3)(d), which affords three distinct rights, namely the rights to –

1. challenge witnesses for the prosecution (or test other evidence submitted by the prosecution in support of their case);
2. in certain circumstances, call a witness of one's choosing to testify at trial; and
3. examine prosecution witnesses on the same conditions as those afforded to the defence witnesses.

Where the ability to cross-examine a witness is restricted, this has the potential to infringe these rights.

38. Issues of compatibility therefore arise from Article 101 and 102 of the draft Law to the extent that they allow a prosecution witness to give pre-recorded video evidence before the trial takes place. Further, Article 104 of the draft Law operates to prohibit a defendant charged with any of the offences listed in Article 104(3) (which include sexual offences) from cross-examining: the victim in person; a person under the age of 18; or a person aged 18, or more, who is vulnerable.

Further, Article 105 enables the court to make an order prohibiting the defendant from cross-examining in person the witness if it appears to the court that the quality of the witness' evidence on cross-examination is likely to be diminished and that it would not be contrary to the interests of justice to make such an order.

39. These Articles of the draft Law may interfere with the defendant's Article 6(3)(d) ECHR rights. However, the draft Law, in particular Article 106, enables the court to consider the interests of justice and put sufficient safeguards in place to ensure that the trial, as a whole, remains fair. Further, Article 107 provides that where a defendant before the Royal Court is prevented from cross-examining a witness in person, the Bailiff must give the Jurats or jury such warning as he or she considers necessary to ensure that the defendant is not prejudiced by any inferences that might be drawn from the fact that the defendant has been prevented from cross- examining the witness.
40. These Articles of the draft Law are therefore compatible with Article 6(3)(d) of the ECHR in view of the safeguards attached to them.

Quashing an acquittal

41. Article 6(1) of the ECHR requires respect for the principle that once a criminal acquittal has become final, it must become binding and there should be no risk of its being overturned. However, exceptions from this principle may be made.
42. Article 115 of, and Schedule 2 to, the draft Law sets out the provisions dealing with the quashing of a person's acquittal. This only applies with respect to a qualifying offence'. The offences that will amount to qualifying offences will be prescribed by Regulations, and it is intended that these should be limited to very serious offences. Further, there must also be new and compelling evidence in the case, and is must be in the interests of justice for the order to be made. The limits on the extent of the power to quash an acquittal are therefore sufficient to comply with the ECHR.

Hearsay and bad character

43. Article 6(3)(d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. However, exceptions to this principle are possible, but must not infringe the rights of the defence, which, as a rule, require that the accused be given an adequate and proper opportunity to challenge and question a witness against him.
44. The amendments to the Police Procedures and Criminal Evidence (Jersey) Law 2003 permitting the admission of bad character and hearsay evidence, introduced by Article 117 of, and Schedule 3 to, the draft Law, have the potential to interfere with the right in Article 6(3)(d) of the ECHR.
45. However, there is no ECtHR case law to suggest that admitting a defendant's bad character is contrary to the right to a fair trial; and many Member States of the Council of Europe provide for the disclosure of previous convictions in criminal proceedings.
46. If a conviction were based solely or decisively on untested hearsay evidence, that may be contrary to the right to Article 6(3)(d) of the ECHR. However, where a conviction is based to an extent on statements made by a person whom the defendant has had no opportunity to examine, this may be compatible with Article 6(3)(d) of the ECHR, where there are sufficient safeguards in place to ensure the probative value of the evidence is properly tested.

47. The safeguards on the admission of hearsay evidence which have been set out in Schedule 5 to the draft Law closely follow those in place in the UK, which have previously been held to be adequate by the ECtHR. These safeguards will ensure the fairness of criminal proceedings where hearsay evidence is relied on, so that the draft Law is compliant with Article 6(3)(d) of the ECHR.

Compellability and Articles 8 of the ECHR

48. Article 8 ECHR provides –

"(1) Everyone has the right to respect for his private and family life, his home

and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

49. Article 8(2) provides that an interference with the Article 8(1) right is permitted where it is in the interests of, amongst other things, the prevention of disorder or crime and the protection of the rights and freedoms of others. In principle, an interference with a person's Article 8(1) right would be justified from an ECHR perspective, so long as the interference is in accordance with law and is no more than what is necessary in a democratic society (i.e. it is proportionate).
50. Article 95 of the draft Law sets out which witnesses are compellable to give evidence on behalf of the prosecution or defence. These include –

1. the blood relatives of a defendant;
2. the relatives by adoption of a defendant; or
3. the relatives either by marriage or by the formation of a civil partnership of a defendant.

51. Where a spouse or civil partner of a defendant are jointly charged with an offence, neither is compellable to give evidence on behalf of the defence or the prosecution. However, a spouse or civil partner is otherwise compellable to give evidence on behalf of the defence or, on condition the offence is one set out in Schedule 1, on behalf of the prosecution.
52. Compelling a person to give evidence against his or her spouse or civil partner may amount to an interference with his or her Article 8(1) ECHR rights. However, such interference will be in accordance with the law, and pursue the legitimate aim of ensuring that the perpetrators of serious crimes are prosecuted. Limiting the offences to which the exception from spousal privilege apply to those in Schedule 1, which are the offences that are most likely to be charged in respect of domestic violence, will help to ensure that the interference is proportionate to this aim.

Reporting restrictions and Articles 6 and 10 of the ECHR

53. Article 10 ECHR provides –

"(1) Everyone has the right to freedom of expression. This right shall include

freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

54. Article 10(2) ECHR provides that an interference with the corresponding ECHR right is permitted where it is in the interests of, amongst other things, the prevention of disorder or crime and the protection of the rights and freedoms of others. In principle, an interference with a person's Article 10(1) ECHR rights would be justified so long as the interference is in accordance with law and is no more than what is necessary in a democratic society (i.e. it is proportionate).
55. In addition, Article 6(1) of the ECHR provides the right to a public hearing and decisions to protect criminal defendants from the secret administration of justice and to ensure greater visibility of justice, maintaining the confidence of the society in the judiciary. These requirements enable the press to exercise its function of public watchdog, which is also guaranteed by Article 10 of the ECHR.
56. The rights accorded by Article 6(1) and 10 of the ECHR are clearly qualified, as Article 6(1) ECHR also makes it clear that the press and public may be excluded from the trial in certain circumstances, though the presumption must always be in favour of a public hearing, and the exclusion must be strictly required by the circumstances of the case.
57. There are restrictions set out in Article 61 of the draft Law on reporting in respect of preparatory hearings and pre-trial rulings, subject to certain exceptions. This provision provides for the Bailiff or the Court of Appeal to have the power to order the lifting of such restrictions in whole or in part.
58. Article 90 of the draft Law enables the court, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in criminal proceedings, to order that a report of the proceedings in a publication or relevant programme in Jersey be postponed for any period that the court thinks necessary. In addition, paragraph 9 of Schedule 2 makes provisions for reporting restrictions in respect of matters surrounding an application to quash an acquittal and order a retrial.
59. The restrictions are limited so that they apply only for the period that reporting may prejudice the conduct of a trial. The restrictions are no more than is necessary to balance the rights of a defendant to receive a fair trial under Article 6(1) of the ECHR and the rights of journalists to report on proceedings under Article 10 of the ECHR and are therefore compatible with the ECHR.

Explanatory Note

The draft Criminal Procedure (Jersey) Law 201- (the "CPL") prescribes the procedure to be followed in, or in connection with criminal proceedings against a person charged with, or convicted of an offence (referred to throughout as "defendant"). The CPL repeals and re-enacts, with modifications, the following enactments –

Loi (1835) sur la procédure devant la Cour Royale;

Loi (1853) établissant la Cour pour la répression des moindres délits;

Loi (1862) sur la procédure devant la Cour Royale;

Loi (1864) Réglant la Procédure Criminelle;

Loi (1912) sur la Procédure devant la Cour Royale (Jours Fériés, Assises Criminelles, etc.);

Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 (the "1949 Law").

The CPL also introduces new measures to provide for the quashing of acquittals by the Court of Appeal (see Schedule 2) and amends the Police Procedures and Criminal Evidence (Jersey) Law 2003 (the "PPCE Law", see Schedule 3) in relation to hearsay and bad character evidence in criminal proceedings.

Part 1: Interpretation and Application – Article 1

Article 1 defines words and expressions used throughout the CPL and provides for its application. It clarifies that the Bail (Jersey) Law 2017 applies to bail grantable under the CPL unless a provision of the CPL expressly provides otherwise and that, subject to the procedures set out in Parts 8 and 9 of the Mental Health (Jersey) Law 2016 ("Mental Health Law"), this Law applies in respect of criminal proceedings involving a defendant within the meaning of the Mental Health Law.

Part 2: The Overriding Objective – Articles 2 to 6

Article 2 declares that the overriding objective of the CPL is to ensure that criminal cases are dealt with justly.

Article 3 sets out a non-exhaustive list of the sorts of things that would constitute dealing with a case justly for the purposes of meeting the overriding objective.

Article 4 sets out the 3 duties to which a participant in criminal proceedings is subject to. A participant (i.e. anyone involved in the case or its conduct) must progress the case in accordance with the overriding objective; comply with procedures set out in the CPL, Criminal Procedure Rules ("CPRs" – see Articles 112 and 113) and practice directions (see Article 114); and inform the court expeditiously of any significant failure to follow the relevant procedures, rules or directions.

