Jersey Unreported Judgments

[2009]JRC060D

ROYAL COURT

(Samedi Division)

3^rd April 2009

Before     :

Sir Richard Tucker, Commissioner, sitting alone.

The Attorney General

-v-

Curtis Warren

John Alan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

Ruling on antecedent records of Liazid and Vatandas.

J. C. Gollop, Esq., Crown Advocate assisted by Advocate D. S. Steenson.

Advocate S. E. Fitz for Welsh.

Advocate E. Le Guillou for O'Brien.

Advocate D. Gilbert for Woodward.

Advocate M. J. Haines for Hunt.

Advocate M. L. Preston for Lucas.

Curtis Warren acting on his own behalf.

Advocate R. Tremoceiro as an amicus to the Court.

RULING

THE commisioner:

1.        The next matter I have to deal with concerns the previous criminal records of men named Mohammed Liazid and Zulfu Vatandas.  Neither of these men are on trial and the Crown are not proposing to call either of them to give evidence.  Mohammed Liazid is named in the Indictment as a conspirator.  Under the English Law, section 112(1) of the Criminal Justice Act 2003 it is arguable that he might be considered to be a defendant, meaning a person charged with an offence in the proceedings. 

2.        This was, originally, the submission made on behalf of the defendants who are represented before me.  However Advocate Gilbert, who addressed me, did not pursue this argument, and having regard to the advice which I have received from the amicus I hold, therefore, that Liazid would not become a defendant in the current proceedings without being formally charged.  A defendant under Jersey Law has to be formally charged and he has not.  Zulfu Vatandas has not been charged as a conspirator, therefore he is certainly not a defendant. 

3.        The reason the Crown refer to these men and seek to adduce evidence of their previous convictions for drug related offences, is that they are said to have met and had conversations with the defendants, particularly defendants Warren and Welsh, and that their antecedents provide important background and explanatory evidence as to the meaning and purpose of those meetings and to rebut any suggestion that these are innocent encounters.  This is especially so in relation to Liazid's meetings and conversations with the defendant Welsh which are alleged to have taken place in Amsterdam between the 19^th and 21^st July, 2007, as apparently recorded and observed.  This evidence, if accepted by the Jury, tends to show that Welsh and Liazid were members of the conspiracy and that Liazid appears to have played a pivotal role in it.  Therefore, say the Crown, it is material and important to prove that Liazid was a player on the drugs scene and second that he was on close terms with another alleged member of the conspiracy, namely the defendant Warren. 

4.        The issue which I am now considering relates to the first of these matters, the second refers to the visits of Liazid to Warren while in prison, a matter with which I shall deal in due course.

5.        So far as the admissibility of previous convictions is concerned, I am well aware, as are several of the Advocates appearing before me, of the case of AG v Styles and Others [2006] JLR 210.  In that case Smith JA stated, at paragraph 23:-

"Under the common law of Jersey, a conviction is not admissible in criminal proceedings and there is no statutory exception relevant to this case."

The conviction there referred to was that of the principle defendant, Styles.  Does it make any difference that in the present case the men I am concerned with are not defendants?  The Crown submit that the decision should be limited to the facts of the case.  It is clear from the judgment of Smith JA that what was important in that case were the similar facts and that "the conviction and other inadmissible facts could have added nothing."  And the judgment does not cover, and was not concerned with, the position of non-defendants or of those who are not on trial before the Court.  The position in English Law is governed by section 100 of the Criminal Justice Act 2003:-

"evidence of the bad character of a person other than the defendant is admissible if and only if-

...

(c) all parties to the proceedings agree to the evidence being admissible."

In the present case none of the defendants would agree to this.  Is the position any different under Jersey Law?  The provisions of the Criminal Justice Act 2003 have not been incorporated into Jersey Law and are therefore not binding on this Court.  There is statutory provision contained in Article 72(1) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 for the admission in evidence of convictions of persons other than the accused, but only if the convictions were by or before a Court in Jersey.  The convictions of Liazid and Vatandas were by Courts in Holland so Article 72 does not assist the Crown, who do not rely upon it in any event for this purpose.

6.        Advocate Gilbert submits that there is no statutory provision and no common law rule which supoprts the Crown's application.  The amicus, Advocate Tremoceiro, advises that the starting point in criminal proceedings is that evidence of bad character is not receivable.  He has been unable to find an example of this having happened in Jersey.  His advice to the Court is that convictions of associates are not admissible in evidence unless these convictions are by the Jersey Courts, so as to come within Ariticle 72. 

7.        In my view the test of admissibility of these convictions is their relevance as appears from the provisions of Articles 72(1) and 72(3).  I have already referred to this question.  In my opinion the convictions are relevant to issues which the Crown have to prove for the reasons I have set out.  It is relevant and important evidence and is probative of those matters.  The common law of Jersey, to which Smith JA referred, should, in my opinion, and must have been intended by him to be, restricted to that referring to defendants on trial before the Court and has no application to non-defendants such as Liazid and Vatandas. 

8.        In my judgment evidence of the previous convictions of these two men is admissible.  It is relevant and important evidence and is probative of the matters I have referred to above.  There can be no doubt about the admissibility of evidence of bad character short of a conviction, and no distinction can, or in my respectful view ought to be made.  I reach this conclusion without reliance on Articles 81 and 72 of the PPCE though they do appear to support my view.

9.        The prejudicial effect of this evidence, which I recognise, is far outweighed by its probative value.  I have considered the provisions of Article 76.  In my view it would not be unfair to admit this evidence. 

10.      Article 8 of the European Convention on Human Rights is not engaged in this situation and it cannot be claimed that it would be breached.  The convictions are already in the public domain.  In any event the evidence is necessary for the prevention of disorder or crime. (See as to the first point the judgment of Maurice Kay J as he then was, in R (Pearson) v Driver & Vehicle Licensing Authority (2002) Road Traffic Reports page 20).  Advocate Gilbert conceded these points before me.

The second part of the Crown's application concerns the method of proof and the question whether the convictions can be proved in a Jersey Court by a certificate, judgment or record from a foreign jurisdiction.  There has been some confusion in English Law caused by the so-called rule in the civil action of Hollington v F Hawthorn & Co Ltd [1943] 1 KB 587.  Strong judicial criticism has been made of that rule and doubts cast upon it and on the correctness of the decision.  Numerous authorities have been cited to me as to why I should not apply it.  I have no doubt that I should disregard it so far as admissibility of foreign convictions in criminal proceedings are concerned.  I am satisfied that the convictions on which the Crown rely can be proved in the present proceedings by the methods proposed by the Crown, that is by the production of foreign judgments or judicial records.

No Authorities

Criminal Justice Act 2003.

AG v Styles and Others [2006] JLR 210.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

European Convention on Human Rights.

R (Pearson) v Driver & Vehicle Licensing Authority (2002) Road Traffic Reports.

Hollington v F Hawthorn & Co Ltd [1943] 1 KB 587.