Jersey Law 17/1961
“COURT OF APPEAL (JERSEY) LAW, 1961”,
CONFIRMÉ PAR
Ordre de Sa
Majesté en Conseil
en date du 26 mai
1961.
____________
(Enregistré le
17 juin 1961).
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ARRANGEMENT OF
ARTICLES.
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PART I.
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THE COURT OF APPEAL.
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Article
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1.
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Court of Appeal
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2.
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Judges of Court of Appeal
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3.
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Tenure of office of ordinary
judges
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4.
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Restriction of practising
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5.
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Oath of office of ordinary
judges
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6.
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Remuneration and expenses of
ordinary judges
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7.
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Officers of Court of Appeal
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8.
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Right to practise in Court of
Appeal
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9.
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Convening and constitution of
Court of Appeal
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10.
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Decisions of Court of Appeal
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11.
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Powers of single judge
exercisable outside the Island
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PART II.
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APPEALS IN CIVIL
CAUSES AND MATTERS.
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12.
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Jurisdiction
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13.
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Limitation on appeals
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14.
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Appeals from decisions of Court
of Appeal
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15.
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Procedure and practice
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16.
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Costs
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17.
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References to experts
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18.
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Powers which may be exercised by a single judge of Court of Appeal
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19.
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Rules of Court
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20.
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Fees and percentages
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21.
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Shorthand note and transcript of proceedings in court of first
instance
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PART III.
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APPEALS IN CRIMINAL
AND QUASI-CRIMINAL MATTERS.
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22.
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Appellate jurisdiction of
Superior Number of Royal Court
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23.
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Constitution of Superior Number
of Royal Court
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24.
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Right of appeal
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25.
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Determination of appeals in
ordinary cases
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26.
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Powers of Court in special
cases
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27.
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Judgments of Court of Appeal
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28.
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General powers of Court
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29.
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Revesting and restitution of
property on conviction
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30.
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Time for appealing
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31.
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Judge’s notes and report
to be furnished on appeal
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32.
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Supplemental powers of Court
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33.
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Legal assistance to appellant
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34.
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Right of appellant to be
present
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35.
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Admission of appellant to bail and computation of sentence
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36.
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Suspension of licences and custody of goods pending appeal
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37.
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Duties of Judicial Greffier
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38.
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Rules of court
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39.
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Powers which may be exercised
by a single judge
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40.
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Shorthand notes of trial
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41.
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Prerogative of mercy
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42.
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Interpretation and application
of Part III
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PART IV.
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GENERAL.
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43.
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Rules of court
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44.
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Saving
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45.
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Interpretation
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46.
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Transitional provisions
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47.
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Consequential amendment and
repeals
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48.
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Short title and commencement
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Schedule-Form of oath to be
taken by judges of Court of Appeal
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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; sanctioned by
Order of Her Majesty in Council of the
26th day of MAY, 1961.
____________
(Registered on the
17th day of June, 1961).
____________
STATES OF JERSEY.
____________
The 27th day of
September, 1960.
____________
THE STATES, subject to the sanction of
Her Most Excellent Majesty in Council, have adopted the following Law: -
PART I
THE COURT OF APPEAL
ARTICLE 1
COURT OF APPEAL
There shall be a Court of Appeal with such jurisdiction as is
conferred upon it by this Law.
ARTICLE 2
JUDGES OF COURT OF APPEAL
The Judges of the Court of Appeal shall be the Bailiff, the Deputy Bailiff
and such persons as may be appointed by Her Majesty to be ordinary judges of
the Court of Appeal, being persons who –
(a) hold
or have held judicial office in the Commonwealth; or
(b) have
been at least ten years in practice at the Bar in the Island, whether as a Law
Officer of the Crown or otherwise; or
(c) have
been at least ten years in practice at the Bar in England and Wales, Scotland,
Northern Ireland, Guernsey or the Isle of Man.
ARTICLE 3
TENURE OF OFFICE OF ORDINARY JUDGES
An ordinary judge of the Court of Appeal shall hold office during
good behaviour.
ARTICLE 4
RESTRICTION ON PRACTISING
No ordinary judge of the Court of Appeal shall, during his
continuance in office, practise at the Bar in the Island or be concerned
directly or indirectly, whether within or without the Island, as counsel,
solicitor, arbitrator or referee in any matter arising within the Island.
ARTICLE 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 the Schedule to
this Law.
ARTICLE 6
REMUNERATION AND EXPENSES OF ORDINARY JUDGES
(1) The
ordinary judges of the Court of Appeal shall receive such remuneration as may
be prescribed by Act of the States and shall be entitled to reimbursement of
all travelling and other expenses incurred by them in the discharge of their
functions under this Law.