Article 5 requires the court (i.e. the Magistrate's Court, the Youth Court and the Royal Court) to ensure that the overriding objective is implemented every time it exercises powers  under the  CPL, other enactments,  CPRs, practice  directions,  or interprets legislation.

Article 6 enables the States to amend Part 2 by Regulations.

Part 3: The Active Management of Criminal Proceedings – Articles 7 to 11

Article 7 requires the court, in furthering the overriding objective, actively to manage cases in criminal proceedings. This Article sets out a non-exhaustive list of the sorts of things that would constitute active case management such as monitoring progress, encouraging participant co-operation and making use of technology.

Article 8 requires the parties in criminal proceedings, i.e. the defendant or his legal representatives and the prosecution, actively to assist the court in fulfilling its active case management duty. This Article sets out a non-exhaustive list of the sorts of things that would constitute active assistance such as regular communication between the parties and the reporting of those communications to the court.

Article 9 enables the court to issue wide ranging directions for the purpose of fulfilling its active case management duty.

Article 10  provides that where the Magistrate's Court adjourns a hearing in the exercise of case management powers, that hearing must be adjourned for a period not exceeding 30 days (regardless of whether or not the defendant has legal representation). Where the Royal Court adjourns a hearing and the defendant has no legal representation, that hearing must be adjourned for a period not exceeding 42 days in respect of a defendant in custody, and 60 days in respect of a defendant on bail. Where the court has ordered proceedings to be halted and left on file (as described in  Article 82(2)), such an order is not an adjournment for the purposes of Article 10.

Article 11 enables the States to amend Part 3 by Regulations. Part 4: Role of the Attorney General – Articles 12 to 14

Article 12 provides that only the Attorney General, or a person acting on his or her behalf, may conduct the prosecution of criminal proceedings. This provision does not affect the powers of a Centenier, under the Honorary Police (Jersey) Law 1974, to charge, grant bail, conduct a parish hall inquiry or present a defendant before the Magistrate's Court.

Article 13 describes the procedures to be followed if a provision of an enactment or rule of customary law requires the consent of the Attorney General before criminal proceedings may be initiated. The Attorney General may delegate the giving of his or her consent to a prosecutor or Crown Advocate, and the States may, by Regulations, amend any enactment (including the CPL) for the purpose of removing any provision requiring the consent of the Attorney General before criminal proceedings may be initiated.

Article 14 provides that, notwithstanding any rule of customary law or under an enactment that criminal proceedings must be commenced in the Magistrate's Court, the Attorney General may, if he or she considers it justified, directly initiate criminal proceedings in the Royal Court instead. This Article sets out the procedure for summoning a person to attend the Royal Court to answer the indictment charging the offence, and lodged by the Attorney General under Article 43. If it appears to the Attorney General that the person will fail to comply with the summons, the Attorney General may apply to the Bailiff for an order to arrest that person.

Part 5: Functions and Jurisdiction of the Magistrate – Articles 15 and 16

Article 15 is derived from Article 2 of the 1949 Law but is expanded to clarify the scope of the Magistrate's functions under the CPL and in relation to the Criminal

Justice (Young Offenders) (Jersey) Law 2014 (the "Young Offenders Law"). The Magistrate may determine criminal proceedings sitting anywhere and at any time and has the power to remand a defendant into custody or on bail.

Article 16 is derived from Article 3 of the 1949 Law and sets out the maximum penalties which the Magistrate may impose on a defendant upon his or her conviction for an offence.

Part 6: Proceedings in the Magistrate's Court – Articles 17 to 41

Article 17 explains that the provisions in Part 6 deal with criminal proceedings before the Magistrate's Court and appeals to the Royal Court.

Article 18 sets out the definition of words and expressions used specifically in Part 6.

Article 19 is derived from Article 9 of the 1949 Law. It provides for the summoning to the Magistrate's Court of a person who is to be charged with an offence. The provision sets out the information which must be contained in the summons including the details of the charge and the offence.

Article 20 is derived from Article 12 of the 1949 Law and provides that the Magistrate may order the arrest of a person who fails, without reasonable excuse, to answer a summons.

Article 21 provides that a person who fails, without reasonable excuse, to answer a summons is guilty of an offence and is liable, on summary conviction, to imprisonment for a term not exceeding 12 months and to a fine of an unlimited amount.

Article 22 is derived from Article 9 of the 1949 Law, and provides that a summons is not defective simply because the content of the summons varies from the evidence adduced. However, if it appears to the Magistrate that a variation between the contents of the summons and the evidence has misled the summoned person, the Magistrate must exercise such case management powers as are necessary, which might include adjourning the case, or giving directions.

Article 23 sets out the procedure to be followed on a defendant's first appearance before the Magistrate's Court. A defendant who chooses not to enter a plea (as defined in Article 1(4)), whether at that first hearing, or any subsequent hearing, shall be taken to have pleaded "not guilty". However, the Magistrate may direct that the defendant need not enter a plea.

Article 24 enables the prosecution, at any stage of the proceedings, to amend an offence with which a defendant is charged. Amendment includes changing the particulars of the offence, substituting the offence with another or adding new or different offences. Any amended offences must be read out to the defendant who will be asked to enter a plea in respect of them.

Article 25 sets out the procedure to be followed where a defendant has pleaded guilty to the offence charged. In such a case the Magistrate's Court will record the defendant as convicted of the offence. The Magistrate must decide whether or not the defendant should be sentenced in the Magistrate's Court or the Royal Court. If the gravity of the offence would not require the imposition of a penalty in excess of a fine of £10,000 and imprisonment for a term of 12 months, then the Magistrate must sentence the defendant. If, on the other hand, the gravity of the offence would require a sentence greater than the maximum penalty imposable by the Magistrate under Article 16, then the Magistrate must send the defendant to the Royal Court for sentencing. Even if the offence is one which falls within the scope of the Magistrate's sentencing jurisdiction,

but it nevertheless would be in the interests of justice to do so, the Magistrate is required to send the defendant to the Royal Court for sentencing. Before deciding on the sentencing venue the Magistrate is required to hear any representations by or on behalf of the prosecutor and defendant and have regard to all the circumstances of the case and the defendant's previous convictions, if any.

Article 26 sets out the procedure to be followed where a defendant has pleaded not guilty to the offence charged. The Magistrate must decide whether or not the defendant should be tried in the Magistrate's Court or the Royal Court. As with Article 25, the Magistrate is required to make the venue determination based upon whether, if the defendant were found guilty, the gravity of the offence would require a sentence falling within, or outside the scope of the Magistrate's sentencing jurisdiction. Also, as with Article 25, before deciding on the trial venue, the Magistrate must hear representations from the parties, but not as regards the defendant's previous convictions. If the defendant is to be tried in the Magistrate's Court, but information later comes to light that would indicate that, if the defendant were found guilty, the gravity of the offence would require the imposition of a penalty in excess of the Magistrate's sentencing jurisdiction, the Magistrate must send the defendant to the Royal Court for trial instead.

Article 27 sets out the procedure to be followed for the sentencing of a defendant following his or her trial in the Magistrate's Court. If, following the trial, it appears that the gravity of the offence would require the imposition of penalty in excess of the Magistrate's sentencing jurisdiction, the Magistrate must send the defendant to the Royal Court for sentencing. Even if the offence is one which falls within the scope of the Magistrate's sentencing jurisdiction, but it nevertheless would be in the interests of justice to do so, the Magistrate is required to send the defendant to the Royal Court for sentencing. Before deciding on the sentencing venue the Magistrate is required to hear any representations by the parties and have regard to all the circumstances of the case and the defendant's previous convictions, if any.

Article 28 sets out the procedures to be followed once the Magistrate has decided to send a defendant to the Royal Court for sentencing or trial. The Magistrate may issue case management directions including setting a date for the first hearing before the Royal Court, if practicable. If it emerges that it would be appropriate for the Magistrate to sentence or try the defendant after all, the Magistrate may direct the return of the case to the Magistrate's Court, provided this occurs at any time up to (but not including) the date set for the first hearing before the Royal Court.

Article 29 sets out the procedures to be followed where a defendant is charged with more than one offence which are unconnected. The Magistrate may direct that the offences are considered at the same hearing to determine the sentencing or trial venue. The Magistrate may also direct that the defendant is sent to the Royal Court for sentencing or trial in relation to an unconnected offence even if that offence would fall within the scope of the Magistrate's sentencing jurisdiction.

Article 30 sets out the procedures to be followed where the Magistrate is to make a venue determination in respect of more than one defendant charged with offences which appear to be connected. Such a determination must be taken having regard to the general principle that it is desirable for defendants charged with connected offences to be tried or sentenced together in the Magistrate's Court or Royal Court, as the case may be. This provision also sets out the procedures on venue determination where a child or young person pleads not guilty to committing a connected offence and an adult co-defendant is to be sent to the Royal Court for sentencing or trial.

Article 31 sets out the Magistrate's powers, within 28 days of passing the sentence or making a community service order, probation order, or order as to costs, to replace or rescind that sentence or order if it would further the overriding objective to do so.

Article 32 applies if the Royal Court remits a case to the Magistrate's Court for sentencing or trial. In such a case, the Magistrate's Court must proceed as if the case had never be sent to the Royal Court in the first place.

