Law of Jersey

Language of Jersey law

During the 20th century, the main working language of the Jersey legal system changed from French to English. Before the 1930s, almost all legislation passed by the States Assembly was in French. Since then, French is used only where new legislation makes amendments to legislation originally drafted in French.

The conveyancing of immoveable property was carried out using contracts drafted in French until October 2006, after which contracts were required to be in English. Several French words and expressions used in Jersey differ from Standard French.

Precedent and law reporting

The Jersey legal system does not follow the strict rules of binding precedent that exist in common law jurisdictions such as England and Wales. The Royal Court is not bound by its own previous decisions on a point of law but it will generally follow them unless persuaded that the earlier decision was wrongly decided. A similar approach is taken by the Court of Appeal. All Jersey courts are, however, bound by points of law decided by the Judicial Committee of the Privy Council in previous Jersey appeals to that court.

During the 19th and 20th centuries a series of improvements to the system of writing and reporting judgments was put in place. In 1885, the Royal Court began to publish the Tables des Décisions de la Cour Royal de Jersey–a subject index to decided cases, prepared by the Greffier.

In 1950, Charles Thomas Le Quesne KC returned to Jersey from practice at the English Bar and was appointed Lieutenant Bailiff. Up to this point, the Royal Court's judgments were in the French style of jugements motivés, written in French by the Greffier rather than the judge, and expressing the reasons for the court's decision only very briefly. Le Quesne changed the language of judgments to English and adopted the common law style of judgments, where the judge gives detailed reasons for accepting or rejecting the rival submissions made at trial by counsel. Between 1950 and 1984, the Royal Court published its and the Court of Appeal judgments in a series of law reports known as the Jersey Judgments (eleven volumes in total). From 1984, judgments have been published a new series of law reports known as the Jersey Law Reports.

In 2004, the Jersey Legal Information Board (JLIB) was set up to promote "accessibility of the written law and legal processes to the public and of an integrated and efficient legal system, through the use of information technology and by other means". Judgments of the Royal Court and Court of Appeal are published online on www.jerseylaw.je, with open access to "unreported" judgments as part of the Free Access to Law Movement.

Judiciary

The head of the judiciary in Jersey is the Bailiff, who as well as performing the judicial functions of a chief justice is also the President (presiding officer) of the States of Jersey and has certain civic, ceremonial and executive functions. The Bailiff's functions may be exercised by the Deputy Bailiff.

Judicial appointments processes

The posts of Bailiff and Deputy Bailiff are Crown appointments, formally made by Her Majesty the Queen, on advice of the UK government's Secretary of State for Justice.

An appointment process has developed in recent years, without a legislative basis, for vacancies for the Deputy Bailiff, Attorney General for Jersey and Solicitor General for Jersey. This involves advertising for candidates and the preparation of a shortlist by a selection panel consisting of the Bailiff (in the chair), the senior Jurat and the chairman of the Jersey Appointments Commission. A process of consultation is then carried out, including the Jurats, the States Consultative Panel (which includes the Chief Minister), a number of elected members of the States, senior lawyers (the Bâtonnier, the President of the Law Society, the former President of the Law Society of Jersey and the President of the Chambre des Ecrivains), the other Crown Officers and the local Commissioner of the Royal Court. All candidates on the shortlist are then interviewed by the selection panel. A single name is then sent by the Lieutenant Governor to the Secretary of State for Justice.

This process has not been used for appointment to the office of Bailiff on the basis that "The Secretary of State has accepted that the position of Deputy Bailiff is a training ground for the position of Bailiff, and that, therefore, all things being equal, you would expect to move up, assuming of course that you have performed to everyone's satisfaction".

Jurats are elected by an electoral college consisting of the Bailiff, the Jurats, the Connétables, the elected members of the states, advocates and solicitors of the Royal Court. Voting is by secret ballot.

Commissioners of the Royal Court are appointed by the Bailiff for the hearing of a specified cause or matter or a specified term.

