Jersey Unreported Judgments

2002/75

COURT OF APPEAL

 

 

4^th April, 2002.

 

 

Peter Gerald MARRIOTT

-v-

The Attorney General

 

Reference by the Secretary of State, under Article 41(b) of the Court of Appeal (Jersey) Law, 1961, of the case of Peter Gerald MARRIOTT, whose appeal against conviction on 15^th January, 1987, at the Royal Court (Criminal Assize), by a majority verdict, on two counts of fraudulent conversion, was dismissed by the Court of Appeal on 23^rd September, 1987, asking the Court whether, in their opinion, the jury at Mr. Marriott's trial was properly constituted and, if not, the extent to which this might affect the safety of his conviction .

Advocate P. C. Sinel for the Appellant.

C. E. Whelan, Esq., Crown Advocate.

 

 

 

JUDGMENT

 

 

THE PRESIDENT:

1.        This is the judgment of the Court.  On 15 January 1987 in the Royal Court (Criminal Assize) Mr. Marriott was convicted by a majority verdict of the jury on two charges of fraudulent conversion, in relation to property of his mother of which he had been appointed as curator under the Mental Health (Jersey) Law 1969.  He was sentenced on 5 February 1987 to two year's probation on condition that he would perform 180 hours of community service.  On 17 March 1987 his application for leave to appeal against his conviction was granted.  His appeal against conviction, based on a submission that he had not been "entrusted" with his mother's property and therefore had not fraudulently converted that property to his own use or benefit, was dismissed by the Court of Appeal on 23 September 1987 by a judgment which is reported at (1987-88) JLR 285.

2.        In relation to the majority verdict of the jury, in the transcript of 15 January 1987 the Bailiff who was presiding in the Royal Court stated as to each of the two counts that "more than sufficient members of the jury" found Mr. Marriott guilty.  There is otherwise no evidence as to the size of the majority on either count.  In 1987 the jury would have been composed of 24 persons in accordance with Article 33 of the Loi (1864) réglant la procédure criminelle ("the 1864 Law").  (The change to juries of 12 persons took place in the next year, 1988.)  Pursuant to Article 46 of the 1864 Law conviction required a verdict of a minimum of 16 out of the 24 jury members.

3.        It has since come to light that 2 of the 24 persons who served on that jury had previous convictions, one for an offence of receiving stolen goods to the value of over £258, and the other for a simple larceny of goods of a value of £60, and for two counts of larceny from an unattended motor vehicle.  It is Mr. Marriott's contention that these two persons were ineligible to sit on the jury by reason of Article 10 of the 1864 Law, which, so far as relevant provided:

"Sont incapables de servir comme hommes d'enquête:-

1. ...

2. ...

3 ...

4. toute personne atteinte et convaincue de trahison, ou de félonie ou crime;

5. toute personne sous accusation de crime."

4.        By letter dated 28 November 2001 the Attorney General was informed that the Secretary of State had "decided to refer the case to the Jersey Court of Appeal under Article 41(b) of the Court of Appeal (Jersey) Law 1961, asking the court whether, in their opinion, the jury at Mr. Marriott's trial was properly constituted and, if not, the extent to which this might affect the safety of his conviction".  It is not clear why the Secretary of State was advised to refer the case only under Article 41(b) of the Court of Appeal (Jersey) Law 1961 ("the 1961 Law"), rather than under Article 41(a) of the 1961 Law under which the whole case would be heard and determined by the Court of Appeal.  It is also unclear why in the Secretary of State's reference mention is made of the "safety" of the conviction (the current test in English law) rather than mentioning the relevant test in Jersey law under Article 25(1) of the 1961 Law, which can be summed up in the words  "miscarriage of justice".  Accordingly Advocate Sinel who represents Mr. Marriott was encouraged by the Presiding Judge of this sitting of the Court of Appeal to seek leave to appeal out of time and to lodge an appropriate notice of appeal with supporting documents, and this Mr. Sinel has done.

