SNOOKS and DOWSE v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The first applicant is a British national, born in 1971 and living in Ashford, Kent. He is represented before the Court by Bailhache Labesse, lawyers practising in St Helier, Jersey. The second applicant is a British national living in Jersey. He is represented before the Court by Bedell Cristin, lawyers practising in St Helier, Jersey. The respondent Government were represented by Mr D. Walton of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. At about 15.30 hours on 12 September 1996 the first applicant collected two bags containing approximately 11.8 kg of cannabis resin from an accomplice in a car park in Jersey. He transferred those bags to a car and was arrested at about 15.36 hours while attempting to make a telephone call from a kiosk. He said that he thought the bags contained money as he had previously been involved in similar exchanges of money with the accomplice as part of a tax evasion scheme. He contended that he did not have an opportunity to examine the contents of the bags before his arrest. He maintained that he had been surprised to have been given the bags by the accomplice on the occasion concerned as he had on previous occasions normally given bags to that person. He said that the telephone call was an attempt to clarify the situation with another accomplice. The first applicant’s trial was in the Royal Court of Jersey before the inferior number, which consisted of a judge of law (the “deputy bailiff”) and two judges of fact (the “jurats”). His defence was that he did not know that the bags contained drugs and had no reason to believe that this was the case. At the end of a three day trial the deputy bailiff delivered a summing up in open court before retiring with the jurats. The first applicant was convicted on 21 May 1997 of offences of being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis resin and of being in possession of a controlled drug. No reasons were given for the verdict. He was sentenced to five years, six months’ imprisonment. In a judgment delivered on 26 September 1997 the Court of Appeal allowed his appeal against conviction for being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis on the ground that the deputy bailiff had failed to direct the jurats fully on the ingredients of that offence. It dismissed his appeal against the conviction of being in possession of a controlled drug with intent to supply and substituted a sentence of five years’ imprisonment. The principal grounds of appeal related to alleged deficiencies in the summing up by the deputy bailiff. One allegation was that the summing up had contained a number of factual deficiencies because it had referred to the first applicant’s defence counsel as having implied that the purpose of the first applicant’s going to the telephone kiosk was to telephone an accomplice to ask him what was in the bags and because it stated that part of his evidence was that a woman had rushed in and out of the kiosk “within seconds of his being there”. The Court of Appeal concluded that: “In our judgment these minor factual errors are not significant and could not possibly have affected the verdict of the jurats.” Another allegation was that the summing up had not fairly put the defence case. For example, it indicated that it would have been “very easy” for the first applicant to inspect the bags before his arrest without referring to the defence counsel’s contentions to the contrary. In this regard the court concluded: “We have examined carefully the points made by [the first applicant’s counsel] in relation to this submission but we find no force in it. Some of the points which were alleged to be unfavourable to the appellant on analysis proved to be neutral or even favourable to him... .While it is true that the jurats were not reminded of every piece of evidence which was favourable to the defence, the deputy bailiff was under no duty to do so. What we do find is that the deputy bailiff was at pains to remind the jurats throughout the summing up that the appellant’s defence was that he did not know that the bags contained cannabis resin and that it was his state of mind at the relevant time which was important. The deputy bailiff also reminded the jurats on more than one occasion that the appellant’s version of events was supported by other witnesses. We accordingly reject this criticism of the summing up”. In the course of the proceedings before the Court of Appeal, argument was also heard on the question whether, having delivered a summing up in open court, the presiding judge (in this case the deputy bailiff) should retire with the jurats, who are initially the sole judges of fact (see below). The court made no observations on this point other than to suggest that “...this is an issue which merits careful consideration by the Royal Court”. The Court of Appeal concluded that: “There was ample evidence upon which the jurats could make a finding of guilt. The appeal against conviction for possession of the cannabis resin with intent to supply was accordingly dismissed.” The first applicant petitioned the Judicial Committee of the Privy Council for special leave to appeal against his conviction. On 30 March 1998, after an oral hearing, this was refused. The second applicant was arrested on the evening of 23 February 1996 following a stop and search by police on a street in Jersey. He was found to be in possession of two packages of diamorphine (heroin) valued at GBP 113,040. He had travelled to London and back earlier that day. He said at his trial that he had gone there to visit an exhibition at the Imperial War Museum and maintained that he had only found the packages upon his