THE ROYAL COURT AND THE PARISHES OF JERSEY

Steven Meiklejohn and Steven Pallot

This article explores the customary supervisory jurisdiction of the Royal Court over the parishes of Jersey and the officers of those parishes, in light of the recent case whereby the Royal Court directed the Connétable of St John to resign from office and issued words of advice to the procureurs du bien public of the same parish.

Introduction

“For these reasons, and with sadness that his years of valuable service to his parish should come to an end in such a way, we conclude that the Connétable is not fit for office and we direct that he must resign it . . .”

1  Those were the words of Sir William Bailhache, Commr, in the recent case of In re Connétable and Procureurs du Bien Public of the Parish of St John.[1] To many, this may come as a surprise; that an elected official, and States member, can be directed to resign his or her office by the Royal Court. However, this reflects centuries of supervision by the Royal Court over the parishes (and their officers) which will be explored below. The necessity for a power—somewhere—to remove a connétable from office in appropriate circumstances will also be discussed as will the legislative interventions, and the court’s jurisdiction in light of the current role of the connétable.

History

2  Historically, it had never been in dispute that the Royal Court exercises a supervisory jurisdiction over the connétable and other sworn officers of the parish (up to and including power to order their removal from office). On the other hand, the limits of that jurisdiction, and its origin and rationale, appear not (until now) to have been set out clearly by the court, nor to have been explored in depth by other authorities on Jersey law.

3  The court’s jurisdiction over parish officials covers both those exercising criminal functions (i.e. the honorary police) and those exercising civil functions (e.g. the procureurs, roads inspectors etc). The connétable’s diverse role as father or mother of the parish means that he or she is subject to the jurisdiction in all events.

4  There are several instances in cases listed in the Tables des Décisions[2] and the poursuites criminelles[3] of the Royal Court making orders as to the eligibility of parish officers or as to the consequences of actions brought to the court’s attention, whether by the Attorney General or by an interested private party. In the appendix to this article is a table of such cases and a short description of them.

5  Given the dearth of case law in the form of reasoned judgments (or even jugements motivés) (prior to the recent St John judgment), what follows is, to an extent, surmise having regard to the foundations of the relationship under the Coûtume between the Bailiff and Jurats on the one hand, and the parish and its officers on the other.

Criminal/Honorary Police

6  In 1994, In re Connétable of the Parish of St John: Representation of the Attorney General,[4] the then Connétable of St John had been convicted for driving whilst over the prescribed limit of alcohol in his blood.[5] He was stopped by honorary police officers and breathalysed, and a blood sample given later showed that he had 100 milligrams of alcohol per millilitre in his blood, the limit then being 80 milligrams. There was no argument before the Royal Court that it did not have the jurisdiction to sanction the connétable (over and above the penalty that had already been imposed by the Magistrate’s Court.[6]  

7  The court noted that in the United Kingdom it appeared to be discretionary whether the Lord High Chancellor acted as regards judges. However, the court was not satisfied that an analogy with the Lord High Chancellor and how he dealt with his judges was the correct one. A connétable was not in that category except in a very minor way. The court also noted that police authorities in the United Kingdom acted differently depending on the area. The court concluded:

“It really comes down to this, that just as in England in the case of a Lord Chancellor and in the case of the Police authorities it is a matter of discretion, so here it is a matter of this Court’s discretion. We note that Mr. Le Cornu [counsel for the connétable] did not attempt to argue that this Court does not have a discretion and we therefore have had to exercise it.”

8  The court went on to highlight that the connétable was the head of the Honorary Police—

“and it is in that latter capacity and not in his capacity as a member of the States or anything else that this Court has had to decide on the issue this afternoon.”

9  The court duly exercised its discretion and required the connétable to resign his office. The court held that the principle was that a connétable should normally be expected to resign if he commits an offence of this nature. The court must then ask itself if there were any special circumstances that would entitle a court not to enforce that principle; such special circumstances could only relate to the offence and the event itself (not for example the connétable’s popularity nor his length of service), and in this case they confirmed there was nothing extraordinary or exceptional.

10  On the question of the wish of the parish electors for him to remain in post, the court emphasised:

“That is an important consideration because it is an elected post, but the Court, I repeat, is considering the Constable’s position from the point of view of his position as the Head of the Police; he is not like a Constable or an Inspector in the Police in England, he is a Parish Chief Constable. The court has no doubt that if a Chief Constable in England were convicted of a drink driving offence then inevitably he would resign.”

11  The Royal Court clearly considered it had jurisdiction albeit there was strong emphasis in that case on the connétable’s role as the head of the parish police.

12  In 1994, when In re Connétable of St John was heard, the connétables were members, and the heads, of the Honorary Police of their respective parishes; and the oath of office was worded accordingly (“vous garderez et ferez garder la paix de Sa Majesté”; [you shall keep, and cause to be kept, the Peace of Her Majesty]. Since the coming into force of the Connétables (Miscellaneous Provisions) (Jersey) Law 2012 (“the Connétables Law 2012”)—which removed the operational policing function of the connétables—this has been altered to read (simply) “vous ferez garder la paix de Sa Majesté”; [you shall cause to be kept the Peace of Her Majesty].

13  However, so much of the oath as relates to carrying out the orders (mandements) of the Bailiff and Jurats remains unchanged:

“Vous jurez et promettez, par la foi et serment que vous devez à Dieu, que bien et fidèlement vous exercerez la charge et l’office de Connétable en la Paroisse de ………..; vous ferez garder la paix de Sa Majesté; vous conserverez et procurerez, autant qu’il vous sera possible, les droits qui appartiennent à ladite Paroisse, vous réglant en ce qui concerne le bien public d’icelle par l’avis et le bon conseil des Principaux et des autres Officiers de ladite Paroisse lesquels Officiers vous assemblerez, ou ferez assembler par le moyen de vos Centeniers, régulièrement pour aviser aux choses dont il serait besoin concernant ladite Paroisse; vous exécuterez les mandements de Monsieur le Lieutenant-Gouverneur, de Monsieur le Bailli, de Monsieur son Député et des Juges et Jurés-Justiciers de la Cour Royale en ce qui sera de leur charge respectivement, assistant aux Etats lorsque vous en serez requis; et de tout ce, promettez faire votre loyal devoir, sur votre conscience.”[7] [Emphasis added.]

