Court of Appeal
(Jersey) Law 1961
A LAW to constitute a Court of
Appeal, to amend the law relating to appeals in civil and criminal cases, and
to provide for matters ancillary thereto
Commencement
[see endnotes]
PART 1
THE COURT OF APPEAL
1 Court
of Appeal[1]
There shall be a Court of Appeal with such jurisdiction as is
conferred upon it by this Law or the Criminal Procedure (Jersey)
Law 2018.
1A Interpretation
of Part 1[2]
In this Part, “quashing application” means an
application under paragraph 3(1) or (2) of Schedule 2 to the Criminal Procedure (Jersey)
Law 2018.
2 Judges of Court of Appeal[3]
The Judges of the Court of Appeal shall be the Bailiff, the Deputy
Bailiff and such persons as may be appointed by His Majesty to be ordinary
judges of the Court of Appeal, being persons who –
(a) hold or have held
judicial office in the Commonwealth;
(b) have been at least 10
years in practice at the Bar in Jersey, whether as a Law Officer of the Crown
or otherwise; or
(c) have been at least 10
years in practice at the Bar in England and Wales, Scotland, Northern Ireland,
Guernsey or the Isle of Man.
3 Tenure of office of
ordinary judges
An ordinary judge of the Court of Appeal shall hold office during
good behaviour.
4 Restriction on practising
No ordinary judge of the Court of Appeal shall, during the
judge’s continuance in office, practise at the Bar in Jersey or be
concerned directly or indirectly, whether within or without Jersey, as counsel,
solicitor, arbitrator or referee in any matter arising within Jersey.
5 Oath of office of ordinary
judges
Every ordinary judge of the Court of Appeal shall, upon taking
office, take oath in the Royal Court in the form set out in Schedule 1.[4]
6 Remuneration and expenses
of ordinary judges
(1) The ordinary judges of
the Court of Appeal shall receive such remuneration as may be determined by the
Minister for Treasury and Resources and shall be entitled to reimbursement of
all travelling and other expenses incurred by them in the discharge of their
functions under this Law.[5]
(2) [6]
(3) [7]
7 Officers of Court of Appeal
(1) Subject to rules of
court, the Viscount shall, for all purposes of and incidental to the hearing of
appeals by the Court of Appeal, and the execution and enforcement of any
judgment or order made thereon, discharge duties analogous to those discharged
by the Viscount in relation to proceedings in the Royal Court.
(2) Subject to rules of
court, the Judicial Greffier shall, for all purposes of and incidental to the
hearing of appeals by the Court of Appeal, discharge duties analogous to those
discharged by the Judicial Greffier in relation to proceedings in the Royal
Court.
8 Right to practise in Court of Appeal
(1) Subject to the
provisions of paragraph (3), as respects any appeal, quashing application
or reference to the Court of Appeal and any proceedings preliminary or
incidental to such an appeal, quashing application or reference, the right to
practise in the Court of Appeal shall be restricted to the Attorney General, the
Solicitor General, advocates of the Royal Court and solicitors of the Royal
Court:
Provided that no solicitor of the Royal Court shall have any right
of audience either before the Court or before any single judge of the Court
upon any such appeal, quashing application, reference or preliminary proceedings.[8]
(2) For the purposes of
this Article, the word “practise” shall include the doing in any
office which is connected with the Court of Appeal or in which any business connected
with the Court is conducted and the transacting with any officer who is
attached to the Court or with any judge of the Court of any act or thing
required or necessary to be done in connection with any such appeals, quashing
applications, references or proceedings.[9]
(3) Subject as provided by
rules of court, it shall be lawful for a party to a quashing application, an
appeal under Part 2 or, for an appellant under Part 3,
notwithstanding the foregoing provisions of this Article, to address the Court
of Appeal or any single judge thereof both on the hearing of the appeal or
quashing application and in any proceedings preliminary or incidental to the
appeal or quashing application, and to do in any such office or to transact
with any such officer as is mentioned in paragraph (2) any act or thing
required or necessary to be done in connection with any such appeal, quashing
application or proceedings.[10]
9 Convening and constitution of Court of Appeal
(1) The Court of Appeal
shall be convened by the Bailiff or, in the absence of the Bailiff, by the
Deputy Bailiff.[11]
(1A) The Court of Appeal shall be duly
constituted if it consists of an uneven number of judges, but not less than 3.[12]
(1B) However, no judge of the Court of
Appeal shall sit on –
(a) the
hearing of an appeal, quashing application or reference from or relating to a
judgment, order, conviction or sentence pronounced, made or passed by any court
of which the judge was a member; or
(b) the
hearing of any proceedings preliminary or incidental to any such appeal, quashing
application or reference.[13]
(2) Subject to paragraph (3),
the Bailiff shall be the President of the Court of Appeal.[14]
(3) At any sitting of the
Court of Appeal –
(a) if
the Bailiff is unable to act, the Deputy Bailiff shall preside; and
(b) if
the Bailiff and the Deputy Bailiff are unable to act, the ordinary member of
the Court who has the longest service as such a member shall preside, unless
the members of the Court at the sitting decide otherwise.[15]
(4) The Bailiff or the
Deputy Bailiff may decline to preside in any case in which the Bailiff or
Deputy Bailiff thinks it undesirable or inconvenient that he or she should do
so, and in any such case the provisions of this Article shall have effect as if
the Bailiff or Deputy Bailiff were unable to act.
10 Decisions of Court of Appeal
The determination of any question before the Court of Appeal under
this Law shall be according to the opinion of the majority of the judges
constituting the Court.
11 Powers of single judge exercisable outside Jersey
Where, under this Law, the powers of the Court of Appeal may be
exercised by a single judge of the Court, such powers may be exercised in any
place whether within or without Jersey.
