AND NOT VERY GOOD.
Fighting for the Right to Effective Legal Representation
Of Your Choice.
Under the previous posting, the subject of the right to access effective legal representation of one’s own choice was raised, and as I suggested in those comments, I’m publishing here the draft application I am tabling before Jersey’s Royal Court.
Not being a lawyer – and not having access to effective legal representation – I’ve had to cobble together the draft application without really knowing what the correct format should be.
Nevertheless, the draft I publish below is sufficient to set the ball rolling in the first match of the Strasbourg League Season.
Briefly – the situation is that UK qualified Barristers and Solicitors are not able to practice law in their own right in Jersey – unless they “qualify” as a Jersey lawyer – by working for a period of years in a Jersey legal office.
The practical effect of this being – that whilst you can employ, and take advice from an independent, specialist, UK Barrister – they can’t actually represent you in a Jersey court.
They don’t enjoy what are termed “rights-of-audience” before courts in the island.
The arrangement is manifestly monstrous – and nothing more than a brazen piece of market-rigging by the local oligarchy.
It is also not compatible with our Right to access “effective legal representation of our own choice”, as is required by Article 6 of the ECHR.
So I thought I would limber-up for the 2011 legal season with this opening match.
I’m also throwing into the mix Jersey’s obligations under Protocol 3 – just to add a little spice, and to maybe get us playing in the EU Court of Justice League as well.
Our home form is never going to be terribly good – what, with the nature of the pitch and everything – but I’m quietly confident of some away-victories.
Next posting – what the survivors need to know and reflect upon – before signing anything.
BEFORE THE ROYAL COURT
BETWEEN Stuart Syvret APPLICANT
AND Her Majesty’s Attorney General RESPONDENT
THE ROYAL COURT is hereby asked by the said Stuart Syvret to: –
1: In accordance with Article 5 of the Human Rights (Jersey) Law 2000 – declare that those provisions of the Advocates and Solicitors (Jersey) Law 1997 – which have the effect of denying to Barristers and Solicitors ‘Rights of audience’ before courts in Jersey unless they have worked for a period of years in a “relevant” office – to be effectively incompatible with Article 6 of the Convention.
2: With regard to the effective requirements of Protocol 3 to the UK’s Act of Accession 1972, and any related requirements of the Act of Accession, to declare that those provisions of the Advocates and Solicitors (Jersey) Law 1997 – which have the effect of denying to Barristers and Solicitors ‘Rights of audience’ before courts in Jersey – to be incompatible with the free trade requirements of the said Protocol and Act and to be incompatible with the requirement to apply the same treatment to all natural and legal persons of the Community.
3: Determine whether those provisions of the Advocates and Solicitors (Jersey) Law 1997 – which have the effect of denying to Barristers and Solicitors ‘Rights of audience’ before courts in Jersey – are incompatible with the purposes of the Competition (Jersey) Law 2005.
4: In accordance with Article 5 of the Human Rights (Jersey) Law 2000 – to declare that the non-availability of Conditional Fee Agreements in Jersey legal practice constitute an artificial barrier to access to justice and to thus constitute an effective breach of Article 6 of the Convention.
This Date of…………………….
1. The European Convention on Human Rights and the Human Rights (Jersey) Law 2000.
2. The Human Rights (Jersey) Law 2000, states that the court may be asked to determine whether a legislative provision is compatible with a Convention Right:
3. “5 Declaration of incompatibility
(1) If in any proceedings in which a court determines whether a provision of principal legislation is compatible with a Convention Right, the court is satisfied that the provision is not so compatible; it may make a declaration of incompatibility.
(2) If in any proceedings in which a court determines whether a provision of subordinate legislation made in the exercise of a power conferred by principal legislation, is compatible with a Convention Right, the court is satisfied –
(a) that the provision is not so compatible; and
(b) that (disregarding any possibility of revocation) the principal legislation concerned prevents removal of the incompatibility, it may make a declaration of incompatibility.”