14  This oath is of course taken before the Royal Court and as Sir William Bailhache said in the recent judgment:

“In our view, that promise to the Court carries with it an obligation to the Court, which is part of the justification, with the court’s inherent jurisdiction, for the disciplinary power exercised by the Court over those in honorary service in the parishes, as is clear from the authorities . . . What is also clear is that the administration of the oath of office to those elected or appointed to honorary parochial office was not a mere ministerial act of the court. There was a judicial discretion attached to its exercise.”[8]

15  The court has also demonstrated its jurisdiction with regards to honorary police officers such as the case of In re Pallett,[9] where the court concluded that it was appropriate to swear in a person elected as centenier notwithstanding convictions some 30 years earlier for which he was bound over and subject to a small fine.

16  The rationale for the court’s supervisory role over the Honorary Police, and the connétable qua the Honorary Police, seems straightforward. There was, at customary law, no-one who could impose a sanction for misconduct on the Honorary Police other than the court before which the member had taken his or her oath of office. The Parish Assembly might express its disapproval in various ways, but it could not impose a sanction by way of dismissal or otherwise. The only option was to seize the Royal Court of the facts.

17  This customary law position has been supplemented by statute as respects disciplinary procedures for members of the Honorary Police, in the shape of the Police (Complaints and Discipline) (Jersey) Law 1999 and Police (Honorary Police Complaints and Discipline Procedure) (Jersey) Regulations 2000.

18  This analysis takes us only so far. To understand the fundamental nature of the relationship between the Royal Court and the parishes, one must examine the original jurisdiction of the Bailiff and Jurats.

19  Jersey is a bailliage, and the Bailiff and the Jurats together have a plenary jurisdiction[10] that derives ultimately from the Viel Coustumier[11] under which “le Bailli est le Gardien de la Terre soubs le Duc de Normendie”. What distinguished Jersey was that its Bailli had a jurisdiction which elsewhere in Normandy was divided between the Bailli and the Vicomte. On the other hand, the office of Bailli evolved in Jersey so that his jurisdiction was shared with the Jurats.[12]

20  The first duty of the Bailiff and Jurats as collective gardiens, so to speak, was (and remains) preservation of the peace. The connétables were their officiers d’exécution, as Philippe Le Geyt described them.[13] According to Titre XII of the Code Le Geyt,[14] art 1:

“Les Connétables & les Centeniers qui les représentent doivent estre comme l’oeil & le bras de la Justice. A cet effet ils doivent garder & faire garder la paix de la Reyne, saisir tous . . . Pertubateurs du repos public & les présenter devant la Justice.”

[The Connétables & the Centeniers who represent them must be like the eyes and the arms of the judges. To this end they must keep and cause to be kept the Queen’s peace, and seize all . . . lawbreakers and present them before the court.]

21  The reference to “la Justice” was not intended by Le Geyt in the abstract sense of “justice”, but in the sense of “the court”, i.e. les Messieurs de la Justice. It may be noted also that there was a common thread in the respective oaths sworn by Jurats and connétables.

22  Viewed in this light, the Bailiff and Jurats discharged their obligation to the Crown/Duc through the parish and its officers, the latter being an “arm” of the court—bras de la Justice, to quote Le Geyt once more. That each parish should have a full complement of police officers (officiers d’exécution) and that each parish should thereby discharge the first duty of the Bailliage of preserving the peace lies, presumably, at the heart of the jurisdiction still exercised by the Royal Court to fine a parish that defaults in such duty.

23  An order made by the Royal Court in 1994[15] appears consistent with this analysis, when the Deputy Bailiff said: 

“. . . it is the duty of every able-bodied parishioner to serve one term in the Parish Police if called upon to do so. The Connétable therefore has the right, if no volunteer comes forward, to call upon a suitable parishioner to carry out that duty. As the Attorney General has reminded us the electors of the Parish were specifically warned on 1st July that if they failed to elect a Centenier they would be in contempt. The Parish has thus failed for the second time to obey an order of the Court to elect a centenier.”[16]

24  Thus, as respects the criminal justice functions exercised by the parishes, and the Honorary Police, the supervisory jurisdiction of the Bailiff and the Jurats stems, we would argue, from a relationship with the parish which is more fundamental than merely holding an officer to the terms of his or her oath. The obligation of preserving the peace is primarily that of the Bailiff and Jurats themselves; and they must therefore be able to exercise jurisdiction over parochial officers to the extent necessary to ensure a proper discharge by those officers of their duties, thereby fulfilling the obligation that rests on the Island community as a Bailiwick.

25  Since the 1994 case, the connétable’s operational policing role has of course been abolished, however, but this amendment has not removed the higher functions, as father or mother of the parish, in relation to the Honorary Police. Therefore, the jurisdiction still endures from the point of view of the keeping the peace and supervising the Honorary Police.

Civil administration

26  We would submit that the analysis above is not confined to the criminal law. The relationship between Royal Court (Bailiff and Jurats) and parish is no less intimate in the realm of civil laws and obligations.

27  In In re Grouville (Procureurs du Bien Public),[17] the procureurs of Grouville were refusing to execute a transaction in accordance with (what was in effect) a direction of the Assembly of Principals and Officers of the Parish. The connétable brought a representation to the Royal Court. In the judgment of the court it was noted:

“The Procureur has a duty to report to the Principals and Officers of the Parish any matter concerning the public property of the parish, or the application of the income of the parish, about which the Principals and Officers should be made aware. Where, however, the Principals and Officers are seized of a matter, and, being so seized, authorise the Procureur to take a certain course of action, then it is the duty of the Procureur to take that action, because the Principals and Officers, adopting a resolution at a properly convened meeting, are the ultimate authority in all parochial matters.”[18]

28  That the court had and would exercise a supervisory jurisdiction was affirmed explicitly: if the procureur, for any reason, was not prepared to comply with a direction of the Principals and Officers, then he should cease to hold office—

“subject always, however, to his right to seek the guidance of the Royal Court when he has reason to believe that the direction is unlawful, or is equivocal, or is for any other reason one with which he should not be required to comply.”[19]

29  The oath of connétable set out at para 13 above relates to more than keeping the peace. It extends to conserving and procuring, insofar as the Connétable is able, the rights which belong to the parish. The requirement in the oath to—

“exécuter . . . les mandements . . . de Monsieur le Bailli, . . . et des Juges et Jurés-Justiciers de la Cour Royale”—

relates as much to orders concerning the connétable’s civil role as it does to orders concerning his/her public order role.

