Law of Guernsey

History of Guernsey law

The original laws have origins in Roman Law, a uniform law, which spread by way of naturalisation in the immense empire. With the decline of the empire, Frankish Law being applied by the 9th century. The arrival of Viking invaders in the 10th century brought out law based more on custom.

Custom is a source of law in the Guernsey legal system. It can be described as "the product of generally accepted usage and practice.” Many rules of customary law have crystallised to such an extent through repeated acknowledgment that they are accepted as law, almost without argument.

Early laws

The earliest law is probably the "Clameur de Haro" in the Channel Islands. It is, supposedly, an appeal to Rollo who ruled Normandy and the Channel Islands from 911-927 and is a form of injunction to stop someone who is damaging private land. The most recent case of this being used was the case of Gillingham -v- Noone where a Clameur de Haro was registered by the Court of Alderney at a special sitting on Saturday 28th January 2017.

King John, who reigned from 1199 to 1216, lost the English-controlled territories in Normandy in France following the 1204 Siege of Château Gaillard, the remaining Norman lands being the Channel Islands. King John promised the islands independence and the right to continue governing themselves after they confirmed their allegiance to the English Crown. Agents of the Crown called bailiffs would enforce the laws and run the courts, one in Jersey and one in Guernsey; the areas under the authority of these bailiffs were called bailiwicks. In 1259 at the Treaty of Paris the English King Henry III renounced the claim to Normandy that was under the control of the King of France; this excluded the Channel Islands, which were controlled by the English throne.

Attempts to change the government, law and independence have been made over the centuries, a constitutional struggle started as the Islands insisted on wanting Norman law. This struggle involved Edward I (1272-1307), Edward II (1307-1327) and Edward III (1327-1377), and are linked to an invasion of Guernsey in 1294 which took several years before the French were expelled. Another attempt in 1336 and yet another in 1338 resulted in both the improved training of the militia and a Royal Charter of 1341 confirming the Islands' constitution, this Charter being ratified by successive sovereigns. The ratification by Elizabeth I of 1560 set out in detail the rights of the Bailiwick of Guernsey.

A seal granted to the Channel Islands in 1279 and to each of Guernsey and Jersey in 1304 have become symbols of Guernsey's separate identity from both Jersey and the United Kingdom.

Customary law

The customary law of the Duchy of Normandy is particularly influential as a source of law. Norman law developed in two main epochs: the "Ancienne coutume" (1199–1538) and the "Coutume reformée" (1538–1804).

Ancienne coutume

The earliest Norman law was based on oral tradition and repeated practices in feudal society. The earliest known written account of the ancienne coutume of Normandy is the Très-ancienne coutume, first set down in Latin manuscript around 1199 to 1223. It was translated into French, probably in about 1230. The second, dating between 1235 and 1258 and called Grand Coutumier, comprised 125 articles setting out all matters including jurisdiction, judicial officers, various ducal rights (such as wrecks and treasure trove), various forms of feudal tenure, legal procedure and remedies, succession law, criminal law and punishment, various forms of civil dispute, possession actions, other forms of court action and prescription. It was this law that formed the basis of customary law until 1583.

The Grand Coutumier in Guernsey started to diverge from the French version as local customs were added to it.

Coutume Reformée of Normandy

In 1454, Charles VII of France issued orders that all the customary laws of France should be "redacted", in other words set out systematically and approved under royal authority. The Duchy of Normandy was the last part of France to comply with this order, but the new text was eventually prepared and received royal approval in 1585 by Henry III of France. The setting out in writing of the previous French common laws provided a basis of understanding for the Courts of Guernsey.

At the same time that France was consolidating its laws, Elizabeth I enquired about the laws and duties of the Channel Islands. The commissioners to Guernsey found certain faults, resulting in the laws being defined and L’Approbation des Lois being published. L'Approbation itself became Guernsey law by an Order in Council dated 27 October 1583. There were areas missed out and faults in this publication which were pointed out over the next century.

Influence of English and French law

One of the four French laws, canon law, seems to have been restricted after the Guernsey Martyrs were burned at the stake in 1556 for their Protestant faith and the death of Queen Mary two years later. The Ecclesiastical Court was revived in 1662 and still operates today.