5.        A preliminary point for this Court arises in relation to Rule 24 of the Court of Appeal (Criminal) (Jersey) Rules 1964.  This provides that a reference by the Secretary of State under Article 41(b) of the 1961 Law shall be considered by the Court of Appeal in private, unless this Court otherwise determines.  Neither Mr. Marriott nor the Crown asked for the matter to be considered in private.  It is in any event incumbent on any Court in Jersey hearing a criminal matter to sit in public unless there are strong reasons making a private sitting necessary, pursuant both to Jersey law and to Article 6 of the European Convention on Human Rights.  Accordingly this Court sat in public.

6.        The first main issue is whether the jury of 24 persons which convicted Mr. Marriott by a majority of at least 16 persons was properly constituted in accordance with the 1864 Law. 

7.        Mr. Sinel has applied for leave to adduce fresh evidence, an affidavit of Mr. Marriott; and this application was not opposed by Crown Advocate Whelan, who appeared for the Crown, and to whom this Court is indebted for his helpful submissions.  There are exhibited to the affidavit particulars of the conviction recorded against one of the jurors on 19 March 1965 for receiving stolen goods to the total value of £258.12s.9d. as certified by the Deputy Judicial Greffier.  There is also exhibited to the affidavit a letter dated 17 September 2001 from the Attorney-General confirming the conviction of that juror, and also confirming that another of the jurors was convicted on 29 April 1976 of the offences to which reference has already been made in paragraph 3 of this judgment.

8.        Thus the offences of which these two jurors had been convicted were larceny and receiving stolen goods.  The question is whether the convictions of these offences fall within Article 10.4 of the 1864 Law.  For the Crown Mr Whelan contended that offences under the common law of Jersey fall into two categories, of either "crimes" or "délits", and that the jurors' convictions were of offences in the category of "délits" and therefore not within Article 10.4 on its true interpretation.  So the question divides into two parts:

(i)        are the common law offences of larceny and receiving to be categorised correctly as "crimes" or as "délits"; and

(ii)       is the word "crime" in Article 10.4 to be interpreted as limited to the category of "crimes" as opposed to "délits", or is this word used in Article 10.4 as a general word intended to cover all criminal offences, whether "crimes" or "délits" at common law, or "contraventions" under statute law.

9.        The categorisation of common law criminal offences in Jersey law is a subject of no little obscurity.  We were referred to the First Report of the Commissioners appointed to enquire into the state of the criminal law dated 1847.  The Commissioners found the greatest difficulty in ascertaining the precise state of the criminal law.  After citing from the Grand Coutumier and later sources of enlightenment, the Commissioners at page xxvi concluded that

"the more serious offences are now called "crimes", and the less serious "délits".  The line between the two is not drawn very strictly.  Offences against express enactments are commonly called "contraventions"."

This conclusion seems to have been founded largely on the responses to questioning of Mr. Robert Marett (page 89 of the Report) and of Mr. Thomas Le Breton and others (at page 222 of the Report) in which the Commissioners refer (inter alia) to being told that "the distinction between "crimes" and "délits" consists entirely in the punishment" - a proposition about which we entertain some doubt.

10.      With regard to larceny there are indications in the Report drawn from references to earlier sources that larceny or "larçin" would have been regarded as serious and therefore a "crime", just as robbery.  By 1847 use of the word "larçin" had disappeared, and the word "vol" had taken its place (page xxi of the Report).  But it appears still to have been regarded as a "crime".  The position in relation to the offence of receiving stolen goods was apparently not considered by the Commissioners.

11.      A number of other references to "délit" or crime" were cited to the Court.  None of them appeared greatly to assist, and we therefore refer to them only briefly:

(i)        In the Law Reform (Miscellaneous Provisions) (Jersey) Law 1978 the prescription period for "délits" and "contraventions" was extended from a year and a day to three years (there being a 20 year period in relation to "crimes".)

(ii)       In the Loi (1895) modifiant le droit criminel, in introducing certain statutory sexual offences a distinction was drawn between the less serious, expressly referred to as "délits", and the more serious which were treated as "crimes":  see Article 3.

(iii)      The Loi (1884) sur les matières explosives and the amending Loi (1979) contained provisions expressly making some offences "crimes".

