Bryce-Richards v Attorney General of Jersey & Anor [2003] EWHC 3365 (Admin)

Case No CO/6231/2003[2003] EWHC 3365 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 19 December 2003
Strand
London WC2
B E F O R E:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE JACKSON
Between
CHRISTINE SUSAN BRYCE-RICHARDSApplicant-v-
Between
ATTORNEY GENERAL OF JERSEYRespondentSTATES OF JERSEY POLICERespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR MILWYN JARMAN QC appeared for APPLICANTMR WILLIAM REDGRAVE appeared for RESPONDENT
J U D G M E N T
[1]MR JUSTICE JACKSON: This judgment is in seven parts, namely: Part 1 Introduction; Part 2 The facts; Part 3 The Present Proceedings; Part 4 The Impact of Article 5 of the European Convention on Human Rights; Part 5 The Impact of Article 6 of the European Convention on Human Rights; Part 6 Other Grounds of Challenge; Part 7 Conclusion. Part 1. Introduction.[2]This is a claim for Habeas Corpus, brought by a person who faces criminal charges in Jersey and who challenges the right of the Jersey authorities(a) to detain her in this country and(b) to transport her from here to Jersey.[3]The statutory provision which lies at the heart of these proceedings is Section 13 of the Indictable Offences Act 1848, to which I shall refer as "The 1848 Act".[4]Section 13 of the 1848 Act provides: "If any person against whom a warrant shall be issued in any county, riding, division, liberty, city, borough, or place in England or Wales, by any justice of the peace, or by any judge of her Majesty's Court of Queen's Bench or [the Crown Court] for any indictable offence, shall escape, go into, reside, or be, or be supposed or suspected to be, in any of the Isles of Man, Guernsey, Jersey, Alderney or Sark, it shall be lawful for any officer within the district into which such accused person shall escape or go, or where he shall reside or be, or be supposed or suspected to be, who shall have jurisdiction to issue any warrant or process in the nature of a warrant for the apprehension of offenders within such district, to indorse such warrant in the manner herein-before mentioned, or to the like effect; or if any person against whom any warrant, or process in the nature of a warrant, shall be issued in any of the isles aforesaid shall escape, go into, reside, or be, or be supposed or suspected to be, in any county, riding, division, liberty, city, borough, or place in England or Wales, it shall be lawful for any justice of the peace in and for the county or place into which such person shall escape or go, or where he shall reside or be, or be supposed or suspected to be, to indorse such warrant or process in the manner herein-before mentioned; and every such warrant or process so indorsed shall be a sufficient authority to the person or persons bringing the same, and to all persons to whom the same respectively was originally directed, and also to all constables and peace officers in the county, district or jurisdiction within which such warrant or process shall be so indorsed, to execute the same within the county, district, or place where the justice or officer indorsing the same has jurisdiction, and to convey such offender, when apprehended, into the county or district wherein the justice or person who issued such warrant or process shall have jurisdiction, and carry him before such justice or person, or before some other justice or person within the same county or district who shall have jurisdiction to commit such offender to prison for trial, and such justice or person may thereupon proceed in such and the same manner as if the said offender had been apprehended within his jurisdiction".[5]Having read out the statutory provision, which is central to and in issue in these proceedings, I must now turn to the facts of the present case. Part 2. The Facts.[6]The applicant has been in the financial services business in the Channel Islands for some years. In 1996 she established a trust management company in Jersey called Crystal Trust Company Limited, to which I shall refer as "Crystal".[7]In 1996 the applicant met her future husband, Mr Ryan Bryce-Richards. Together they set up an offshore management business based in Alderney called Alderney International LLC, which is referred to in the documents for short as "AI". AI's main office was subsequently moved from Jersey to Guernsey, and the company also opened a separate office in Cardiff.[8]In 1997 the applicant and Mr Bryce-Richards met an elderly and wealthy couple called Mr and Mrs Edmonds. The four of them became friends.[9]In 1998 the applicant and Mr Bryce-Richards were asked to, and did, take over the management of Mr Edmonds' assets. They did this through the various companies which they controlled. Mr Edmonds also set up a trust under which both his wife and a company controlled by the applicant, called Westphail Limited, would be beneficiaries.[10]It is not necessary, for present purposes, for me to recite the complex financial arrangements which ensued. Suffice it to say that the parties to these Habeas Corpus proceedings put very different interpretations on the arrangements which were made and the various steps which were taken.[11]In November 1999 the applicant and Mr Bryce-Richards were married. During that same month Mr Edmonds died. The applicant was named as an executrix of Mr Edmonds' estate and she also continued to administer the trusts which had been set up.[12]Relations between the applicant and Mrs Edmonds appear to have deteriorated during this period. In 2001 Mrs Edmonds made a complaint to the Jersey police about the applicant and Mr Bryce-Richards.