30  The oath of procureur du bien public is in these terms:

“Vous jurez et promettez par la foi et serment que vous devez à Dieu, que vous exercerez la charge de Procureur du bien public de la Paroisse de ……..; que vous conserverez et augmenterez comme le vôtre, et mieux s’il vous est possible; que vous vous réglerez par le bon conseil et avis des Principaux et Officiers, et des Chefs de Famille de ladite Paroisse; et ferez généralement tous autres devoirs qui dépendent de ladite charge.”[20]

31  This does not contain the specific reference to abiding by the mandements . . . de Monsieur le Bailli,. . . etc., but it is clear from In re Grouville (Procureurs du Bien Public) that a procureur du bien public stands in relation to the court in much the same way as does a connétable.

32  Indeed in Re Le Brun[21] a person elected as a procureur had been convicted five years earlier of a regulatory infraction and fined £250. The court declared the person eligible to be sworn to office notwithstanding the previous conviction. In In re a Procureur du Bien Public of St Peter,[22] the court found that a person could not be sworn in as a procureur as he was no longer resident in the parish which had elected him. Clearly the court has the discretion not to administer the oath, deciding to administer it in the Le Brun case, but not in the St Peter one. It follows presumably that a Procureur in office who commits an offence or is guilty of misconduct of a substantial sort is liable to sanction by the court.

33  That the sanction may take the form of a reprimand is evidenced by PG v Malet[23] in which, on a representation to the court by the Attorney General, a connétable was reprimanded for using excessive force. (See also Att Gen v Connétable de St Hélier[24]––in which the connétable was publicly censured by the court for improper conduct and Re Connétable of St Helier where the connétable was reprimanded for failing to investigate complaints against his honorary police.[25]) The recent case also illustrated that the court may when it considers it appropriate, issue words of advice to parochial officers.

34  One of the most illustrative instances of the interrelationship between court and parish is the Visite Royale when the Full Court visits the parish. The members of the court are accompanied by several officials including the Judicial Greffier and the Viscount. Apart from the inspection of the roads in search of “fautes et empêchments” [defects and encroachments], the court also examines the parish accounts and “the whole parochial administration is reviewed.”[26] The role here is a direct overseeing role, which must entail a jurisdiction to impose sanctions if the inspection discloses irregularities or wrongdoing. Admittedly, as Sir Philip Bailhache observed in 1998[27]—

“It could . . . be argued that the minute examination of parochial accounts is no longer necessary. In former times an inspection by the Court no doubt served as a useful deterrent to the misappropriation of public monies. But in these times parochial accounts are invariably audited by professional accountants providing at least as adequate a safeguard.”

35  This was doubtless a reasonable observation to make; i.e. that in contemporary practice the Visite Royale does not entail a minute supervision of the parochial finances, but the supervisory jurisdiction is nonetheless there, as the recent case demonstrates, because the court was concerned, in part, with a matter arising from the accounts.

36  But why is there a pro-active relationship of this sort between court and parish in matters of purely civil administration? To understand the relationship, one must remember that the parish was to an extent part of the civil legal system, particularly in days before the emergence of the public administration we now recognise in the shape of the Government of Jersey. Thus e.g.:

    (a) in the very earliest days, ownership of land was not possible without the transaction being done à ouïe de paroisse, i.e. publicly in or near the parish church—literally, in the hearing of the parish;

    (b) before 1907, the formation of a curatelle was possible only through the medium of Principaux of the parish in which the interdict resided.[28] The position was similar in relation to tutelles for minors, and administratelles for absent persons;

    (c) service of process was dependent to a degree on the prévôts of the parishes (albeit that they were elected by the tenants of the fiefs rather than by the Assemblée Paroissiale).[29] Sergents du Roi functioned at the parish level and were responsible in a similar judicial context to make bons et loyaux Ajournements et Records;[30]

    (d) certain procedures relating to dégrèvement involved valuation of land. For this purpose, the parish furnished a list of “Experts” from which the court was able to choose in connection with such procedures;[31]

    (e) to this day the ability to form a jury for an assize trial is dependent upon the parish furnishing the Viscount with a list of persons on the electoral list to enable the latter to compile a jury list;[32]

    (f) to the present day also, the parish is an integral part of the machinery of public elections, which have to be ordered by the court;

    (g) under the heading of “Trésors” in the Code of Laws of 1771, the connétable of each parish had the “garde des titres et évidences qui concernent les biens de l’Eglise et des Pauvres”; and the connétable had a public duty jointly with his procureurs du bien public to pursue and defend “des droits, quant à la propriété desdits biens”; and

    (h) consideration of applications under the licensing laws by the Parish Assembly has always been an integral part of the process of granting licences by the Assembly of Governor, Bailiff and Jurats (technically not the Royal Court but still an important part of the legal system and comprising the same personnel as the court).

37  Hence, not only in matters of public policing, but also where civil rights and obligations were concerned, the legal system functioned partly at least through officers of the parish (above and beyond the Honorary Police) and, arguably at least, it follows that the court had to be able to oversee, and where appropriate correct, conduct at parish level. The power to issue orders to parochial officers and to impose sanctions, by way of reprimand or otherwise, must have been an incident of the court’s role.

38  If the court can be said to function partly through the parish, it would follow that any appreciable default in the good administration of the parish could, potentially, jeopardise the functioning of the court itself, whether or not the default directly concerns the court. For example, neglect to maintain a proper record of electors might adversely affect public elections ordered by the court or the ability to provide a list of persons eligible for jury service. Refusal to convene a Parish Assembly in accordance with the Loi (1804) sur les Assemblées Paroissiales might result in a failure to constitute a roads committee as required by the Loi (1914) sur la Voirie or a failure to fill another vacant honorary office. The maladministration, say, of rates within the parish could, in theory at least, eventually impact on any of these functions. There are various hypothetical scenarios which could constitute maladministration at parish level which could undermine the court and the administration; it is therefore difficult to prescribe exhaustively in legislation the circumstances which give rise to a connétable (or any parochial official) being at risk of removal from office (hence why it has not been done—as explored further below).