The Bailiff appoints the Magistrate and the Assistant Magistrate (who hold full-time salaried posts) and part-time Relief Magistrates (legal practitioners who carry out duties on a daily fee-paid basis). It is now normal for the Bailiff to convene a panel to advise on salaried appointments.

Removal from office

The Bailiff, Deputy Bailiff and members of the Jersey Court of Appeal 'hold office during good behaviour'. Whereas senior judges in England and Wales who are appointed by Crown may only be removed from office with the consent of both Houses of Parliament, the United Kingdom Secretary of State for Justice may dismiss a Jersey judge appointed by the Crown without the agreement States of Jersey. This happened in 1992, when the then Deputy Bailiff Vernon Tomes was dismissed from office by the Home Secretary (the UK minister who at the time was responsible for the Crown Dependencies) on grounds of his delays in producing written judgments.

Jurats hold office up to the age of 72 years. A Jurat who 'in the opinion of the Court, is permanently unable, through physical or mental incapacity, or for any other reason, efficiently to carry out the duties of the office, may be called upon by the Court to resign'. A Jurat who refuses to resign may be removed from office by Order of Her Majesty in Council on the petition of the Superior Number (the Bailiff and five or more Jurats) of the Royal Court.

The Bailiff may if he 'thinks fit, terminate the appointment of a Commissioner on the ground of incapacity or misbehaviour'.

The Magistrates, who are also appointed by the Bailiff not the Crown, may not be removed from office 'except by virtue of an Order of Her Majesty in Council'. In June 2008, the Chief Minister informed the States of Jersey that the Magistrate-Designate, Ian Christmas, has 'agreed not to sit as a judge following a discussion with the former Bailiff as a result of a criminal investigation into an alleged fraud'. Mr Christmas was subsequently convicted of one count of fraud and sentenced to fifteen months in prison. It has been reported that the Bailiff's Office has asked the United Kingdom Ministry of Justice to arrange for a UK judge to undertake a disciplinary investigation.

Code of Conduct

All judges in Jersey are bound by a code of conduct promulgated by the Jersey Judicial Association in 2007. This requires judges to 'uphold the integrity and independence of the judiciary and perform their duties with competence, diligence and dedication'.

ECHR Article 6

All courts in Jersey are required under Article 6 of the European Convention on Human Rights to be 'independent and impartial'. In 2000, the European Court of Human Rights held in McGonnell v United Kingdom that there was a breach of Article 6 in Guernsey where the Bailiff or Deputy Bailiff sat as President of the States of Guernsey when proposed legislation was being debated and then subsequently sat as a judge of the Royal Court of Guernsey in a case where that legislation was relevant. The Court, noting that there was no suggestion that the Bailiff 'was subjectively biased', stated that the 'mere fact' that this happened was capable of casting doubt on the Bailiff's impartiality. A Bailiff and Deputy Bailiff in Jersey is able to avoid a McGonnell situation simply by not sitting in the Royal Court in cases concerned with legislation that was debated when he presided in the States. The current Bailiff, Mr Michael Birt has conceded that 'we probably need to improve our systems to be very compliant with McGonnell and that one probably ought to keep a running list of those statutes where I have presided so at least I could invite the parties to consider whether they wanted to object or not'. In a recent review chaired by Lord Carswell, set up by the States of Jersey, a legal opinion was commissioned from Rabinder Singh QC in which he expressed the view that 'there is no reason in law why the present constitutional arrangements in respect of the Bailiff should be altered. However, the trend suggests that the tide of history is in favour of reform and that the legal position will be different in 10 years time'. The report of Lord Carswell's inquiry concluded that Mr Singh's opinion 'provides an additional reason why the Bailiff should cease to be the President of the States'. The States of Jersey have not accepted this aspect of the Carswell report. Many prominent islanders do not believe that any change is necessary or desirable.