Article 33 sets out a defendant's right of appeal to the Royal Court. Essentially, the defendant can appeal against –

1. the sentence or order (i.e. community service order, probation order, or order as to costs), if he or she pleaded guilty or admitted the facts;
2. the conviction, sentence or order, if he or she pleaded not guilty; or
3. the conviction, if her or she pleaded not guilty and following the trial was sent to the Royal Court for sentencing.

Article 34 is derived from Article 18 of the 1949 Law and sets out the procedures for giving a notice of appeal which must be given not more than 7 days after the day the defendant was convicted, sentenced, or the order (see sub-paragraph (a) above) was made.

Article 35 is derived from Article 19 of the 1949 Law and sets out the procedures for abandoning an appeal. Notice of abandonment has to be given not later than the 3rd working day before the day fixed for the appeal, but an appellant who has not given such notice may apply for leave to abandon his or her appeal up to, and including the day before the appeal hearing.

Article 36 is derived from Article 20 of the 1949 Law. On an appeal, the Royal Court may confirm, reverse or vary the decision of the Magistrate's Court; remit the matter to the Magistrate's Court with its opinion; make such other order as it thinks just, and may by such order exercise any power which the Magistrate's Court might have exercised. The Royal Court may impose any penalty, whether more or less severe than that imposable by the Magistrate under Article 16. If the appeal is successful, the Royal Court may order the payment out of public funds of such sums as appear to the Court reasonably sufficient to compensate the appellant for any expenses properly incurred.

Article 37 is derived from Article 21 of the 1949 Law and provides that any party who is aggrieved by the conviction, order, determination or other proceeding of the Magistrate's Court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Magistrate to state a case for the opinion of the Royal Court on the question of law or jurisdiction involved. If a defendant has a right of appeal under Article 33 but makes an application under this Article, he or she will no longer have a right of appeal under Article 33.

Article 38 is derived from Article 22 of the 1949 Law and provides that where the Magistrate has decided to state a case, the Royal Court may reverse, affirm or amend the Magistrate's determination; remit the matter to the Magistrate's Court; or make such other order in relation to the matter, including an order as to costs.

Article 39 is derived from Article 24 of the 1949 Law and applies where a defendant has given notice of appeal or has applied for a case to be stated. A defendant may be granted bail but the right of a defendant to be granted bail under Article 7(2) of the Criminal Procedure (Bail) (Jersey) Law 2017 (the "Bail Law") does not apply. A defendant granted bail must immediately surrender himself or herself to the custody of a police officer or the Viscount if or she subsequently wishes to abandon his or her appeal, or application to the Magistrate to state a case. A defendant who, without

reasonable excuse, fails to surrender himself or herself as required is guilty of an offence and liable to imprisonment for a term not exceeding 12 months and to a fine of an unlimited amount.

Article 40 is derived from Article 25 of the 1949 Law. Where notice of appeal is given, or an application for a case to be stated is made in relation to an order the effect of which is to suspend or withdraw a licence or other permit, the Magistrate may direct that the order be stayed pending the disposal of the appeal or application. Where the Magistrate has ordered the confiscation of goods, the goods must be confiscated pending the disposal of the appeal or application.

Article 41 makes miscellaneous procedural provisions relating to the hearing of appeals, the effect of judgements or orders of the Royal Court and costs.

Part 7: Proceedings in the Royal Court – Articles 42 to 51

Article 42 explains that the provisions in Part 7 deal with criminal proceedings before the Royal Court.

Article 43 sets out the procedural requirements relating to the bringing of a defendant before the Royal Court after he or she has been sent there from the Magistrate's Court or where the Attorney General has decided to initiate criminal proceedings directly in the Royal Court under Article 14.

Article 44 is analogous to Article 20 and provides for the arrest of a defendant who fails to attend his or her first appearance before the Royal Court. A defendant who fails, without reasonable excuse, to attend is guilty of an offence and is liable, on summary conviction, to imprisonment for a term not exceeding 12 months and to a fine of an unlimited amount.

Article 45 is analogous to Article 23 and sets out the procedure to be followed on a defendant's first appearance before the Royal Court. The defendant is formally identified and the indictment (as defined in Article 1(1) being the document which formally specifies the offence with which a person is charged and sets out the particulars of the offence) is read out. A defendant who chooses not to enter a plea whether at that first appearance or subsequently, shall be taken to have pleaded "not guilty". However, the Bailiff may direct that the defendant need not enter a plea. Where a defendant has pleaded guilty to the offence, or is a defendant who has been sent to the Royal Court for sentencing, the Royal Court may, after enquiring into the circumstances of the case and hearing representations from the parties, sentence the defendant at that hearing.

Article 46 is analogous to Article 24 and enables the Royal Court, at any stage of the proceedings, to amend the indictment by changing the particulars of the offence, substituting the offence with another or adding new or different offences, or removing an offence. Any amended offences must be read out to the defendant who will be asked to enter a plea in respect of them.

Article 47 enables the Royal Court to remit a defendant to the Magistrate's Court for sentencing or trial if the circumstances justify it, including where the nature or gravity of the offence has changed or reduced to the extent that the Magistrate would be able to impose a penalty under Article 16.

Article 48 provides that a defendant may be tried either by the Royal Court sitting with a jury, or by the Inferior Number of the Royal Court sitting without a jury depending whether the offence is one under customary law, or under an enactment. If the indictment only charges an offence which is an offence under customary law, the

defendant may elect to be tried with or without a jury. If the defendant make no such election or the indictment charges 2 or more offences at least one of which is an offence under customary law and the other an offence under an enactment, the Royal Court must decide the method of trial. Unless an enactment expressly provides otherwise, a defendant whose indictment only charges an offence which is an offence under an enactment must be tried by the Inferior Number of the Royal Court sitting without a jury.

Article 49 applies where a defendant is to be tried by the Royal Court sitting with a jury. In a trial under this Article the Royal Court is be composed only of the Bailiff sitting with 12 jurors selected in accordance with Article 66. Where a defendant is found guilty, the Royal Court must for the purposes of sentencing that defendant, sit as the Inferior Number or as the Superior Number, depending upon the penalty that the Court may decide to impose.

Article 50 applies where a defendant found guilty is to be sentenced, and the defence disputes the facts upon which the defendant was found guilty. Under this Article, the trial court can communicate its view of the facts to the sentencing court being either the  Royal Court sitting as the  Inferior Number or Superior number (as the case requires).

Article 51 provides that where there is a hung verdict by reason of the Inferior Number not being fully constituted because of the indisposition of the 2nd Jurat (see Article 15A(2)  of the Royal Court (Jersey) Law 1948 as inserted by paragraph 2(c)(iii) of Schedule 4), the Bailiff must determine the verdict.

Part 8: Preparatory hearings and rulings in the Royal Court – Articles 52 to 62

Article 52 explains that the provisions of  Part 8 apply in relation to criminal proceedings which have been sent from the Magistrate's Court to the Royal Court or where proceedings are directly initiated before the Royal Court under  Article 14. Part 8 mostly re-enacts Part 10 of the PPCE Law which is repealed by paragraph 11 of Schedule 3.

Article 53 is derived from Article 84 of the PPCE Law and empowers the Bailiff , on application, or on his or her own motion, to order a preparatory hearing for certain trials which appear to him or her to be likely to be so long or so complex that a preparatory hearing would have substantial benefits for the purposes of identifying issues which are likely to be material to the verdict of the Royal Court or jury; assisting comprehension of those issues; expediting the proceedings before the Royal Court or jury; or assisting the management of the trial.

Article 54 is derived from Article 85 of the PPCE Law and provides that the trial begins at the commencement of the preparatory hearing and that the indictment is to be read out at the start of that hearing unless it has previously been read out.

Articles 55 and 56 are derived from Articles 86 and 87 of the PPCE Law and provide that the Bailiff may adjourn a preparatory hearing and make rulings on admissibility of evidence and questions of law. The Bailiff may also order the prosecution and the defence to make certain specified disclosures aimed at achieving one or more of the purposes set out in Article 53 and he or she may make such an order at or before the commencement of the preparatory hearing.

Article 57 is derived from Article 89 of the PPCE Law and permits the Bailiff or any other party to the proceedings to comment where a party departs from any facts disclosed under  Article 55. The Royal Court or jury may draw any reasonable inferences from that departure.

Article 58 is derived from Articles 88 and 90 of the PPCE Law and permits a party to appeal to the Court of Appeal against any ruling of the Bailiff , with leave of the Bailiff or the Court of Appeal. This Article also enables rules of court to be made under the Court of Appeal (Jersey) Law 1961 (the "Court of Appeal Law") to specify the time within which an appeal under this Part to the Court of Appeal must be made and to regulate generally the practice and procedure relating to any such appeal.

Article 59 is derived from Article 93 of the PPCE Law and defines a pre-trial hearing as a hearing if it relates to a trial for an offence in the Royal Court and it takes place after the defendant has been sent for trial to the Royal Court under Part 6, or after the proceedings for the offence have been initiated in the Royal Court, under Article 14, and before the start of the trial.

Article 60 is derived from Article 94 of the PPCE Law and permits the Bailiff either on application or on his or her own motion to rule on admissibility of evidence or questions of law at a pre-trial hearing.

