Jersey Unreported Judgments

[2011]JRC016B

ROYAL COURT

(Samedi Division)

20^th January 2011

Before     :

Sir Philip Bailhache, Kt., Commissioner, sitting alone.

The Attorney General

-v-

Justin Peter Michel

M. T. Jowitt, Esq., Crown Advocate.

Advocate M. L. Preston for the Defendant.

JUDGMENT

THE commissioner:

1.        This is an application by Counsel for Justin Peter Michel for an order that the acts complained of are not acts capable of having the requisite tendency to pervert the course of justice.  Counsel is not applying for an order that the proceedings be stayed; he is applying, in effect, for a declaration following which he would expect the Crown to abandon the prosecution. 

2.        The first difficulty is that I have not been given an agreed statement of facts upon which Counsel seek a ruling as to the applicable law.  Mr Preston does however rely upon a case summary for the committal hearing, paragraphs 57 and 58 of the summary provide:-

"The Crown relies upon particular acts by the defendant as being designed to pervert the course of justice; the receipt of assets from his father; the misrepresentation to those acting for the Attorney General, and the counselling of the transfer of assets to others, the evidence of the latter arises by inference, it is plain that PM made the transfers to Sarah Pittard, Lyndan Michel and Tracey Buckley to evade confiscation of the assets concerned.  It is inconceivable that he would have done this without consulting with his son, a lawyer to whom he was also making gifts and who has revealed his complicity in events by lying to the Crown about them.  The Crown's case is that in the months after the police searches, PM and the defendant decided to evade a potential confiscation order by transferring property away.  There then followed a series of valuable transfers to the recipients.  In 2004 after the saisie was imposed, it became clear that the making of gifts alone would not suffice.  It was at that stage that the defendant decided to lie by pretending that the transfers were made pursuant to a contract."

3.        It seems however that the Crown now relies upon the receipt of assets from Peter Michel and the alleged lie about the nature of the transfer of those assets, and I have considered the application on that basis.  Mr Preston has submitted that the mere receipt of assets by the defendant from his father, Peter Michel, is not capable of itself of having the requisite tendency to pervert the course of public justice; something more is required, for example, some attempt to hide or to disguise the assets in question.  Furthermore he submits that the paragraph in a letter of 25^th November, 2004, from the defendant to Crown Advocate Whelan, upon which the Crown relies, was no more than a vague assertion and could not amount to a lie.  It was too ambiguous to constitute a statement that a contract had arisen and that the assets were not therefore liable to confiscation.

4.        The Crown Advocate contended in response that the paragraph in the letter of 25^th November, 2004, could not be construed in isolation and that it took its colour from the other correspondence passing between the defendant, his law firm at the time, and the Crown.  More generally the Crown Advocate submitted that whether the acts in question amounted in law to acts having the capacity to pervert the course of justice could only be determined on the facts of the case. 

5.        I find these submissions of the Crown Advocate to be persuasive.  It seems to me that a decision as to whether the acts complained of are capable of having the requisite tendency to pervert the course of justice should be determined when the factual matrix has been laid, that is to say, at the conclusion of the case for the Prosecution.  I decline therefore in the exercise of my discretion to make a ruling at this stage of the proceedings. 

6.        I will add a few words by way of postscript.  In an endeavour to be helpful to both the Crown Advocate and the Defence Counsel, in R-v-Jabber [2006] EWCA Crim 2694, the facts of which were rather different from the facts of this case, Moses LJ stated at paragraphs 33 and 34:-

"We agree that there must be some principled approach to the charging of such an offence.  We acknowledge the difficulty this Court has in grappling with the principle to be applied, since the circumstances in which it will be proper to charge such an offence will vary so much from case to case.  There must, we conclude, be some evidence of positive action.  In most cases but not all, that will be evidence of concealment but the actions must amount to something beyond merely an attempt to escape from the scene of a crime of which the Defendant is accused, coupled with a subsequent denial of involvement.  If the evidence amounts to no more than such an escape and such subsequent denials, in our judgment it will not be sufficient to find a charge of the perversion of the course of justice.  It is necessary to establish some positive act of perversion be it of concealment or distortion.  Precisely what is sufficient will so much depend upon the facts of each different case as to render it impossible for further elucidation." 

7.        Each case must be looked at on its own merits as the evidence has unfolded.  I find nothing, however, in the Crown's case summary which leads me to the conclusion that the Crown's approach is legally flawed so that the Crown should not be permitted to present its case in the way in which it proposes to do so. 

Authorities

R-v-Jabber [2006] EWCA Crim 2694.