EXTRACTS FROM ARMAGEDDON: # 3

COMMUNIQUÉS FROM THE APOCALYPSE.

Welcome to today’s Extracts from Armageddon – Communiqués from the Apocalypse  – #3 – a dispatch from the dividers – a blast from the bundles – a chorus from the case-law.

Stuart Syvret

EXTRACTS FROM ARMAGEDDON: # 3

“When considering the above-facts – the history – and all the supporting evidence – it is, frankly, remarkable – in light of Barclay & Ors, R (on the application of) v Secretary of State for Justice & Ors [2008] EWCA Civ 1319 (02 December 2008) – that the respondent authorities have failed to intervene to end the unlawful nature of the Jersey judicial function, and put in place a lawful system.

In the cited  case the applicants were seeking to challenge the promulgation of the Reform Law in the island of Sark on the grounds that aspects of that law were not compatible with the requirements of the European Convention on Human Rights.

Sark, like Jersey, is one of the British Channel Islands, and like Jersey, is a Crown Dependency, with the UK authorities having ultimate responsibility for good governance, the administration of justice, and human rights.

The case refers to the Sark “Seneschal” – the equivalent position in Jersey being the “Bailiff” – and the Sark legislature, “Chief Pleas” – the equivalent in Jersey being the “States assembly.” As with the Seneschal in Sark, in Jersey the Bailiff is chief judge, and president of the legislature.

In the above-cited Court of Appeal judgment, the appellants were unsuccessful on four of the five grounds of appeal. However – and crucially – they succeeded on a fifth.

The successful ground – “Ground 2” in the application and judgment was: –
(2) The functions and powers of the Seneschal under the Reform Law breach Article 6 of the Convention, in particular his dual role as President of Chief Pleas and Senior Judge on Sark.

It should be noted that the unsuccessful respondent  – the Secretary of State for Justice – against who Ground 2 was upheld, chose not to appeal that decision.

In light of that unchallenged judgment – the current judicial function of Jersey is unlawful.

In the Court of Appeal judgment, the lead Judge – Lord Justice Pill – in paragraph 52, found:

“The Seneschal’s position as Chief Judge must be seen in the context of his duties in Chief Pleas and also the existence of the power to make other judicial appointments for Sark.”

Having described the context – that of the “Seneschal” being both the speaker of the Sark legislature – and being the head of the judiciary in Sark – Lord Pill went on to address the legal issues.

“57: Whatever the outcome of ground 1, it is submitted that the Seneschal’s position as judge is inconsistent, in Article 6 terms, with his legislative and executive duties. His influential political position, it is submitted, will inevitably and legitimately arouse in litigants appearing before him fears about his independence and impartiality.
58: In Starrs v Ruxton [2000] JC 208, Lord Prosser, considering the position of temporary sheriffs in the administration of justice in Scotland, stated, at page 232:
“But I am inclined to see independence – the need for a judge not to be dependent on others – as an additional substantive requirement, rather than simply a means of achieving impartiality or a perception of impartiality. Independence will guarantee not only that the judge is disinterested in relation to the parties and the cause, but also that in fulfilling his judicial function, generally as well as individual cases, he is and can be seen to be free of links with others (whether in the executive, or indeed the judiciary, or in outside life) which might, or might be thought to, affect his assessment of the matters entrusted to him.”
That passage was cited by Lord Bingham of Cornhill in the Privy Council in Millar v Dickson [2002] 1 WLR 1615, at paragraph 9. Lord Bingham also cited, at paragraph 26, the speech of Lord Steyn in Brown v Stott [2003] 1 AC 681, at page 708C:
“. . and it is a basic premise of the Convention system that only an entirely neutral, impartial, and independent judiciary can carry out the primary task of securing and enforcing Convention rights.”
Lord Bingham concluded, page 1628A:
“The conduct of trials at all stages by an independent and impartial tribunal is in my view recognised by the Convention and the authorities, subject to waiver where that is permissible, as a necessary although not a sufficient safeguard of the citizen’s right to a fair trial. It is a safeguard which should not, least of all in the criminal field, be weakened or diluted, whatever the administrative consequences.””

Further – in paragraph 65, Lord Pill  said,  I do, however, see the combination in Sark of the judicial with the other functions of the Seneschal as inconsistent with the Article 6 requirement to establish by law an independent and impartial tribunal.”