Article 61 is derived from Article 95 of the PPCE Law and restricts the reporting in publications (written or broadcast) of preparatory hearings and rulings subject to certain exceptions, and provides for the Bailiff or the Court of Appeal to have the power to order the lifting of such restrictions whether in whole or in part.

Article 62 creates an offence if a person contravenes Article 61 by including a report in a publication. A person guilty of an offence under this Article is liable to a fine of an unlimited amount.

Part 9: Juries – Articles 63 to 76

Article 63 provides that every person who is aged 18 and up to, and including, the age of 71, is registered to vote, and is not otherwise exempt from, or disqualified for jury service, is eligible to serve as a juror. This Article also lists the persons who are exempt from, or disqualified for jury service.

Article 64 provides a Regulation making power to make provision for the compilation by the Viscount of a list of persons who are eligible to serve as jurors ("jury list"), and the preparation of a list of persons ("panel list") taken from the jury list, who may be called upon to serve as jurors. Any person whose name appears on the panel list will be summoned by the Viscount to attend for jury service.

Article 65 enables the Viscount of his or her own motion or on the written application of a person summoned to attend for jury service, to exempt that person from his or her duty to attend, provided the Viscount considers that the person would be exempted from or disqualified for jury service under Article 63 or under any other enactment; or for any other reason which the Viscount considers sufficient to justify such exemption. A person who, with the intention of obtaining an exemption under this Article, makes a false declaration or representation in a written application, is guilty of an offence and liable to a fine of an unlimited amount.

Article 66 provides that a jury is constituted of 12 persons. This Article also sets out the jury selection process in relation to the persons who have been summoned to attend for jury service. Where a trial is expected to last for more than 5 days, 2 persons, in addition to the 12 already selected, must be selected to serve as reserve jurors. A reserve juror may be called to serve on the jury if, before the commencement of the Bailiff 's summing up of the case, the number of jurors is reduced, but will be discharged from jury service if he or she is not so required.

Article 67 creates an offence if a person fails, without reasonable excuse, to attend for jury service, or fails to serve on a jury once selected. A person guilty of an offence under this Article is liable to a fine of an unlimited amount.

Article 68 enables the Bailiff to discharge a person from the requirement to attend for jury service if it appears that 2 people on the panel list are closely related to each other – e.g. married to each other, in a civil partnership with each other, or are siblings. In such a case the second person on the panel list would be discharged.

Article 69 enables the defence or prosecution to challenge, for a good reason, any potential juror on the panel list. The Bailiff will only allow a challenge for a legitimate good reason if there is a risk of material prejudice, the potential juror is manifestly unsuitable or, in the interests of justice. If, when all the names on the panel list have been read out, the number of unchallenged or undischarged persons remaining is insufficient to constitute a jury, the trial must be postponed until the persons whose names appear on any supplementary or new panel list are summoned to constitute a jury in accordance with Article 66.

Article 70 requires every juror to take an oath or make a solemn affirmation whereupon he or she becomes a full jury member until discharged from the jury.

Article 71 provides that if during a trial the number of jurors is reduced to 10, the jury shall be deemed to be duly constituted, and the proceedings must continue. But if the number of jurors falls below 10, and there is an insufficient number of reserve jurors to constitute a jury of not less than 10, the Bailiff must discharge the jury from the proceedings and the Attorney General must notify the Bailiff as to whether or not there is to be a retrial.

Article 72 prohibits the jury members from communicating with anyone except each other or staff of the Royal Court or Viscount unless the Bailiff permits the jurors, at any time either before or after they have retired to consider their verdict, to leave the custody of the Viscount and to separate, in which case the prohibition against communicating with anyone only applies to communications concerning the case. A juror who contravenes the communication prohibition is guilty of an offence and liable to imprisonment for a term not exceeding 2 years and to a fine of an unlimited amount. The jurors are required to select from one of their number a juror who will chair the jury's deliberations and deliver the jury's verdict.

Article 73 provides that the Bailiff may order the members of the jury to surrender, for a period, any form of device which is capable of transmitting or receiving, in any manner, communications in any form. It is a contempt of court for a member of a jury to fail to surrender such a device in accordance with the Bailiff 's order.

Article 74 provides that it is an offence for a juror who, during the period of a trial, researches a case by intentionally searching for information on an electronic database, including via the internet and when doing so, knows or ought reasonably to know that the information is, or may be relevant to the case which is being tried. A juror guilty of an offence under this Article is liable to imprisonment for a term not exceeding 2 years and to a fine of an unlimited amount.

Article 75 provides that if a verdict cannot be delivered on the same day as the jury retires to consider its verdict, the proceedings must be adjourned until a verdict is delivered. The jury must deliver a unanimous verdict unless the Bailiff directs that the jury may deliver a majority verdict. A majority verdict is delivered if at least 10 out of 12 jurors agree, or at least 9 jurors agree if there are less than 12 of them. When the jury is ready to deliver its verdict, the Judicial Greffier must ask the jury chairperson whether the defendant is guilty or not guilty of the offence charged in the indictment and in the case of a majority verdict, how many jurors were in favour of acquitting and

how many jurors were in favour of convicting the defendant. If, following such period of time for deliberation as the Bailiff thinks reasonable the jury is unable to deliver a majority verdict, the Bailiff must discharge the jury from the proceedings and from the custody of the Viscount. Where no verdict is reached, the Attorney General must, not more than 7 days after the day the jury is discharged, notify the defendant and the Bailiff whether or not there is to be a retrial of the proceedings.

Article 76 sets out the procedure for formally discharging a defendant from criminal proceedings where the Attorney General has given notification that there is to be no retrial.

Part 10: Miscellaneous Procedures in Magistrate's Court and Royal Court – Articles 77 to 91

Article 77 explains that the provisions of  Part 10 apply in relation to criminal proceedings before the Magistrate's Court and the Royal Court and sets out definitions of words used in this Part.

Article 78 applies where the court orders the arrest of a person. The court may grant the person bail by endorsing the order with a direction that the person arrested is to be released on bail subject to a duty to appear before the court or on condition that the person provides a security for his or her appearance before the court. If a person granted bail subject to a security fails, without reasonable excuse, to appear before the court as notified, the security must be forfeited in accordance with Article 13 of the Bail Law. A person granted bail who, without reasonable excuse, fails to appear before the court as notified, is also guilty of an offence. A person guilty of an offence under this Article is, by reason of Article 20 of the Bail Law, liable to imprisonment for a term not exceeding 12 months and to a fine of an unlimited amount.

Article 79 is the provision which gives effect to what is commonly referred to as a "Newton hearing" and sets out the procedure to be followed where a defendant pleads guilty but disputes the facts of the offence alleged by the prosecution. The court may invite the parties to make representations and a hearing of the evidence of the facts in dispute may be required by the court.

Article 80 enables a defendant to withdraw a guilty plea at any time, with the court's permission.

Article 81 provides that the Attorney General may, at any time during the preliminary stages of the proceedings, give notice that he or she does not want the proceedings to continue in relation to an offence. This Article sets out the procedure for discontinuing the proceedings. The discontinuance of proceedings does not prevent the Attorney General from instituting fresh proceedings in respect of the same offence provided that certain circumstances specified in this Article justify the institution of fresh proceedings in respect of that offence.

Article 82 enables the Attorney General, at any time, with leave of the court to withdraw or recommence previously withdrawn criminal proceedings, or progress previously halted criminal proceedings.

Article 83 sets out the prosecution's ongoing duty to disclose to the defendant any unused prosecution material which has not previously been disclosed to the defendant and which might reasonably be considered capable of undermining the case for the prosecution against the defendant, or of assisting the case for the defendant. Unless the court orders otherwise, that duty does not apply if the prosecution is of the view that it would not be in public interest to disclose that material.

Article 84 requires the defendant to provide to the prosecution and the court a defence case statement which is a written statement in a form prescribed by Criminal Procedure Rules containing the particulars set out in Article 85.

Article 85 sets out the matters which must be contained in a defence case statement, such as the nature of the defendant's defence and the matters of fact relied upon by the prosecution which the defendant disputes. A defence case statement must also identify any witness the defendant intends to call in support of an alibi.

Article 86 requires the defendant to notify the prosecution and the court whether he or she intends to call any witnesses, and to provide details of those witnesses' names, addresses and dates of birth.

Article 87 provides that the court may comment, or draw adverse inferences if a defendant has failed to comply with the requirements to give a defence case statement, serve one which sets out the required particulars under  Article 85, or sets out inconsistent defences, or at the trial the defendant puts forward a new or different defence.

Article 88 is derived from Article 6 of the 1949 Law and enables the court, with the consent of the defendant, to treat the defendant as if he or she is present in court if that defendant is able to see and hear the court and be seen or heard by the court by way of a live television link. In respect of any hearing other than the trial, the court may, nevertheless, direct that the defendant is treated as present in court via a live television link without the consent of the defendant, after hearing representations from the parties.

Article 89 provides that unless the court excuses a defendant from attending his or her trial, a defendant is required to be present at court throughout his or her trial. The court may proceed to try the defendant in his or her absence if the defendant chooses not to exercise his or her right to be present at his or her trial by voluntarily absenting himself or herself from the court at the beginning of, or during his or her trial.