return to his flat that evening. He said that he initially thought that the packages contained diamonds, as he had previously carried them for a man called Dr Ambrose between Jersey and London, where he had handed them over to a man called Jan. He had met Jan at Victoria railway station in London that day but had explained to him that, at that time, he had no diamonds. He maintained that, at the time of his arrest, he was on his way with a friend to a public house to try to find Dr Ambrose because he did not know what was in the packages and had not examined their contents. The second applicant’s trial commenced before the inferior number of the Royal Court of Jersey on 16 December 1996. At the conclusion of the closing speeches of the defence and prosecution counsel, the deputy bailiff and two jurats retired. The deputy bailiff’s summing up was delivered in private. On 20 January 1997 the second applicant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug and of being in possession of a controlled drug with intent to supply it to another. No reasons were given for the verdict. He was sentenced to thirteen years, six months’ imprisonment. The second applicant appealed on a number of grounds, including the fact that the deputy bailiff summed up in private. However, shortly before the appeal hearing, in a letter dated 16 May 1997, he withdrew four of the five grounds of appeal, and elected to proceed only on the question whether there had been sufficient evidence that the applicant had imported the heroin to form the basis of a conviction on the first charge. A few days before the appeal hearing the Solicitor General disclosed to the second applicant’s representatives the existence of witness statements given by seven English police officers who had observed his movements in the United Kingdom on the day in question. Those statements confirmed, inter alia, that the second applicant had met Jan at Victoria station that day and had gone on to the Imperial War Museum. On 11 July 1997 the Court of Appeal allowed the appeal against the conviction of being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis on the ground that the prosecution should have disclosed this evidence before, or at least during, the trial and that the non-disclosure had led to a substantial miscarriage of justice in relation to that conviction. It dismissed the appeal against the conviction of being in possession of a controlled drug with intent to supply on the ground that the non-disclosure did not affect that conviction. It stated that the new evidence: “...could not go to substantiate either directly or indirectly [the second applicant’s] claim to have an entirely separate relationship with Dr Ambrose as a diamond courier. Nor could it explain his behaviour in relation to the two packages on the evening of that day after they had been left in his flat according to [him] by some unidentified person and without any explanation”. The Court of Appeal substituted a sentence of twelve years’ imprisonment. The second applicant petitioned the Judicial Committee of the Privy Council for special leave to appeal against his conviction, reverting, inter alia, to the question whether the summing up in private had been fair. There was a hearing before the Privy Council on 29 October 1998, which was attended by the applicant’s counsel and a representative of the Solicitor General. An account of this hearing prepared by the Solicitor General’s representative states: “... Their Lordships after hearing counsel on both sides and a short deliberation informed the parties that the Petition would be dismissed. I should point out that Lord Steyn [the presiding judge] remarked with great surprise at there being no summing-up by the Bailiff in open court, but went on to say that since the matter had not been raised before the Court of Appeal, he did not believe that it would be appropriate for the Privy Council to intervene in this regard at this stage without having any views from the Court of Appeal. I rather got the impression from Advocate Young for the Petitioner, who attended at the hearing, that someone may well be looking at raising this subject again in an appropriate case in the Court of Appeal, so that the matter may be raised yet again before the Privy Council. ...” The Convention was first extended to the Bailiwick of Jersey, under Article 63 (now Article 56) of the Convention, by a declaration registered at the Secretariat General on 23 October 1953. Protocol No. 11 was extended to Jersey with effect from 1 November 1998. There is one bailiff and one deputy bailiff in Jersey. They are appointed by the Queen and can only be removed from office by her. The deputy bailiff is able to perform all the bailiff’s functions, on the authority of the bailiff. The Royal Court, comprised of bailiff and jurats, has existed in Jersey since the middle of the 13th century. Jurats are charged with the execution of a range of judicial tasks. They are not required to decide legal issues, but instead represent the lay element in the process of judicial decision-making. They also form part of the Liquor Licensing Assembly and the Gambling Licensing Authority. They have powers, inter alia, to authorise the removal of arrested persons to prison in certain circumstances, to supervise dealings in the property of persons under certain forms of legal disability and to supervise the conduct of public elections. Jurats are not chosen at random from the electoral roll, as in the case of ordinary jurors both in Jersey and the United Kingdom. Rather, they are elected by a special electoral college whose members include the bailiff, the jurats, advocates and solicitors of the Royal Court and members of Jersey’s legislature, the States Assembly. Jurats do not necessarily have a legal qualification, but are usually individuals with a known history of sound judgment and integrity, which has been consistently demonstrated throughout a lengthy professional, business or civic life. The qualifications required for election to the office of jurat are governed by Article 3 of the Royal Court (Jersey) Law, 1948 as amended (Annex 3A, pp. 164-165) (“the 1948 Law”), which currently provides as follows: “QUALIFICATIONS FOR THE OFFICE OF JURAT 1) A person shall, unless disqualified under the provisions of this Law or any other enactment, be qualified to be appointed Jurat if he has attained the age of forty years and is a British subject and - (a) was born in the Island; or (b) has during the five years preceding the day of appointment been ordinarily resident in the Island. 