And in paragraph 66, Lord Pill  said, “Sark appears to have been fortunate, in recent years, in not having had substantial litigation, either civil or criminal, but while it seeks to maintain a separate system for the administration of justice, as the Reform Law does, the safeguards for independence and impartiality required by Article 6 must be provided. That includes a consideration of appearances. A judge independent of the legislature and executive is in my judgment required even for the comparatively modest litigation described in the Seneschal’s diary.”

And in paragraph 68, Lord Pill said, “The law must provide a structure in which those who do, or who may, come before the court can be confident in the independence and impartiality of the judge.”

The third of the Court of Appeal judges who heard the case was Lord Justice Etherton, who made an important contribution to the judgment when, at paragraph 161, he said:
“A litigant cannot be expected to know whether the Seneschal has been involved in a process within the Chief Pleas which, whether in relation to legislation or an executive matter, might have some direct or indirect bearing on the subject matter of the proceedings. The reasonable assumption would be that the Seneschal probably had been, or at least might well have been, so involved, but the litigant cannot reasonably be expected to have researched and discovered any such involvement. Accordingly, in every case, so far as the litigant is concerned, there exists a possibility of lack of independence and impartiality by the Seneschal acting in a judicial capacity. In view of the inevitably limited knowledge of the litigant about the involvement of the Seneschal in the Chief Pleas on any particular occasion or matter, the problem is not resolved by rights of appeal or judicial review. For those reasons, I consider that the Reform Law gives rise to a violation of Article 6.”
It is worthy of note that the appeal-court judges on that occasion – and the arguments generally – largely focused on what might be termed a “theoretical” consideration of the “possibility” of the Seneschal – in some hypothetical future situation – not being able to meet the test of the appearance of objectivity in the judicial capacity, in the eyes of members of the public, because of his role in the legislature. There was also some discussion of the possibility – the possibility only – that the Seneschal might be politically – and thus judicially – biased against a member of the legislature, should they come before him in his capacity as a judge.
Such mere possibilities – possibilities only, note – with no current examples of any actual such occurrences – were considered more than sufficient grounds for the Court of Appeal to uphold Ground 2 – such is, plainly, the vital importance of the purity of the administration of justice.
Turning to the Jersey judicial function  – the situation would be wholly analogous – save for the fact it is actually worse.
In Jersey the judicial function is  – on unanswerable and extensive evidence – biased and dysfunctional – to the point of undisguised, openly-practised corruption – and direct – express – personally and politically contaminated acts of “judicial” harassment, discrimination and oppression against members of the Jersey legislature.
The failure – the unlawful failure – of the respondent public authorities, the Crown, Privy Council, and Sectary of State to have cured the Jersey system in accordance with their various legal duties and obligations – is so unlawful, it is the tort of misfeasance in a public office. Consider: –
The respondent authorities have known the system was unlawful.
The respondents have known that they had no legal power to act as they have done, to permit the continuance of the unlawful system and its unlawful acts.
The respondents have known that the unlawful acts in question would cause severe harm and losses and damage to people such as this applicant, and similar classes of persons, for example the Pitmans.
The conduct of the respondents – in that regard – even far transcends mere “reckless indifference” which, according to the House of Lords judgments, grounds the tort – and have instead pro-actively participated in the defence and continuance of the unlawful and damaging acts.……”

 

“…….Unlike in the USA – where the very highest powers in the land were held accountable by the law – where “the system worked” – as in the Watergate scandal – the true power of the British state and of those individuals working within it at the highest levels, remains unassailable – and hidden in the calculated and cultivated obscurantism of the smoke-and-mirrors of the Privy Council.
The fundamentally problematical arcanery of the Privy Council – ensures that, in any attempt to hold its actions and powers accountable under law, an ordinary litigant is attempting something akin to wrestling with ghosts – in a hall-of-mirrors.
The intrinsically unchallengeable – even unidentifiable and unknowable – problem that is the Privy Council – a kind of mystical fog-bank in the heart of the British  state – was laid-out by Patrick O’Connor QC, in The Constitutional Role of the Privy Council and the Prerogative. (ISBN 978-0-907247-47-0)……”

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