(iv)      In the Loi (1865) étendant la compétence de la Cour des Moindres Délits, Article 1 expressly provided that where the punishment was no more than one month in prison, or compensation ordered did not exceed £10, then certain offences including:

"5.  Les simples larçins, lorsque la valeur de l'objet ou des objets dérobés ne dépassera pas une livre sterling, et que le délit n'aura pas été accompagné de circonstances aggravantés"

would fall within the jurisdiction of that court.  But in Article 3 the right of the accused to elect for jury trial in the Royal Court was preserved, even where e.g. the value of the stolen object was less than £1. 

(v)      In the Police Court (Miscellaneous Provisions) (Jersey) Law 1949 "offence" was defined in Article 1 as meaning "any crime or misdemeanour ("délit") whether at customary law or by enactment [etc]".  It may also be noted that in English law receiving stolen goods was at common law only a misdemeanour.

12.      In HM Attorney-General v Pennington (1970) 38 PC 179 the Royal Court considered the various categories of offence in this passage dealing with common law offences:-

"Using the word comprehensively, offences were of two classes: common law offences and statutory offences.  Common law offences were called either "crimes" or "délits", but which was which is both undefined and immaterial; statutory offences were called "contraventions".  Of "crimes" and "délits" there were two groups, the minor and the major.  The latter were triable by jury; the former were not.  As the Commissioners themselves said -

           "The line between the two is not very definitely drawn; but it may be said generally that, in all cases where capital or corporal punishment, transportation, hard labour, or lengthened imprisonment may be inflicted, the case goes before a jury."

If an inculpated person brought before the Inferior Number in respect of a minor offence pleaded guilty he was dealt with summarily; if it was in respect of a major offence he was sent before the Full Court for sentence.

If the inculpated person pleaded not guilty, then in respect of the minor offences the issue of guilt was tried by the Inferior Number sitting "en Police Correctionnelle" and in respect of the major offences it was tried by the Full Court and a jury in the manner of the time.

What is not clear is whether an inculpated person in respect of a minor offence could insist on being tried before the Full Court with a jury.  Subsequent legislation suggests that he could not.  The absence of any definition of the two groups of offences must have meant, however, that the Court had a discretion in deciding into which group an offence fell."

The Royal Court went on to consider the various statutes relating to the trial of offences, concluding at p.1355 that the right to trial by jury had been reduced, in so far as the Police Court jurisdiction had been extended, "except in the case of larceny": see Article 3 of the 1865 Law.

13.      It is far from easy to draw any firm conclusions from these sources of guidance as to the real categorisation of "crimes" and "délits".  We consider, however, that it is probably right to treat larceny as still being a "crime" although some lesser offences of larceny appear to be characterised as "délits": see paragraph 11(iv) above.  It is unclear whether receiving of stolen goods is to be treated as a "crime" or a "délit". 

14.      We turn next to consider the interpretation of Article 10.4 of the 1864 Law.  This excludes all persons charged and convicted of "trahison" - or treason - or of "félonie" or "crime".  The use of the word "félonie" in a statute of 1864 was puzzling, since in the Commissioners' Report of 1847 they had reported (at page xv) that

"the word felony no longer appears in legal proceedings as designating a class of crime in Jersey".

We cannot draw any indication as to the interpretation of the word "crime" in Article 10.4 from the use of "félonie".

15.      The issue is whether in Article 10.4 "crime" was limited to the category of "crimes" (as distinguished from "délits") or was used in its general sense to cover criminal offences at large.  An indication that in the 1864 Law "crime" was used in the narrower, technical sense can be derived from Articles 13 and 14, in which appear the words "commis un crime ou un délit", and "prévention de crime ou délit".  On the other hand the wording of Article 10.5 rendering disqualified for jury service "toute personne sous accusation de crime" might be regarded as an indication of a wider meaning of "crime" in Article 10.  It is not necessary for the Court to reach a firm conclusion on this difficult point of statutory interpretation, but our present view is that "crime" in Article 10 was intended to include all common law criminal offences, and not to exclude "délits".

