“The Jersey Way” – And Its Protectors –
What follows is a brief extract from the Grounds, Statement of Case, and Skeleton Argument in the following legal claim: Stuart Syvret – Applicant – vs. – Secretary of State for Justice, First Respondent – and Privy Council, Second Respondent.
This section of the claim deals with the plain and evidenced breakdown in the proper administration of justice in the Crown Dependency of Jersey and a number of mischief’s that flow therefrom – not least stark denials of Article 6 Rights to fair trials.
The section on the collapse in the objectivity of what passes as a “judicial” function in Jersey, and the plain failure of that “judicial” function to even meet the necessary “test of the appearance of objectivity”, has a number of sub-sections that deal with each of the judges / courts the applicant appeared before, and certain other matters.
The particular sub-section from the Grounds reproduced below is that dealing with Michael Beloff QC.
Commissioner Michael Beloff QC:
Reference has been made above to the attempted judicial review made by the applicant – given judicial review was the only available remedy, Commissioner Pitchers having agreed with Bridget Shaw that the Attorney General was above the law, insofar as any examination of the actions of that Office (the Jersey prosecution function) were concerned in the context of the criminal proceedings.
However – Commissioner Pitchers having been selected – in spite of already being the criminal trial judge – by his directly conflicted dining partner – former Attorney General Michael Birt – to hear the judicial review application – then decided that the Attorney General was also above the law in any civil sense by rejecting the judicial review application. The applicant appealed that decision.
The appeal-court was lead by Michael Beloff QC. A long-standing member of the Jersey bench and long-standing friend of Philip Bailhache, Michael Birt and William Bailhache.
Those conflicts of interest – Beloff’s long-standing friendship with, and involvement with those key, centrally conflicted parties, renders him wholly unable to lawfully be involved in any judicial capacity in any matter involving them, and/or the applicant. Any and all involvement of Beloff was, and is, not compatible with Article 6, nor older English jurisprudence.
The resultant decision of the Jersey appeal-court was – as is increasingly apparent in certain other Jersey appeal-court cases – simply corrupt.
It is a basic principle of the rule of law – that no person or entity – and no public authority – is above the law.
“Be you never so high, the law is above you,” as Dr Thomas Fuller wrote in 1733. An opinion famously endorsed to universal approval by the much respected late Tom Bingham, in his book The Rule of Law.
That principle applies to the Office of Attorney General in Jersey. That public authority is bound by the law – and answerable in law for its actions.
Not – however – according to the Jersey judiciary.
A judiciary comprised of lucratively rewarded friends of the Jersey Attorney Generals – past & present – men such as Philip Bailhache, Michael Birt and William Bailhache – and chosen and appointed by them.
In neither the malicious, corrupt, politicised criminal actions taken against the applicant – nor in a civil action – has the vires of the actions, conduct and policies of the Jersey Attorney General been able to be challenged.
This outcome is against all established administrative law case-law – and all relevant ECtHR case-law.
The questions have to be these:
“Does all English jurisprudence – and all relevant findings of ECtHR law – have it wrong – and – uniquely – Jersey’s judicial apparatus have it right?”
“Does this sleazy, lawless, tax-haven secrecy-jurisdiction lead the way in a correct interpretation on the laws of accountability and conflicts of interest?”
It does not seem likely somehow.
For example, a foreign national – Raj Bhojwani – whose business interests conflicted with those of British establishment and military interests – was prosecuted in Jersey, convicted and jailed for supposed “money laundering”. A very considerable sum of money was then seized and placed into the unregulated, non-publically accounted “Criminal Offences Confiscation Fund” – which is administered by the Jersey Attorney General, and from which sums are “spent” on various activities – including “court and case-costs” – which involve the employment, commissioning – and other emolumentations – of various clerks, lawyers and judges.
In spite of the fact the key action upon which Bhojwani was convicted – occurred two years before the relevant legislation was introduced – thus making his actions “criminal” retrospectively – the Jersey court of appeal – under Michael Beloff – upheld the conviction – notwithstanding its plain incompatibility with Article 6 of the ECHR, and several other Articles. Retrospectivity of the kind involved can never be compatible with basic justice, no matter what the legislation purporting to confer the retrospectivity might say.