[13]Thereafter an investigation was carried out by the Jersey police and also by the Jersey Financial Crimes Unit, referred to in the documents as "JFCU". On 6th January 2003, during the period of that investigation, Mrs Edmonds died.[14]As a result of the investigation draft charges were formulated against the applicant and her husband. Those draft charges are 14 in number. I shall read out charge 1. "1(a) Fraudulent Conversion. Christine Susan Bryce-Richards, (aka Mauger) on a day or days between 14th October 1999 and 4th March 2000, having been entrusted (as director of a corporate trustee) with certain property, namely the trust assets held under the Ocean Trust as at 14th October 1999, in order that the property should be held and applied for the care and well-being of Joan Helen Edmonds for the duration of her lifetime, criminally and fraudulently converted the said property to the use and benefit of herself and Ryan Edwin Bryce-Richards, her husband, in that she arranged for the said property to be settled into the Ballad Trust upon terms whereby she herself was entitled to benefit from the trust property during the lifetime of Joan Helen Edmonds. 1(b) Ryan Edwin Bryce-Richards at the same time aided, assisted or participated in the said fraudulent conversion."[15]The other 13 charges in this document all allege fraudulent conversion. The details of each fraudulent conversion differ. It is, however, a common theme of all 14 charges that in one way or another the applicant and her husband diverted, for their own benefit, monies intended to be applied for the care and well-being of Mrs Edmonds.[16]The Attorney General decided to proceed with a prosecution of the applicant and Mr Bryce-Richards on these 14 charges. On 4th September 2003 Detective Sergeant Troy of the states of Jersey police swore an affidavit summarising the evidence in support of those 14 charges. In reliance on this evidence Detective Sergeant Troy applied to Sir Phillip Bailhache, the Bailiff of Jersey, for arrest warrants in respect of the claimant and her husband.[17]On 1st October 2003 the Royal Court of Jersey made an order freezing the assets of the applicant in Jersey. That order is called a "saisie judiciaire". It is signed by the Bailiff and bears the date 1st October 2003. On 3rd November 2003 the Bailiff issued two arrest warrants. One arrest warrant is directed against the applicant and the other is directed against her husband, Mr Bryce-Richards. Each of the two arrest warrants command the police officers of the Island of Jersey to apprehend the person named and bring that person before a competent court of justice in Jersey. The competent court of justice would, of course, be the Royal Court.[18]At the time these arrest warrants were issued neither the applicant nor her husband were in Jersey. Mr Bryce-Richards, at that time, was in Majorca, Spain and the evidence indicates that he was in receipt of medical treatment. The applicant, it appears, was in Spain for part of the time but she also visited Wales.[19]Detective Sergeant Troy made his way to Cardiff in November 2003. On 19th November 2003 he applied to a magistrate, Ms Susan Williams JP, to back the warrant relating to the claimant, which had been issued by the Bailiff of Jersey. Detective Sergeant Troy made this application to Ms Williams JP pursuant to section 13 of the 1848 Act, which I read out in part 1 of this judgment. When making the application to Ms Williams, Detective Sergeant Troy explained the nature of his inquiry. He told Ms Williams that the inquiry concerned the alleged fraudulent conversion of assets that had been entrusted to the applicant and her husband. He explained that the charges related to the way in which those funds had allegedly been converted. Detective Sergeant Troy outlined that this involved the use of corporate structures and foreign jurisdictions. Detective Sergeant Troy provided Ms Williams with copies of both the warrants issued by the Bailiff. Ms Williams inspected those warrants. Detective Sergeant Troy confirmed on oath that the signature on those warrants was that of Sir Philip Bailhache, the Bailiff of Jersey. Detective Sergeant Troy told Ms Williams that a copy of the charges had been forwarded to Mr Davies. Mr Davies is and was the solicitor in Wales acting for the applicant. Detective Sergeant Troy said that a copy of the supporting affidavit, which had previously been provided to the Bailiff, was available if Ms Williams wished to read it. However, she did not wish to do so.[20]Ms Williams, having heard that evidence from Detective Sergeant Troy, endorsed the back of the warrant relating to the claimant in accordance with section 13 of the 1848 Act.[21]There is no dispute in these proceedings that the technical requirements of section 13 of the 1848 Act have been complied with.[22]Detective Sergeant Troy made arrangements to meet the applicant on the following day, 20th November, at Cardiff Central Police Station. The applicant, however, took the view that her imminent arrest would be unlawful. Accordingly the applicant began the present proceedings for Habeas Corpus. Part 3. The Present Proceedings.[23]By an affidavit lodged in draft at the Cardiff District Registry on 20th November 2003, and later sworn, the applicant commenced proceedings for Habeas Corpus. The respondents to these Habeas Corpus proceedings were and are(1) the Attorney General of Jersey and(2) the States of Jersey police.[24]The grounds upon which the applicant challenged the legality of her arrest were set out in paragraphs 8 to 12 of her (then) draft affidavit.