Magistrate’s
Court (Miscellaneous Provisions) (Jersey) Law 1949
A LAW to extend the jurisdiction of
the Magistrate’s Court, to modify procedure before that Court and to
allow appeals from decisions thereof[2]
Commencement
[see endnotes]
PART 1
INTERPRETATION
1 Definitions
(1) In this Law, unless the
context otherwise requires –
“appeal aid certificate” has the meaning given by Article 23(2);
“confiscation order” means -
(a) a
confiscation order within the meaning of the Drug Trafficking Offences (Jersey)
Law 1988; and
(b) a
confiscation order within the meaning of the Proceeds of Crime (Jersey) Law 1999;
“Magistrate” means the Juge d’Instruction
appointed in pursuance of the Loi (1864) concernant la charge de Juge
d’Instruction and includes any person exercising the functions of the Juge
d’Instruction;
“Magistrate’s
Court” means the Court established by virtue of the Loi (1853) établissant la cour pour la répression des
moindres délits;
“offence” means any crime or misdemeanour (délit), whether at customary law or by
enactment, any contravention of an enactment and any other act or omission
involving breach of a duty to which by law a sanction is attached by way of
punishment;
“youth detention” has the meaning given by Article 1(1)
of the Criminal Justice (Young
Offenders) (Jersey) Law 2014.[3]
(2) In this Law a reference
to prison or to imprisonment or to liability to imprisonment, includes in the
case of a person who is under the age of 21, a reference to a young offender
institution, or to a sentence of youth detention or liability to that sentence.[4]
PART 2
JURISDICTION
2 Jurisdiction
of Magistrate’s Court[5]
Notwithstanding anything in any enactment, the Magistrate, sitting
as judge in the Magistrate’s Court, shall have power and authority to
hear and determine all cases for offences.
3 Maximum
penalties
(1) Notwithstanding the
provisions of Article 2, the maximum penalties which may be imposed by the
Magistrate shall be a fine of £10,000 or imprisonment for a term of 12
months, or both such fine and such imprisonment, or such greater penalty as may
be authorized by or by virtue of any Law or Order in Council to be imposed by
the Magistrate’s Court:
Provided that where the Magistrate passes a sentence of imprisonment
on any person, the Magistrate may order that the sentence shall commence at the
expiration of any other term of imprisonment to which that person has been
previously sentenced, so however that the aggregate of the terms so imposed, if
the previous sentence was imposed by the Magistrate, shall not exceed the
maximum term which the Magistrate is empowered by this paragraph to impose:
Provided further that where a person is convicted of more than one
offence, the aggregate of the fines imposed by the Magistrate in respect of
those offences shall not exceed the maximum fine which the Magistrate is
empowered by this paragraph to impose.[6]
(2) Subject to the
provisions of Article 4, if the Magistrate is of opinion that the gravity
of an offence is such that there should be imposed a penalty or penalties in
excess of those which the Magistrate is empowered by paragraph (1) to
impose, or that a confiscation order is likely to be made, it shall be the
Magistrate’s duty to commit the accused for trial before the Royal Court.[7]
(3) The States may, by
Regulations, amend in paragraph (1) the sentencing powers of the
Magistrate.[8]
4 Committal
for sentence[9]
If the accused has pleaded not guilty and the Magistrate, having
heard the case, finds the accused guilty and if –
(a) thereafter having
examined the accused’s record of previous convictions; or
(b) having regard to any
other fact then brought to the Magistrate’s knowledge,
the Magistrate is of the opinion that there should be imposed a
penalty or penalties in excess of those which the Magistrate is empowered by Article 3
to impose, or that a confiscation order is likely to be made, the Magistrate
shall commit the accused in custody or on bail to the Inferior Number of the
Royal Court to receive sentence.
5 Saving
Nothing in this Law shall derogate from the powers of the Attorney
General to institute proceedings before the Royal Court in respect of any
offence.
6 [10]
7 [11]
8 [12]
PART 3[13]
9 [14]
10 [15]
11 [16]
12 [17]
13 [18]
PART 4
PROSECUTION OF PROCEEDINGS[19]
14 Proceedings
by a legally qualified prosecutor[20]
The conduct of proceedings in the Magistrate’s Court may, with
the approval of the Attorney General, be undertaken on behalf of the
prosecution by –
(a) an advocate; or
(b) a solicitor or a person
who has been admitted –
(i) to
the degree of the Utter Bar of one of the Inns of Court of England and Wales,
or
(ii) as a
solicitor of the Supreme Court of Judicature of England and Wales,
and who is employed in the Law Officers Department.