Can it be remotely lawful for a judicial apparatus – and an accompanying incestuously and personally entangled prosecution apparatus – to be exercising powers as “public authorities” – when both authorities are so closely entangled as to axiomatically abdicate their exclusive powers, each to the other, via such inescapable personal and professional “interests”, entanglements and conflicts?
Moreover and in particular – can it be lawful – when the entangled systems and the actual individual prosecutors, lawyers and judges themselves benefit personally from funds seized into the Criminal Offences Confiscation Fund? Certainly, if the standards of English administrative law are applied – no.
In the case of the appeal that was made by the applicant, against the irrational and bizarre decisions to deny all possible remedy against the Office of Jersey Attorney General, the judgment that was given by Commissioner Beloff and colleagues was so extraordinary, as to not even be compatible with rudimentary logic and rational thought.
Consider: the applicant was seeking disclosures of evidential material in respect of the decisions of the conflicted Jersey Attorney General’s Office to prosecute him for exposing the failure of that Office to properly investigate serious crimes; Michael Beloff & colleagues’ judgement, at paragraph 55, said this:
“We do not consider that there is any prospect of any such material emerging in the foreseeable future that would have a material impact on the arguments available to Mr Syvret; we could not sanction an adjournment of a criminal matter on a merely speculative basis.”
The question of the disclosure – or non-disclosure – of evidence was central to the entire case. Not only had 90% of the disclosure requirements stated by the defence been refused – it was also, by the time of this appeal, clear – from such factors as the inadvertent confession of the prosecuting lawyer – that key material sought for disclosure had not even been read.
We thus had a situation in which the prosecution – by its own admission – had confessed to having lied on a repeated and sustained basis throughout the entire proceedings in respect of the proper assessment and disclosure of evidence.
How, then, when the prosecution confesses to have notconsidered available evidence for disclosure purposes – can it be acceptable for Commissioner Michael Beloff – and colleagues – to dismiss a defence application for disclosure as “merely speculative”?
The statement in the judgment delivered by Commissioner Beloff cannot be regarded as a rational statement – nor a statement of law.
How can any credible court come to such a key decision – based upon a “finding” of “we do not consider”?
Why do they “not consider” that there is no prospect of any relevant material emerging?
Do those three members of the Jersey court of appeal possess second-sight?
Did they – using some hitherto non-disclosed psychic power to “channel” into the entire e-mail, letter and decision-making data-base of the Jersey Attorney General – assess the existence of potential evidence?
Did they hold a séance – and run the entire data-base through their minds – and rely upon a “cosmic-vibe” to gauge whether any of the evidence might be helpful to the defence – or support the defendant’s human rights?
Maybe they used a ouija-board?
Perhaps at one of Philip Bailhache’s, Michael Birt’s or William Bailhache’s convivial dinner parties?
It is – manifestly – an absurdity to come to a key – perhaps the key – decision in a legal judgment – on the basis of a guess. Indeed – calling it a guess is too charitable.
The finding and assertion in the judgment is an example of manifestly corrupt bias.
It is so absurd – it could not even be charitably ascribed to a legal “mistake”; people like Commissioner Beloff are experienced lawyers – and would not include wholly irrational assertions in judgments by “mistake”.
It is plain – even on the application of the most basic logic – that the Office of Attorney General will hold various communications, files, records, decisions etc – both directly and indirectly in connection with the actions taken against the applicant – and the closely related matters.
Even before one gets to the stage of assessing whether those records might assist the defence – it is already plain that such records and information do exist. Why, then, should there be “no prospect of any such material emerging”?
The plain fact is that such material did exist – such material does exist – such material isof relevance, both to the charges – and to the abuse-of-process arguments – made by the applicant; such materiel is of relevance to his human rights – and the assertion of Commissioner Michael Beloff QC is biased and absurd and corrupt.
And it is no mere speculation that such relevant material mayexist – because certain items of just such evidence have – subsequently – come into the applicant’s possession.
Were Jersey’s judicial apparatus not a biased and corrupted enterprise – all such material would have been disclosed to the defence – when the defence first made the disclosure applications.
In July – 2009.
Some Brief Legal Discussion:
It is not necessary at this section to examine in great detail the arguments concerning objectivity and apparent and actual bias in judicial and quasi-judicial functions and the controlling English and ECtHR jurisprudence; those matters of principle and established law are focused upon in section 4 of this document. However, when reflecting upon the role and conduct of Michael Beloff QC, it is worth being briefly reminded of some key facts and established principles.