2) For the avoidance of doubt, it is hereby declared that - (a) a person, by reason of the fact that he is not a member of the Established Church, shall not be disqualified for being appointed Jurat; (b) a woman, by reason of her sex or marriage, shall not be disqualified for being appointed Jurat;” Disqualifications for the office of jurat are governed by Article 4 of the 1948 Law. Grounds for disqualification include the holding of any paid office or other place of profit under the Crown or the States or any other administration of the States, or any parochial authority: Article 4 (a)(b). Retirement of jurats is governed by Article 10 (1) of the 1948 Law as amended, which provides as follows: “RETIREMENT OF JURATS A Jurat shall cease to hold office on the day upon which he attains the age of seventy-two years: Provided that a Jurat who, for a continuous period of twelve months fails, without good reason, to discharge the duties of his office, or 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 his office, may be called upon by the Court to resign and, unless he, within a reasonable time, presents to the Bailiff, for transmission to Her Majesty in Council, a petition praying that Her Majesty may be pleased to permit him to resign his office, he shall be removable by Order of Her Majesty in Council on the petition of the Superior Number of the Royal Court.” Other than trial in the Magistrate’s Court, there are two forms of criminal trial in Jersey, namely an “assize trial” before a judge and jury, and “trial by the inferior number” before a bailiff (or deputy bailiff) and two jurats. In the case of serious statutory offences, including those of which both applicants were accused, trial is always before the Royal Court by the inferior number. The roles of the bailiff and jurats at trial by inferior number are set out in Article 13 of the 1948 Law, which provides: “POWERS OF THE BAILIFF AND JURATS 1) In all causes and matters, civil, criminal and mixed, the Bailiff shall be the sole judge of law and shall award costs, if any. 2) In all causes and matters, civil, criminal and mixed, other than criminal causes tried before the Criminal Assizes, in which causes the jury shall... find the verdict, the Jurats... shall be the sole Judges of fact and shall assess the damages, if any. 3) In all criminal and mixed cases, the Jurats shall determine the sentence, fine or other sanction to be pronounced or imposed. 4) In all causes and matters, civil, criminal and mixed, the Bailiff shall have a casting vote whenever the Jurats - (a) being two in number, are divided in opinion as to the facts or as to the damages to be awarded or as to the sentence, fine or other sanction to be pronounced or imposed; or (b) (...)” Since the entry into force of the 1948 Law, the bailiff has - as a consequence of his own role as the sole judge of the law - been obliged to give the jurats guidance or directions on relevant matters of law. These directions are generally known as a summing up. In giving his directions on the law, it is common for the bailiff or deputy bailiff to advert to the issues of fact which are crucial to the legal issues upon which the directions are given. As a matter of practice, it is not usual for the bailiff to give a full and formal summing up of the facts, in the manner common in jury trials. The summing up used normally (though not invariably) to be given in private, after the trial itself - including the closing speeches of prosecuting and defence counsel - had taken place in public. However in the first applicant’s case it was given in public. As a consequence of the comments of the Court of Appeal in that case, it has been given in public in subsequent cases. After the trial, the bailiff (or deputy bailiff) and jurats retire together. This practice was referred to by the Court of Appeal in the first applicant’s case. The President stated in his judgment: “... we heard some argument as to whether, having delivered a summing up in open court, the presiding judge should any longer retire with the Jurats [since initially they alone are the judges of fact]. We make no observations on this point other than to suggest that this is an issue which merits careful consideration by the Royal Court.” The following year, in the case of Attorney General v. Young and Williams (1998 1 JLR 111), the Royal Court held that the presiding judge should retire with the jurats when they consider their verdict, since by virtue of Article 13 (4) of the 1948 Law, he was given a casting vote whenever the jurats were divided on an issue of fact. However, the Royal Court also held that it was the presiding judge’s responsibility to ensure that when he retired with the jurats, he limited his contribution to their discussion to matters of law, so that the decision on the facts was theirs alone, as stipulated by Article 13 (2) of the 1948 Law.