Article 90 enables the court, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in criminal proceedings, order that inclusion of a written report of the proceedings in a publication in Jersey or broadcast in programme for reception in Jersey, be postponed for any period that the court thinks necessary. A person specified in Article 90(5) who contravenes an order under this Article is guilty of an offence and liable to a fine of an unlimited amount.

Article 91 provides a defence in respect of an offence committed under Article 90(5) if the person does not know and has no reason to suspect that an order has been made under Article 90(1). It is for that person to prove that he or she has a defence under this Article.

Part 11: Provisions in Relation to Defendants and Witnesses – Articles 92 to 108

Article 92 explains that the provisions of  Part 11 apply in relation to criminal proceedings before the Magistrate's Court and the Royal Court and sets out definitions of words used in this Part.

Article 93 provides that everybody, regardless of age, is competent to give evidence, unless it appears to the court that he or she is not a person who is able to understand questions put to him or her as a witness and give answers to them which can be understood. A defendant is not competent to give evidence for the prosecution.

Article 94 provides that the Bailiff or Magistrate (as the case may be) must determine, whether a witness is competent to give evidence in criminal proceedings if raised by

the court or a party to the proceedings. The party calling the witness must satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings.

Article 95 sets out which witnesses are compellable to give evidence on behalf of the prosecution or defence. These are –

1. the blood relatives of a defendant;
2. the relatives by adoption of a defendant; or
3. the relatives either by marriage or by the formation of a civil partnership of a defendant.

Where a spouse or civil partner of a defendant are jointly charged with an offence neither is compellable to give evidence on behalf of the defence or the prosecution. However, a spouse or civil partner is otherwise compellable to give evidence on behalf of the defence or, on condition the offence is one set out in Schedule 1, on behalf of the prosecution.

Article 96 provides that a witness who is competent to give oral evidence in criminal proceedings must give that oral evidence on oath. The Bailiff or Magistrate (as the case may be) must determine whether a witness is competent to give evidence in criminal proceedings if raised by the court or a party to the proceedings. The witness may not be sworn for the purpose of giving evidence on oath unless he or she has attained the age of 14, and has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility involved in taking an oath to tell the truth.

Article 97  provides that a witness who is competent to give evidence in criminal proceedings, but by virtue of Article 96 is not permitted to be sworn for the purpose of giving evidence on oath in such proceedings, must give unsworn evidence. A deposition of unsworn evidence must be treated as if it had been given on oath.

Article 98 provides that where a person has made a written statement in accordance with Article 9 of the Criminal Justice (Evidence and Procedure) (Jersey) Law 1998, a person authorized by the Attorney General may warn that person to attend before the court to give oral evidence on the day and at the time so warned. A person who fails to comply with that warning, without reasonable excuse, is guilty of an offence punishable with a fine of level 3 on the standard scale (currently £10,000).

Article 99 enables the court to issue a witness summons if it is satisfied that a person is likely to be able to give evidence in support of a party applying for a witness summons under this Article. The court would need to be satisfied that the evidence is likely to be material evidence, or that the person can produce any document or thing likely to be material evidence, for the purpose of the proceedings before the court. Also, that there is reason to believe that that person will fail to attend court to give evidence and it is in the interests of justice to issue a summons to secure his or her attendance.

Article 100 provides that a person who, without reasonable excuse, fails to comply with a witness summons by failing to attend before the court or to give the evidence or produce the document or thing specified in the summons, is guilty of contempt of court.

Article 101 sets out, for the purposes of  Article 102, the meaning of "special measures" which may be provided under that Article to an "eligible witness" as defined under Article 101. An eligible witness may include the defendant.

Article 102 enables the court to order assistance by way of special measures to an eligible witness, of its own motion or on the application of a party. The court must determine whether any of the special measures reasonably or practically available in

relation to the witness would, in its opinion, be likely to improve the quality of evidence given by the witness. The States may by Regulations make supplementary provisions about orders as to special measures under this Article including the type of measures which may be ordered.

Article 103 is derived from Article 7 of the 1949 Law and enables the court to adjourn to hear a witness elsewhere than in the court room where the witness cannot attend to give evidence owing to illness or being off the Island.

Article 104 prohibits a defendant charged with any of the offences listed in Article 104(3) (which includes sexual offences), from cross-examining in person the victim, a person under the age of 18, or a person aged 18 or more, who is vulnerable (as described in Article 104(1)(c)).

Article 105 applies in a case where Article 104 does not operate so as to prevent a defendant from cross-examining, in person, a witness. The court may make an order prohibiting the defendant from cross-examining, in person, the witness if it appears to the court that the quality of the witness' evidence on cross-examination is likely to be diminished if the cross-examination is conducted by the defendant, and would be likely to be improved if an order were given under this Article, and that it would not be contrary to the interests of justice to make such an order.

Article 106 applies where a defendant is prevented from cross-examining, in person, a witness by virtue of  Article 104  or 105. In such a case the court must invite the defendant to arrange for a legal representative to act for him or her for the purpose of cross-examining the witness. If the defendant notifies or fails to notify the court that no legal representative is to act for him or her for the purpose of cross-examining the witness, the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the defendant. If the court decides that it is so necessary, it must appoint an advocate (chosen by the court) to cross-examine the witness in the interests of the defendant. An advocate so appointed is not responsible to the defendant.

Article 107 provides that where a defendant before the Royal Court is prevented from cross-examining, in person, a witness, the Bailiff must give the Jurats or jury such warning as he or she considers necessary to ensure that the defendant is not prejudiced by any inferences that might be drawn from the fact that the defendant has been prevented from cross-examining the witness, or by the fact that the cross-examination was carried out by a court appointed legal representative and not by a person acting as the defendant's own legal representative.

Article 108  makes it an offence for a person to intimidate or harm (including intimidation by way of threat of harm) a member or potential member of the jury, or a witness or potential witness in criminal proceedings. A person guilty of an offence under this Article is liable to imprisonment for a term of 10 years and to a fine of an unlimited amount.

Part 12: Wasted Costs in Criminal Proceedings – Articles 109 to 111

Article 109 enables the court to order a party to the pay costs incurred by another party to the proceedings, which have arisen as a result of an unnecessary or improper act or omission of the party against whom the order is made.

Article 110 provides that the court may order the defence or prosecution to meet the whole of any wasted costs, or such part of them as the court may determine. "Wasted costs" is defined as costs incurred by any party as a result of any improper, unreasonable or negligent act or omission on the part of the defence or prosecution, or

which the court considers it is unreasonable to expect a party to pay. Regulations may make further provision as to the court's determination of costs for the purposes of an order.

Article 111 provides for a Regulation making power to enable the court to make an order as to the payment of costs incurred by a party to criminal proceedings by a person who is not a party to those proceedings. Such an order would be subject to the condition that there has been serious misconduct by the third party. The Regulations would, amongst other things, specify the types of misconduct which would not amount to serious misconduct for the purposes of the order.

Part 13: Establishment and Functions of the Criminal Procedure Rules Committee – Articles 112 to 114

Article 112 replaces the provisions in Article 13 of the Royal Court (Jersey) Law 1948 (the "Royal Court Law") concerning the making of Rules of Court for the purpose of regulating and prescribing the procedure of the Royal Court in relation to criminal proceedings. Under this Article, a new Criminal Procedure Rules Committee (the "Committee") is established to make Criminal Procedure Rules governing the practice and procedure to be followed in criminal proceedings before the Magistrate's Court and Royal Court. The Committee is composed of 8 members listed in Article 112(4) and chaired by the Bailiff or Deputy Bailiff who are both members as well (10 members in total). The 8 listed members may nominate a person in their stead, subject to prior consultation with the Bailiff . The Committee is quorate with 5 members. Before making Criminal Procedure Rules, the Committee must consult such persons it considers appropriate, and meet, unless a meeting would be inexpedient.

Article 113 sets out the scope of the Criminal Procedure Rules and provides that the power to make Criminal Procedure Rules is to be exercised with a view to securing that the criminal justice system is accessible, fair and efficient, and the rules are both simple and simply expressed.

Article 114 enables the Bailiff or Magistrate to issue practice directions as to the practice or procedure to be followed by the participants in criminal proceedings, where either no provision has been made in Criminal Procedure Rules, or so as to complement any such Rules. Practice directions may be published in such manner or form as the Bailiff or Magistrate considers appropriate.

Part 14: Miscellaneous and Closing provisions – Articles 115 to 120

Article 115 introduces  Schedule 2  which  sets out the provisions dealing with the quashing of a person's acquittal.

Article 116 sets out the scope of the Regulation making powers under this Law. Article 117 introduces Schedule 3 which amends the PPCE Law.

Article 118  introduces  Schedule 4 which amends miscellaneous enactments as a consequence of the provisions of this Law.

Article 119 provides that the enactments listed in Schedule 5 are repealed.

Article 120 sets out the title by which this Law may be cited and provides for its coming into force by Appointed Day Act of the States.

Schedule 1 – Compellability of Spouse or Civil Partner

This Schedule lists the offences in respect of which, under Article 95(3), a spouse or civil partner of a defendant is compellable to give evidence on behalf of the prosecution or any other defendant charged in the same proceedings.

Schedule 2 – Quashing of Person's Acquittal and Retrial

Paragraph 1 sets out the definitions of words and expressions used in this Schedule.