Firstly, let us again be reminded that a key – in fact the key – public official in Jersey, with the very highest possible stake in the outcome of the data protection prosecutions against the applicant, is Michael Birt – the person who as the Attorney General (sole prosecuting authority in Jersey) made the key decisions, and who was expressly and directly and seriously criticised by the applicant in the applicant’s public interest disclosures.
Since being Attorney General (a structurally conflicted and ultra vires Office in Jersey, not least because of its overt politicisation and close involvement with the executive, combined with being the sole prosecution authority in the island) Michael Birt has progressed up the traditional career-path to become, first “Deputy Bailiff”, and then “Bailiff”; anachronistic and ultra vires Crown-appointed posts that see the incumbent as the active, unelected “speaker” of the legislature – and as an active judge, andhead of the island’s judiciary.
Such is the evidenced nature – and gravity – of the matters involved in the public interest disclosures made by the applicant – that were his concerns to be shown to be publicly justified, such an outcome could not other than result in the complete annihilation of the career of Michael Birt.
But yet – in his capacity as Bailiff, Michael Birt has selected – and appointed – every single judge – in every single Jersey judicial setting – before which the applicant has appeared.
This has included Michael Birt’s long-standing colleague, friend and business-associate, Michael Beloff QC.
Were there not allready substantive grounds for seeing apparent bias and actual bias in the performance of Michael Beloff – the mere fact he is personally known to – and is selected by – and appointed by – the public official with the most to lose should the applicant have been exculpated, amounts to the most gross and offensive assault upon objective justice.
Originally expressed as the rule ‘No man a judge in his own cause’ (Nemo judex in re sua), no tribunal that has the presiding Office-holders chosen and appointed by an interested-party can ever approach the requisite standards of lawful objectivity.
In the case of Michael Beloff QC, the applicant expressly sought from him in open court a statement of his knowledge of any interested parties, and a declaration of any conflicts of interest that might be seen to afflict him in his involvement as the key figure in the tribunal. Beloff flatly refused to make any such declaration.
The applicant sought recusal from him, and, in similar fashion, Beloff refused to recuse.
The general expectation is that a judge, who realises that there are grounds on the basis of which a party might legitimately consider apparent bias may arise, should disclose that interest. Indeed, a failure to disclose has in some cases been thought to contribute to an appearance of bias. As Kirby J put it in Ebner v Official Trustee in Bankruptcy: “In some circumstances, failure to disclose … an interest will … lead to a sense of disquiet, and perhaps the suggestion that the want of disclosure has an improper or sinister explanation”. Lord Bingham’s view in Davidson v Scottish Ministers (No. 2) was that “the fact of non-disclosure in a case which calls for it must inevitably colour the thinking of the observer”.
Thus it is that Michael Beloff appears to be conflicted in the case – carries the appearance of bias – has plainly exhibited actual, real bias – and all of the said conduct of Beloff stands in direct opposition to established, current English jurisprudence.
So, does then, the objectivity and appearance of objectivity of judicial tribunals, simply not apply in Jersey – as though the island were some parallel-universe?
Is the Secretary of State for Justice, and the Privy Council entitled – in law – to do as they plainly have done and continue to do – and permit the Crown Dependency of Jersey to ignore the objectivity of the administration of justice – as though it were some form of ‘outré, new fangled imposition’ by European foreigners?
It is plain that even without reference to the European Convention on Human Rights, the resultant ECtHR case-law, and the domestic effect of the HRA – there exists in English law an unassailable expectation and right to the impartial administration of justice, and an objective court-of-law.
And – such is the central place of that foundation-stone of the good administration of justice – the right and expectation to impartiality is not even limited to those cases where an actual, testable, objective bias or conflict-of-interests arises – but does, in fact, extend in law to even the “appearance” of bias.
Thus it is – unassailably– established in English law that courts must not only be objective and impartial – they must also meet the test of “appearing” to be objective and impartial.
Indeed, it is well-established in all respectable jurisprudence that the administration of justice must be both impartial – and appearto be impartial.
Any person appearing before a Court should be able to have faith in the fact that the judge is independent of Government – and equally that the judge is independent of the parties.
Historically a person has a right to a audi alterem partem, or a fair trial, meaning a trial which is independent, impartial and timely. This has long been a common-law entitlement.
The fact that justice must not only be done, but be seen to be done, has been given specific judicial approval in the English case of R v. Sussex Justices, ex p McCarthy  1 KB 256.