(2) Monies
payable under this Article shall be defrayed out of the General Revenues of the
States.
ARTICLE 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 judgement or order made thereon, discharge duties analogous
to those discharged by him 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 him in relation to proceedings in the Royal
Court.
ARTICLE 8
RIGHT TO PRACTISE IN COURT OF APPEAL
(1) Subject
to the provisions of paragraph (3) of this Article, as respects any appeal to
the Court of Appeal and any proceedings preliminary or incidental thereto, 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 or proceedings.
(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 connexion with any such appeals or
proceedings.
(3) Subject
as provided by rules of court, it shall be lawful for a party to an appeal
under Part II of this Law or for an appellant under Part III of this Law,
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 and in
any proceedings preliminary or incidental to the appeal and to do in any such
office or to transact with any such officer as is mentioned in paragraph (2) of
this Article any act or thing required or necessary to be done in connexion
with any such appeal or proceedings.
ARTICLE 9
CONVENING AND CONSTITUTION OF COURT OF APPEAL
(1) The
Court of Appeal shall be convened by the Bailiff or, failing him, by the Deputy
Bailiff, and shall be duly constituted if it consists of an uneven number of
judges, but not less than three:
Provided that no judge of the Court shall sit on the hearing of an
appeal from a judgement, order, conviction or sentence made or pronounced by
any court of which he was a member or on the hearing of any proceedings
preliminary or incidental to any such appeal.
(2) Subject
to the provisions of this Article, the Bailiff shall be the President of the
Court of Appeal.
(3) If
at any sitting of the Court of Appeal the Bailiff is unable to act, the Deputy
Bailiff shall preside at that sitting and, if he also is unable to act, the
remaining members of the Court shall select another member thereof to preside
at that sitting, and the member selected shall act accordingly.
(4) The
Bailiff or the Deputy Bailiff may decline to preside in any case in which he
thinks it undesirable or inconvenient that he should do so, and in any such
case the provisions of this Article shall have effect as if he were unable to
act.
ARTICLE 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.
ARTICLE 11
POWERS OF SINGLE JUDGE EXERCISABLE OUTSIDE THE ISLAND
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 the Island.
PART II
APPEALS IN CIVIL CAUSES AND MATTERS
ARTICLE 12
JURISDICTION
(1) There
shall be vested in the Court of Appeal all jurisdiction and powers hitherto
vested in the Superior Number of the Royal Court when exercising appellate
jurisdiction in any civil cause or matter.
(2) Subject
as otherwise provided in this Law and to rules of court, the Court of Appeal
shall have jurisdiction to hear and determine appeals from any judgment or
order of the Superior Number of the Royal Court when exercising original
jurisdiction in any civil cause or matter.
(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 ought to be had, to order that the verdict and judgment
be set aside and that a new trial be had.
(4) The
Court of Appeal shall exercise such additional appellate jurisdiction as may be
conferred upon the Court by any enactment passed by the States and confirmed by
Order of Her Majesty in Council.
(5) This
Part of this Law shall apply to “causes mixtes” as it applies to
civil causes and matters.
ARTICLE 13
LIMITATION ON APPEALS
No appeal shall lie under this Part of this Law –
(a) from
any decision which, by virtue of any enactment, is final;
(b) from
a final order for the dissolution or nullity of marriage, 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) without
the leave of the court whose decision is sought to be appealed from, or of the
Court of Appeal, except –
(i) where
the value of the matter in dispute is more than two hundred pounds; or
(ii) on
a question of law;
(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 infants 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.
ARTICLE 14
APPEALS FROM THE DECISIONS OF COURT OF APPEAL
No appeal shall lie from a decision of the Court of Appeal under
this Part of this Law without the leave of the Court or the special leave of
Her Majesty in Council, except where the value of the matter in dispute is five
hundred pounds or more.
ARTICLE 15
PROCEDURE AND PRACTICE
The jurisdiction vested in the Court of Appeal under this Part of
this Law 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 as nearly as may be in the same manner
as that in which the Superior Number of the Royal Court might hitherto have
exercised jurisdiction on an appeal from the Inferior Number thereof.
ARTICLE 16
COSTS
The costs of and incidental to all proceedings in the Court of
Appeal under this Part of this Law 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.
ARTICLE 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 of this Law.
(2) In
all cases of reference under paragraph (1) of this Article, 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.
ARTICLE 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 of this Law, 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 he may think fit.
(2) Every
order made by a single judge of the Court of Appeal in pursuance of this
Article may be discharged of varied by any judges of the Court having power to
hear and determine the appeal.
