Jersey Unreported Judgments

Manslaughter - declaration that Crown Advocate Maletroit could prosecute the case - reasons

[2024]JRC211

Royal Court

(Samedi)

11 October 2024

Before     :

Sir William Bailhache, Commissioner, sitting as a single judge

The Attorney General

-v-

Lewis Peter Carr

Artur Sevash-Zade

His Majesty's Attorney General appeared in person.

Advocate S. C. Thomas for Defendant Carr.

Advocate M. L. Preston for Defendant Sevash-Zade.

JUDGMENT

THE COMMISSIONER:

Introduction

1.        I sat at short notice on 26 September to hear a Representation from the Attorney General seeking a declaration that Crown Advocate Matthew Maletroit had no conflict of interest and was therefore able to prosecute the case against the First and Second Defendants, already charged in the Magistrate's Court with three counts of manslaughter following a collision between Condor's Commodore Goodwill and a fishing vessel known as L'Écume II.  The Defendants were due to be indicted in the Royal Court the following day.  With the leave of the Magistrate, their pleas in that Court have been reserved. 

2.        The matter which has led the Attorney General to make this Representation has arisen in this way.  Crown Advocate Maletroit has been employed in the Law Officers' Department for many years.  He has had conduct over that period of a number of prosecutions and is regarded by the Attorney General as one of his more experienced Crown Advocates within the department.  In or about September 2023, Mr Maletroit was seconded to the firm of Messrs Baker and Partners, in which Advocate Thomas is, as I understand it, a partner.  The purpose of the secondment was apparently to ensure that Mr Maletroit was able to gain from litigation experience in civil matters, an area with which he was infrequently concerned in the Law Officers' Department.  During the course of the secondment, he has remained an employee of the Law Officers' Department and is paid by that department and not by the host firm, Messrs Baker and Partners.  The secondment agreement contains a number of provisions, including:

(i)        Mr Maletroit would be able to conduct a number of prosecutions for the Law Officers' Department without any compensation being paid to the host firm;

(ii)       There would be strict confidentiality provisions as between the Law Officers' Department and the host firm in relation to the work which Mr Maletroit was performing for each of them;

(iii)      During his secondment, Mr Maletroit would not be engaged, without the consent of the Law Officers' Department, in any civil proceedings involving either the department or the Government of Jersey or the States Employment Board.

3.        There were a number of other provisions which it is unnecessary for me to set out in any detail.  At some point, perhaps in May this year, Mr Maletroit was informed by the then Director of the Criminal Division in the Law Officers' Department that it was likely that he would be asked to prosecute the present case, if charges were brought.  He was informed that Advocate Thomas might well be representing one of the Defendants, and therefore he should take special care to ensure that the case was not discussed with Advocate Thomas.  I was informed by Advocate Thomas that he too was advised by the then Director of the Criminal Division that Crown Advocate Maletroit might well be the prosecutor, and as a result steps were taken within the host firm of Baker and Partners to ensure the confidentiality of the information which they held for their client, the First Defendant.  I have had put before me a letter from the Practice Director of the host firm confirming that only Advocate Thomas and his colleague in that firm, Advocate Lee, are able to view the documentation held on file regarding this matter for their client.  Crown Advocate Maletroit's access was restricted in case of his potential appointment as prosecutor by the Law Officers' Department.  Furthermore, Mr Maletroit is unable to access any of the time records or entries in relation to this particular client matter.  The Practice Director therefore confirms that in his belief Baker and Partners have taken all reasonable steps to maintain confidentiality.

4.        On 1 July this year, Mr Maletroit was asked to present the case against the Second Defendant at his first appearance in the Magistrate's Court.  At that time, he was provided, via Egress, a secure platform maintained by the States of Jersey Police, with papers involved in the case.  Hitherto he had known nothing about the details of the investigation beyond that which was in the public domain.  The papers were reviewed and other work undertaken on a laptop which Mr Maletroit had provided to him by the Law Officers' Department and via the Law Officers' Department email system.

5.        Mr Maletroit did not discuss the case with anyone at Baker and Partners prior to the hearing in the Magistrate's Court and has not spoken to Advocate Thomas about the hearing or the case at any time.  Mr Thomas confirmed that position to me. 