In this case, a solicitor, whose firm acted for a defendant in a civil action for damages, had also sat as a clerk to the Justices in respect of the criminal aspect of the case. Whilst it was not suggested that the solicitor/clerk had been biased – the mere appearanceof conflict was unacceptable.
Lord Hewart CJ – in what is, perhaps, the most famous statement of that principle arising in English jurisprudence – said:
“A long line of cases shows that it is ……of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done ……. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”
Should there still be any doubt about the absolutely essential nature of the appearance of objectivity – simply consider the case of Lord Hoffman, one of the Law Lords who sat to determine whether the Chilean dictator Augusto Pinochet was able to be charged and prosecuted.
Lord Hoffman – it was revealed later – was a supporter of the human rights organisation Amnesty International. This mere appearance of bias was sufficient to cause the decision to be set aside.
Generally complainants avoid making submissions of actual bias even where there would appear to be good cause to do so. A clear recent example of this sort of reticence is the case of Howell v Lee Millais. It appears clear that had the CA been invited to find that Smith J was actually biased, they would have done so. Yet, the parties shied away from such a submission, even in such an extreme case.
Notwithstanding such acknowledged fear and intimidation that afflicts parties and even the most experienced of Council, the applicant, throughout all of the “judicial” proceedings in Jersey has maintained his right to objective and lawfully impartial treatment from Jersey’s public authorities. The applicant’s insistence on doing so often lead to even greater levels of overt hostility and bias against him.
In fact, at one point in the applicant’s attempts to secure justice in the face of the corrupt, politicised proceedings carried-out against him by those friends of Michael Birt – William Bailhache and Tim Le Cocq – Bailhache’s dining-acquaintance, Commissioner Christopher Pitchers, lost his temper and said to the applicant words to the effect “You just want to destroy everything!”(It is assumed, from this, that by “destroy everything” Commissioner Christopher Pitchers was in fact referring to the “necessary” emperor’s-new-clothes hallucination, required to sustain the delusion that the manifestly ultra vires “gentlemen’s-club” patrician nature of the prosecution/judicial apparatus in Jersey, somehow, amounts to the lawful administration of justice?)
We can profitably return again to the words of Lord Hewart CJ, R v. Sussex Justices, ex p McCarthy, where the learned gentleman said:
“Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices’ affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction.”
If one “twofold” position is fatal – a “manifest contradiction” – what, then, do we make of two-twofold positions – in compound and amplification?
We are faced with Michael Beloff QC – in the twofold position of long-standing friend of Michael Birt – and, as appeal-court judge in a case that – had it concluded favourably for the applicant – would have been instantly professionally terminal for Beloff’s friend Michael Birt. Yet – upon that “twofold position”, we have a second “twofold” position – of Michael Birt – in being the most centrally and directly conflicted public official in Jersey – whilst also then choosing and appointing the appeal court judge (a friend of his), to hear the applicant’s case, which would have been terminal to Birt, if the applicant succeeded.
(It is also worth being reminded at this point, that Michael Beloff QC was also asked to “recommend” – for Michael Birt to appoint – yet other judges in matters involving the applicant, and in which matters – in any favourable outcome for the applicant – Beloff’s friend Michael Birt would be professionally destroyed.)
Hewart CJ, in the case already cited, said: –
“It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Here – in the case of the Jersey justices – whilst all splendid fellows, no doubt, and worthy of being members of the most exclusive of gentlemen’s clubs – they have known each-other for many years – actually socialise with one-another – dine with one-another – employ one-another – recommend one-another – appoint one-another – and sit in judgment on one-another’s cases – and do so in cases in which a victory for a lowly pleb applicant would result in the career-annihilation of one or more of their number.
Whilst no-doubt, certain people wish we could return to a simpler, more civilised age – in which a gentleman’s word and reputation was all the guarantee one required – the applicant remains unaware, in spite of relevant research, of any ECtHR jurisprudence that endorses being a “stout-fellow” or a “clubbable-chap” as satisfying the “positive obligations” upon the contracting state to secure the “procedural” and “substantive” measures required to secure the “effective” delivery of Article 6.
[The above-quoted text is a short extract from the Grounds, Statement-of-Case, and Skeleton-Argument in Stuart Syvret vs. Secretary of State for Justice, and the Privy Council.]