39  If the Attorney General or a sufficiently interested private party seizes the court of alleged failings in the civil administration of a parish, the court must—logically—be equipped in terms of jurisdiction to require such failings to be put right, be it to the point of requiring persons to vacate office, or of admonishing them.

40  At all events one comes back to the practical argument that officers of the parish who have taken an oath before the Royal Court must be answerable to the court for a failure to honour that oath. As already mentioned, customary law provides for no one else to impose a sanction for misconduct of a parochial officer. The Parish Assembly may do various things to mark its disapproval but dismissing a sworn officer is not one of them.

States of Jersey Law and other statutes

41  In 1856 deputies were added to the membership of the States (alongside the Jurats, rectors and connétables). It is not clear from the Law introducing them[33] what, if any, conduct disqualified a person from election, or continuing to serve, as a deputy other than a reference in the Law (art 6) to a deputy having ceased “légalement de pouvoir en remplir les fonctions” [to be able lawfully to fulfil his functions].

42  Be that as it may, when the deputies were joined by the rank of senator under the Assembly of the States (Jersey) Law 1948, detailed provision was made in that Law (art 8) as to the disqualifications for office of both senator and deputy viz. holding paid office under the Crown/States/parish; having a curator/attorney; being bankrupt (in various forms); being on poor relief; or having been convicted in the Commonwealth and imprisoned for six months or more.

43  This provision in relation to senators and deputies was reproduced in varying forms in the States of Jersey Law 1966 and the States of Jersey Law 2005 (“the States of Jersey Law”) which replaced the 1966 Law. Among the current provisions is disqualification for certain convictions under the Corruption (Jersey) Law 2006 and if in the previous seven years a senator or deputy (or would-be senator or deputy) has been convicted of any offence anywhere and ordered to be imprisoned for three months or more.

44  Until the adoption of the Connétables (Amendment No 2) (Jersey) Law 2018 there were very limited statutory provisions providing for the disqualification of persons seeking election as connétable, such as the now repealed art 4A of the States of Jersey Law which disqualified from office anyone who was a paid officer in the service of the States, a provision replicated for senators and deputies in art 7(2). The previous absence of a statutory provision providing for disqualification provisions for the connétable (other than, for example, art 4A[34]) stems presumably from the legislature previously not wishing to trespass on the supervisory jurisdiction of the Royal Court. As we will see, the States has now (partially) fettered the previously wide and untrammelled jurisdiction of the Royal Court as regards the qualification and disqualification of Connétables.

45  The previous approach, which was to leave entirely to the Royal Court the issue of whether someone was eligible to stand for election as Connétable or whether they should be removed from office, stemmed from the fact that membership of the States is an incident of the office of connétable, whereas such membership is the raison d’être of the offices of Senator and Deputy. As Bois[35] put it, “Constables are not elected members of the States; they are members by virtue of their office of head of the parish”; whilst art 1(1) of the States of Jersey Law now defines “elected member” to include the connétables, the point remains that they are not elected directly to the States but sit in the Assembly ex officio (as is confirmed in art 2(1) of the States of Jersey Law). In the 1994 and 2021 cases, those two connétables were not required to resign qua member of the States; they were required to do so qua head of their parish.

In re Connétable and Procureurs du Bien Public of St John

46  The background to this case is comprehensively set out in paras 6–31 of the court’s judgment[36] and it is not necessary to repeat them here. In summary, the then connétable of St John was convicted in the Magistrate’s Court on 20 August 2020 for driving a motor vehicle dangerously, contrary to art 22(1) of the Road Traffic (Jersey) Law 1956. In convicting him, the Relief Magistrate found that he had used his vehicle “at best as intimidation and at worst as a weapon”, that he had said he was the Connétable of St John in “an inappropriate assertion of power and authority” and that she had found his evidence not to be plausible.

47  This alone would have necessitated a reference to the Royal Court. The connétable was also convened (as were the two procureurs) because parish money had been used to meet his legal costs of the defence. The procureurs were also called to answer the allegation that at the Parish Assembly, one of them had told the parish officials and rate payers present that he had taken advice from the Attorney General.

48  At the hearing on 17 and 18 February 2021, the Superior Number of the Royal Court[37] heard evidence from the two procureurs, the Rector and the churchwardens. The then connétable elected not to take the stand and his counsel opposed (successfully) the application by the Solicitor General to cross-examine him, and so the court was left only with his written evidence.

49  There was no finding to make as regards the conviction; the facts were as set out by the Relief Magistrate. The court was satisfied that one of the procureurs did make the inaccurate assertion that he had taken advice from the Attorney General. The court also criticised the connétable and the procureurs for the manner in which the connétable’s legal fees were initially met.

50  Having confirmed that it had the jurisdiction, the court found that the connétable was not fit for office by reason of the conviction and directed him to resign from office, and it also issued words of advice to the procureurs as regards the use of public money.[38]

Jurisdiction to remove the connétable from office

51  Notwithstanding the extensive historical background as set out above, there was some dispute by the then Connétable, through his counsel, on whether the Royal Court had the jurisdiction to remove him from office. However, the court found that the jurisdiction existed.

52  The foregoing explores the issues which have occurred since the 1994 case which have encroached on the court’s jurisdiction as regards the connétable or could nonetheless have impacted upon it.

Connétables (Amendment No 2) (Jersey) Law 2018

53  The 2018 Amendment inserted the following provisions into the Connétables (Jersey) Law 2008 (“the Connétables Law 2008”):

“4B Qualification for election as Connétable

    (1) A person shall, unless disqualified by paragraph (2), Article 4C or any other enactment, be qualified for election as a Connétable if he or she—

(a)   is of full age; and

(b)   is a British citizen who has been ordinarily resident in Jersey—

i(i)    for a period of at least 2 years up to and including the day of the election, or

(ii)    for a period of at least 6 months up to and including the day of the election, as well as having been so resident at any time for an additional period of (or additional periods totalling) at least 5 years.