PART 2
APPEALS IN CIVIL CAUSES AND
MATTERS
12 Jurisdiction
(1) [16]
(2) Subject as otherwise
provided in this Law or in any other enactment, the Court of Appeal shall have
jurisdiction to hear and determine appeals from any judgment or order of the
Royal Court (not being an order or decision of the Judicial Greffier) when exercising
jurisdiction in any civil cause or matter.[17]
(3) For all purposes of and
incidental to the hearing and determination of any appeal, and the amendment,
execution and enforcement of any judgment or order made thereon, the Court of
Appeal shall have all the power, authority and jurisdiction of the Royal Court,
and shall have power, if it appears to the Court that a new trial or hearing
ought to be had, to order that the verdict and judgment be set aside and that a
new trial or hearing be had.[18]
(4) The Court of Appeal
shall exercise such additional appellate jurisdiction as may be conferred upon
the Court by any Law.[19]
(5) This Part shall apply
to causes mixtes as it applies to civil
causes and matters.
13 Limitation on appeals
(1) No appeal shall lie under
this Part –
(a) from
any decision which, by virtue of any enactment, is final;
(b) from
a final order for the dissolution or nullity of marriage or civil partnership,
by any party who, having had time and opportunity to appeal from the decree on
which the final order was founded, has not appealed from that decree;
(c) without
the leave of the court making the order, from any order –
(i) made with the
consent of the parties, or
(ii) as
to costs only which by law are left to its discretion;
(d)
(e) without
the leave of the court whose decision is sought to be appealed from, or of the
Court of Appeal, from any interlocutory order or interlocutory judgment,
except –
(i) where the liberty
of the subject or the custody of minors is concerned,
(ii) in
the case of a decree in a matrimonial cause or a judgment or order in an
admiralty action determining liability,
(iii) in
such other cases of the nature of final decisions as may be prescribed.[20] [21]
(2) An application to the
Court of Appeal for leave pursuant to paragraph (1)(e) shall be made to a
single judge of that Court.[22]
(3) Subject to paragraph (4),
the single judge’s decision on the application shall be final.[23]
(4) The single judge may at
any stage refer the application to the full Court of Appeal for decision.[24]
14 Appeals from the decisions of Court of Appeal[25]
(1) No appeal shall lie
from a decision of the Court of Appeal under this Part without the leave of the
Court or the special leave of His Majesty in Council.[26]
(2) No appeal shall lie
from a decision of the Court of Appeal to grant, or to refuse to grant, leave
to appeal.
15 Procedure and practice
The jurisdiction vested in the Court of Appeal under this Part
shall, so far as regards procedure and practice, be exercised in the manner
provided by this Law or by rules of court, and, where no special provision is
contained in this Law or in rules of court with reference thereto, any such
jurisdiction shall be exercised in such manner as the Court of Appeal considers
just and convenient.[27]
16 Costs
The costs of and incidental to all proceedings in the Court of
Appeal under this Part shall be in the discretion of the Court, and the Court
shall have full power to determine by whom and to what extent the costs are to
be paid.
17 References to experts
(1) Subject to rules of
court, the Court of Appeal may refer to any person or persons selected by the
Court for inquiry and report any question arising in any appeal under this
Part.
(2) In all cases of
reference under paragraph (1), the person or persons selected by the Court
of Appeal shall be deemed to be an officer or officers of the Court, and,
subject to rules of court, shall have such authority and shall conduct the
reference in such manner as the Court may direct.
(3) The remuneration to be
paid to any person or persons to whom any matter is referred under an order of
the Court of Appeal shall be determined by the Court and shall be recoverable
costs of the proceedings.
18 Powers which may be exercised by a single judge of Court of Appeal
(1) In any appeal pending
before the Court of Appeal under this Part, any matter incidental thereto not
involving the decision of the appeal may be decided by a single judge of the
Court, and a single judge may at any time make any interim order to prevent
prejudice to the claims of any parties pending an appeal, as the judge may
think fit.
(2) Every order made by a
single judge of the Court of Appeal in pursuance of this Article may be
discharged or varied by any judges of the Court having power to hear and
determine the appeal.
(3) For the purposes of
paragraph (1), an appeal is pending if –
(a) an
application has been made to the Court of Appeal for leave to appeal, but has
not been determined;
(b) an
application has been made to that Court for an order authorizing (by whatever
means) service of a notice of appeal, but has not been determined; or
(c) an
appeal has been brought, but has not been determined.[28]
19 Rules of court under Part 2[29]
(1) Rules of court may be
made by the Court of Appeal –
(a) for
regulating and prescribing the procedure (including the method of pleading) and
the practice to be followed in the Court in all appeals under this
Part (including the procedure and practice to be followed in the office of
the Judicial Greffier) and any matters incidental to or relating to any such
procedure or practice, including (but without prejudice to the generality of
the foregoing provision) the manner in which, and the time within which, any
applications which under this Part or any enactment are to be made to the Court
shall be made;
(b) for
regulating the sittings of the Court and of the judges thereof whether sitting
in court or elsewhere;
(c) for
regulating any matters relating to the costs of proceedings in the Court;
(d) for
repealing any enactments which related to matters with respect to which rules
are made under this Article;
(e) for
regulating the means by which particular facts may be proved, and the mode in
which evidence thereof may be given, in any proceedings or on any application
in connection with or at any stage of any proceedings;
(f) for
regulating or making provision with respect to any other matters which may
require to be regulated or with respect to which provision may require to be
made under this Part.
(2) The power to make rules
of court under this Article shall include power to make rules as to proceedings
by or against the Crown.
20 Fees and percentages
(1) The Court of Appeal
shall by rules of court fix the fees and percentages to be taken under this
Part in the Court or in any office which is connected with the Court or in
which any business connected with the Court is conducted or by any officer paid
wholly or partly out of public funds who is attached to the Court or to any
judge of the Court, and shall determine the manner of collection of such fees
and percentages.
(2) Fees and percentages
taken under this Article shall be paid into the General Revenues of the States.
21 Shorthand note and transcript of proceedings in court of first
instance
(1) In any proceedings in
which an appeal lies to the Court of Appeal under this Part, a shorthand note
of the proceedings shall be taken, and on any appeal or application to the
Court of Appeal a transcript of the note, or of so much thereof as the Court of
Appeal or the court whose decision is appealed from or sought to be appealed
from shall direct, shall be made for the use of the Court of Appeal.
(2) The cost of the
transcript of such shorthand note, in accordance with the scales of payment
fixed for the time being by rules of court, shall be included in the
recoverable costs of the proceedings.