16.      In the light of the views we have expressed we conclude that

(i)        the two convictions of larceny by the Magistrate's Court of one juror meant that he was disqualified from jury service, and

(ii)       the conviction of the other juror by the Royal Court of receiving stolen goods probably meant that he also was disqualified.

Thus we find that the jury of 24 persons contained two persons who were not eligible to be jurors.

17.      The second main issue is as to the effect of their ineligibility on the conviction of Mr. Marriott.  His conviction on each count was by a majority which must have been at least 16 to 8 jurors.  The recorded remark of the Bailiff that "more than sufficient members of the jury" convicted Mr. Marriott on each count might be taken to indicate that the majority was 17 to 7 jurors or greater.  But it is not for this Court to speculate on the size of the majority in the absence of clear evidence.

18.      Mr. Sinel's simple submission was that the conviction of Mr. Marriott should not be allowed to stand.  He was entitled to be tried by a jury composed only of eligible jurors, and not by a jury containing two ineligible persons.  He did not have such a trial as was contemplated in the 1864 Law.  Mr. Sinel relied particularly on the recent decision of this Court in Jones v Attorney General 2000 JLR 103.  In that case on the first day of trial one of the jurors had been discharged.  The trial continued with only eleven jurors.  There was no statutory authority for such a continuance.  The Court of Appeal granted Mr. Jones' appeal on the ground that the composition of the jury which convicted him was not in accordance with the 1864 Law.  This Court further held that the proviso in Article 25(1) of the Court of Appeal (Jersey) Law 1961 could not be applied, because (see paragraph 20) the "tribunal of fact which found against the Appellant was not properly constituted", and so "it would not be appropriate in our view to apply the proviso on the basis that "no substantial miscarriage of justice has actually occurred"".  A fresh trial was ordered.  Mr. Sinel submitted that if a conviction could not stand where one juror was discharged, a fortiori Mr. Marriott's conviction could not stand where two jurors, who took part in the deliberations leading to the findings of guilt, were not qualified to sit as jurors.  So there was a miscarriage of justice within Article 25(1) of the 1961 Law.

19.      Mr. Whelan in his careful submissions sought to persuade this Court that no miscarriage of justice, substantial or otherwise, had occurred.  He submitted that the evidence against Mr. Marriott had persuaded at least 16 members of the jury to find him guilty, and that the mere presence of two disqualified persons in the jury room should not be held to be of itself a substantial miscarriage.  He relied in this connection on a number of English authorities including the 1995 edition of Blackstone's Criminal Practice and the cases of Bliss (1986) 84 Cr. App. R.1, Raviraj et al (1986) 85 Cr. App. R. 93 and Kelly (1950) 34 Cr. App. R. 85, decisions of the English Court of Appeal or Court of Criminal Appeal.  In our judgment none of those cases provided the right answer in the circumstances of this case, particularly at a time when proper regard must be paid to the jurisprudence of the European Court of Human Rights.  Indeed it may be that in England those cases will have to be reconsidered in the light of the Human Rights Act 1998.

20.      In our judgment the conviction of Mr. Marriott cannot stand according to the law of Jersey.  He was entitled to stand trial before a jury composed only of eligible jurors.  He did not have such a trial by jury as is contemplated in and required by the 1864 Law.

21.      One relevant decision of the Privy Council on an appeal from India was in Ras Behari Lal et al v R (1933) 50 Times Law Reports 1.  In that case one out of 12 jurors did not understand English, the language which was used in some of the evidence, counsel's addresses and the Judge's charge to the jury.  The judgment was given by Lord Atkin.  We quote from the judgment:

"On the appeal coming on for hearing before the [Privy Council] counsel for the Crown has not impugned the correctness of the report [as to the juror's lack of understanding of English] and has admitted that on this finding the convictions cannot be maintained.  In their Lordships' opinion this is necessarily the correct view.  They think that the effect of the incompetence of a juror is to deny to the accused an essential part of the protection accorded to him by law, and that the result of the trial in the present case was a clear miscarriage of justice.  They have no doubt that in these circumstances the conviction and sentence should not be allowed to stand."

