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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1998/231 - AG v Young [1998] UR 231 (23 November 1998) URL: http://www.bailii.org/je/cases/UR/1998/231.html Cite as: [1998] UR 231

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Court of Appeal

23 November 1998

Before: RC Southwell, Esq., QC

AG

-v-

Robert John Young

IN THE MATTER OF

an application of ROBERT JOHN YOUNG for an extension of time within which to apply for leave to appeal, and for leave to appeal against his CONVICTION on 26 March 1998 [1998.058], by the Inferior Number, following not guilty pleas to the following charges:

4 counts of inducement to take part in arrangements with respect to the management of property by statements known to be misleading, false or deceptive, contrary to Article 12(c) of the Investors (Prevention of Fraud)(Jersey) Law, 1967: counts 1A, 2C, 3A, 5A, on each of which counts concurrent sentences of 4½ years imprisonment were passed by the Superior Number on 8 May 1998; and for leave to call further evidence.

(The Appellant appealed against sentence, which was dismissed by the Court of Appeal on 9 July 1998.)[1998.147]

Applications by the Appellant:

1.  

2. for the Court to determine whether the appellant needs to apply for an extension of time within which to apply for leave to appeal or to give notice of appeal against conviction and, if so, to grant such extension;

3.  

1. for the Court to determine whether the appellant needs to apply for leave to appeal against conviction and, if so, to grant such leave; and

2.  

1. for the Court to determine whether the Appellant is eligible to apply for release on bail pending determination of his appeal and, if so to grant such application.

2.  

Advocate A P Begg for the Appellant

C E Whelan Esq., Crown Advocate

JUDGMENT

SOUTHWELL JA: On 12 November 1998, sitting as a Single Judge of the Court of Appeal, I heard certain applications made on behalf of Dr Young, in particular for an extension of time, for leave to appeal and for bail pending determination of an appeal. In a short extempore judgment I granted an extension of time within which to apply for leave to appeal or to give notice of appeal against conviction, and granted leave to appeal against conviction. I also directed that in the first place any further application for bail should be made to the Royal Court.

In the course of that judgment I indicated that I would deliver a reserved judgment on two matters, which I now do.

The first matter is this. I was asked to récuse myself and not to sit as a Single Judge to hear Dr Youngs applications. I indicated on 12 November 1998, that I would not récuse myself, and therefore heard and determined those applications. My reasons are these.

The application for récusation made by Advocate Begg on behalf of Dr Young was based on an objective test of apparent bias. Mr Begg expressly disclaimed any reliance on a subjective test, i.e. he disclaimed any allegation that I was actually biased. This disclaimer was a correct one, not least having regard to the outcome of Dr Youngs applications on 12 November 1998.

The objection of apparent bias is put in this way. The Court of Appeal which heard Dr. Young’s appeal against sentence included me as a member. Mr Beggs contention was that each of the three members of the Court of Appeal who heard the appeal against sentence would fail on an objective test of apparent bias, and could not sit to hear a subsequent appeal against conviction or applications in connection with such an appeal. I put to Mr Begg the usual situation, an appeal against both conviction and sentence heard on one occasion by the Court of Appeal, who having dismissed the appeal against conviction go on to deal with the appeal against sentence, and asked him whether he was submitting that on every such occasion a fresh Court of Appeal would have to be assembled to hear the appeal against sentence. Eventually he agreed that that was his submission.

In my judgment that submission is misconceived. It is appropriate that the same members of the Court of Appeal should hear both appeals, in whichever order such appeals are presented to the Court of Appeal, not least because they will have read all the papers and will be fully aware of all the relevant circumstances. This is of particular importance in the usual situation of appeal against conviction and sentence being heard on the same occasion, because not infrequently the Court of Appeal, despite dismissing the appeal against conviction, is influenced by what it has heard in the course of that appeal to treat the offender with leniency and to reduce the sentence. To have to assemble from out of the Island a fresh Court of Appeal to determine the appeal against sentence could work adversely to the appellant in this way, and also by involving what might be a substantial delay before the fresh Court of Appeal could be assembled. In my judgment the practice of having appeals against conviction and sentence heard together by one constitution of the Court of Appeal could not be said to involve any element of apparent bias on an objective test, in the absence of some special or exceptional circumstances. Similarly in the present case, in which the order of the appeals has been reversed, sentence coming before conviction.