ARTICLE 19
RULES OF COURT
(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 of this
Law (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 of this Law 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 connexion 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 of this Law.
(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.
ARTICLE 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 of this Law 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.
ARTICLE 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
of this Law, 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 Her 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, and shall not be
taken down in the manner prescribed by the “Loi modifiant la
procédure en rédaction de dépositions en matières
civiles et mixtes”, confirmed by Order of Her Majesty in Council of the
twenty-sixth day of March, 1885.
(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 III
APPEALS IN CRIMINAL AND
QUASI-CRIMINAL MATTERS
ARTICLE 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 of this Law.
ARTICLE 23
CONSTITUTION OF SUPERIOR NUMBER OF ROYAL COURT
For the purposes of this Part of this Law, the Superior Number of
the Royal Court shall be duly constituted only if it consists of the Bailiff or
the Deputy Bailiff and not less than five Jurats:
Provided that no person shall sit on the hearing of an appeal to
the Superior Number of the Royal Court under this Part of this Law from a
conviction or sentence pronounced or passed by any court of which he was a
member or on the hearing of any proceedings preliminary or incidental to any
such appeal.
ARTICLE 24
RIGHT OF APPEAL
A person convicted on indictment by the Royal Court, whether
sitting with or without a jury, may appeal under this Part of this Law to the
Court of Appeal –
(a) against
his conviction, on any ground of appeal which involves a question of law alone;
and
(b) with
the leave of the Court of Appeal, or upon the certificate of the judge who
presided at his trial that it is a fit case for appeal, against his 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 the sentence passed on his
conviction, unless the sentence is one fixed by law:
Provided that where the appellant was convicted and sentenced by
the Inferior Number of the Royal Court the appeal shall lie to the Superior Number
of the Royal Court and, accordingly, in relation to such an appeal references
in this Part of this Law, other than Articles 27 and 41, to the Court of
Appeal, shall, unless the context otherwise requires, be construed as
references to the Superior Number of the Royal Court.
ARTICLE 25
DETERMINATION OF APPEALS IN ORDINARY CASES
(1) 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
judgement 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.
(2) Subject
to the special provisions of this Part of this Law, 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.
(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 35 of this Law, the term of any sentence passed
under this Part of this Law 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 35 to any sentence to which an appellant is for the time being subject
shall be construed accordingly.
ARTICLE 26
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 he was convicted and it appears to the Court of Appeal
that the jury must have been satisfied of facts which proved him 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 him, he was insane at the time that the act was done
or the omission made, so as not to be responsible according to law for his
actions, the Court of Appeal may quash the sentence passed as a result of the
trial and order the appellant to be detained during Her Majesty’s
pleasure.
ARTICLE 27
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.
ARTICLE 28
GENERAL POWERS OF COURT
The Court of Appeal shall, for the purposes of and subject to the
provisions of this Part of this Law, have full power to determine, in
accordance with this Part of this Law, any questions necessary to be determined
for the purpose of doing justice in the case before it.
ARTICLE 29
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 ten 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 ten 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) of this Article.
(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.
ARTICLE 30
TIME FOR APPEALING
(1) Where
a person convicted desires to appeal or to obtain leave to appeal under this Part
of this Law, he shall give notice of appeal or notice of his application for
leave to appeal to the Judicial Greffier, in such manner as may be directed by
rules of court, within ten days of the date of conviction.
(2) Rules
of court made for the purposes of this Article shall enable any convicted
person to present his case and his arguments in writing, instead of by oral
argument, if he so desires, and any case or argument so presented shall be
considered by the Court of Appeal.
(3) Except
in the case of a conviction involving sentence of death, 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.
(4) In
the case of a conviction involving sentence of death or corporal punishment
–
(a) the
sentence shall not in any case be executed until after the expiration of the
time within which notice of appeal or of an application for leave to appeal may
be given under this Article; and
(b) if
notice is so given, the appeal or application shall he heard and determined
with as much expedition as practicable, and the sentence shall not be executed
until after the determination of the appeal, or, in any case where an
application for leave to appeal is finally refused, of the application.
ARTICLE 31
JUDGE’S NOTES AND REPORT TO BE FURNISHED ON APPEAL
The President of the court before which a person is convicted
shall, in the case of an appeal against the conviction or against the sentence,
or in the case of an application for leave to appeal, furnish to the Court of
Appeal, in accordance with rules of court, his notes of the trial and a report
giving his opinion upon the case or upon any point arising in the case.