Paragraph 2 explains the scope of this Schedule which applies in relation to cases where a person has been acquitted of a "qualifying offence" in proceedings before the Royal Court, on appeal against conviction in the Royal Court or on an appeal from a decision on such an appeal. Qualifying offences under this Schedule will be specified in Regulations.

Paragraph 3 allows the Attorney General to apply to the Court of Appeal for an order which quashes a person's acquittal and orders him or her to be retried for the qualifying offence. Where a person has been acquitted outside Jersey the Court will need to consider whether or not the acquittal would act as a bar to a further trial in Jersey and, if it does, the Court can order that it must not be a bar.

Paragraph 4 sets out the decisions which the Court of Appeal may make in response to an application for an acquittal to be quashed. The Court must make an order quashing an acquittal and ordering a retrial if it considers that there is new and compelling evidence in the case, and that it is in the interests of justice for the order to be made. The Court must dismiss an application where it is not satisfied as to these 2 factors.

Paragraph 5 sets out the requirement for there to be new and compelling evidence against the acquitted person in relation to the qualifying offence, and defines evidence which is "new and compelling".

Paragraph 6 sets out the factors the Court of Appeal must have particular regard to when determining that in all the circumstances it is in the interests of justice for the Court to quash an acquittal and order a re-trial.

Paragraph 7 sets out a number of technical and evidential procedures to be followed in bringing an application for an acquittal to be quashed.

Paragraph 8 provides that the acquitted person or the Attorney General may appeal against a decision of the Court of Appeal under  paragraph 3, but only with the permission of the Court of Appeal.

Paragraph 9 makes provisions for reporting restrictions to apply in respect of matters surrounding the application for a retrial, until either the end of the re-trial or to any point at which it is clear that the acquitted person can no longer be re-tried.

Paragraph 10 sets out the offences created by the reporting restrictions under paragraph 9 and the penalties which may be imposed upon conviction. Prosecutions under this paragraph may only be brought with the consent of the Attorney General.

Paragraph 11  provides a defence in respect of an offence committed under paragraph 10.

Paragraph 12 sets out a number of technical and evidential procedures relating to the holding of retrials.

Paragraph 13  relates to the  authorization and conduct of police investigations.  It requires the police to obtain the consent of the Attorney General before taking certain steps in the re-investigation of cases where new evidence has come to light, or where

there are reasonable grounds to believe that further investigation will give rise to new evidence.

Paragraph 14 makes complementary provisions to paragraph 13, in circumstances where the police need to act urgently to prevent the investigation being substantially and irrevocably prejudiced, for example by securing evidence immediately.

Paragraph 15 enables the States to amend this Schedule by Regulations to make supplementary provisions concerning the issue of a summons, arrest order, detention or grant of bail of an acquitted person.

Paragraph 16 enables rules of court under Article 40 of the Court of Appeal (Jersey) Law 1961 to be made in respect of the various court procedures set out in this Schedule.

Schedule 3 – PPCE Law amended

Paragraph 1 is the interpretation provision for this Schedule.

Paragraph 2 amends the long title of the PPCE Law to remove the reference to the conduct of criminal proceedings, because, as a consequence of the repeal of Part 10 of that Law (see  paragraph 10 of this Schedule) and the re-enactment of Part 10 as Part 7 of the CPL, the PPCE Law is no longer concerned with the conduct of criminal proceedings other than in relation to matters of evidence.

Paragraph 3 amends various definitions in Article 1 of the PPCE Law as a consequence of the CPL.

Paragraphs 4 and 5 replace Articles 29A and 48A of the PPCE Law as consequence of the CPL. Both those Articles are themselves prospective amendments which will come into effect when Schedule 2 to the Bail Law comes into force in 2018, ahead of the CPL.

Paragraph 6 replaces all of the provisions contained within Part 8 of the PPCE Law dealing with hearsay evidence, as follows –

1. new Article 63 sets out definitions of words used in Part 8;
2. new Article 64 sets out the circumstances in which a statement which is not made in oral evidence during criminal proceedings can be used as evidence of the facts stated within it;
3. new Article 64A preserves a number of customary law rules which means that in the specified circumstances, an out of court statement will be admissible as evidence of any matters stated in it;
4. new Article 65 sets out a series of categories under which first-hand hearsay evidence, whether oral or documentary, will be admissible, provided that the witness is unavailable to testify for a reason specified in this Article;
5. new  Article 66 provides for the  admissibility of statements in documentary records provided certain conditions are met as provided under Article 66(2);
6. new Article 67 clarifies the relationship between hearsay evidence and previous inconsistent statements;
7. new Article 67A makes other previous statements admissible as evidence of the truth of their contents in the circumstances specified in this Article;
8. new Article 67B sets out the approach which the courts should take to multiple hearsay. "Multiple hearsay" is where information passes through more than one person before it is recorded;

9. new Article 67C provides that if a statement previously made by a witness is admitted in evidence and produced as an exhibit under Article 67 or 67A, in a trial before a jury, the jury should not take the exhibit with them when they retire to the jury room, unless the Bailiff considers it appropriate or all the parties agree that it should accompany them;
10. new Article 67D provides that an out of court statement cannot be admitted under Article 65, 67 or 67A if the person who made the statement did not have the "required capability" for making a statement at the time the statement was made. This Article reflects the test for witness competence to give evidence in criminal proceedings under Article 93 of the CPL;
11. new Article 67E makes provision for challenges to the credibility of the maker of a hearsay statement who does not give oral evidence in person in the proceedings;
12. new Article 67F imposes a duty on the Royal Court to stop a case and for the Bailiff either to direct the jury to acquit the defendant, or discharge the jury, if the case against him or her is based wholly or partly on an out of court statement which is so unconvincing that, considering its importance to the case, a conviction would be unsafe;
13. new Article 67G provides that nothing in Part 8 makes a defendant's confession admissible if it would not be admissible under Article 74 or new Article 74A of the PPCE Law;
14. new Article 67H provides where a statement generated by a machine is based on information implanted into the machine by a human, the output of the device will only be admissible where it is proved that the information was accurate;
15. new Article 67I provides that Criminal Procedure Rules under the CPL may be made for the purposes of Part 8 of the PPCE Law;
16. new  Article 67J provides that a statement in a document can be proved by producing either the original document or an authenticated copy. It is intended to cover all forms of imaging technology.

Paragraph 7 repeals Articles 68 to 70 of the PPCE Law which are now subsumed within the amendments provided under paragraph 6.

Paragraph 8 inserts a new Article 74A into Part 9 of the PPCE Law and applies the same rules to confessions adduced by a co-defendant to those adduced by the prosecution under Article 74 of the PPCE Law.

Paragraph 9  inserts new  Part 9A into the PPCE Law which contains provisions dealing with evidence of a person's bad character, as follows –

1. new Article 82A defines terms employed in this new Part;
2. new Article 82B requires a court, when considering the relevance or probative value of bad character evidence, to assume that the evidence is true;
3. new  Article 82C defines the sort of evidence whose admissibility is to be determined under new  Part 9A. The definition covers evidence of, or of a disposition towards, misconduct. The term "misconduct" is further defined in Article 82A(1) as the commission of an offence or other reprehensible behaviour;
4. new Article 82D abolishes the customary law rules governing the admissibility of bad character evidence;
5. new  Article 82E provides that evidence of a defendant's bad character is admissible in any of the circumstances set out in this Article. This is subject to

an application by the defendant to have the evidence excluded if admitting it would have such an adverse effect on the fairness of the trial that it ought to be excluded;

6. new  Article 82F relates to evidence of a defendant's bad character that is admissible because it is relevant to an important matter at issue between the defendant and the prosecution;
7. new Article 82G deals with evidence that becomes admissible as a result of the defendant attacking another person's character. A defendant attacks another person's character if he or she gives evidence that they committed an offence (either the one charged or a different one) or have behaved in a reprehensible way;
8. new  Article 82H relates to evidence that is relevant to issues between the defendant and a co-defendant;
9. new  Article 82I relates to evidence that is admissible to correct a false impression given by the defendant. For this provision to apply, the defendant must have been responsible for an assertion that gives a false or misleading impression about himself or herself;
10. new Article 82J sets out the circumstances in which, outside the alleged facts of the offence and its investigation and prosecution, evidence can be given of the previous misconduct of a person other than a defendant in the proceedings;
11. new Article 82K provides that Criminal Procedure Rules under the CPL may be made for the purposes of new Part 9A.

Paragraph 10 repeals Part 10 which is now re-enacted under Part 7 of the CPL, and Part 12 and Schedule 4 which are no longer required as a consequence of the CPL and the amendments made by this Schedule.

Schedule 4 – Enactments Consequentially amended

Paragraph 1 amends the Loi (1908) au sujet des témoins et informateurs so as to remove the provisions relating to the competence and compellability of witnesess in criminal proceedings which have been replaced by the provisions contained in Part 11 of the CPL.

Paragraph 2 amends the Royal Court Law in relation to the powers to make rules of court for the purposes of criminal proceedings. Those provisions have been replaced by the provisions contained in Part 13 of the CPL. A new Article 15A is inserted to deal with the quorum of the Inferior Number of the Royal Court which ordinarily is the Bailiff and 2 Jurats, or the Bailiff and just one Jurat if the 2nd Jurat dies or is otherwise indisposed when a trial is underway.

Paragraph 3 amends the Court of Appeal Law so as to include procedures relating to quashing of acquittal applications introduced under Schedule 2.