    (2) A person shall be disqualified for election if he or she is a paid officer in the service of the States or any administration of the States, unless he or she is permitted, by or under the Employment of States of Jersey Employees (Jersey) Law 2005, to stand for election as a Connétable.

    (3) A retiring Connétable who is not disqualified by this Law or any other enactment shall be eligible for re-election.

4C Disqualification for election or office

    (1) A person shall be disqualified for election as a Connétable if that person—

(a)   holds any paid office or other place of profit under the Crown;

(b)   is a member of the States of Jersey Police Force;

(c)   is compulsorily detained or subject to guardianship under the Mental Health (Jersey) Law 1969;^[[39]]

(d)   has a curator of his or her person or property;

(e)   has an attorney without whom he or she may not act in matters movable or immovable;

(f)    subject to paragraphs (3) or (4), has become bankrupt or made a composition or arrangement with his or her creditors;

(g)   has been convicted of an offence under the Corruption (Jersey) Law 2006 by virtue of being, within the meaning of that Law, a public official or a member, officer or employee of a public body;

(h)   within the 7 years immediately preceding the date of his or her election, or since that election, has been convicted, whether or not in Jersey or elsewhere, of any offence and liable to be imprisoned for a period of not less than 3 months, without the option of a fine.

    (2) A person shall be disqualified from holding office as a Connétable by reason of—

(a)   ceasing to be a British citizen; or

(b)   not being resident in Jersey for a period of more than 6 months

    (3) The disqualification attaching to a person by reason of his or her having become bankrupt shall cease –

(a)       if the person pays his or her debts in full on or before the conclusion of the bankruptcy proceedings, on the day the proceedings are concluded;

(b)       in any other case, on the expiry of 5 years from the day the proceedings are concluded.

    (4) The disqualification attaching to a person by reason of his or her having made a composition or arrangement with his or her creditors shall cease—

(a)       if the person pays his or her debts in full, on the day on which the payment is completed;

(b)       in any other case, on the expiry of 5 years from the day on which the terms of the composition or arrangement are fulfilled.”

54  The projet de loi introducing the 2018 Amendment was originally lodged on 31 October 2017, but was later withdrawn and re-lodged on 14 November 2017[40] with one substantive difference. That was a new art 4D of the Connétables Law 2008 as follows:

“4D Supervisory jurisdiction of the Royal Court

Nothing in Article 4B or 4C shall be taken to derogate in any way from the supervisory jurisdiction of the Royal Court in relation to the office of Connétable.”

55  The States Assembly, when adopting the 2018 Amendment, clearly wished to preserve the Royal Court’s supervisory jurisdiction.

56  The 2018 Amendment did not therefore abrogate the Royal Court’s customary supervisory jurisdiction in respect of the connétables. As Sir Philip Bailhache, then Bailiff, commented in Moran v Deputy Registrar of St Helier[41]—

“It would need clear words in the statute to override a provision of customary law . . . A rule of customary law cannot be abrogated by a side-wind of that kind.”

Not only do the new arts 4B and 4C not contain any clear words to override the customary law, but art 4D expressly preserves it. The jurisdiction has perhaps been slightly constrained in that there are certain matters which would automatically bar a person from being elected as connétable as a matter of law under arts 4B and 4C(1), and those which would automatically lead to a removal of office as a matter of law under art 4C(2). However, the jurisdiction, particularly as regards removal from office, otherwise remains quite broad. As Sir William commented:

“In our judgment, Article 4D of the 2008 Law, as amended, has the wide meaning which its ordinary language suggests. It is clear from the report that the Privileges and Procedures Committee, at least, did not consider that the statutory changes which had been introduced in relation to the position of the Connétable had, to that date in 2018, affected the supervisory jurisdiction of the Royal Court, and in so far as that jurisdiction would otherwise have been affected by Article 4B and 4C of the 2008 Law as introduced by the 2018 Amendment, the provisions of Article 4D expressly preserve it. There never has been any clear statutory language to remove it, and we see no reason to depart from the ordinary meaning to be ascribed to the language of Article 4D.”[42]

57  The disqualification provision in art 4C(1) of the Connétables Law 2008 is not identical to art 8 of the States of Jersey Law. Indeed, notwithstanding the words in P.112/2017 that “these amendments to the 2008 Law would ensure that the same statutory provisions apply to all classes of elected member”, there is a significant difference in that art 4C(1) says “A person shall be disqualified for election as a Connétable”, whereas in contrast art 8(1) of the States of Jersey Law says “A person shall be disqualified for election as or for being a Senator or Deputy.”

58  The disqualification provisions in art 8(1) of the Connétables Law 2008 therefore only bar someone from standing for election, whereas a senator or deputy who comes under any of the situations listed in art 8(1)(a)–(h) of the States of Jersey Law would be removed from office automatically. A Connétable in an analogous situation (for example becoming bankrupt or committing an offence under the corruption law) would not ipso facto be removed from office; the jurisdiction for that removal is with the Royal Court. This shows that the States intended the Royal Court to retain such jurisdiction, as it would clearly be absurd if a connétable could see out his or her term in the circumstances described above, whereas a senator or deputy would be removed from office by operation of law.

59  Another difference is that art 4C(1)(h) says that a person is disqualified for election as Connétable if that person—

“within the 7 years immediately preceding the date of his or her election, or since that election, has been convicted, whether or not in Jersey or elsewhere, of any offence and liable to be imprisoned for a period of not less than 3 months, without the option of a fine.”

60  Unlike the States of Jersey Law, this provision does not require actual imprisonment for three months or more, but only conviction of an offence for which the person is “liable to be imprisoned for a period of not less than 3 months.”

61  Some discussion took place at the hearing in February 2021 on whether the words “or since that election” could mean that the court had no jurisdiction and the then connétable was automatically removed from office. The Solicitor General submitted that the proper construction was that the provision was constrained by the wording at the start of 4C(1) “disqualified for election” (which contrasted with art 4C(2) which says “disqualified for holding office”). The court agreed with this interpretation—with some hesitation—describing this provision as an “unhappily drafted clause” and questioning whether any meaning can be given to the words “or since that election.” The court did however find that this provision meant that regardless of their decision on whether to remove the Connétable from office, he could not stand again at a future election, as he had been convicted of an offence for which he was liable to three months’ imprisonment (even though he had been fined by the Magistrate).

