1999/111 - Crawford v Prison Board [1999] UR 111 (17 June 1999)

Between:John Alexander CrawfordRepresentor

And:The Prison BoardRespondent

Representation seeking a declaration that the decision of the Respondent Board to apply the provisions of Article 35(4) of the Court of Appeal (Jersey) Law, 1961 to the Representor, when he was an appellant, was unlawful.

Representation dismissed.

THE BAILIFF: On 23 January 1998, [1998.015]the Representor was sentenced to a total of 2½ years imprisonment on counts of illegal entry and larceny, breaking and entering and larceny and assault. The Representor applied for leave to appeal against that sentence and leave was refused by a single Judge on 12 February 1998. Notwithstanding that refusal, the Representor renewed his application for leave to appeal to the plenary Court under Article 39 of the Court of Appeal (Jersey) Law, 1961 and on 16 February 1998, the application was again refused.

Prior to the application for leave to appeal, the Representor had a release date of 12 June 1999, assuming the usual deduction of one-third by way of remission for good behaviour.

Subsequent to the refusal of the applications for leave to appeal 6 weeks has been disregarded in the computation of the Representor’s release date, pursuant to Article 35(4) of the Court of Appeal (Jersey) Law, 1961. The result of that is that the revised release date for the Representor is 24 July, 1999. Article 35(4) of the Law provides that:

The Representor has complained that the Prison Board has misapplied the law and the rules in computing his revised release date.

Miss Fitz, who has argued the Representor’s case with considerable skill, has made two principal submissions.

1.She contends that the Representor was not an appellant for the purposes of Article 35(4) because he was an applicant for leave to appeal. Although some support for that view might be found in the judgment of the Royal Court in the case of In the matter of an Application by Robert John Young (22 October 1998) Jersey Unreported, the submission does not survive the ruling of the Court of Appeal sitting on appeal from that decision. Southwell JA stated in the judgment delivered on 23 November 1998:

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

"a person who has been convicted and desires to appeal under this Part of this Law".

Article 30(1) provides:

"Where a person convicted desires to appeal or to obtain leave to appeal under this Part of this Law, he shall give notice of appeal or notice of his application for leave to appeal to the Judicial Greffier, in such manner as may be directed by rules of court, within ten days of the date of conviction."

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."

There is no doubt in this case that the requisite form was duly served by the Representor.

2.Miss Fitz contends that the words "is specially treated" means "is actually receiving special treatment as an appellant." It is not in dispute that the Representor did not in fact take advantage of the various privileges set out in Rules 111, 112 and 114 of the Prison (Jersey) Rules, 1957. Those Rules provide:

"Rule 111:

(1)An appellant who, when in custody, is absent from prison for purposes in connexion with his appeal shall, while so absent, be kept in the custody of an officer designated in that behalf by the Governor.

(2)An appellant when absent from prison under this Rule shall wear his own clothing or, if his own clothing cannot be used, clothing different from prison dress.

Rule 112:

An appellant may for the purposes of his appeal receive a visit from a registered medical practitioner selected by him or by his friends or legal adviser, under the same conditions as apply to a visit by his legal adviser.

Rule 114:

(1)Writing material to such extent as the Governor considers reasonable shall be furnished to an appellant who requires them for the purpose of preparing his appeal.

(2)An appellant may write letters to his legal adviser for the purpose of his appeal.

(3)A confidential written communication prepared as instructions for the legal adviser of an appellant may be delivered personally to such legal adviser, and shall not be treated as a letter to which paragraph (3) of Rule 64 applies, unless the Governor has reason to suppose that it contains matter not relating to such instructions."

In further support of her submission Miss Fitz has pointed out that in practice most of these privileges are afforded to prisoners in general. All prisoners now wear their own clothes at all times notwithstanding the provisions of Rule 91 which requires the wearing of prison clothes. It appears that all prisoners can now acquire the provision of writing materials and communications between all prisoners and legal advisers are treated as confidential communications notwithstanding other rules in the Prison (Jersey) Rules, 1957 to contrary effect.

We think that there are two answers to this submission. Firstly, an applicant is entitled to the privileges set out in Rules 111 and 114 as a matter of right. That legal right is not available to prisoners in general.

Secondly, the privilege in Rule 112 is not available to prisoners in general. If prisoners need medical assistance they will receive it from the prison medical officer and are not entitled to acquire medical assistance from doctors of their own choice.

In our judgment the availability of these privileges to appellants means that they are "specially treated as such in pursuance of prison rules." It follows that the application must be dismissed.

We would only add that it does seem undesirable that certain provisions of the prison rules are ignored in the way described to us during this hearing. We express the hope that the Prison Board will give consideration to any necessary amendments so that the rules set out in the legislation accord with practice on the ground.

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Jersey Unreported Judgments