(3) In any case in which an
appeal lies to His Majesty in Council, the evidence of the witness in the
original proceedings shall be transcribed from the shorthand note of those
proceedings taken in pursuance of this Article.[30]
(4) A transcript of the
shorthand note taken in pursuance of this Article shall be furnished to any
party to the proceedings upon payment of such charges as are fixed for the time
being by rules of court.
(5) Rules of court for the
purposes of this Article shall be made by the Superior Number of the Royal
Court.
PART 3
APPEALS IN CRIMINAL AND
QUASI-CRIMINAL MATTERS
22 Appellate jurisdiction of superior number of Royal Court
The appellate jurisdiction of the Superior Number of the Royal Court
in criminal and quasi-criminal matters shall be that conferred upon it by this
Part.
23 Constitution of superior number of Royal Court
For the purposes of this Part, the Superior Number of the Royal
Court shall be duly constituted only if it consists of the Bailiff, the Deputy
Bailiff or an ordinary judge of the Court of Appeal and not less than 5 Jurats:
Provided that no person shall sit on the hearing of an appeal to the
Superior Number of the Royal Court under this Part from a sentence passed by
any court of which the person was a member or on the hearing of any proceedings
preliminary or incidental to any such appeal.[31]
24 Right of appeal
(1) A person convicted on
indictment by the Royal Court, whether sitting with or without a jury, may
appeal under this Part to the Court of Appeal –
(a) against
the person’s conviction, on any ground of appeal which involves a
question of law alone;
(b) with
the leave of the Court of Appeal, or upon the certificate of the judge who
presided at the person’s trial that it is a fit case for appeal, against
the person’s conviction, on any ground of appeal which involves a
question of fact alone, or a question of mixed law and fact, or on any other
ground which appears to the Court to be a sufficient ground of appeal; and
(c) with
the leave of the Court of Appeal, against any sentence passed on the person for
the offence (whether passed on his or her conviction or in subsequent
proceedings), unless the sentence is one fixed by law:
Provided that where the appellant was –
(i) convicted
and sentenced by the Inferior Number of the Royal Court, or
(ii) sentenced
by that court in pursuance of powers conferred by any enactment mentioned in
Article 25,
and the person’s appeal is solely against sentence, such
appeal shall lie to the Superior Number of the Royal Court and, accordingly, in
relation to such an appeal references in this Part, other than Articles 29
and 43, to the Court of Appeal, shall, unless the context otherwise requires,
be construed as references to the Superior Number of the Royal Court.[32]
(2) The reference in
paragraph (1)(c) to a sentence fixed by law shall not be taken to include
a reference to an order imposed under Article 10 of the Criminal Justice (Life
Sentences) (Jersey) Law 2014.[33]
(3) [34]
25 Right of appeal in cases where there has not been a conviction on
indictment[35]
(1) Where, in pursuance of
Article 1(1) of the Criminal Justice (Probation
Orders) (Jersey) Law 1986 or Article 7(3) of the Criminal Justice (Community
Service Orders) (Jersey) Law 2001, a person has been dealt with by the Royal
Court, the person may appeal under this Part to the Court of Appeal
notwithstanding that the person is not a person convicted on indictment by the
Royal Court.
(2) Where, in pursuance of
any of the provisions mentioned in paragraph (1) or Article 8(2) or
(4) of the Criminal Justice (Community
Service Orders) (Jersey) Law 2001, a person has been sentenced by the Royal Court,
the person may appeal against the sentence under this Part to the Court of Appeal
notwithstanding that the person is not a person convicted on indictment.
25A Right of appeal against
determinations under the Criminal Justice (Deferred Prosecution Agreements)
(Jersey) Law 2023[36]
(1) An entity, and a
connected person in relation to an entity, may appeal under this Part to the
Court of Appeal, with leave of the Court of Appeal,
against a determination of the Royal Court made under any of the provisions in
paragraph (2).
(2) The
provisions in this paragraph are Articles 7(2)(a) and (b), and 10(2)
and (3) of the Criminal Justice (Deferred
Prosecution Agreements) (Jersey) Law 2023.
(3) Unless the Court of
Appeal so orders, the lodging of an appeal under paragraph (1) does not
operate to stay the effect of a decision or requirement pending the
determination of the appeal.
26 Determination of appeals in ordinary cases
(1) Subject to the
following provisions of this Part, on any appeal against conviction, the Court
of Appeal shall allow the appeal if it thinks that the verdict should be set aside
on the ground that it is unreasonable or cannot be supported having regard to
the evidence, or that the judgment of the court before which the appellant was
convicted should be set aside on the ground of a wrong decision of any question
of law or that, on any ground, there was a miscarriage of justice, and in any
other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that it is of opinion
that the point raised in the appeal might be decided in favour of the
appellant, dismiss the appeal if it considers that no substantial miscarriage
of justice has actually occurred.[37]
(2) Subject to the
following provisions of this Part, the Court of Appeal shall, if it allows an
appeal against conviction, quash the conviction, and direct a judgment and
verdict of acquittal to be entered.[38]
(3) On any appeal against
sentence, the Court of Appeal shall, if it thinks that a different sentence
should have been passed on the appellant in the proceedings from which the
appeal is brought, quash the sentence and pass such other sentence warranted in
law by the verdict (whether more or less severe) in substitution therefor as it
thinks ought to have been passed, and in any other case shall dismiss the
appeal.
(4) Subject to the
provisions of Article 37, the term of any sentence passed under this Part
in substitution for a sentence passed on the appellant in the proceedings from
which the appeal is brought shall, unless the Court of Appeal otherwise
directs, begin to run from the time when it would have begun to run if passed
in those proceedings, and references in the said Article 37 to any
sentence to which an appellant is for the time being subject shall be construed
accordingly.
27 Powers of court in special cases
(1) If it appears to the
Court of Appeal that an appellant, though not properly convicted on some count
or part of the indictment, has been properly convicted on some other count or
part of the indictment, the Court may either affirm the sentence passed on the
appellant as a result of the trial, or pass such sentence in substitution
therefor as it thinks proper and as may be warranted in law by the verdict on
the count or part of the indictment on which the Court considers that the
appellant has been properly convicted.