15 Role
of the Magistrate[21]
In proceedings conducted in accordance with Article 14, the
Magistrate shall perform only a judicial role.
PART 5
APPEAL AND CASE STATED[22]
16 Definitions[23]
In this Part and in Part 6, unless the context otherwise
requires –
“appeal aid certificate” has the meaning assigned
thereto in Article 23;
“community service order" means an order made under the Criminal Justice (Community Service Orders)
(Jersey) Law 2001;
“probation order” means an order
under the Loi (1937) sur l’attenuation des peines
et sur la mise en liberté surveillée;
“Royal Court” means the Inferior Number of the Royal
Court.
17 Right
of appeal[24]
(1) A person convicted by
the Magistrate’s Court may appeal to the Royal Court –
(a) if the
person pleaded guilty or admitted the facts, against the sentence;
(b) if the person did not –
(i) and was sentenced
by the Magistrate, against the conviction or sentence,
(ii) and
was committed by the Magistrate for sentence under Article 4, against the
conviction.[25]
(2) A person sentenced by
the Magistrate’s Court for an offence in respect of which a probation order
or community service order has previously been made may appeal to the Royal
Court against the sentence.[26]
(3) In this Article,
“sentence” includes any order made on conviction by the
Magistrate’s Court, not being –
(a) a
probation order;
(b) a
community service order;
(c) an order
for the payment of costs;
(d) an order
made in pursuance of any enactment under which the Court has no discretion as
to the making of the order or its terms;
(e) a
committal in default of payment of any sum of money, or for want of sufficient
distress to satisfy any sum of money, or for failure to do or abstain from
doing anything required to be done or left undone.[27]
18 Notice
of appeal[28]
(1) An appeal under Article 17
shall be commenced by the appellant’s giving notice of appeal to the
Judicial Greffier within 8 days after the day on which the decision of the
Magistrate’s Court was given.
(2) A notice of appeal
shall be in writing and shall state the general grounds of appeal.
(3) Where it appears to the
Royal Court, on application made in accordance with paragraph (4), that
any person wishing to appeal to that Court from the Magistrate’s Court
has failed to give the notice of appeal required by this Article within the
period of 8 days prescribed by paragraph (1), the Royal Court may, if it
thinks fit, direct that any such notice of appeal previously given by the
applicant after the expiration of the said period, or any such notice to be
given by the applicant within such further time as may be specified in the
direction, shall be treated as if given within the said period.
(4) An application for a
direction under paragraph (3) shall be made in writing to the Judicial
Greffier.
19 Abandonment
of appeal[29]
(1) An appellant may
abandon an appeal under Article 17 by giving notice in writing to the
Judicial Greffier, not later than the third day before the day fixed for the
hearing of the appeal.
(2) Where notice to abandon
an appeal has been duly given by the appellant –
(a) subject
to anything already suffered or done by the appellant under the decision from
which the appeal is made, such decision shall be enforceable forthwith by due
process of law;
(b) the
Magistrate’s Court may, on the application of the prosecution, order the
appellant to pay to the prosecution such costs as appear to the
Magistrate’s Court to be just and reasonable in respect of expenses
properly incurred by the prosecution in connection with the appeal before
notice of the abandonment was given.
20 Procedure
on appeals[30]
(1) The Royal Court may
direct that witnesses shall be heard before it at the hearing of any appeal
under Article 17 in relation to any matter or thing relevant to the appeal
and may require the production of the Magistrate’s notes of the trial.
(2) If, at any stage of the
proceedings, the Royal Court is of opinion that the appeal is frivolous or
vexatious or brought for the purpose of delay, it may forthwith dismiss the
appeal.
(3) On any appeal under Article 17,
the Royal Court may by order confirm, reverse or vary the decision of the
Magistrate’s Court, or may remit the matter with its opinion thereon to
the Magistrate’s Court, or may make such other order in the matter as it
thinks just, and may by such order exercise any power which the
Magistrate’s Court might have exercised, and any order so made shall have
the like effect and may be enforced in like manner as if it had been made by
the Magistrate’s Court.
(4) The powers of the Royal
Court under paragraph (3) shall be construed as including power to award
any punishment, whether more or less severe than that awarded by the
Magistrate’s Court, which that Court might have awarded.
