In a judgment handed down recently in E v The Attorney General [2018] JRC 111 the Youth Appeal Court tackled an interesting legal issue as to the respective roles of the Magistrate and other panel members in the Youth Court.
The appeal court – that had the benefit of the Bailiff presiding with 2 other youth panel members- questioned if the Youth Court had been right to hold that all members of the Youth Court are judges of fact (ie. as to what may have happened) but also as to matters of law. Given that only the Magistrate was legally trained and the other youth panel members were usually non-lawyers, it would have been a curious result if the Magistrate could have been outvoted by the others when determining an issue of law.
At para.40 -41 of the judgment, the appeal court considered the relevant legislation including “the Human Rights (Jersey) Law 2000, which requires that there be a fair trial in any civil or criminal case” before concluding “ …we would have been minded to read down the 2008 Law to reach the conclusion that the Magistrate is the sole judge of law in the Youth Court, and the Bailiff the sole judge of law in the Youth Court Appeal Court.”
While this important judgment is of interest in clarifying this aspect, it also has other important ramifications. The first is a matter of form only: if the sole judge of law is the Bailiff or Magistrate, it might be seen to be desirable for judgments to make clear who is exercising this exclusive role and avoid the use of “we” when legal issues are in fact determined only by that particular individual. The second is of more significance: if the determination of legal issues by non-legally qualified individuals is a risk to a fair hearing, then the long established custom of having a Lieutenant Bailiff occasionally presiding over the Royal Court, is similarly of concern.
Since 1948, the Royal Court (Jersey) Law removed from Jurats their previous role as judges of law and ascribed such role to the Bailiff alone who would be “learned in the law.” However, it did not remove the power of the Bailiff to appoint a Lieutenant Bailiff, which in more recent times has been bestowed upon the most senior Jurat. In Guernsey senior Jurats can similarly be appointed a Lieutenant Bailiff.
Sometimes a Jurat can also be a retired advocate or Jersey solicitor, but normally they will have no formal legal qualifications, being respected individuals elected for their particular qualities that they can bring to this important role. Albeit a relatively rare occurrence, therefore, a non-legally qualified Lieutenant Bailiff can preside in the Royal Court, and make some tough decisions. In VKS v Health & Social Services Committee [2005] JLR 390 for instance a baby was removed from a mother at birth by a Lieutenant Bailiff (who was not a qualified lawyer) only for such course to be determined later to have been wrong and too draconian. Perhaps the result would have been the same whomever sat, but even the query arising is uncomfortable.
Before parting with E v The Attorney General, permitting non-lawyers to determine issues of law is not necessarily such an unusual thing as the appeal court seems to have found. In fairness, in England lay magistrates can determine both issues of fact and law, although they will have the benefit of a clerk who is legally qualified to assist them. The same is true of the Court of Alderney which has Jurats as its members and is assisted by a Greffier. It is not beyond the realms of possibility that the Youth Court was set up as a variant of this, with our Magistrate being able to assist the other panel members reach a view, but this would seem unlikely.
Advocate Timothy Hanson