6.        Since July, Crown Advocate Maletroit has had no further involvement in the case and has not had cause to consider the case papers any further.  Indeed, following discussions between Baker and Partners and the Law Officers' Department, other steps were taken to manage the potential conflict - Mr Maletroit was to work either from home or from the offices of the Law Officers' Department, and Advocate Redgrave would replace Advocate Thomas as his line manager in respect of all civil cases. 

7.        The evidence is that there has been no information about the prosecution passing from Mr Maletroit to Messrs Baker and Partners; and on the other side, no information which Messrs Baker and Partners held for their client, the First Defendant, being passed back to Mr Maletroit.

8.        I was informed by the Attorney General that if I were to grant the declaration which he sought, namely that Mr Maletroit could prosecute the case on behalf of the Attorney General, then the Attorney would bring the secondment of Mr Maletroit to Baker and Partners to an immediate end.  He had taken that decision in the interests of meeting any perception on the part of the public that the administration of justice might be compromised. 

9.        The narrow point, therefore, for me was whether the small involvement over a three day period in July - admittedly during which Mr Maletroit had full access to the case papers available to the prosecution at that time - should prevent the declaration being made.

10.     Neither Advocate Thomas nor Advocate Preston were instructed to object to the declaration being made.  When I first read the papers, I was not sure that the First Defendant's lack of objection was one on which I could place any reliance because it was arguably in the interests of Advocate Thomas that the secondment continue, and also in his interests that he continued to represent the Defendant.  I had therefore been wondering whether I should insist upon the provision of independent legal advice to the First Defendant.

11.     As it turns out, the undertaking of the Attorney to bring the secondment to an immediate end does mean, in my judgment, that there was no basis upon which independent legal advice was necessary.  If the First Defendant wished to object, he could do so and so instruct Advocate Thomas, and there was no reason why Advocate Thomas should not bring that objection forward.

12.     There are usually two features particularly for the Court's attention in applications of this nature, whether for a declaration as the Attorney General seeks or for an order that an advocate does not prosecute or defend the case.  The actual or perceived problem lies either in confidential information passing from one side to the other, to the detriment of one of the parties, or to the risk that it may do so; or that there is a risk to public confidence in the administration of justice. 

13.     These two features indeed appeared in the only local authority to which I was referred, namely AG v Arthur [2017] JRC 216, a decision of Commissioner Sir Michael Birt.  There were unusual circumstances in that case which led the Commissioner to give a ruling that Advocate Preston should not be permitted to prosecute the case.  Those circumstances were that, although Mr Preston had not directly advised the defendant, the firm of which he was a partner had advised the defendant's wife, and in the course of giving that advice had received an amount of confidential information from her as to her worries about the case, including her husband's conduct in relation to the matters on which he was charged.  The wife asserted that her legal and personal problems were intertwined, and she spoke openly and without reserve to her advocate, and, as far as she was aware, Mr Preston had a general knowledge of the case and was used by the advocate as a sounding board in the advice which was given.  As she put it "If I had thought that my lawyer's boss would be one day trying to break up my family and deprive me and my children of the remaining equity from our home, I would have been much more circumspect".

14.     In those circumstances, albeit the Commissioner expressed himself entirely satisfied that Mr Preston did not believe he had, and certainly did not remember having been provided with, any confidential information, that lack of recollection was not considered to be a decisive factor.  The risk was that relevant confidential information might have been stored away subconsciously but could be triggered subsequently so that it is then recalled.  Furthermore, if it were to be recalled, it will often be the case that the person concerned cannot remember from where he obtained the information.  The Commissioner therefore considered that he was not satisfied that there was no real risk of Advocate Preston being in possession of such information even though he did not at present recall it, and he made the declaration that Mr Preston should not prosecute.

15.     Sir Michael also based his decision on the second limb, namely that justice would not be seen to be done if Advocate Preston were to prosecute the case.  He felt that the reaction of ordinary members of the public would mirror that of Mrs Arthur when she learned that Advocate Preston might be prosecuting.  It is clear from the Commissioner's judgment that his conclusion, that ordinary members of the public might take the same view as Mrs Arthur, was very much influenced by his conclusion that there was a real risk of confidential information having been passed to Mr Preston, even though he could not at the time remember it. 