(2) Where an appellant
could, on the indictment, have been found guilty of an offence other than that
of which the appellant was convicted and it appears to the Court of Appeal that
the jury must have been satisfied of facts which proved the appellant guilty of
that other offence, the Court may, instead of allowing or dismissing the
appeal, substitute for the verdict appealed from a verdict of guilty of that
other offence and pass such sentence in substitution for the sentence passed as
the result of the trial as may be warranted in law for that other offence, not
being a sentence of greater severity.
(3) If on any appeal it
appears that, although the appellant was guilty of the act or omission charged
against the appellant, at the time the act was done or the omission made, he or
she suffered from a mental disorder (within the meaning given by Article 1
of the Mental Health (Jersey)
Law 2016), so as not to be responsible according to law for the
appellant’s actions, the Court of Appeal may quash the sentence passed as
a result of the trial and order the appellant to be detained during His
Majesty’s pleasure.[39]
28 Power to order retrial[40]
(1) Where the Court of
Appeal allows an appeal against conviction and it appears to the Court that the
interests of justice so require, it may order the appellant to be retried on a
fresh indictment to be brought in the Royal Court within the period of 2 months
of the making of the order or such further period for which it may give leave
for the indictment to be brought.
(2) A person shall not
under this Article be ordered to be retried for any offence other
than –
(a) the
offence of which the person was convicted at the original trial and in respect
of which the person’s appeal is allowed as mentioned in paragraph (1);
(b) an
offence of which the person could have been convicted at the original trial on
an indictment for the first-mentioned offence; or
(c) an
offence charged in an alternative count of the indictment in respect of which
the Jurats or the jury, as the case may be, were discharged from giving a
verdict in consequence of convicting the person of the first-mentioned offence.
(3) The Court of Appeal
may, on ordering a retrial, make such orders as appear to it to be necessary or
expedient –
(a) for
the custody or release on bail of the person ordered to be retried pending the person’s retrial; or
(b) for
the retention pending the retrial of any property or money forfeited, restored
or paid by virtue of the original conviction or any order made on that
conviction.
(4) If the person ordered
to be retried was, immediately before the determination of the person’s
appeal, liable to be detained in pursuance of an order or direction under the Mental Health (Jersey)
Law 2016, that order or direction shall continue in force pending the
retrial as if the appeal had not been allowed and any order made by the Court
of Appeal under this Article for the person’s custody or release on bail
shall have effect subject to the said order or direction.[41]
(5) Schedule 2 shall
have effect with respect to the procedure in the case of a person ordered to be
retried, the sentence which may be passed if the retrial results in the person’s
conviction and the order for costs which may be made if the person is
acquitted.
28A Powers of Court in
relation to appeals against determinations under the Criminal Justice (Deferred
Prosecution Agreements) (Jersey) Law 2023[42]
On hearing an appeal under Article 25A(1) the Court of Appeal
may –
(a) confirm,
reverse or vary the decision or requirement against which the appeal is
brought; and
(b) make
any order as to the costs of the appeal as it thinks fit.
29 Judgments of Court of Appeal
Unless the Court of Appeal directs to the contrary in cases where,
in the opinion of the Court, the question is a question of law on which it
would be convenient that separate judgments should be pronounced by the members
of the Court, the judgment of the Court shall be pronounced by the President of
the Court or such other member of the Court hearing the case as the President
directs, and no judgment with respect to the determination of any question
shall be separately pronounced by any other member of the Court.
30 General powers of court
The Court of Appeal shall, for the purposes of and subject to the
provisions of this Part, have full power to determine, in accordance with this
Part, any questions necessary to be determined for the purpose of doing justice
in the case before it.
30A Effect of order[43]
Subject to the other provisions of this Part, an order made by the
Court of Appeal or by the Superior Number of the Royal Court on any appeal
under this Part shall have the like effect and be enforced in the like manner
as if it had been made by the court from which the appeal lies.
31 Re-vesting and restitution of property on conviction
(1) The operation of an
order as to the disposal of any property on a conviction on indictment shall
(unless the court before which the conviction takes place directs to the
contrary in any case in which, in its opinion, the title to the property is not
in dispute) be suspended –
(a) in
any case, until the expiration of 10 days after the date of the conviction; and
(b) in
cases where notice of appeal, or notice of application for leave to appeal,
against conviction is given within 10 days after the date of the conviction,
until the determination of the appeal, or, in any case where an application for
leave to appeal is finally refused, of the application,
and, in cases where the operation of any such order is suspended
until the determination of the appeal, the order shall not take effect as to
the property in question if the conviction is quashed on appeal.
(2) Provision may be made
by rules of court for securing the safe custody of any property during the
period of suspension of the operation of any such order as is referred to in
paragraph (1).
(3) The Court of Appeal may
by order annul or vary any order made on a trial for the disposal of any
property although the conviction is not quashed, and the order if annulled
shall not take effect and if varied shall take effect as so varied.
32 Time for appealing
(1) A person who
wishes –
(a) to
appeal under this Part; or
(b) to
obtain leave to appeal under this Part,
shall give notice of appeal or (as the case may be) notice of
application for leave to appeal, in such manner as may be prescribed by rules
of court.[44]
(1A) Notice of appeal against
conviction, or notice of application for leave to appeal against conviction,
shall be given within 28 days of the date of the conviction.[45]
(1B) Notice of appeal against sentence,
or notice of application for leave to appeal against sentence, shall be given
within 28 days of the date on which the sentence is passed.[46]
(2) Rules of court made for
the purposes of this Article shall enable any convicted person to present the
person’s case and arguments in writing, instead of by oral argument, if
the person so desires, and any case or argument so presented shall be
considered by the Court of Appeal.
(3) The time within which
notice of appeal or notice of an application for leave to appeal may be given
may be extended at any time by the Court of Appeal.[47]
(4) [48]
33 Judge’s report on appeal[49]
(1) This Article applies in
the case of –
(a) an
appeal by a person against conviction;
(b) an
appeal by a person against sentence; or
(c) an
application by a person for leave to appeal against conviction or sentence.
(2) The President of the
court before which the person is convicted, or sentenced, as the case may be,
may furnish to the Court of Appeal a report giving the President’s
opinion upon the case or upon any point arising in the case.