Paragraph 4 makes various consequential amendments to Costs in Criminal Cases (Jersey) Law 1961 arising from the CPL in relation to costs in criminal proceedings.

Paragraph 5 amends the Solemn Affirmations (Jersey) Law 1963 so as to bring it into line with the CPL requirements as to the making of an oath.

Paragraph 6 makes various consequential amendments to the Criminal Justice (Evidence and Procedure) (Jersey) Law 1998 arising from new provisions under the CPL in relation to the giving of evidence.

Paragraph 7 amends the Criminal Justice (Evidence of Children) (Jersey) Law 2002 so as to amend the penalty for an offence of perjury under Article 8(4), from imprisonment to a fine of level 1 on the standard scale (currently £200).

Paragraph 8 makes various consequential amendments to the Young Offenders Law arising from Parts 5 and 6 of the CPL (relating to the functions and jurisdiction of the Magistrate) and the jurisdiction of the Magistrate when sitting without other members of the Youth Court.

Paragraph 9 makes various consequential amendments to the Bail Law to bring it into line with expressions used in the CPL.

Schedule 5 – Enactments repealed

This Schedule repeals 8 enactments as a consequence of the CPL.

DRAFT CRIMINAL PROCEDURE (JERSEY) LAW 201-

Arrangement

Article

PART 1  45 INTERPRETATION AND APPLICATION  45 1  Interpretation and application........................................................................45

PART 2  49 THE OVERRIDING OBJECTIVE  49

2  The overriding objective of the Law .............................................................49 3  Implementation of the overriding objective ..................................................49 4  Duties of the participants in criminal proceedings ........................................50 5  The application by the court of the overriding objective ..............................50 6  Regulations amending Part 2.........................................................................50

PART 3  50 THE ACTIVE MANAGEMENT OF CRIMINAL PROCEEDINGS  50

7  The duty of the court .....................................................................................50 8  The duty of the parties ...................................................................................51 9  The court's case management powers ...........................................................51 10  Hearings and adjournments ...........................................................................52 11  Regulations amending Part 3.........................................................................53

PART 4  53 ROLE OF THE ATTORNEY GENERAL  53

12  Role of the Attorney General in prosecution of criminal proceedings ..........53 13  Consent of the Attorney General before commencing criminal

proceedings ...................................................................................................53 14  Attorney General's power to initiate proceedings directly in the Royal

Court ..............................................................................................................54

PART 5  55 FUNCTIONS AND JURISDICTION OF THE MAGISTRATE  55

15  Jurisdiction of Magistrate ............................................................................. 55 16  Maximum penalties which may be imposed by Magistrate .......................... 55

PART 6  56 PROCEEDINGS IN THE MAGISTRATE'S COURT  56

17  Application of Part 6 ..................................................................................... 56 18  Interpretation of Part 6 .................................................................................. 56 19  Summons ...................................................................................................... 56 20  Failure to comply with summons .................................................................. 57 21  Offence of failing to comply with summons ................................................ 57 22  Error in summons.......................................................................................... 57 23  Procedure on first appearance ....................................................................... 57 24  Amendment of details of offence and further or alternative offences........... 58 25  Magistrate's determination as to sentencing venue – guilty plea ................. 58 26  Magistrate's determination as to trial venue – not guilty plea ...................... 59 27  Magistrate's determination as to sentencing venue following trial .............. 59 28  Magistrate's directions in respect of cases sent to the Royal Court .............. 60 29  Magistrate's determination as to sentencing or trial venue –

unconnected offences .................................................................................... 60 30  Magistrate's determination as to sentencing or trial venue – multiple

defendants, including child or young person ................................................ 61 31  Magistrate's power to rectify mistakes ......................................................... 61 32  Proceedings in Royal Court remitted to Magistrate's Court ......................... 62 33  Right of appeal .............................................................................................. 62 34  Notice of appeal ............................................................................................ 62 35  Abandonment of appeal ................................................................................ 63 36  Determination of appeals .............................................................................. 63 37  Application to Magistrate to state a case ...................................................... 64 38  Royal Court determination of a case stated .................................................. 65 39  Bail on appeal or case stated ......................................................................... 65 40  Operation of certain orders pending appeal or case stated............................ 66 41  Miscellaneous provisions .............................................................................. 66

PART 7  66 PROCEEDINGS IN THE ROYAL COURT  66

42  Application of Part 7 ..................................................................................... 66 43  Notice of proceedings and lodging of indictment ......................................... 66 44  Failure to attend first appearance .................................................................. 67 45  Procedure on first appearance ....................................................................... 68 46  Power to amend indictment .......................................................................... 68 47  Power to remit case to the Magistrate's Court .............................................. 69 48  Mode of trial ................................................................................................. 69 49  Sittings and composition of the Royal Court for trial with a jury ................. 70 50  Sentencing where facts in dispute ................................................................. 70 51  Verdict where Royal Court sitting as Inferior Number with Bailiff and

single Jurat .................................................................................................... 70

PART 8  71 PREPARATORY HEARINGS AND RULINGS IN THE ROYAL COURT  71

Preparatory hearings  71 52  Application of Part 8 .....................................................................................71 53  Power to order preparatory hearing ...............................................................71 54  Start of trial ...................................................................................................71 55  The preparatory hearing ................................................................................71 56  Orders before preparatory hearing ................................................................73

Later stages  73 57  Later stages of trial ........................................................................................73 58  Appeals to Court of Appeal ...........................................................................73

Rulings  74 59  Meaning of pre-trial hearing .........................................................................74 60  Power to make rulings ...................................................................................74

Reporting restrictions  75 61  Restrictions on reporting preparatory hearings or rulings .............................75 62  Offences in connection with reporting preparatory hearings or rulings ........76

PART 9  77 JURIES  77

63  Eligibility for jury service .............................................................................77 64  Jury and panel lists ........................................................................................78 65  Viscount's power to exempt from jury service .............................................79 66  Selection of persons for jury service .............................................................79 67  Offence of failing to attend or serve as a juror ..............................................80 68  Non-selection of person for jury service - family relationship......................80 69  Non-selection of person for jury service by reason of successful

challenge .......................................................................................................80 70  Swearing of jurors .........................................................................................81 71  Reduction in number of jurors ......................................................................81 72  Conduct of jury .............................................................................................82 73  Surrender of communication devices ............................................................82 74  Offence: research by jurors ...........................................................................83 75  Verdicts .........................................................................................................83 76  Procedure where no retrial ............................................................................84

PART 10  85 MISCELLANEOUS PROCEDURES IN MAGISTRATE'S COURT AND

ROYAL COURT  85

Application  85 77  Application and general interpretation of Part 10 .........................................85

Arrest order with bail  85

78  Arrest order with bail ....................................................................................85

Determination of disputed facts where guilty plea entered  86 79  Guilty plea - procedure to determine facts disputed......................................86

Withdrawal of guilty plea and discontinuance, withdrawal or continuation of proceedings  86 80  Withdrawal of guilty plea ..............................................................................86

81  Discontinuance of proceedings ..................................................................... 86 82  Withdrawal of proceedings or continuation of previous proceedings .......... 88

Disclosure  88 83  Duty of prosecution to disclose unused material .......................................... 88 84  Duty to give defence case statement ............................................................. 89 85  Content of defence case statement ................................................................ 90 86  Notification of intention to call defence witnesses ....................................... 91 87  Non-compliant defence case statement or witness notice ............................. 91

Attendance of defendant before a court  92 88  Power to hear the defendant through television link..................................... 92 89  Defendant's duty to attend trial and trial in defendant's absence ................. 93

Reporting of criminal proceedings  93 90  Contemporary reports of criminal proceedings ............................................ 93 91  Defence of innocent publication ................................................................... 94

PART 11  95 PROVISIONS IN RELATION TO DEFENDANTS AND WITNESSES  95

Application  95 92  Application and general interpretation of Part 11 ......................................... 95

Competence and compellability of witnesses  95 93  Competence of defendant and witnesses to give evidence ........................... 95 94  Determining competence of witnesses .......................................................... 95 95  Compellability of witnesses related to defendant to give evidence .............. 96

Giving of sworn or unsworn evidence  97 96  Determining whether witness to be sworn .................................................... 97 97  Receiving of unsworn evidence .................................................................... 97

Requirement of witnesses to attend court  98 98  Warning of witnesses as to attendance at court ............................................ 98 99  Issue of witness summons on application to the court .................................. 98 100  Consequences of failure to comply with witness summons........................ 100

Special measures  100 101  Eligibility of witness for special measures ................................................. 100 102  Power of the court to order special measures ............................................. 101 103  Power to hear witnesses elsewhere than in court ........................................ 103

Protection of witnesses from cross-examination by unrepresented defendant  103 104  Defendant charged with certain offences – prohibition of cross-

examination by defendant in person ........................................................... 103 105  Order prohibiting defendant in person from cross-examining witness ....... 104

Cross-examination on behalf of the defendant  105 106  Defendant's representative for purposes of cross-examination .................. 105 107  Warning to Jurats or Jury ............................................................................ 106

Intimidation of witnesses and jurors  106 108  Intimidation, etc. of witnesses, jurors and others ........................................ 106