4. This application is made for the purpose of securing certain Rights as guaranteed under Article 6 of the ECHR, specifically, the Right to access effective legal representation and the Right to access justice; in addition to the ECHR, the Applicant cites established English law with respect to the good administration of justice and a fair trial.
5. The application is made in the context of the appeal against all convictions and sentences in the case – and of the judicial review application being brought against the decisions and conduct of the Office of Jersey Attorney General, the decisions and conduct of the prosecution and the decisions and conduct of the magistrate.
6. The Applicant has been subjected to what is a politically and corruptly motivated malicious prosecution – the purposes of which have been the concealment of a wide variety of misfeasances, malfeasances and overt criminality engaged in by certain aspects of Jersey’s public administration, and of various senior figures within that apparatus.
7. The legal proceedings conducted against the applicant have frequently been quite extraordinary and overtly unlawful.
8. Throughout the entire period, the applicant has been unlawfully prevented from accessing effective legal representation of his choice, and has had to be self-representing throughout.
9. A number of significant obstructions have prevented the applicant from being able to take steps necessary to secure professional, effective legal representation of his choice.
10. The applicant’s choice of legal representation would be a specialised, experienced Solicitor and an equally qualified Barrister from the United Kingdom.
11. Given the highly politicised nature of these proceedings, the applicant – in order to enjoy effective legal representation – would require the representation of Solicitors and of Barristers who were specialised in matters of human Rights and of media law – and who were not dependent upon the largesse or patronage of any element of the Jersey oligarchy.
12. At present the applicant is prevented from accessing and enjoying any such legal representation by the restrictions on practice contained in the Advocates & Solicitors (Jersey) Law 1997.
13. Article 2 of the said Law states that only those individuals who have been admitted to the Jersey Bar, or who have been admitted as a Jersey Solicitor shall be able to practice in the island, or, in the case of Advocates practice before court in Jersey.
14. “2 Entitlement to practise as an advocate or Solicitor
(1) A person shall be entitled to practise as an advocate before every court in Jersey if the person has been admitted to the Bar in accordance with Article 8.
(2) A person shall be entitled to practise as a Solicitor if the person has been admitted as a Solicitor in accordance with Article 8.”
15. An application for admission to the Bar, or for admission as a Solicitor, must be made in accordance with Article 8 of the Advocates and Solicitors (Jersey) Law 1997.
16. Article 8 refers to the qualifying conditions defined in Articles 3 and 4 of the said Law.
17. It can be seen that the relevant parts of Articles 3 and 4 place an onerous and artificial restriction upon those who may wish to practice law in Jersey by requiring lengthy periods of continuous work in a “relevant” office – before the lawyer in question can meet the “requirements” of admission to the Bar or admission as a Solicitor .
18. A “relevant” office is given a specific meaning in the Law:
19. “ ‘relevant office’ means an advocate’s or a Solicitor’s office in Jersey, the Law Officers’ Department or the Judicial Greffe;”
20. No matter that a person may meet all of the qualifying requirements to enable them to practice as a Solicitor or Barrister in England, Wales or Scotland – and, indeed, may well be a highly skilled and experienced individual – they cannot practice in their own Right as a Solicitor or Barrister in Jersey – unless and until they have spent some years working in a “Jersey” legal office.
21. In the instant case, the Article 6 Rights of the applicant have been breached, and his interests have been heavily prejudiced by this legislative market barrier – preventing him, as it does, from enjoying in Jersey effective legal representation of UK based lawyers who are specialist in human Rights and media law matters.
22. Amongst the matters the Court must consider, are whether those clauses of the Advocates and Solicitors (Jersey) Law, which place this artificial barrier against the free choice of effective legal representation, are “necessary” and “proportionate” to any “legitimate aim” – and whether any purported motivation for the existence of such restrictions – for example, guaranteeing for consumers that legal representation will have the specialist knowledge of Jersey law, where relevant – could not be better achieved through some less harmful means.
23. It will, of course, be argued that the field of Jersey law is distinct, and very different in some respects from the law as practised in England and Wales. That is true in some regards – especially the older, more traditional laws.