(5) On any appeal under Article 17
–
(a) if
the appeal is successful, the Royal Court may order the payment out of public
funds of such sums as appear to the court reasonably sufficient to compensate
the appellant for any expenses properly incurred –
(i) in the
prosecution of the appeal, and
(ii) in
the proceedings in the Magistrate’s Court; or
(b) if
the appeal is unsuccessful, the Royal Court may order the appellant to pay the
whole or any part of the costs of the appeal.[31]
21 Statement
of case by Magistrate[32]
(1) Any person who was a
party to any proceeding before the Magistrate’s Court or is aggrieved by
the conviction, order, determination or other proceeding of the
Magistrate’s Court may question the proceeding on the ground that it is
wrong in law or is in excess of jurisdiction, by applying to the Magistrate to
state a case for the opinion of the Royal Court on the question of law or
jurisdiction involved:
Provided that a person shall not make an application under this Article
in respect of a decision which by virtue of any enactment is final.
(2) An application under paragraph (1)
shall be made within 8 days after the day on which the decision of the
Magistrate’s Court was given.
(3) On the making of an
application under this Article in respect of a decision, any right of the
applicant to appeal under Article 17 against the decision shall cease.
(4) If the Magistrate is of
opinion that an application under this Article is frivolous, the Magistrate may
refuse to state a case and, if the applicant so requires, shall give the
applicant a certificate stating that the application has been refused:
Provided that the Magistrate shall not refuse to state a case if the
application is made by or under the direction of the Attorney General.
(5) Where the Magistrate
refuses to state a case, the Royal Court may, on the application of the person
who applied for the case to be stated, make an order requiring the Magistrate
to state a case and it shall be the duty of the Magistrate to comply with the order.
(6) The Magistrate shall
not be required to state a case until the applicant has, if so required by the
Magistrate’s Court, given an undertaking and given or found such
security, in such amount as the Magistrate’s Court may determine, that the
applicant will prosecute the appeal without delay and submit to the judgment of
the Royal Court and pay such costs as that Court may award.[33]
22 Procedure on consideration of appeal by case stated[34]
(1) On an appeal by case
stated under Article 21, the Royal Court shall hear and determine the
question or questions of law arising on the case and may reverse, affirm or
amend the determination in respect of which the case has been stated, or remit
the matter to the Magistrate’s Court, with its opinion thereon, or may
make such other order in relation to the matter, and may make such orders as to
costs, as may seem fit.
(2) The Royal Court shall
also have power, if it thinks fit, to cause the case to be sent back for
amendment, and thereupon the case shall be amended accordingly, and judgment
shall be delivered after it has been amended.
(3) Any conviction, order,
determination or other proceeding of the Magistrate’s Court varied by the
Royal Court on an appeal by case stated, and any judgment or order of the Royal
Court on such an appeal, may be enforced as if it were a decision of the
Magistrate’s Court.
23 Provisions
as to legal aid[35]
(1) Where a person desires
to appeal under Article 17 or to make or oppose an application for the
statement of a case under Article 21 but has not sufficient means to
enable the person to obtain legal aid for the purpose, the person may make
application to the Magistrate for free legal aid.
(2) If, on an application
made to the Magistrate under paragraph (1), it appears to the Magistrate
that the means of the applicant are insufficient to enable him or her to obtain
legal aid, and that it is desirable in the interests of justice that the
applicant should have free legal aid, the Magistrate may grant the applicant a
certificate (in this Law referred to as “an appeal aid
certificate”).
(3) Where, on an
application made under this Article, the Magistrate has refused to grant an
appeal aid certificate, the applicant may make an application for the same
purpose to the Royal Court, and the Royal Court shall have the like power,
exercisable on the like grounds, of granting an appeal aid certificate as the
Magistrate.
(4) A person to whom an
appeal aid certificate has been granted under this Article shall be entitled to
free legal aid in the preparation and conduct of his or her case and to have an
advocate assigned to the person for that purpose by the Bâtonnier.
(5) [36]
(6) When notice of the
abandonment of an appeal has been given, an order under paragraph (5) may
be made by the Royal Court.