(3) The President of the
court before which the person is convicted, or sentenced, as the case may be,
shall furnish such a report to the Court of Appeal if required by the Court of
Appeal to do so.
(4) Rules of court may
prescribe –
(a) parties
to whom copies of a report furnished under this Article shall be given; and
(b) the
manner in which the copies shall be so given.
34 Supplemental powers of Court
For the purposes of this Part, the Court of Appeal may, if it thinks
it necessary or expedient in the interests of justice–
(a) order the production of
any document, exhibit or other thing connected with the proceedings if the
production thereof appears to be necessary for the determination of the case;
(b) if it thinks fit, order
any witnesses who would have been compellable witnesses at the trial to attend
and be examined before the Court, whether they were or were not called at the
trial, or order the examination of any such witnesses to be conducted in the
manner provided by rules of court before the Bailiff, the Deputy Bailiff or an
ordinary judge of the Court of Appeal, any officer of the Court or any other
person appointed by the Court for the purpose, and allow the admission of any
depositions so taken as evidence before the Court;
(c) if it thinks fit,
receive any evidence, if tendered, of any witness (including the appellant) who
is a competent but not compellable witness and, if the appellant makes an
application for the purpose, of the husband or wife or civil partner of the
appellant in cases where the evidence of the husband or wife or civil partner
could not have been given at the trial except on such an application;
(d) where any question
arising on the appeal involves prolonged examination of documents or accounts,
or any scientific or local investigation, which cannot in the opinion of the
Court conveniently be conducted before the Court, order the reference of the
question, in manner provided by rules of court, for inquiry and report to a
special commissioner appointed by the Court, and act upon the report of any
such commissioner so far as it thinks fit to adopt it; and
(e) appoint any person with
special expert knowledge to act as assessor to the Court in any case in which
it appears to the Court that such knowledge is required for the proper
determination of the case,
and exercise in relation to the proceedings of the Court any other
powers which may for the time being be exercised by the Court of Appeal on
appeals in civil matters under this Law, and issue any warrants necessary for
enforcing the orders or sentences of the Court:
Provided that in no case shall any sentence be increased by reason
of or in consideration of any evidence which was not given at the trial.[50]
35 Legal assistance to appellant
An appellant shall have the same right to legal aid in an appeal
under this Part and in proceedings preliminary or incidental to such an appeal
as the appellant would have in criminal proceedings instituted against him or
her in the Royal Court.
36 Right of appellant to be present
(1) An appellant,
notwithstanding that he or she is in custody, shall be entitled to be present
(if the appellant desires it) –
(a) on
the hearing of the appeal under this Part; and
(b) on
the hearing of any application for leave to appeal under this Part.[51]
(1A) However, an appellant shall not be
entitled to be present at proceedings preliminary or incidental to the appeal,
except where –
(a) rules
of court provide that he or she shall have the right to be present;
(b) the
Court of Appeal gives the appellant leave to be present; or
(c) he or
she is not legally represented.[52]
(2) The power of the Court
of Appeal to pass any sentence under this Part may be exercised notwithstanding
that the appellant is for any reason not present.
37 Admission of appellant to bail[53]
(1) An appellant who is not
admitted to bail shall, pending the determination of the appeal, be treated in
such manner as may be directed by prison rules.
(2) The Court of Appeal
may, if it thinks fit –
(a) on
the application of the appellant at any stage of the proceedings prior to the
determination of the appeal, grant the appellant bail pending the determination
of the appeal; or
(b) revoke
bail granted to the appellant by any court.[54]
(2A) Paragraph (2) is without
prejudice to Article 28(3).[55]
(3) Where an appellant is
admitted to bail, the time during which the appellant is at large after being
so admitted shall be disregarded in computing the term of any sentence to which
the appellant is for the time being subject.
(4) [56]
37A Time spent in
custody pending appeal[57]
(1) The time during which
an appellant is in custody pending the determination of the appeal shall,
subject to any direction which the Court of Appeal may give to the contrary, be
reckoned as part of the term of any sentence to which the appellant is for the
time being subject.
(2) Where the Court of
Appeal gives a contrary direction under paragraph (1), it shall state its
reasons for doing so.
(3) The Court of Appeal
shall not give such a direction where –
(a) leave
to appeal is granted under this Part; or
(b) any
such certificate as is mentioned in Article 24(1)(b) has been given for
the purposes of the appeal.
38 Suspension of licences and custody of goods pending appeal
Where notice of appeal or of an application for leave to appeal has
been given in respect of a decision which includes –
(a) an order for the
suspension or withdrawal of a licence or other permit, the Bailiff may, unless
it be otherwise provided by the enactment under which the licence or permit was
granted, direct that the order be suspended pending the disposal of the appeal
or application;
(b) an order for the
confiscation of goods, the goods shall be delivered into the custody of the
Judicial Greffier pending the disposal of the appeal or application.
39 Duties of Judicial Greffier under Part 3[58]
(1) The Judicial Greffier
shall take all necessary steps for obtaining a hearing under this Part of any
appeals or applications notice of which is given to the Judicial Greffier under
this Part and shall obtain and lay before the Court of Appeal in proper form
all documents, exhibits and other things relating to the proceedings in the
court before which the appellant or applicant was tried which appear necessary
for the proper determination of the appeal or application.
(2) Any documents, exhibits
or other things connected with the proceedings on the trial on indictment of
any person who, if convicted, is entitled or may be authorized to appeal under
this Part shall be kept in the custody of the Judicial Greffier, for such time
as may be provided by rules of court made for the purpose, and subject to such
power as may be given by the rules for the conditional release of any such
documents, exhibits or things from that custody.
(3) The Judicial Greffier
shall furnish the necessary forms and instructions in relation to notices of
appeal or notices of application under this Part to any persons who demand the
same, to the Governor of the Prison and to such other officers and persons as
the Judicial Greffier thinks fit, and the Governor of the Prison shall cause
such forms and instructions to be placed at the disposal of prisoners desiring
to appeal or to make any application under this Part and shall cause any such
notice given by a prisoner in the Judicial Greffier’s custody to be
forwarded on behalf of the prisoner to the Judicial Greffier.