62  It is not clear whether the wording “without the option of a fine” has any impact as the authors are not aware of any statutory offence for which there is not an alternative option of a fine, and for customary offences the sentence is at large.[43] Certainly, the court did not interpret this additional wording to have any impact on their finding that the wording prevents the former connétable from standing at a future election.

Article 3, Protocol 1 ECHR

63  Since the St John case in 1994, the European Convention on Human Rights has been incorporated into domestic law by the Human Rights (Jersey) Law 2000.

64  Article 3 of Protocol 1 to the ECHR (“A3P1”) provides that:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

65  The part of this article which is engaged when discussing the removal from office of a connétable is the free expression of the opinion of the people in choosing their legislature. This encompasses two aspects, (1) the right of citizens to vote in elections for choosing the legislature (the active aspect) and (2) the right for persons to stand for election (the passive aspect). The right to stand in elections is engaged by the qualification and the disqualification of members of the legislature. There is however a wide margin for Contracting States to place limits on the right to stand for election and to continue in office.[44]

66  For completeness, A3P1 does not apply to the procureurs. They do not form part of the legislature. Whilst the definition is not confined to a national parliament and the constitutional structure of the state must be examined,[45] local municipal bodies such as councils have not been found by the ECtHR[46] to constitute a legislature, particularly where they have no law making power.[47] 

67  A3P1 does apply, however, to the connétable and it is irrelevant whether or not that connétable faced a contested election or was elected unopposed. The former connétable of St John was elected unopposed, as were ten of his colleagues. However, it was a matter for the parishioners of St John whether to contest the election and they did not. He had been chosen by the parishioners to head their parish and represent them in the States Assembly.

68  As A3P1 is a qualified right, it can be interfered with so long as the interference has a legitimate aim, is in accordance with the law and is necessary, i.e. proportionate. The legitimate aim was the protection of the democratic order, and the history of the court exercising the jurisdiction shows it is in accordance with the law (customary law is sufficient). In the recent case, the court balanced the then connétable’s service to his parish and the impact on him of losing his role against the wider public interest and determined that it was proportionate to require him to resign from office and accepted that the court’s jurisdiction did not fall foul of A3P1.

Role of the connétable

69  As mentioned above, since the 1994 case, the role of the connétable has of course changed, in particular with the removal of the operational policing function. The 1994 case was of course focused on the connétable’s policing role.

70  The removal of the connétable’s policing function therefore may have been relevant in the context of what sanction could be imposed on him. However, “policing function” is defined in art 1 of the Connétables Law 2012 to mean essentially the operational policing functions.ii

71  Furthermore, art 3 of the Connétables Law 2012 provides that:

“Nothing in this Law shall be taken to derogate in any way from—

    (a) the responsibility of the Connétable of a parish at customary law or under any enactment to supervise the Honorary Police of the parish; and

    (b) The powers and duties of the Connétable associated with the discharge of that responsibility.”

72  The connétable thus retains a supervisory role over the parish’s Honorary Police, and indeed, as the Royal Court highlighted in its judgment, there is still an obligation in the Code of 1771 on the connétable to convene the honorary police once a month to enquire into criminal offences committed in the parish.

73  In the report accompanying the draft Connétables Law 2012,[48] it was noted at para 2.1–2.5 that:

    (a) the aim was at removing operational policing functions and not the overall responsibility of the connétable for the effective and efficient policing of the parish:

    (b) the “higher” functions of the connétable as “father”’, or head, of the parish in relation to its honorary police were not being repealed;

    (c) the supervisory function of the honorary police, entrusted to the connétable by the electorate remains wholly intact;

    (d) art. 4 of the Connétables Law 2012 declares that nothing in the Law derogates from—

i(i)    the responsibility of the connétable to supervise the Honorary Police within his or her parish; and

(ii)    the connétable’s powers and duties associated with that responsibility; and

    (e) the pre-eminence of the connétable in terms of convening the Principals and Officers of the Parish, and none of the connétable’s functions under the Honorary Police (Jersey) Regulations 2005 or the Police (Complaints and Discipline) (Jersey) Law 1999 would be affected.

74  The connétable thus remains the father or mother of the parish, subject to an overriding customary law jurisdiction of the Royal Court, and sits in the States Assembly ex officio. While the operational policing function has been removed the connétable still exercises executive functions within his or her municipality such as presiding over the Parish Assembly and associated powers under the Loi (1804) au sujet des assemblées paroissiales, electoral responsibilities, road closures and the various licensing responsibilities such as for driving licences, firearms, fireworks, pawnbrokers, and dogs. Whilst it is arguable that the States membership is now not merely ancillary to the office, the parochial role of connétables is still of vital importance. Indeed, a justification for the court having the power to remove a connétable from office is that he or she exercises these “ministerial” functions within his or her own parish. If art 4C(1) of the Connétables Law 2008 extended to disqualification from holding office and there was no wider jurisdiction by the court, then a connétable could remain in office if he or she did not quite reach the level of the circumstances prescribed in art 4C(1) but nonetheless there was conduct which brought their fitness for office into account, which is what occurred in the recent case.

75  The report accompanying the draft Connétables Law 2012 gave the example of the Minister for Home Affairs being in a position, as regards the States of Jersey Police, which is parallel (albeit not exactly) to the connétable’s position as regards the Honorary Police in his or her parish. If a Minister for Home Affairs falls short of accepted standards but does not resign nor does something which would lead to disqualification as a senator/deputy under art 8 of the States of Jersey Law (or indeed as a connétable under art 4C(2) of the Connétables Law 2008), they could nonetheless cease to hold office as a Minister if dismissed or voted out of office. A lack of jurisdiction in the Royal Court to remove a connétable from office would produce an anomaly if a Minister for Home Affairs exercising equivalent functions could be subject to dismissal/vote of no confidence. A Parish Assembly could pass a motion of no confidence in a connétable, but this would have no legal effect.[49] 

Resignation/removal

76  The court found in the recent case that the then connétable was not fit for office. It did not, however, remove him but rather directed him to resign, consistent with the outcome in the 1994 case.

