Book
reviews
R-M Crossan, Criminal
Justice in Guernsey, 1680–1929,
1st edn, Mòr Media Ltd,
2021, ISBN 978-1-0196371-3-6
1 In
Law Officers of the Crown v Harvey (2000–02
GLR 189), Sir de Vic Carey (then Bailiff) stated (at para. 10):
“It appears that for some time prior to that [1848]
the criminal law had developed in an unstructured way and the need was to have
a clear criminal law with offences defined and categorized and the various
glosses on such offences developed over the centuries in the English courts
imported into Guernsey jurisprudence. Consequently, since 1848 one has
witnessed the development of common law offences on parallel lines to those
offences in England . . .”
2 What
Guernsey historian Rose-Marie Crossan achieves in
this fascinating and exhaustively researched book is to explain fully the basis
of that statement. She charts the pre-1848 status of the criminal law in
Guernsey, relying on numerous resources, most notably the Livres en Crime (the Royal Court crime registers), which began in 1563,
and covers all procedural aspects of a criminal case, not just the outcome.
3 She
covers how it was English barrister Peter Stafford Carey (appointed Bailiff in
1845) who was the chief architect of this seismic change in the direction of
the criminal law in Guernsey. As Dr Crossan writes, when he met the Home Secretary it was
impressed upon Carey that the criminal law “was in a very defective
state, and . . . required great alteration”.
Many are aware that this led to a Royal Commission being initiated in 1846 to
enquire into the state of the criminal law in Guernsey, and the report
published in 1848
revealed the concerns at that time, recommending that Guernsey’s criminal
justice system should conform to the English model.
4 It is
this analysis that is likely to be of most interest to the criminal law
practitioner. Dr Crossan
explores why the Royal Commission was initiated, tracing it back to appointment
of the Lieutenant Governor Major General William Napier in 1842. As Dr Crossan notes, he had forged a
reputation as a reformer and was on a “collision course” with the
Royal Court, which he identified as the “inept and callous rulers”
of the “suffering people”. It was his correspondence with the Home
Secretary, detailing the abuses he had identified, that led to the Royal
Commission.
5 There
are two other aspects to this book that should be of particular interest to
practitioners. The first is the treatment of woman and children. Dr Crossan’s conclusions of
the period covering between 1845 and 1929, are of particular note. Using a
number of examples, she concludes that there was “a persistent
downplaying of crimes such as child molestation and wife beating, as well as
victim blaming in cases of rape.” She then identifies a wholesale
cultural change was “another 50 years in coming.” However, some may
not consider this change has yet fully arrived, particularly those deputies who
said as much in the recent States of Deliberation debate that led to the
introduction of Sexual Offences (Bailiwick of Guernsey) Law, 2020. “Victim
blaming” was a phrase that was used by some opposing efforts to delay a
provision in the new law dealing with consent and intoxication.
6 The
other topic of interest is where Dr Crossan identifies when people were prosecuted without any
clear basis in law. Reference is made to several instances where people were
prosecuted pursuant to the “Court’s general criminal jurisdiction.”
This jurisdiction was cited by the Procureur during his questioning before the
Commissioners in 1847 when he said, “the Royal Court have an authority to
punish every crime, though we may not have a positive law or statute on the
point”. This would of course now fall foul of art 7 of the European
Convention on Human Rights which requires certainty in the law. Dr Crossan gives examples related
to bigamy and also of three prosecutions of male on male sexual assaults in
1898, 1907 and 1908. Alarmingly those prosecuted were imprisoned, and one was
also sentenced to twenty-four lashes of the cat o’nine
tails. This particular lacuna was filled by the passage of the Loi Relative à la Sodomie
in 1911, which incidentally (like a number of statutes referred to by Dr Crossan) is only repealed by
the aforementioned Sexual Offences Law. She devotes a number of pages to
covering what she calls “Novel Crimes” which included “white
collar” offences like false accounting. These were prosecuted on multiple
occasions but, at least initially, with no precedent. She concedes that the
number of novel offences prosecuted on a one-off basis are “too numerous
to detail individually” so it is little wonder the Home Secretary
initiated a Royal Commission.
7 The
book will not just appeal to practitioners because, as set out in the
introduction, “Guernsey’s legal history is not readily separable
from its social history” and so this book addresses “both aspects
in tandem”. This sets the scene for a book which, as stated on the blurb,
makes the core focus of the book the “lived experience of both offenders
and victims.”
8 The
book spans a period of 250 years and is divided into three sections, these
being 1680 to the mid-1760s, from then to the mid-1840s and then to 1929. As Dr Crossan writes, these sections
“each comprise a period of continuity followed by a period of
transition”. Each period is then broken down into three further parts;
first, covering the background, giving a general overview of the state of
Guernsey society at the time; secondly, covering court procedure, personnel and
infrastructure; and, finally, a section on crime, which covers the different
offences committed within the period examined. There are numerous illustrations
and plates, often from court records, to supplement the text, some of which
will be familiar to many but others which will not, such as the old courthouse
on La Plaiderie (which was described by the
Governor in 1664 as looking more like a barn than court of justice).
9 There
are also informative appendices covering topics such as the language of the
court and inquests but it is the summary of the principal recommendations of
the 1846 Royal Commission and the dates of fulfilment which are of most
interest. It took over a hundred years to institute a criminal appeal court,
and the recommendation to align Guernsey law with English law is described as
“in progress” (as can be seen from the new Sexual Offences Law and
the offences it replaces). There is also a full record of all key figures in
the administration of justice during the period, including the hangmen sworn in
after 1680.
10 The
conclusion reached by Dr Crossan
is that Guernsey’s criminal law has failed to sustain “a
distinctive insular identity” and that may be true for the substantive
law. However, the criminal law in Guernsey still does have an insular identity.
For example, and as fully documented, all advocates must still obtain the Certificat d’Etudes Juridiques Françaises et
Normandes to qualify as a Guernsey
advocate, and this includes studying Norman law, no matter in what area the
advocate intends to practise. Interestingly, Dr Crossan notes it was only in
1908 that aspirants were required to attend a French university, usually
selecting Caen. Secondly, the Jurat system is alien to English law, and is far
removed from the jury system in place in England. Jurats, whose history is also
covered by Dr Crossan,
still sit on all criminal cases that are committed to the Royal Court and not
only decide guilt or innocence but will also proceed to determine sentence
where a person is found guilty. This is a unique aspect of Guernsey’s
criminal law. Further, an accused person who faces trial in the Royal Court
has, unlike in Jersey, no option to choose a jury trial.
11 The
one thing that this book may well do is dispel the long-cherished belief of
some that Guernsey has always been a low crime jurisdiction. Compared with
England and Wales that may be the case, but the vast array of crimes documented
in this important work show that Guernsey has a long history of criminal
offending.
Christopher Dunford is a Crown Advocate in the Law
Officers’ Department, Guernsey. The views expressed above are his own.