Contract law was influenced by French law in the 18th century and then English law in the 19th century.

The French revolution of 1789 resulted in the Code Civil of 1804, which saw the end of French customary law. It has had some influence on Guernsey.

Some fields of Guernsey law, such as negligence and administrative law, are heavily influenced by English common law, especially during the 19th and 20th centuries. Laws affecting new areas, such as data protection or driving licences, tend to follow English law.

Influence of European law

Certain aspects of membership of the United Kingdom in the European Union apply to the Crown dependencies, by association of the United Kingdom's membership. The Islanders have no right of vote in the European Parliament, or in any of the United Kingdom Parliaments.

The European Communities (Implementation) (Bailiwick of Guernsey) Law 1994 gives Guernsey the right to implement provisions in European laws as it was decided that the laws of the Islands' neighbours should be taken into account.

Having accepted the European human rights laws, The Human Rights (Bailiwick of Guernsey) Law, 2000 was passed to allow people to claim their rights under the European Convention on Human Rights in the Island courts and tribunals, instead of having to go to the European Court in Strasbourg.

Language

French was the only official language of the Bailiwick, until 1948 when it changed to English. Some laws kept the old language for longer, for instance, all deeds for the sale and purchase of real estate in Guernsey were written in French until 1971.

Alderney

Alderney enjoys full autonomy in law (except in matters of foreign affairs and defence, as the other Channel Islands); however, in 1948 Alderney adopted a new constitution which created a fully elected government and changed the courts. Under the terms of an agreement (known as "the 1948 Agreement") entered into between the Government of Alderney and the Government of Guernsey, certain matters were delegated to Guernsey. These are known as "the transferred services" which include policing, customs and excise, airport operations, health, education and social services. In return for the cost of providing the transferred services, Guernsey has been permitted by Alderney to levies various taxes and duties on Alderney at the same rate as in Guernsey.

Judiciary

The head of the judiciary in Guernsey is the Bailiff, who, as well as performing the judicial functions of a Chief Justice, is also the head of the States of Guernsey and has certain civic, ceremonial and executive functions. The Bailiff's functions may be exercised by the Deputy Bailiff. The posts of Bailiff and Deputy Bailiff are Crown appointments.

Jurats

Sixteen Jurats, who need no specific legal training, are elected by the States of Election from among Islanders. They act as a jury, and also as judges in civil and criminal cases. The Jurats fix the sentence in criminal cases. They also undertake a number of other duties. First mentioned in 1179, there is a list of Jurats who have served since 1299.

Judicial appointments

The Bailiff is, ex officio, a Judge of the Court of Appeal and the Court’s president. He also sits as a single judge or presiding over a sitting with Jurats. The Deputy Bailiff undertakes judicial work and acts in situations when the Bailiff is not present.

Law Officers

The Law Officers of the Crown are responsible for criminal prosecution work and for providing legal advice to the Crown, ministers and other members of the States of Guernsey.

H.M. Procureur and the junior H.M. Comptroller hold office through Royal Warrants and both are Law Officers of the Crown. H.M. Procureur responsible to provide legal advice to the Island Government.

H.M. Greffier and H.M. Sherriff provide specific duties to the Courts of recording and enforcing.

Guernsey legal profession

Advocates, have right of audience to represent clients in all courts.

The qualification route is normally through obtaining a Bachelor of Laws degree in England, then a qualification as a Solicitor or Barrister in England and Wales, followed by vocational training, passing Guernsey Bar exams and then obtaining a Certificat d’Etudes Juridiques Françaises et Normandes from Caen University.

Solicitors and Notaries have no rights of audience.

Laws

Guernsey normally passes between 30 and 50 new laws, or amendments to, or repeals of, laws each year.

Legal aid

Legal aid, provided by the Guernsey Legal Aid Service, can provide access to free or reduced cost legal advice in criminal and civil cases.

Other

The fastest law passed was almost certainly one in 1940, during German occupation, when, to avoid a Guernsey individual being prosecuted for saying something derogatory against the occupying Germans before a German military court, a law was passed within days and the person involved was prosecuted for an offence that had not been against the law when the crime was committed.