24. However, the reality is that a very great quantity of modern Jersey legislation – and consequently, case-law – is adopted from the United Kingdom.
25. In the extant case, no aspect of traditional Jersey law has been involved; on the contrary – The Data Protection Law and the Human Rights Law are, essentially, copies of UK practice, which itself, has evolved within the wider context of post-war Western Europe.
26. There can be, therefore, no remotely credible, arguable case that a UK Barrister or Solicitor would have been lacking in some practical sense, the requisite knowledge and skill necessary to provide to the Applicant effective legal representation of his choice, in these matters.
27. It will be argued that the specialist knowledge of a UK Barrister or Solicitor can be called upon – after a fashion – to assist in a Jersey case. The argument is spurious. Whilst specialist, UK-based legal advice can be called upon, and frequently is, to assist in Jersey cases – the UK lawyers in question do not enjoy rights-of-audience before Jersey’s courts, and thus have to work through a Jersey Advocate, who will present the case and argument before the court. A number of serious disadvantages arise from this artificially rigged arrangement.
28. A specialist UK lawyer may well be far more effective in presenting matters to the court, than might a Jersey Advocate – whose sole function may amount to little more than being an extremely expensive repeating-device.
29. Further – the cost of employing lawyers in Jersey is already amongst the highest – perhaps the highest – in the world. Many people who may wish to employ a UK-based specialist lawyer could only afford to employ one level of legal representation. The current restriction on practice effectively mean that a person who wishes to exercise their Right to employ effective legal representation of their choice – a London Barrister perhaps – would have to employ a Jersey Advocate – in addition; an entirely redundant level of legal representation – the cost add to the burden which is artificially thrust upon individuals by the effect of the disproportionate and unjustifiable legal restriction upon rights-of-audience.
30. By way of contrast, the jurisdiction of Gibraltar does not deny rights-of-audience to English Barristers. The Gibraltar Supreme Court Act, Part IV, under Admission of Barristers, at Article 28 (2) contains provision for the Chief Justice to admit a Barrister for the purposes of a particular case, notwithstanding the fact that the Barrister in question does not satisfy the residual practice requirements of Gibraltar.
31. A further consideration arises in respect of “equality-of-arms” and of a level-playing-field. Under the current legislative arrangements, the Jersey Attorney General is able to employ United Kingdom based Barristers and Solicitors – and is able to secure for them rights-of-audience before Jersey courts, so that they may work on behalf of the Attorney General, for example, in prosecuting criminal cases.
32. Many high-profile criminal cases have been handled on behalf of the Attorney General by UK based lawyers, who have represented the Office in court. For example – it is well noted the legal practitioners working from the chambers of 7 Bedford Row have enjoyed – for a number of years – an extremely lucrative volume of work in respect of Jersey prosecutions.
33. By way of contrast, those who were the accused, and who have been prosecuted by such UK based lawyers – enjoying as they do when employed by the Attorney General, rights-of-audience before Jersey courts – have been denied the equality of arms and level playing-field they are guaranteed under the Convention – by not being able to employ directly their own UK based lawyers, to represent the defence in Jersey courts.
34. The current Jersey legislative provisions, as contained in the Advocates and Solicitors (Jersey) Law 1997, are an interference with Convention Rights. Certain interferences with Convention Rights are permissible – but there are very clear, established tests which any such interference must satisfy in order to be lawful.
35. The test the authorities must meet is a high one; it has been framed in these terms:
(1) The measure adopted must be carefully designed to achieve the objective in question; it must not be arbitrary, unfair or based on irrational considerations.
(2) The limitation or interference should impair as little as possible the Right or freedom in question.
(3) Even if the objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve.
36. A very similar approach has been endorsed by the Privy Council. In a case involving Antigua, Lord Clyde approved a three-stage test:
(1) The legislative objective is sufficiently important to justify limiting a fundamental Right;
(2) The legislative measures designed to meet the objective are rationally connected to it;
(3) The means used to impair the Right or freedom are no more than is necessary to accomplish that objective.
