Arrangement

A LAW to amend further the Court of Appeal (Jersey) Law 1961.

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

“(1)    The Court of Appeal shall be convened by the Bailiff or, in the absence of the Bailiff, by the Deputy Bailiff.

(1A)   The Court of Appeal shall be duly constituted if it consists of an uneven number of judges, but not less than 3.

(1B)   However, no judge of the Court of Appeal shall sit on –

(a)     the hearing of an appeal 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 or reference.

(2)     Subject to paragraph (3), the Bailiff shall be the President of the Court of Appeal.

(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.”.

“(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.”.

“(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.

(3)     Subject to paragraph (4), the single judge’s decision on the application shall be final.

(4)     The single judge may at any stage refer the application to the full Court of Appeal for decision.”.

“14    Appeals from the decisions of Court of Appeal

(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 Her Majesty in Council.

(2)     No appeal shall lie from a decision of the Court of Appeal to grant, or to refuse to grant, leave to 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.”.

“(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:”.

“30A Effect of order

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.”.

“(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.

(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.

(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.”.

“33    Judge’s report on appeal

(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.”.

“(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.

(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.”.

“(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.

(2A)   Paragraph (2) is without prejudice to Article 28(3).”.

“37A Time spent in custody pending appeal

(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.”.

“(6)    Any reference in this Article to a shorthand note includes a reference to a record of the proceedings by electronic means.”.

“ ‘confiscation order’ means a confiscation order as defined in Article 1(1) of the Drug Trafficking Offences (Jersey) Law 1988 or in Article 1(1) of the Proceeds of Crime (Jersey) Law 1999;”.

“ ‘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.”.

“PART 4

REFERENCES AND APPEALS BY THE ATTORNEY GENERAL”.

“45A Reference to Court of Appeal for review of sentence

(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

(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

(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

(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.

(2)     If in a case to which this Article applies the Royal Court makes a confiscation order, the Attorney General may appeal to the Court of Appeal in respect of the order.

(3)     If in a case to which this Article applies the Royal Court decides not to make a confiscation order, the Attorney General may appeal to the Court of Appeal against the decision.

(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 1988 Law or of any of Articles 9, 12 and 13 of the 1999 Law.

(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

(1)     On an appeal under Article 45D(2), the Court of Appeal may confirm, quash or vary the confiscation order.

(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 paragraphs (2) to (7) (inclusive) of Article 3 of the 1988 Law or paragraphs (3) to (8) (inclusive) of Article 3 of the 1999 Law, as the case may be; or

(b)     may direct the Royal Court to proceed afresh under Article 3 of the 1988 Law or Article 3 of the 1999 Law, as the case may be.

(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

(1)     This Article applies if –

(a)     the Court of Appeal makes or varies a confiscation order pursuant to Article 45E; or

(b)     the Royal Court makes or varies a confiscation order in pursuance of a direction under paragraph (2) of that Article.

(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)     in the case of an order under the 1988 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); and

(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).

(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)     Article 8 of the 1988 Law; or

(b)     Article 4 of the 1999 Law,

as the case may be, the amount which might be realized.

(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[2] –

(a)     the court shall have regard to the order; and

(b)     Article 3(7) of the 1999 Law shall not apply.

(5)     In a case in which the court is proceeding under the 1988 Law, in Article 5(3) of that Law –

(a)     the assumption in sub-paragraph (a) of that paragraph does 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.

(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 paragraphs (2) to (7) (inclusive) of Article 3 of the 1988 Law or paragraphs (3) to (8) (inclusive) of Article 3 of the 1999 Law pursuant to Article 45E(2)(a); or

(b)     the Royal Court, if that court is proceeding afresh under either of those Articles, 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.”.

“46    Right of person to be present

(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.

46A   Time for proceedings under Part 4

(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

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

(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

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

(1)     In this Part –

‘1988 Law’ means the Drug Trafficking Offences (Jersey) Law 1988[3];

‘1999 Law’ means the Proceeds of Crime (Jersey) Law 1999[4];

‘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.

(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.”.