Stuart Syvret litigation

In recent years, a former State's member Mr Stuart Syvret has argued in legal proceedings in England and Jersey that all members of the Jersey judiciary lack the appearance of independence and impartiality. In March 2009, the High Court in London refused him permission to commence a judicial review claim against Home Secretary Jack Straw. In Jersey, subsequent proceedings related to a criminal prosecution for a data protection offence (he named a former nurse on his blog, who he said was guilty of murdering patients), judicial reviews and appeals relating to that criminal case, and a separate civil action brought by Syvret against fellow politicians and Law Officers in connection with his removal from office as minister for health. Syvret argues that he cannot have a fair trial in the island and there is a lack of appearance of independence and impartiality because judges are appointed by the Bailiff and the other judges have attended social events with the Bailiff. Syvret's arguments relating to lack of independence and impartiality have been rejected by the Royal Court and Court of Appeal in Jersey on a number of occasions between 2009 and 2011.

Jersey legal profession

The Jersey legal profession has three types of Jersey-qualified lawyers - Advocates, Solicitors and Notaries Public. Advocates have rights of audience to represent clients in all courts. Jersey solicitors have no general rights of audience. Notaries have no rights of audience. The Law Society of Jersey is the professional body responsible for professional conduct. Notaries are regulated by the Faculty Office of the Archbishop of Canterbury through the Dean of the Arches, referred to as the Master of the Faculties, who is normally an English QC.

Some law firms focus on legal practice relating to Jersey's finance industry, the largest being: Appleby; Bedell Cristin; Carey Olsen; Mourant Ozannes; and Ogier, all of which are regarded as part of the "offshore magic circle". Smaller firms and sole practitioners also provide a wide range of legal services. Several law firms now have offices in both Jersey and Guernsey but the legal professions of the two islands are separate, as they are separate from those in England, Wales and Scotland. Most notaries in Jersey are employed by, or are partners in, local firms of Jersey Advocates or Solicitors, although some are in English solicitors firms or practising purely as notaries, independent of the general legal profession. There is a local Jersey Notaries Society.

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 Assembly of the States of Jersey. The Attorney General and his deputy, the Solicitor General, are non-voting members of the States Assembly.

The process of qualifying as a Jersey lawyer is regulated by the Advocates and Solicitors (Jersey) Law 1997 and is similar for both advocates and solicitors. Since 2009, candidates for the Jersey law examinations are required to enrol on the Jersey Law Course run by the Institute of Law, Jersey. They are required to take five compulsory papers: (i) Jersey legal system and constitutional Law; (ii) Law of contract and the law relating to security on moveable property and bankruptcy; (iii) testate and intestate succession; law of immoveable property and conveyancing; and civil and criminal procedure. In addition, candidates must take one of three option papers: (i) company law; (ii) trusts law; or (iii) family law.

The admission of lawyers as Notaries in Jersey is governed by an order of the Master of the Faculties. It is necessary to show that a prospective Notary has been in actual practise in Jersey as a Jersey-qualified Advocate or Solicitor for a period of 5 years and is required to pass an examination in Notarial Practice. The Master does however retain a discretion to admit those who are not so qualified "...in appropriate circumstances".

Legal aid

There is no publicly funded legal aid system in Jersey, though the States of Jersey may exercise discretion to pay defence legal fees in serious criminal trials and in cases involving children. During their first 15 years of practice, Jersey Advocates and Solicitors, but not Notaries, are required to participate in a scheme organised by the profession to ensure so far as possible that people without sufficient resources are not prevented from pursuing or defending civil and criminal cases in the island's courts. The scheme is administered on behalf by the Bâtonnier (a senior member of the profession). Cases accepted by the Bâtonnier as eligible are allocated to lawyers on the basis of the 'Tour de Rôle' (i.e. according to one's turn). Depending on the litigants' income and assets, lawyers may work pro bono or charge a reasonable fee in accordance with published guidelines. A lawyer assigned a legal aid case may choose to pay another lawyer to handle the case and several firms have established specialist legal aid departments. There have been numerous and long-standing calls for reform of the present system.

Law reform

The Jersey Law Commission was established by the States of Jersey in 1996 to keep Jersey law under review and bring forward proposals for law reform.