37. It is for the Jersey authorities to show why the artificial restriction upon the applicant’s Right to his choice of effective legal representation is “necessary in a democratic society in pursuit of a legitimate aim.”
38. A government must prove that an interference with a Convention Right is proportionate; the burden of proof lies on the government.
39. In Jersild v Denmark ((1995) 19 E.H.R.R 1 para.31) the court explained that it would:
40. “…..look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient and whether the means employed were proportionate to the legitimate aim pursued.”
41. By any measure, those provisions of the Advocates and Solicitors (Jersey) Law 1997, which interfere with the Right to employ effective legal representation of one’s own choice are disproportionate, incautiously designed, serve no legitimate purpose, are irrational and unnecessary.
42. A further, artificial restriction upon an individual’s Right to access justice is encountered in the absence of an established framework for Conditional Fee Agreements.
43. Plainly, the cost of employing legal representation – and, consequently the cost of accessing justice, is dramatic, even under favourable circumstances. There can be no question other, than that in Jersey many people face an insurmountable barrier to accessing justice because of the question of cost.
44. A significant stride towards lowering barriers to justice has been taken in other jurisdictions through the legalising and regulation of Conditional Fee Agreements.
45. The absence of such a regulatory framework in Jersey constitutes a further – unnecessary – interference in the Right of the applicant to be able to secure effective legal representation of his choice.
46. Protocol 3 to the UK’s Act of Accession 1972
47. Protocol 3 to the UK’s Act of Accession described and defined certain special provisions that would apply to the Crown Dependencies, upon the UK joining the EEC.
48. In general terms, the Protocol deals with matters of trade. The provisions of the Advocates and Solicitors (Jersey) Law 1997, have the effect of an artificial restraint of free trade, and are thus not compatible with Protocol 3.
49. In addition to guaranteeing the benefits of market competition, Protocol 3 also requires – at paragraph (4) that: –
50. “The authorities of these territories shall apply the same treatment to all natural and legal persons of the Community.”
51. The artificial and unnecessary restrictions upon the Rights of UK Barristers and Solicitors to practice and enjoy rights-of-audience before Jersey courts is a breach of the requirement to afford the same treatment to all natural and legal persons of the community.
52. Though it will be argued that the present restriction upon the Right to practice law before Jersey’s courts is not discriminatory, in that any EU citizen could so qualify by dint of serving the requisite number of years practicing in a “relevant” office – in plain fact, so manifestly excessive, disproportionate, and unrealistic is such a requirement – that it cannot be but a de facto breach of Paragraph (4) of Protocol 3.
53. The Competition (Jersey) Law 2005.
54. The legislative purpose of the Competition (Jersey) Law 2005 is to ensure that the broad public good is served by preventing restrictive trade practices, market-rigging, abuse of dominant position, monopolisation – and generally to ensure healthy market competition.
55. Whilst the Law refers to the prohibition on ‘undertakings’ from hindering competition, and also describes a power to grant exemptions, both singular and block – the Law appears to be silent upon the existence of anti-competitive, market-rigging arrangements – such as the current restriction upon the availability of meaningful competition in the market of legal services in Jersey – which are specifically given a legal status by the government.
56. The applicant contends that the restrictive provision of the Advocates and Solicitors (Jersey) Law 1997 are not compatible with, and are in conflict with, the purposes and public interest benefits of the Competition (Jersey) Law 2005.
57. Given the broader international framework of Protocol 3, in the event that the Competition (Jersey) Law 2005 does not encompass, or take precedence over, the restrictive provisions of the Advocates and Solicitors (Jersey) Law 1997, then the island of Jersey has failed to provide a domestic, legislative framework which gives effect to the requirements of Protocol 3.
Advocates and Solicitors (Jersey) Law 1997.
Human Rights(Jersey) Law 2000.
Competition (Jersey) Law 2005.
Protocol 3 to the UK’s Act of Accession 1972.
Gibraltar Supreme Court Act.
This Date of…………………….