(7) If any person, for the
purpose of obtaining free legal aid under this Article, makes any statement
which he or she knows to be false in a material particular or recklessly makes
any statement which is false in a material particular, the person shall be
liable to imprisonment for a term of one month and to a fine of level 3 on
the standard scale.[37]
24 Bail
on appeal or case stated[38]
(1) Where a person has
given notice of appeal under Article 17 or has applied for the statement
of a case under Article 21 then, if the person is in custody, the
Magistrate may release the person on his or her giving an undertaking and
giving or finding such security in such amount as the Magistrate may determine –
(a)
(i) if
the person has given notice of appeal, that the person will attend before the
Royal Court at the hearing of the appeal, or
(ii) if
the person has applied for the statement of a case, that the person will appear
before the Magistrate’s Court within 7 days after the judgment of the
Royal Court has been given, unless the determination in respect of which the
case is stated is reversed by that judgment;
(b) that the
person will not leave Jersey until the appeal or application has been disposed
of;
(c) that the
person will not consort with or molest any designated persons pending the
disposal of the appeal or application;
(d) if the
person subsequently gives notice of abandonment of appeal, that he or she will
immediately surrender to the Viscount,
and the Magistrate may further require the person to elect and name
an address in Jersey at which summonses and notices respecting the appeal or application
may be validly served on him or her.
(2) The time during which a
person is admitted to bail under this Article shall not count as part of any
term of imprisonment under the person’s sentence; and any sentence of
imprisonment imposed by the Magistrate’s Court or, on appeal, by the
Royal Court, after the imposition of which a person is so admitted to bail,
shall be deemed to begin to run or to be resumed as from the day on which the person
is received in prison under the sentence.
(3) If any person acts
wilfully in breach of an undertaking given under paragraph (1), the person
shall be guilty of an offence and shall on conviction by the Royal Court be
liable to imprisonment for a term of 3 months and to a fine of
level 3 on the standard scale, and to pay the costs of the prosecution,
and the Court may direct that any term of imprisonment to which the person is
sentenced under this paragraph shall not begin to run until after the end of
any term of imprisonment which the person is then liable to serve.[39]
(4) Upon any such
conviction, or, if the person liable to prosecution under paragraph (3)
cannot be apprehended within the 3 months next following the contravention,
upon an application made after the expiration of such last-mentioned period,
the Royal Court may –
(a) direct
that any security given or found in connection with the undertaking shall be
forfeited to Her Majesty or may, if such security was found by some person
other than the person admitted to bail and the Court thinks it proper in the
circumstances so to do, direct that the security or some part thereof shall be
returned to the person by whom the same was found; and
(b) dismiss
the appeal or application without proceeding to the hearing thereof.
25 Suspension
of licences and custody of goods pending appeal[40]
Where notice of appeal is given under Article 17 or an
application for the statement of a case is made under Article 21 in
respect of a decision which includes –
(a) an order for the
suspension or withdrawal of a licence or other permit, the Magistrate 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.
26 Miscellaneous
provisions[41]
(1) Any appeal or
application under this Part may be heard and determined by the Royal Court
either in term or in vacation.
(2) Any judgment or order
of the Royal Court under this Part shall be final and conclusive, and shall not
be subject to appeal to any other court.
(3) Costs ordered to be
paid under this Part to the prosecution may be recovered as a civil debt due to
the States.[42]
PART 6
PROCEDURE, etc. ON
COMMITTAL FOR SENTENCE[43]
27 Power
of Royal Court[44]
Where an offender is committed by the Magistrate for sentence under Article 4,
the Royal Court shall enquire into the circumstances of the case and shall have
power to deal with the offender in any manner in which it could deal with the
offender if he or she had just been convicted of the offence on indictment
before the Court.
28 Appeal
against sentence[45]
The offender may appeal against a sentence passed by the Court
pursuant to Article 27 in accordance with the proviso to Article 24(1)(c)
of the Court of Appeal (Jersey)
Law 1961, as if the offender had been convicted on indictment.
PART 7
MISCELLANEOUS
29 Rules
of Court[46]
The Superior Number of the Royal Court may make rules of court for
or with respect to any of the following –
(a) forms to be used for
the purposes of this Law;
(b) practice and procedure
in any proceedings under this Law;
(c) the rates or scales of
payment of any costs which are payable under Article 19 and the conditions
under which any such costs may be allowed;
(d) the service of any
application, summons, order, notice, or other instrument or document, issued under
this Law or under rules of court made under
this Article;
(e) consequentially
amending any enactment (other than this Article) that relates to any matter for
or with respect to which rules of court are made under this Article;
(f) generally
carrying the purposes and provisions of this Law into effect.
30 Citation
This Law may be cited as the Magistrate’s Court (Miscellaneous
Provisions) (Jersey) Law 1949.