Mr Begg placed particular reliance on two cases under the European Convention on Human Rights. The first was the decision of the Court in Oberschlick -v- Austria A.204 1991. In that case the Austrian Code of Criminal Procedure required the appellate courts at two different stages of the appellate process to be composed of different judges. That requirement was not complied with. As the European Court of Human Rights stated, in paragraph 50 of the judgment, the failure to abide by the Austrian rule meant that:

The position in Jersey is in my judgment quite different. It is acceptable on an objective test for the same judges at the same stage of the appellate proceedings to hear appeals against both conviction and sentence. That is and has since early in the 20th century been the standard practice in England and Wales, a jurisdiction with a far greater number of eligible judges and without Jersey’s problem of having to bring judges from the United Kingdom to sit.

The second case was G -v- Austria No.15975/90 DR.245 (1991) decided by the Commission. The Commission correctly held that both subjective and objective tests applied, and stated the objective test in this way:

The Commission held that the fact that three judges were members of the courts which considered appeals on two occasions in respect of the same convicted person did not give rise to any special circumstances which would objectively justify any fears that those three judges were lacking impartiality.

Even relying on the approach of the Court and the Commission in Oberschlick and G -v- Austria, there were in my judgment no special circumstances which could objectively justify any fears that the judges who heard Dr Youngs appeal against sentence were objectively lacking impartiality for the purposes of a subsequent appeal against conviction.

Leaving the present case for a moment and considering applications for récusation in general, I note that such applications have become more common in the Jersey Courts than previously. In my judgment in Greffier of the States -v- Les Pas Holdings Ltd (24 June 1998) Jersey Unreported CofA., I expressed the Court of Appeal’s concern that in some of these cases frivolous grounds are being put forward for récusation, and the Court of Appeals indication that in future applications for récusation based on frivolous grounds would be liable to be dismissed with orders for payment of costs on an indemnity basis. It is right that I should also make clear that in cases of this kind, where appropriate, the Royal Court and the Court of Appeal should consider making orders against the advocates concerned for payment of the legal costs personally by the advocates.

I now turn to the other matter on which I reserved judgment. In the course of his judgment on 22 October 1998, regarding Dr Youngs then application for bail presented on his behalf by Advocate Begg, Sir Peter Crill sitting as Commissioner with two Jurats said this:

Article 42 of the Court of Appeal (Jersey) Law 1961 defines "appellant" as including:

Article 30(1) provides:

Under the Court of Appeal (Criminal) (Jersey) Rules 1964 within such ten days suitable forms by way of notice have to be served on the Judicial Greffier. That is the way in which the "desire to appeal" relevant to Articles 30 and 42 of the 1961 Law, and also to Article 33 which concerns the giving of legal aid to appellants, is to be expressed. I must therefore express my respectful dissent from Sir Peter Crill. A person who has been convicted becomes an "appellant" for the purposes of the 1961 Law and the 1964 Rules when the appropriate form has been served within the required ten day period on the Judicial Greffier. A person does not become an "appellant" merely by saying before or as he leaves the court that he wishes to appeal: that wish must first be translated into legal form by service of one of the appropriate forms on the Judicial Greffier within the ten days following conviction.

Authorities

Oberschlick-v-Austria A.204 1991

G.-v-Austria No.15975/90 DR.245 (1991)

Greffier of the States and W.E.B.-v-Les Pas Holdings, Ltd. (24 June 1998) Jersey Unreported CofA

Court of Appeal (Jersey) Law, 1961: Articles 30(1); 42