40 Rules of court under Part 3[59]
(1) Rules of court for the
purposes of this Part shall be made, subject, so far as the rules affect the
Governor or any other officer of the Prison, to the approval of the Minister for Justice and Home Affairs –
(a) in
relation to appeals to the Superior Number of the Royal Court, by the Superior
Number of the Royal Court; and
(b) in
relation to appeals to the Court of Appeal, by the Court of Appeal:
Provided that rules of court relating to appeals generally may be
made by both Courts sitting together.[60]
(2) Rules so made may make
provision for regulating the sittings of the Courts and of the Bailiff, the
Deputy Bailiff or an ordinary judge of the Court of Appeal, whether sitting in
court or elsewhere, and for any matter for which provision is to be made under
this Part by rules of court, and may regulate generally the practice and
procedure under this Part, and the officers of any court before which an
appellant has been convicted, and the Governor or other officers of the Prison
and any other officers or persons, shall comply with any requirements of those
rules so far as they affect those officers or persons, and compliance with such
rules may be enforced by order of the Court to which the appeal lies.
41 Powers under Part 3 which may be exercised by a single judge[61]
The powers of the Court of Appeal under this Part to give leave to
appeal, to extend the time within which notice of appeal or of an application
for leave to appeal may be given, to grant or revoke bail or to allow the
appellant to be present at any proceedings in cases where the appellant is not
entitled to be present without leave, and such other powers to determine
matters preliminary or incidental to an appeal as may be prescribed, may be
exercised by any single judge of the Court in the same manner as they may be
exercised by the Court, and subject to the same provisions; but if the judge
refuses an application on behalf of the appellant to exercise any such power
under this Part in the appellant’s favour, the appellant shall be
entitled to have the application determined by the Court as duly constituted
for the hearing and determining of appeals under this Part.[62]
42 Shorthand notes of trial
(1) A shorthand note shall
be taken of the proceedings at the trial on indictment of any person who has
pleaded not guilty and who, if convicted, is entitled or may be authorized to
appeal under this Part, and, on any appeal or application for leave to appeal,
a transcript of the note or any part thereof shall, if the Judicial Greffier so
directs, be made and furnished to the Judicial Greffier for the use of the
Court, of the Attorney General and of the appellant:
Provided that a transcript shall be furnished to any party
interested, upon payment of such charges as may be fixed by rules of court.
(2) The Bailiff, if so
requested by the Secretary of State, shall direct a transcript of the shorthand
note to be made and furnished to the Bailiff for the Secretary of State.
(3) The cost of the
transcript of any such shorthand note shall be defrayed, in accordance with
scales of payment fixed for the time being by rules of court, out of the
General Revenues of the States, and rules of court may make such provision as
is necessary for securing the accuracy of the note to be taken and for the
verification of the transcript.
(4) Any moneys received
from an interested party under the proviso to paragraph (1) shall be paid
into the consolidated fund.[63]
(5) In relation to the
criminal and quasi-criminal proceedings mentioned in Article 44(2), a
shorthand note shall be taken only in cases in which there has been a denial of
the facts alleged by the Crown.
(6) Any reference in this
Article to a shorthand note includes a reference to a record of the proceedings
by electronic means.[64]
43 Prerogative of mercy
Nothing in this Part shall affect the prerogative of mercy, but, as
respects the conviction of a person on indictment by the Royal Court or the
sentence passed on a person so convicted, being a conviction or sentence against
which an appeal lies under this Part to the Court of Appeal, the
Lieutenant-Governor may, if he or she thinks fit, at any time
either –
(a) refer the whole case to
the Court of Appeal, and the case shall then be heard and determined by the
Court as in the case of an appeal by a person convicted; or
(b) if the
Lieutenant-Governor desires assistance on any point arising in the case, refer
that point to the Court of Appeal for its opinion thereon, and the Court shall
consider the point so referred and furnish the Lieutenant-Governor with its
opinion thereon accordingly.[65]
44 Interpretation and application of Part 3
(1) In this Part, unless
the context otherwise requires –
“appellant” includes a person who has been convicted and
desires to appeal under this Part;
“confiscation order” means a confiscation order as
defined in Article 1(1) of the Proceeds of Crime (Jersey)
Law 1999;
“connected person”
has the meaning given in Article 1(2) of the Criminal Justice (Deferred
Prosecution Agreements) (Jersey) Law 2023;
“entity” has the
meaning given in Article 1(1) of the Criminal Justice (Deferred
Prosecution Agreements) (Jersey) Law 2023;
“prison rules” means rules made under Article 29 of
the Prison (Jersey) Law 1957;
“Prison” has the same meaning as in the Prison (Jersey) Law 1957;
“sentence” includes any order (including an order of
banishment or a confiscation order) made by a court when dealing with the
person convicted, and the power of the Court of Appeal to pass a sentence
includes a power to make any such order.[66]
(2) This Part shall apply
in the case of conviction by the Royal Court in any criminal or quasi-criminal
proceedings, otherwise than by way of indictment, as it applies in the case of
conviction on indictment.
(3) Any reference in this
Part to a jury shall, in relation to a trial conducted before a court without a
jury, be construed as a reference to that court.
PART 4[67]
REFERENCES AND APPEALS BY THE ATTORNEY GENERAL[68]
45 Reference to Court of Appeal of point of law following acquittal[69]
(1) Where a person tried in
the Royal Court on indictment or otherwise has been acquitted (whether in
respect of the whole or part of the indictment or charge) the Attorney General
may, if he or she desires the opinion of the Court of Appeal on a point of law
which has arisen in the case, refer that point to that Court, and that Court
shall, in accordance with this Article consider the point and give its opinion
on it.
(2) For the purpose of its
consideration of a point referred to it under this Article the Court of Appeal
shall hear argument–
(a) by
the Attorney General; and
(b) if
the acquitted person desires to present any argument to the Court, by counsel
on the person’s behalf or, with the leave of the Court, by the acquitted
person himself or herself.
(3) Where, on a point being
referred to the Court of Appeal under this Article the acquitted person appears
by counsel for the purpose of presenting any argument to the Court the person
shall be entitled to costs, that is to say to the payment out of the
consolidated fund of such sums as are reasonably sufficient to compensate the
person for expenses properly incurred by the person for the purpose of being
represented on the reference; and any amount recoverable under this paragraph
shall be ascertained, as soon as practicable, by the Judicial Greffier.[70]
(4) A reference under this
Article shall not affect the trial in relation to which the reference is made
or any acquittal in that trial.