22.      If that is true where a juror does not understand the language used at the trial, it is also true where ineligible persons are purportedly included as jurors, whether the number of jurymen be 24 or 12.

23.      Later in the judgment Lord Atkin said that there is a continuous duty on the judge throughout the trial to ensure that only qualified persons act as jurors and that jurors, if qualified when sworn, remain so qualified.  He went on to express approval of the English case of R v Wakefield [1918] 1 KB 216 in which a person not qualified and not summoned personated on the jury a man who was qualified and had been summoned, in which the English Court said:

"A defendant is entitled to be tried before a duly authorised judge and twelve men qualified to be jurors to try him."

This was not a mere irregularity, but a fundamental mistrial.

24.      More recently in R v Salt (English Court of Appeal, 29 January 1996)) there were only 11 jurors available and the supervising usher added in his son to make up a jury of 12.  The English Court of Appeal held that the convictions must be quashed.  Staughton LJ went on to say:

"We were asked to say that the presence of the son on the jury had made no difference to the result on two grounds, first that they acquitted on one of the three charges, and secondly, because they spent only 40 minutes considering their verdict altogether.  We cannot possibly say that.  Once it is shown that there was someone on the jury who should not have been there, and as we are not going to enquire into what went on in the jury room, we must inevitably regard the conviction on the other two charges as unsafe".

25.      The same must apply in this case.  This Court cannot speculate as to the effect (if any) of the presence of the 2 unqualified persons on the other 22 qualified jurymen.  The simple position is that Mr. Marriott was entitled to be tried by a jury composed of 24 qualified jurymen.  He was not so tried.  There was a substantial miscarriage of justice.  Accordingly his convictions must be quashed.

26.      We add this on the proviso in Article 25(1).  The onus was on the Crown to show that no substantial miscarriage of justice actually occurred.  To discharge this onus the Crown would have to have taken us through the evidence to show that a jury, correctly composed and correctly directed as to the law, would have convicted on the evidence before the Royal Court.  But no attempt was made by the Crown to rely on the evidence or to direct our attention to any aspect of it.  Further, the convictions were in any event only by a majority verdict.

27.      We are treating this as an application for leave to appeal out of time.  We grant this application, we allow his appeal and we quash his convictions.

28.      As to the reference under Article 41(b) of the 1961 Law this Court has answered the questions referred by this judgment, and directs that the Secretary of State be informed accordingly.

29.      There are these further points which we should mention:

(i)        Understandably Mr. Sinel refrained from making detailed submissions as to the effect of Article 6 of the European Convention on Human Rights, and that is why this Court has not on this occasion considered Article 6.  But we observe that it may be questioned in any future case whether a conviction secured from a jury not constituted in accordance with Jersey law could be regarded as other than a violation of Article 6 of the Convention, because the jury arguably would not be "established by law" within Article 6.

(ii)       The Crown has not sought a retrial, and in view of the lapse of time that would not be appropriate in this case.  But in other cases that may well be an appropriate order.

Authorities.

Loi (1864) réglant la procédure criminelle: Articles 10, 33.

Court of Appeal (Criminal) (Jersey) Rules 1964.

First Report of the Commissioners appointed to enquire into the state of the criminal law (1847): page xxvi; pp.89, 222.

Law Reform (Miscellaneous Provisions) (Jersey) Law 1978.

Loi (1895) modifiant le droit criminel.

Loi (1884) sur les matières explosives.

Loi (1865) étendant la compétence de la Cour des Moindres Délits: Article 1.

Police Court (Miscellaneous Provisions) (Jersey) Law 1949.

HM Attorney-General v Pennington (1970) 38 PC 179; (1970-71) JJ 1349.

Jones v Attorney General 2000 JLR 103 CofA.

Blackstone's Criminal Practice  (1995 Ed'n)

Bliss (1986) 84 Cr. App. R.1,

Raviraj et al (1986) 85 Cr. App. R. 93.

Kelly (1950) 34 Cr. App. R. 85.

Ras Behari Lal et al v R (1933) 50 Times Law Reports 1.

R v Wakefield [1918] 1 KB 216.

R v Salt (English Court of Appeal, 29 January 1996)