ARTICLE 32
SUPPLEMENTAL POWERS OF COURT
For the purposes of this Part of this Law, 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; and
(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 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; and
(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 of the appellant
in cases where the evidence of the husband or wife could not have been given at
the trial except on such an application; and
(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.
ARTICLE 33
LEGAL ASSISTANCE TO APPELLANT
An appellant shall have the same right to legal aid in an appeal
under this Part of this Law and in proceedings preliminary or incidental to
such an appeal as he would have in criminal proceedings instituted against him
in the Royal Court.
ARTICLE 34
RIGHT OF APPELLANT TO BE PRESENT
(1) An
appellant, notwithstanding that he is in custody, shall be entitled to be
present, if he desires it, on the hearing of his appeal under this Part of this
Law, except where the appeal is on some ground involving a question of law
alone, but, in that case and on an application for leave to appeal and on any
proceedings preliminary or incidental to an appeal, shall not be entitled to be
present, except where rules of court provide that he shall have the right to be
present or where the Court of Appeal gives him leave to be present, or where he
is not legally represented.
(2) The
power of the Court of Appeal to pass any sentence under this Part of this Law
may be exercised notwithstanding that the appellant is for any reason not
present.
ARTICLE 35
ADMISSION OF APPELLANT TO BAIL AND COMPUTATION OF SENTENCE
(1) An
appellant who is not admitted to bail shall, pending the determination of his
appeal, be treated in such manner as may be directed by prison rules.
(2) The
Royal Court may, if it sees fit, on the application of an appellant, admit the
appellant to bail pending the determination of his appeal.
(3) Where
an appellant is admitted to bail, the time during which he is at large after
being so admitted shall be disregarded in computing the term of any sentence to
which he is for the time being subject.
(4) Subject
as hereinafter provided, six weeks of the time during which any such appellant,
when in custody, is specially treated as such in pursuance of prison rules, or
the whole of that time if it is less than six weeks, shall be disregarded in
computing the term of any such sentence as aforesaid.
Provided that –
(a) the
foregoing provisions of this paragraph shall not apply where leave to appeal is
granted under this Part of this Law or where any such certificate as is
mentioned in sub-paragraph (b) of Article 24 of this Law has been given for the
purposes of the appeal; and
(b) in
any other case, the Court of Appeal may direct that no part of the said time,
or such part thereof as the Court thinks fit (whether shorter or longer than
six weeks), shall be disregarded as aforesaid.
ARTICLE 36
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.
ARTICLE 37
DUTIES OF JUDICIAL GREFFIER
(1) The
Judicial Greffier shall take all necessary steps for obtaining a hearing under
this Part of this Law of any appeals or applications notice of which is given
to him under this Part of this Law 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 of this Law 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 of this
Law to any persons who demand the same, to the Governor of the Prison and to
such other officers and persons as he 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 of this
Law and shall cause any such notice given by a prisoner in his custody to be
forwarded on behalf of the prisoner to the Judicial Greffier.
ARTICLE 38
RULES OF COURT
(1) Rules
of court for the purposes of this Part of this Law shall be made, subject, so
far as the rules affect the Governor or any other officer of the Prison, to the
approval of the Prison Board –
(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.
(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 of this Law by rules of court, and may regulate
generally the practice and procedure under this Part of this Law, 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
officer or persons, and compliance with such rules may be enforced by order of
the Court to which the appeal lies.
ARTICLE 39
POWERS WHICH MAY BE EXERCISED BY A SINGLE JUDGE
(1) The
powers of the Court of Appeal under this Part of this Law 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 allow the appellant to be present at any
proceedings in cases where he is not entitled to be present without leave or to
give directions under sub-paragraph (b) of the proviso to paragraph (4) of Article
35 of this Law, 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 of this Law
in his 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 of this Law.
(2) In
relation to appeals under this Part of this Law to the Superior Number of the
Royal Court, references in paragraph (1) of this Article to a judge of the
Court of Appeal shall be construed as references to the Bailiff or the Deputy
Bailiff.
ARTICLE 40
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 of this Law, 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 him 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) of
this Article shall be paid into the General Revenues of the States.
(5) In
relation to the criminal and quasi-criminal proceedings mentioned in paragraph
(3) of Article 42 of this Law, a shorthand note shall be taken only in cases in
which there has been a denial of the facts alleged by the Crown.
ARTICLE 41
PREROGATIVE OF MERCY
Nothing in this Part of this Law shall affect the prerogative of
mercy, but, as respects the conviction of a person on indictment by the Royal Court
or the sentence (other than sentence of death) passed on a person so convicted,
being a conviction or sentence against which an appeal lies under this Part of
this Law to the Court of Appeal, the Secretary of State may, if he 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
he 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 Secretary of State with its opinion thereon
accordingly.