45A Reference to Court
of Appeal for review of sentence[71]
(1) This Article applies to
any case in which sentence is passed on a person for –
(a) an
offence for which the person is liable to imprisonment for a term of
12 months or longer (whether or not it is one for which he or she is also
liable to any other penalty); or
(b) an
offence to which this Article applies by reason of Regulations made under
paragraph (5).
(2) However, this Article
shall not apply in respect of a confiscation order.
(3) If it appears to the
Attorney General –
(a) that
the sentencing of a person in any proceedings in the Royal Court has been unduly
lenient; and
(b) that
the case is one to which this Article applies,
the Attorney General may, with the leave of the Court of Appeal,
refer the case to the Court of Appeal for it to review the sentencing of that
person.
(4) Without prejudice to
the generality of paragraph (3), the condition specified in sub-paragraph (a)
of that paragraph may be satisfied if it appears to the Attorney General that
the Royal Court –
(a) erred
in law as to its powers of sentencing; or
(b) failed
to impose a sentence which it was required by law to impose.
(5) The States may by
Regulations declare that this Article shall apply to an offence.
45B Court’s
powers on reference under Article 45A by Attorney General[72]
(1) On a reference under
Article 45A, the Court of Appeal may –
(a) quash
any sentence passed on the person for the offence (whether passed on his or her
conviction or in subsequent proceedings); and
(b) in
place of it pass such sentence as the Court thinks appropriate for the case and
as the Royal Court had power to pass when dealing with the person.
(2) In deciding under
paragraph (1) the appropriate sentence to pass on a person for an offence,
the Court of Appeal shall not make any allowance for the fact that the person
is being sentenced for a second time in relation to the offence.
45C Calculation
of sentence passed on review[73]
(1) The term of any
sentence passed by the Court of Appeal under Article 45B shall, unless the
Court otherwise directs, begin to run from the time when it would have begun to
run if passed in the proceedings in respect of which the reference was made.
(2) Paragraph (1)
shall not apply to a custodial sentence which is passed in place of a
non-custodial sentence.
(3) The time during which a
person whose case has been referred for review under Article 45A is in
custody pending its review shall be reckoned as part of the term of any
sentence to which he or she is for the time being subject.
45D Appeal by Attorney
General in respect of confiscation order or instrumentalities
forfeiture order [74]
(1) This Article applies to
any case in which –
(a) sentence
is passed by the Royal Court on a person for an offence; and
(b) in
passing the sentence, the Royal Court has jurisdiction to make a confiscation
order or an instrumentalities forfeiture order.[75]
(2) If in a case to which
this Article applies the Royal Court makes a confiscation order or an
instrumentalities forfeiture order, the Attorney General may appeal to the
Court of Appeal in respect of the order.[76]
(3) If in a case to which
this Article applies the Royal Court decides not to make a confiscation order or
an instrumentalities forfeiture order, the Attorney General may appeal to the
Court of Appeal against the decision.[77]
(4) Paragraphs (2) and
(3) shall not apply to an order or decision made by virtue of any of Articles 9,
12 and 13 of the 1999 Law.[78]
(5) An appeal to the Court
of Appeal under this Article lies only with the leave of the Court of Appeal.
45E Court’s
powers on appeal by Attorney General[79]
(1) On an appeal under
Article 45D(2), the Court of Appeal may confirm, quash or vary the
confiscation order or instrumentalities forfeiture order.[80]
(2) On an appeal under
Article 45D(3), the Court of Appeal may confirm the decision, or if it
believes that the decision is wrong –
(a) may
itself proceed under Article 3(3) to (8) (inclusive) or 28B of the
1999 Law, as the case may be; or
(b) may
direct the Royal Court to proceed afresh under Article 3 or 28B of
the 1999 Law, as the case may be.[81]
(3) In directing the Royal
Court under paragraph (2) to proceed afresh, the Court of Appeal may also
give other directions, and if it does so the Royal Court shall comply with
those directions in proceeding afresh in pursuance of this Article.
45F Matters to
be taken into account on appeal in respect of confiscation
order or instrumentalities forfeiture order [82]
(1) This Article applies
if –
(a) the
Court of Appeal makes or varies a confiscation order or an instrumentalities
forfeiture order pursuant to Article 45E; or
(b) the
Royal Court makes or varies a confiscation order or an instrumentalities
forfeiture order in pursuance of a direction under paragraph (2) of that
Article.[83]
(2) The court, in doing so,
shall have regard –
(a) to
any fine imposed on the respondent in respect of the offence (or any of the
offences) concerned;
(b)
(c) in
the case of an order under the 1999 Law, to any order which is specified in
either of clauses (ii) and (iii) of Article 10(1)(a) of that Law and
has been made against the respondent in respect of the offence concerned (or any
of the offences concerned).[84]
(3) However, the court is
not required to have regard to an order to which paragraph (2) refers
where the order has already been taken into account by the Royal Court in
deciding for the purposes of –
(a)
(b) Article 4
or 28B(4) of the 1999 Law,
as the case may be, the amount which might be realized.[85]
(4) If, in a case in which
the court is proceeding under the 1999 Law, an order has been made against the
respondent in respect of the offence concerned (or any of the offences
concerned) under Article 2 of the Criminal Justice
(Compensation Orders) (Jersey) Law 1994 –
(a) the
court shall have regard to the order; and
(b) Article 3(7)
of the 1999 Law shall not apply.
(5) [86]
(6) In a case in which the
court is proceeding under the 1999 Law, in Article 5(5) of that
Law –
(a) the
assumptions in sub-paragraph (a) of that paragraph do not apply with
regard to property first held by the respondent on or after the relevant date;
(b) the
assumption in sub-paragraph (b) of that paragraph does not apply with
regard to expenditure incurred by the respondent on or after that date; and
(c) the
assumption in sub-paragraph (c) of that paragraph does not apply with
regard to property received (or assumed to have been received) by the
respondent on or after that date.