77  The then connétable duly resigned in the days that followed. There is no statutory provision dealing with how a connétable resigns, in contrast to senators and deputies.[50] The Royal Court commented that “[Article 12 of the States of Jersey Law] is a different provision from the customary law affecting Connétables, who are required to seek the permission of the Court to resign.” The then connétable clearly did not need to seek permission to resign as the resignation was already directed. Given that the Royal Court has the supervisory jurisdiction, how the connétable resigns is naturally by informing the court, either through writing to the Bailiff and/or the Attorney General, or by announcing it in open court.

78  Article 1(3) and (4) of the Connétables Law 2008 provides:

“Where a Connétable resigns before the expiry of his or her term of office, he or she shall continue in office until his or her place is filled by an election ordered under Article 3(2), or, by virtue of Article 3(3), an ordinary election.”

“The place of a Connétable is filled upon the person elected to fill the place taking the oath of the office.”

79  The former connétable therefore remained in office until his replacement was duly elected and sworn into office on 9 April 2021.

80  What would happen where a connétable (or another elected parochial official) refuses to resign despite being directed by the court to do so?[51] Presumably the matter would have to be brought back to court by the Attorney General for an order of removal from office to be made.

81  The court must have the power to remove a parochial officer for all the reasons already explored, but in this case (and the 1994 case) chose to direct the connétable to resign, knowing he would remain in office under art 1(3) for a short time, and thus allowing him an appropriate period of time to prepare for his departure.

82  It is also possible that if a parochial officer refused to comply with a court order to resign (or do any act/refrain from doing any act) he or she could be held in contempt of court.

Guidance for the procureurs

83  Unsurprisingly, much of the focus in the aftermath of the recent case was on the resignation of the connétable.

84  However, the Royal Court also provided guidance to the procureurs. Whilst these words were directed at the procureurs of the Parish of St John, the advice is relevant to all procureurs and parish officials in Jersey.

85  The procureurs were not reprimanded or admonished by the court but were given words of advice as regards the use of parish monies to fund the connétable’s legal defence (later in fact repaid). The court confirmed that their oath places on the procureurs a fiduciary duty to ensure the Parish Assembly is presented with accurate accounts and budgets. As part of this duty, they should ensure that the parish assets are (slight variances aside) broadly applied as the Assembly anticipated, that there are proper accounting records kept, and further, they are obliged to challenge the connétable when appropriate, just as a finance director or audit committee should make appropriate challenges as regards the accounts of a limited company:

“The Connétable and the Procureurs du Bien Public should work closely together on behalf of the parish. They need to work harmoniously in its interest. But working harmoniously does not involve a lack of challenge to what has been done. The relationship will work harmoniously and thus to the benefit of the Parish when each respect the obligations of the other without either surrendering their own performance.”[52]

86  The court went on to say that parishioners will look to the procureurs to ensure the connétable’s “judgment and assessment is scrutinised and challenged where necessary”[53] and that it is vital that they act independently from the connétable, and they must be “assiduous not to mislead” their colleagues, the Comité Paroissial or the Parish Assembly.[54] 

87  In this case, the primary criticism of the procureurs was their failure adequately to challenge the connétable over the principle of asking the insurers to meet his defence costs (and in the meantime allowing parish funds to meet this expense). They were also criticised for the failure to procure a written undertaking from the connétable that he would discharge any shortfall in what was recouped from the insurers.[55] It is clear that greater care should have been taken with the application of public money and that (i) procuring the undertaking from the connétable, (ii) making a more appropriate challenge to him and/or (iii) taking legal advice could have potentially obviated a lot of the difficulties which arose for the procureurs in this case:

“All this could, of course, have been avoided with a keener challenge to the principles of what the Connétable suggested at the outset as to how his defence costs should be met, or by taking advice from the Parish lawyers.”[56]

88  The court recommended that the Comité des Connétables should consult the parish secretaries, auditors and procureurs and consider a job description for procureurs, which could be submitted to the Full Court for consideration. The court opined that the job description might well contain an obligation for periodic review and approval of accounting records and/or monthly bank statement reconciliations.[57] The court also encouraged investigation of insurance cover customarily obtained for directors.

89  The authors respectfully agree that producing a job description for procureurs, which sets out their duties and responsibilities, would help the parishes in recruiting men and women to carry out this vital role. The honorary system and the work of the parishes underpins the administration of the Island and it is important that there is a clearer framework for those who take an oath to preserve and augment the parish assets as though those assets were their own.

Conclusion

90  The Royal Court has re-affirmed its supervisory jurisdiction over the parishes and its officers. That supervision is part of the coûtume.

91  The exact limits of the court’s jurisdiction are not prescribed and are not limited to instances where an officer has been convicted of a criminal offence, as some of the examples in the appendix show. The court may be seized of a matter by the Attorney General as partie publique or by a private party with a sufficient interest in bringing a representation to court. In the latter scenario, this would presumably be subject to the partie publique also being convened.

92  The object of the court’s jurisdiction is to secure the good administration of the parish, not only in terms of the connétable’s obligation to keep the Queen’s peace, but also in terms of his and the parish’s wider civil functions. The court itself is to a degree dependent on the integrity of the institutions of the parish, as is the general functioning of the Island (e.g. parish policing, administration of electoral roll). That the Royal Court should have a tutelage role seems entirely understandable; and the wide range of sanctions that it has imposed down the years—from damages and costs to reprimands and censure, from directions and injunctions to dismissal from office—would seem to flow naturally from that role. The recent St John case demonstrates the importance of that jurisdiction because, as the Royal Court said, “the Connétables are not autocrats in the parish”,[58] which presumably extends to a general principle that all the parish officials should be subject to appropriate scrutiny and accountability.