16.     At the conclusion of the sitting, I made the declaration requested by the Attorney General that, notwithstanding any conflict which might have existed previously, Crown Advocate Maletroit could prosecute the case, and indicated that reasons would follow in due course.  This judgment contains my reasons.

17.     It is of interest, although only in passing, that if a prosecution were taking place in London, no objection would be taken to barristers representing the prosecution service and the defendant operating not only from the same Chambers, but even possibly from the same room.  It is assumed that they would not put their own professional integrity at risk; and no doubt in these days of electronic communications, the necessary ethical walls would be in place to the extent that there was a shared server over which electronic communications could pass.  In Jersey, where there is a fused profession, the Court has been more careful to ensure that confidential information cannot pass between parties who are hostile to each other in the litigation.  A good example of that is indeed the case of Arthur which I have mentioned, but in the civil sphere there are many others.  As far as this potential objection in the present case is concerned, I must consider the narrow point which is whether the small involvement of Advocate Maletroit over the three day period in July should prevent the declaration being made.  On that, all the evidence before me is to the effect that no confidential information has passed from the prosecution to the defence or vice versa.  The practical arrangements around Crown Advocate Maletroit's secondment were also varied in July, and in the light of the undertaking given by the Attorney General, there is no prospect of any such confidential information passing in the future. 

18.     I am completely satisfied that the informed member of the public would not be troubled by the possibility of justice not being done by virtue of the wrongful transmission of confidential information from one party to another.

19.     I have to say that going into this hearing, I was much more troubled by the second limb which I would have to consider, namely the public perceptions of the administration of justice if the prosecutor were seconded to the firm representing one of the Defendants.  Whatever the ethical walls put up in practice, there would always be a risk of inadvertent passage of information.  The information might or might not be particularly relevant, but the question is more abstract than that - it is whether or not the informed member of the public, knowing that the prosecuting counsel had been seconded to the firm in which the defence counsel was a partner, would be entirely confident that justice would be done and be seen to be done.  This is no reflection on the undoubted integrity of any of the advocates involved.  Had the secondment continued, I would undoubtedly have had to consider the submissions of the Attorney General that the prosecution would be in serious practical difficulties if the declaration were not made.  As it is, I do not have to consider that, although there would clearly have been a difficult balance to be struck in such a case.  At all events, the undertaking to bring the secondment immediately to an end does in my judgment remove the risk that the informed member of the public would lose public confidence in the administration of justice.  I add that if the secondment had continued, I would certainly have required that the First Defendant receive independent legal advice as to whether any objection should be taken to prosecute.  The secondment agreement was presumably entered into by Messrs Baker and Partners with a view to that firm receiving some benefit from it, and it seems to me to be obvious that the lawyer potentially if not actually advising his client not to object to an arrangement which, presumably financially, was thought to be in the best interests of the lawyer, would be a difficult conclusion to support.  At all events, it does not arise.

20.     I am accordingly satisfied that there has been no transmission of confidential information from the prosecution to the defence or vice versa, and that the removal of the secondment means there is no appreciable risk of that taking place in the future.  That being so there is no reason for the public to lose confidence in the administration of justice.  I made the declaration accordingly.

21.     A question arose as to whether this judgment should be kept confidential pending the trial.  Advocate Thomas contended that there should be no reporting till he had had the opportunity of seeing the judgment.  I did not accept that submission.  There are statutory restrictions on media reporting and those remain in place.  If the restrictions do not extend to the current debate, on which I express no opinion, then there is no reason for me to supplement them by any further order.  Indeed, it may well be a breach of the Article 10 rights of the media if I were to do so.  I agree with Advocate Thomas that there is a balance of Article 6 and Article 10 rights which comes up for consideration, but, subject to the existing statutory restrictions remaining in force, I think the balance comes down in favour of the Article 10 right.

Authorities

AG v Arthur [2017] JRC 216.