(7) In this
Article –
“court” means –
(a) the
Court of Appeal, if that court is itself proceeding under Article 3(3) to
(8) (inclusive) or 28B of the 1999 Law pursuant to Article 45E(2)(a); or
(b) the
Royal Court, if that court is proceeding afresh that Article, on the direction
of the Court of Appeal pursuant to Article 45E(2)(b);
“relevant date” means the date on which the Royal Court
decided not to make a confiscation order.[87]
46 Right of person to be present[88]
(1) Notwithstanding that he
or she is in custody –
(a) a
person whose sentencing is the subject of a reference to the Court of Appeal
under Article 45A; or
(b) a
respondent in an appeal under Article 45D,
shall be entitled to be present (if he or she desires it) on the
hearing of the matter.
(2) However, paragraph (1)
is subject to paragraphs (3) and (4).
(3) A person in custody
shall not be entitled to be present on any proceedings preliminary or
incidental to a reference under Article 45A or to an appeal under Article 45D,
unless the Court of Appeal gives the person leave to be present.
(4) The power of the Court
of Appeal to pass sentence on a person under Article 45B or to make any
order under Article 45E may be exercised although he or she is not
present.
46AA Appeal by Attorney General against
determinations under the Criminal Justice (Deferred Prosecution Agreements)
(Jersey) Law 2023[89]
(1) The Attorney General
may appeal under this Part to the Court of Appeal against a determination of
the Royal Court made under any of the provisions in paragraph (2).
(2) The provisions in this
paragraph are Articles 6(4), 7(2)(a) and (b) and (13), 10(2) and (3), and
11(2) of the Criminal Justice (Deferred Prosecution Agreements) (Jersey) Law
2023.
(3) Articles 25A(3)
and 28A apply to an appeal under paragraph (1) as they apply to an appeal
under Article 25A(1).
46A Time for
proceedings under Part 4[90]
(1) Notice of –
(a) a
reference to the Court of Appeal under Article 45;
(b) an
application for leave to refer a case to the Court of Appeal under Article 45A;
or
(c) an
application for leave to appeal to the Court of Appeal under Article 45D,
shall be given within 28 days from the day on which the sentence
or the last of the sentences in the case was passed.
(2) The time during which
notice of –
(a) a
reference; or
(b) an
application for leave to refer a case or for leave to appeal,
may be given may be extended at any time by the Court of Appeal.
46B Duties of Judicial
Greffier under Part 4[91]
If the Judicial Greffier is given notice of a reference under
Article 45, an application or reference under Article 45A or an
application or appeal under Article 45D, he or she shall –
(a) take all necessary
steps for obtaining a hearing of the matter; and
(b) obtain and lay before
the Court in proper form all documents, exhibits and other things which appear
necessary for the proper determination of the matter.
46C Powers under
Part 4 which may be exercised by a single judge[92]
(1) In respect of any
application, reference or appeal under this Part –
(a) the
power of the Court of Appeal to give leave to refer a case to it or to appeal
to it;
(b) the
power of the Court under Article 46 to give leave to a person to be present
at any proceedings in any case where the person is not entitled to be present
without leave;
(c) the
power of the Court under Article 46A(2) to extend the time for giving
notice; and
(d) such
other powers to determine matters preliminary or incidental to the reference as
may be prescribed,
may be exercised by any single judge of the Court in the same manner
as they may be exercised by the Court, and subject to the same provisions.
(2) If the single judge
refuses an application to exercise any power to which paragraph (1)
refers, the applicant shall be entitled to have the application determined by
the Court of Appeal as duly constituted for the hearing and determining of
references under either of Articles 45 and 45A or appeals under Article 45D.
46D Supplementary
provisions as to Part 4[93]
In respect of any application, reference or appeal under this
Part –
(a) Article 29 shall
apply to any judgment of the Court of Appeal as that Article applies to a
judgment of the Court under Part 3;
(b) the Court of Appeal
shall, for the purposes of and subject to the provisions of this Part, have the
same powers as are conferred on it by Article 30 for the purposes of Part 3;
(c) subject to the
provisions of this Part, Article 30A shall apply to any order made by the
Court of Appeal as it applies under Part 3 to an order made by it on any
appeal;
(d) Article 33 shall
apply as it applies under Part 3 to an appeal and an application for leave
to appeal;
(e) the Court of Appeal
shall for the purposes of this Part have the same powers as are conferred on it
by Article 34 for the purposes of Part 3;
(f) Article 35
shall apply to an acquitted person to whom Article 45 refers and to a
person to whom Article 45A(1) refers as it applies to an appellant under
Part 3; and
(g) Article 40 shall
apply as it applies in relation to appeals under Part 3 to the Court of
Appeal and as it applies to appeals generally under that Part.
46E Interpretation
of Part 4[94]
(1) In this
Part –
“1999 Law” means the Proceeds of Crime (Jersey)
Law 1999;
“respondent” means a person in whose case the making, or
not making, of a confiscation order is the subject of an appeal under Article 45D.[95]
(2) Expressions
which –
(a) are
used in this Part; and
(b) are
also used in Part 3,
shall have the same respective meanings as they have in Part 3.
(3) Notwithstanding
Articles 45A and 45D, where the person to whose sentencing either of those
Articles refers was –
(a) convicted
and sentenced by the Inferior Number of the Royal Court; or
(b) sentenced
by that court in pursuance of powers conferred by any enactment mentioned in
Article 25,
the reference under Article 45A or the appeal under Article 45D
(as the case may be) shall lie to the Superior Number of the Royal Court and
accordingly, in relation to such a matter, references in this Part (other than
Article 46D(a)) to the Court of Appeal shall, unless the context otherwise
requires, be construed as references to the Superior Number of the Royal Court.
PART 5
GENERAL
47 [96]
48 Saving[97]
Save as provided by Article 14, nothing in this Law shall
affect the prerogative of His Majesty or the jurisdiction of His Majesty in
Council.
49 Interpretation
In this Law, unless the context otherwise requires –
“judgment” includes decree;
“matter” includes ex parte
proceedings;
“party” includes every person served with notice of or
attending any proceedings;
“prescribed” means prescribed by rules of court;
“rules of court” includes forms.
50 Citation
This Law may be cited as the Court of Appeal (Jersey) Law 1961.