Appendix

Precedents (criminal and civil)

The following are precedents (criminal and civil) of the court exercising jurisdiction over the parishes. They are listed in chronological order. There are many more of a routine nature often adjudicating on incompatibility of one office with another, and conflicts of interest. Some of these precedents have already been mentioned in the article but for the sake of completeness are included in the following table. [59]

Case	Brief summary
PG v Malet (1885) 22 PC 81	On a representation to the court by the Attorney General, a connétable was reprimanded for using excessive force.
PG v Dupre 1886 211 Ex 115	A constable’s officer was declared ineligible and fresh elections ordered.
Le Vesconte et aus v Norman, Connétable, et au (1887) 212 Ex 87, 10 CR 351	Refusal by the connétable to convene a Parish Assembly at the request of the requisite number of principaux. There was no justification for the refusal, and the court condemned the connétable in costs and in damages. (The Full Court later reversed the decision as to damages, but the court’s jurisdiction was not questioned.
In re Connétable de St Pierre 1888 10 CR 400	The court declared the candidate ineligible to the office of connétable and fresh elections were ordered
Balleine v Giffard 1888 212 Ex 450	The court declared that the connétable must live in that parish , confirmed by the Full Court at 10 CR 397
Re Arthur 1888 212 Ex 536	The court made orders permitting the connétable to resign on ill health grounds
PG v Messervy et aus—Aubin et aus V Le Brun (1892) 215 Ex 138	The connétable had declined to put a proposition to the vote at Parish Assembly. The procedure of the Assembly was annulled and connétable ordered to pay costs.
AG v Connétable de St Hélier (1892) 23 P.C. 232, 248	The proceedings were brought by the Solicitor General against the connétable alleging improper conduct (conduite inconvenante) towards the partie publique. The result was a public censure of the connétable.
Pinel v Le Couteur (1900) 220 Ex. 258	A centenier who had outrepassé ses droits comme Centenier was condemned both in damages and costs.
Re Cavey—Rapport du Connétable de St Hélier (1900) 220 Ex. 89	The court ruled that a person, who had been discharged from the office of centenier, was not fit to hold office of expert under the Rates Law; connétable authorised to convene a fresh Parish Assembly to elect a replacement.
Re Vauiter [1902] 221 Ex 400	The court declared that the offices of centenier and procureur du bien public were incompatible.
D’Orellana v Recteur de St Clément (1903)—222 Ex 294	The court ruled that a Parish Assembly duly convened may not be adjourned but for proper cause, except in cases of force majeure. An adjournment to suit the convenience of a Member of the States who resided in the parish did not constitute proper cause.
PG v Connétable de St Sauveur (1905) 25 PC 279	A representation was brought by the Attorney General alleging negligence on the part of the connétable who had ignored the advice of the MOH that immediate measures were needed to prevent the sale of contaminated milk. The court held that there was negligence on the part of the connétable and injuncted him “d’avoir à l’avenir à remplir diligemment les devoirs de sa charge”.
Re Binet 1926 234 Ex 90	The court made orders permitting the connétable to resign on ill health grounds
Renouf et au V Cabot, Connétable (1934) 238 Ex 44	The court ruled that the connétable should not have acceded to a request to convene a Parish Assembly whose purpose was unlawful. The acte of the Assembly was annulled and the court ordered it to be erased (rayé) from the parish records.
Coutanche et au v Baudains, Connétable de St Laurent (1954) 248 Ex 387, 390	This was a remonstrance by six principals of the parish opposing the swearing-in of officers purportedly elected en Assemblée Paroissiale. The connétable had not given proper notice of the Assembly which was declared null and void, and the persons “elected”’ were not sworn. The connétable was ordered to pay costs on a full indemnity basis (frais répétables et non-répétables).
Re Le Brun (1954) 248 Ex. 382	A person elected as a procureur had been convicted five years earlier of a regulatory infraction. The court declared the person eligible to be sworn to office notwithstanding.
Re Knight. Représentation de l’Avocat-Général (1958) 34 PC 397	This was a representation brought by the Solicitor General. The court held that the connétable had a duty to investigate a complaint made against one of his centeniers notwithstanding that both the connétable and the centenier were sworn officers of the court and answerable to it.
Ex parte P.G. Re Egré, Connétable de St Pierre (1960) 253 Ex 86, 13 CR 170	This was a representation brought by the Attorney General referring to serious irregularities in the conduct of an election for Deputy in the parish. The connétable wanted to seek leave to retire on the ground of ill health, but the Superior Number found that “ledit Connétable et l’un des Centeniers de la paroisse ont été coupables de sérieuses irrégularités de ecessa”, Connétable dismissed.
In re Connétable of St Helier [2001]JRC51	The Superior Number considered a reference by the Attorney General regarding the connétable’s failure to investigate certain complaints against the Honorary Police and inform the Attorney General. The connétable was reprimanded for his breach of duty, the court finding it was not dishonest or done to obstruct justice.
St Helier (Constable) v Grey 2004 JLR 360	This was a representation by the connétable seeking a ruling from the court on whether the connétable had a right to choose his Chef de Police or whether it was a position to which the senior centenier was entitled as of right. The Attorney General was convened. The first respondent, the longest-serving centenier in the Parish of St Helier, sought appointment as Chef de Police when the position became vacant, in accordance with the coûtume that the centenier with the longest honorary service would automatically be appointed. That coûtume had been recognised up to the mid-20th century, at which time the role mainly involved deputizing in the connétable’s absence. The role had since expanded and now entailed the management of the parish police force. Both the connétable and the Attorney General produced evidence that the coûtume had been widely disregarded. The court made the following ruling: The first respondent was not entitled to be appointed as Chef de Police despite being the most senior centenier in the Parish. The connétable instead had discretion to appoint the centenier whom he considered to be the most suitable for the position. Given the importance of this role, it was not in the public interest that the Chef de Police should be merely the most senior rather than the most suitable centenier. Furthermore, since the mid-20th century the previous coûtume had been largely disregarded in practice. The appointment of the Chef de Police was at the connétable’s discretion.
In re the Swearing in of a Centenier, Mr Stephen William Pallett [2008]JRC026	The court confirmed its jurisdiction to decline to administer the oath to a centenier but did so in that particular case.
In re a Procureur du Bien Public of St Peter [2008]JRC073	The court declined to administer the oath where the elected procureur no longer resided in the parish.

Steven Meiklejohn is an Advocate of the Royal Court and is a Legal Adviser in the Law Officers’ Department. He had the day-to-day conduct of the St John matter, assisting HM Solicitor General at trial.

Steven Pallot is also an Advocate of the Royal Court and is a consultant in the Law Officers’ Department. He has advised on matters concerning the parishes for much of his career.

The views expressed above are the personal views of the authors and do not necessarily reflect the views of the Attorney General or Law Officers’ Department.