PART 12  109 WASTED COSTS IN CRIMINAL PROCEEDINGS  109

109  Provisions as to costs incurred because of act or omission .........................109 110  Wasted costs against defence or prosecution ..............................................109 111  Provision for award of costs against third parties .......................................109

PART 13  110 ESTABLISHMENT AND FUNCTIONS OF THE CRIMINAL PROCEDURE

RULES COMMITTEE  110

112  Criminal Procedure Rules Committee .........................................................110 113  Criminal Procedure Rules ...........................................................................111 114  Practice directions .......................................................................................112

PART 14  113 MISCELLANEOUS AND CLOSING PROVISIONS  113

115  Quashing of acquittal and retrial .................................................................113 116  Regulations ..................................................................................................113 117  Police Procedures and Criminal Evidence (Jersey) Law 2003 amended ....113 118  Miscellaneous enactments amended ...........................................................113 119  Enactments repealed ....................................................................................113 120  Citation and commencement .......................................................................114

SCHEDULE 1  115 OFFENCES IN RESPECT OF WHICH A SPOUSE OR CIVIL PARTNER OF

A DEFENDANT IS COMPELLABLE TO GIVE EVIDENCE  115

SCHEDULE 2  117 QUASHING OF PERSON'S ACQUITTAL AND RETRIAL  117

1  Interpretation ...............................................................................................117 2  Cases that may be retried ............................................................................117 3  Application to Court of Appeal ...................................................................118 4  Determination by Court of Appeal ..............................................................118 5  New and compelling evidence ....................................................................119 6  Interests of justice........................................................................................119 7  Procedure and evidence ...............................................................................120 8  Appeals ........................................................................................................120 9  Restrictions on publication in the interests of justice ..................................120 10  Offences in connection with publication restrictions ..................................122 11  Defence of innocent publication..................................................................122 12  Retrial ..........................................................................................................123 13  Authorization of investigations ...................................................................123 14  Urgent investigative steps ...........................................................................124 15  Regulations conferring supplementary powers ...........................................125 16  Rules of court ..............................................................................................126

SCHEDULE 3  127 POLICE PROCEDURES AND CRIMINAL EVIDENCE (JERSEY)

LAW 2003 AMENDED  127

1  Interpretation ............................................................................................... 127 2  Long title of principal Law amended .......................................................... 127 3  Article 1 amended ....................................................................................... 127 4  Article 29A substituted ............................................................................... 128 5  Article 48A substituted ............................................................................... 128 6  Articles 63 to 67 substituted ....................................................................... 128 7  Articles 68, 69 and 70 repealed................................................................... 138 8  Article 74A inserted .................................................................................... 138 9  Part 9A inserted .......................................................................................... 139 10  Parts 10 and 12 and Schedule 4 repealed .................................................... 146

SCHEDULE 4  147 ENACTMENTS CONSEQUENTIALLY AMENDED  147

1  Loi (1908) au sujet des témoins et informateurs amended ......................... 147 2  Royal Court (Jersey) Law 1948 amended ................................................... 147 3  Court of Appeal (Jersey) Law 1961 amended ............................................ 148 4  Costs in Criminal Cases (Jersey) Law 1961 amended ................................ 149 5  Solemn Affirmations (Jersey) Law 1963 amended..................................... 150 6  Criminal Justice (Evidence and Procedure) (Jersey) Law 1998

amended ...................................................................................................... 151 7  Criminal Justice (Evidence of Children) (Jersey) Law 2002 amended....... 152 8  Criminal Justice (Young Offenders) (Jersey) Law 2014 amended ............. 152 9  Criminal Procedure (Bail) (Jersey) Law 2017 amended ............................. 153

SCHEDULE 5  155 ENACTMENTS REPEALED  155

DRAFT CRIMINAL PROCEDURE (JERSEY) LAW 201-

A LAW prescribing the procedure to be followed in, or in connection with, criminal proceedings; to provide for the quashing of acquittals by the Court of Appeal;  to  amend  the  Police  Procedures  and  Criminal  Evidence  (Jersey) Law 2003  in  connection  with  evidence  in  criminal  proceedings;  and  for connected purposes.

Adopted by the States  [date to be inserted] Sanctioned by Order of Her Majesty in Council  [date to be inserted] Registered by the Royal Court  [date to be inserted]

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

PART 1

INTERPRETATION AND APPLICATION

1  Interpretation and application

1. In this Law, unless the context indicates otherwise –

"adjourn" means a decision by the court to suspend or delay the hearing of criminal proceedings until another day;

"administration of the States" has the same meaning as in Article 1 of the Employment of States of Jersey Employees (Jersey) Law 20051;

"Assistant Magistrate" shall be construed in accordance with Article 1 of Loi (1864) concernant la charge de Juge d'Instruction2;

"Bail Law" means the Criminal Procedure (Bail) (Jersey) Law 20173;

"Bâtonnier"  means  the  person  elected  under  Article 33  of  The  Law Society of Jersey Law 20054;

"Broadcasting  Act"  means  the  Broadcasting  Act 1990  of  the  United Kingdom, as extended to Jersey by the Broadcasting Act 1990 (Jersey) Order 19915 and the Broadcasting Act 1990 (Jersey) (No. 2) Order 19916;

"case management powers" shall be construed in accordance with Article 9;

"child" means a person who has attained the age of 10 years and has not attained the age of 15 years;

"Commissioner" means a person appointed in accordance with Article 10 of the Royal Court (Jersey) Law 19487;

"community service order" shall be construed in accordance with Article 4 of the Community Service Orders Law;

"Community Service Orders Law" means the Criminal Justice (Community Service Orders) (Jersey) Law 20018;

"complainant" means the person against whom an offence is alleged to have been committed;

"court" means the Magistrate's Court (including the Youth Court) or the Royal Court;

"Criminal Procedure Rules Committee" shall be construed in accordance with Article 112;

"Criminal Procedure Rules" shall be construed in accordance with Article 112(1) and 113;

"criminal proceedings" means proceedings before the court for the determination of a case against a defendant;

"Crown Advocate" means an advocate appointed under Article 1 of the Crown Advocates (Jersey) Law 19879;

"defence" means the defendant or a person acting as his or her legal representative;

"defendant" means a person –

1. charged with an offence; or
2. convicted of an offence and awaiting sentence; "délégué" has the same meaning as in the Probation Law;

"Greffier Substitute" means an officer of the Judicial Greffe designated in accordance with Article 6 of the Departments of the Judiciary and the Legislature (Jersey) Law 196510;

"incapacity" shall be construed in accordance with Article 55 of the Mental Health Law;

"indictment" means the document referred to in Article 43(3) which formally specifies the offence with which a person is charged and sets out the particulars of the offence;

"juror" mean a person selected to serve on a jury in accordance with Article 66;

"jury" shall be construed in accordance with Article 66; "jury list" shall be construed in accordance with Article 64; "Magistrate's Court" includes the Youth Court;

"Mental Health Law" means the Mental Health (Jersey) Law 201611; "offence" includes an alleged offence;

"overriding objective" shall be construed in accordance with Article 2; "panel list" shall be construed in accordance with Article 64;

"participant" and "party" in relation to criminal proceedings means the prosecution, defence and any such other person as the court may direct, or who otherwise appears to the court to participate in the conduct of the proceedings;

"police officer" includes an officer of the Impôts within the meaning of the Customs and Excise (Jersey) Law 199912;

"practice directions" shall be construed in accordance with Article 114; "prescribed" means prescribed by Criminal Procedure Rules; "proceedings" means criminal proceedings;

"programme service" has the same meaning as in the Broadcasting Act;

"Probation Law" means the Loi (1937) sur l'atténuation des peines et sur la mise en liberté surveillée13;

"probation order" means an order under Article 2 of the Probation Law;

"publication" includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme is to be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings;

"relevant programme" means a programme included in a programme service, within the meaning of the Broadcasting Act;

"rules" means Criminal Procedure Rules, and "rule" shall be construed accordingly;

"Solemn Affirmations Law" means the Solemn Affirmations (Jersey) Law 196314;

"trial" means a hearing to determine criminal proceedings and includes a retrial or a hearing, if required under Article 79, to determine facts disputed;

"witness" in relation to criminal proceedings, means any person called, or proposed to be called, to give evidence in the proceedings;

"young person" means a person who has attained the age of 15 years and has not attained the age of 18 years;

"Young Offenders Law" means the Criminal Justice (Young Offenders) (Jersey) Law 201415;

"Youth Court Panel" shall be construed in accordance with paragraph 1 of the Schedule to the Young Offenders Law.

2. For the purposes of this Law –

1. "prosecution" means –

1. the Attorney General,
2. a prosecutor, or
3. except in relation to proceedings before the Royal Court, or where a reference is made to "prosecution" in Parts 10 and 11, a Centenier;

2. "prosecutor" –

1. means an advocate employed in the Law Officers' Department authorized by the Attorney General to undertake criminal proceedings on his or her behalf in the Magistrate's Court or Royal Court; or
2. means a solicitor, or a person admitted –

1. to the degree of the Utter Bar of one of the Inns of Court of England and Wales,
2. as a solicitor of the Senior Courts of England and Wales,
3. as a member of the Faculty of Advocates or as a Solicitor in Scotland,
4. at the Bar of Northern Ireland or as a Solicitor of the Court of Judicature of Northern Ireland, or
5. at the Bar of Guernsey,