[25]Those grounds, if I may summarise them shortly, were as follows:[26]First, the applicant did not consider that she would receive a fair trial if she was taken to Jersey. Her assets had been frozen. The legal aid system in Jersey would not provide her with proper representation.[27]Furthermore there had been an unlawful seizure, in the view of the applicant, of relevant documents and evidence. She said that the warrant, under which the documents had previously been seized from her home, was not a proper warrant and the applicant made complaints about links between the different institutions in Jersey and co-operation between them, which meant that she would not receive a fair trial in Jersey.[28]The applicant also contended that the proper place for a trial of the 14 charges was England and Wales. She said that many of the assets of the trust were now in England and Wales and subject to English law.[29]The applicant complained in her affidavit that the warrants for her and her husband's arrest did not contain sufficient particulars and furthermore she said that any endorsement or backing of those warrants would be condoning a breach of Article 6.[30]She also raised in her affidavit a complaint under Article 8 of the European Convention on the basis that her husband was unwell and in Spain and, if she was taken to Jersey, the applicant would be unable to care for her husband. Furthermore she would be unable to obtain renumerative employment whilst living in Jersey and standing trial or preparing for trial.[31]On the afternoon of 20th November two events occurred. One event was that Detective Sergeant Troy of the States of Jersey police arrested the applicant. The other event was that there was a first hearing of these proceedings for Habeas Corpus. During the afternoon of 20th November all parties appeared (not arriving at the same time) before Mr Justice Neuberger. Mr Justice Neuberger, it appears from the documents, was at that time sitting in the Queen's Bench Division in Cardiff, or at least sitting in the Queen's Bench Division for the purposes of the applicant's application.[32]Mr Justice Neuberger made an order, which we have in manuscript, to the following effect. The application for Habeas Corpus should be adjourned until the following afternoon, to be heard before the Divisional Court of the Queen's Bench Division in London. In the meantime the applicant was not to be taken to Jersey. She should, however, be remanded in the custody of the States of Jersey police, within England and Wales, pending the hearing before the Divisional Court. Mr Justice Neuberger also, very sensibly, dispensed with the service of any claim form. The applicant's affidavit made abundantly plain what her grounds of claim were.[33]Following that hearing the applicant was held in custody on the basis of the warrant backed by Ms Williams and also the order of Mr Justice Neuberger. The applicant was held in custody overnight. On the following day, Friday 21st November, all parties appeared before the Divisional Court in London. The Divisional Court made an order that afternoon for the substantive hearing of these judicial review proceedings to take place before the end of term and for the applicant to be released on bail until the date of that hearing.[34]On 26th November the applicant served a second affidavit, in which she outlined her defence to the criminal charges and amplified the grounds for Habeas Corpus set out in her first affidavit.[35]On the same day the applicant's counsel served his skeleton argument for the substantive hearing. The contentions advanced in that skeleton argument may be summarised as follows:(1) The warrant against the applicant does not give sufficient particulars. (This argument has not been pursued today.)(2) Section 13 of the 1848 Act must now be read subject to the Human Rights Act 1998. The magistrates in endorsing the warrant acted contrary to the applicant's rights under the European Convention on Human Rights.(3) If tried in Jersey, the applicant will be denied effective representation contrary to Article 6.3 (c) of the Human Rights Convention.(4) If tried in Jersey, the applicant will not receive a fair and public hearing before an independent and impartial tribunal, contrary to Article 6.1 of the European Convention on Human Rights.(5) The applicant's detention and removal to Jersey gives rise to a breach of Article 5 of the European Convention on Human Rights.(6) The applicant's detention and removal to Jersey gives rise to a breach of Article 8 of the European Convention on Human Rights by reason of the matters contained in her affidavit, which I summarised a little earlier.[36]The respondents to these Habeas Corpus proceedings have served two affidavits sworn by Detective Sergeant Troy. These affidavits set out the factual history from the respondents' perspective.[37]On 28th November the respondents' counsel served a skeleton argument setting out the grounds upon which the applicant's claim is resisted. Essentially, the respondents contend that the procedure under the 1848 Act has been correctly followed, and that there has been and will be no breach of the European Convention on Human Rights.[38]The applicant's application for Habeas Corpus comes on for substantive hearing today. Counsel for the applicant is Mr Milwyn Jarman QC. Counsel for the respondents is Mr William Redgrave. Both counsel have put their arguments to the court clearly, succinctly and helpfully. They have dealt with the court's questions and concerns, and for my part I am grateful for the assistance which we have received from both counsel.[39]I will deal with the issues in the following order. First, I shall address the issues arising from Article 5. I shall then address the issues arising from Article 6. Finally, I shall turn to the other grounds of challenge. Part 4. The Impact of Article 5 of the European Convention on Human Rights.