ARTICLE 42
INTERPRETATION AND APPLICATION OF PART III
(1) In
this Part of this Law, unless the context otherwise requires –
“appellant” includes a person who has been convicted
and desires to appeal under this Part of this Law;
“prison rules” means rules made under Article 26 of the
Prison (Jersey) Law, 1957;
“the Prison” has the same meaning as in the Prison
(Jersey) Law, 1957;
“sentence” means any order of a court (including an
order of banishment) made on a conviction with reference to the person
convicted, or his wife or children, and the power of the Court of Appeal to
pass a sentence includes a power to make any such order.
(2) Any
reference in this Part of this Law to the term of any sentence to which a
person is subject shall, in relation to a person sentenced to Borstal training,
be construed as a reference to the periods during which, under section
forty-five of the Prison Act, 1952 (15 & 16 Geo. 6 and I Eliz. 2, C.52) he
may be detained in a Borstal Institution; and nothing in this Part of this Law
shall be construed as affecting any period during which a person so sentenced
is liable to supervision under the said section forty-five.
(3) This
Part of this Law 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.
(4) Any
reference in this Part of this Law 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 IV
GENERAL
ARTICLE 43
RULES OF COURT
The Subordinate Legislation (Jersey) Law, 1960, shall
apply to rules of court made under this Law.
ARTICLE 44
SAVING
Save as provided by Article 14 of this Law, nothing in this Law
shall affect the prerogative of Her Majesty or the jurisdiction of Her Majesty
in Council.
ARTICLE 45
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.
ARTICLE 46
TRANSITIONAL PROVISIONS
(1) Any
appeal in a cause or matter to which Part II of this Law applies pending before
the Superior Number of the Royal Court immediately before the day on which paragraph
(1) of Article 12 of this Law comes into force shall, on such day, be
transferred to the Court of Appeal and, subject to such directions as the Court
of Appeal may think fit to give in relation thereto, proceedings thereon may be
continued as if they had been begun in the Court of Appeal.
(2) Part
III of this Law shall apply to all persons convicted by the Royal Court on or
after the date on which Article 24 of this Law comes into force, but shall not
affect the rights, as respects appeals, of any persons convicted before that
date.
ARTICLE 47
CONSEQUENTIAL AMENDMENT AND REPEALS
(1) In
Article 20 of the Royal Court (Jersey) Law, 1948, for the
words “as His Majesty may by Order in Council appoint” there shall
be substituted the words “as the States may by Act appoint”.
(2) The
following enactments are hereby repealed –
(a) Article
46 of the Matrimonial Causes (Jersey) Law, 1949;
(b) the
Act to prescribe the emoluments of the ordinary judges of the Court of Appeal,
sanctioned by Order of the fourth day of October, 1951, of the Counsellors of
State in Council on behalf of His Majesty;
(c) paragraph
(2) of Article 2 of the Civil Proceedings (Jersey) Law, 1956.
ARTICLE 48
SHORT TITLE AND COMMENCEMENT
(1) This
Law may be cited as the Court of Appeal (Jersey) Law, 1961.
(2) This
Law shall not come into force unless it shall be the good pleasure of Her
Majesty to revoke the Court of Appeal (Channel Islands) Order, 1949, in which case it shall come into force on such day
or days as the States may by Act appoint, and different days may be fixed for
different purposes and different provisions of this Law.
SCHEDULE
(Article 5)
FORM OF OATH TO BE TAKEN BY JUDGES OF COURT OF APPEAL
“Vous jurez et promettez par la foi et serment que vous devez
à Dieu que bien et fidèlement vous exercerez la charge de Juge de
la Cour d’Appel du Bailliage de Jersey; que vous soutiendrez et
maintiendrez l’honneur et gloire de Dieu, et de sa pure parole; que vous
conserverez et garderez les droits de Sa Majesté notre Souveraine Dame
Elizabeth Deux, par la Grâce de Dieu Reine du Royaume-Uni de la Grande
Bretagne et de l’Irlande du Nord et de ses autres Royaumes et
Territoires, Chef du Commonwealth, Défenseur de la Foi, et
qu’à Sadite Majesté vous serez vrai et loyal sujet; que
vous maintiendrez, soutiendrez et défendrez tous les lois,
libertés, usages et anciennes coutumes dudit Bailliage, vous opposant
à quiconque les voudrait enfreindre; et que vous administrerez bonne et
briève justice à un chacun, sans acception de personne”.
To be printed, published and posted.
F. DE L. BOIS,
Greffier of the States.