[40]There was a dispute between counsel today as to the relative importance of the claimant's challenge based upon Article 5. Mr Redgrave for the respondents submitted that Article 5 is really the crucial provision in this case because the claimant is challenging, by Habeas Corpus, the lawfulness of her detention. Mr Jarman, on behalf of the applicant, whilst contending that there have indeed been breaches of Article 5, nevertheless submitted that this is not the primary issue in the case, as he wished to lay greater emphasis on other provisions of the Convention.[41]In my view, Article 5 must be and is the provision of the European Convention on Human Rights which is of central importance in today's proceedings. The claimant by the ancient and important constitutional remedy of Habeas Corpus is challenging the lawfulness of her detention. Article 5 of the European Convention on Human Rights, which has been part of our law since October 2000, is the article of the Convention specifically devoted to the lawfulness detention.[42]Article 5 provides as follows: "1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:(a) the lawful detention of a person after conviction by a competent court;(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ... "2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. "3. Everyone who is arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. "4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. "5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation".[43]In R v Governor of Brockhill Prison ex parte Evans (number 2) [2000] 4 All ER 15, the House of Lords held that a prison governor was liable for false imprisonment because he had held the claimant in prison for 59 days beyond her proper release date. It was no defence for the governor that he had acted in accordance with the law as it was understood at the time.[44]In discussing the effect of Article 5 of the European Convention on Human Rights, Lord Hope said this at pages 29 to 30: "The jurisprudence of the European Court of Human Rights indicates that there are various aspects to Article 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under Article 5(1). It will thus give rise to an enforceable right to compensation under Article 5(5), the provisions of which are not discretionary but mandatory. The second question is whether, assuming that the detention is lawful under domestic law, it nevertheless complies with the general requirements of the convention. These are based upon the principle that any restriction on human rights and fundamental freedoms must be prescribed by law (see articles 8 to 11 of the convention). They include the requirements that the domestic law must be sufficiently accessible to the individual and it must be sufficiently precise to enable the individual to foresee the consequences of the restriction (see Sunday Times v UK (1979) 2 EHRR 245; Zamir v UK (1983) 40 DR 42 at 55 (paragraphs 90 to 91)). The third question is whether, again assuming that the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate (see Engel v Netherlands (Number 1) (1976) 1 EHRR 647 (paragraph 58); Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198 (paragraph 56))".[45]Let me now approach the present case within that framework. The first question posed by Lord Hope is whether the detention is lawful under domestic law. It seems to me that the detention of the claimant is lawful under domestic law. The applicant has been detained pursuant to an arrest warrant, originally issued in Jersey, and backed by a justice of the peace in Cardiff. The formal requirements of section 13 of the 1848 Act have been complied with. Therefore there is no question of unlawful detention under domestic law.[46]I turn now to the second question formulated by Lord Hope. Does the detention comply with the general requirements of the convention? In particular, are the requirements of domestic law sufficiently accessible to the individual and sufficiently precise to enable the individual to foresee the consequences of the restriction? It seems to me that the requirements of domestic law, applicable in this case, are sufficiently accessible to the individual. They are sufficiently precise to enable the applicant to foresee the consequences of her restriction. The detention of the applicant does comply with the general requirements of the Convention, as summarised by Lord Hope under question 2.[47]I turn now to the third question. Is the detention open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate? In his skeleton argument counsel for the respondent takes an example of a detention that would fail this third test. If, for example, a person is detained ostensibly for the purposes of deportation, but his removal would in fact be a form of disguised extradition, then that detention would fail on the third ground.[48]I must say, in the present case, I can see nothing arbitrary or disproportionate about the applicant's detention pursuant to section 13 of the 1848 Act. Nor, in my view, is there any evidence that, as mentioned in Lord Hope's formulation, the detention was resorted to in bad faith. The applicant was detained before being released on bail because she is charged with serious offences, which she is alleged to have committed in Jersey.[49]I note that in the applicant's affidavits, in particular in the second of her three affidavits, the applicant foreshadows the nature of her defence to those criminal charges. It is not for this court today to adjudicate upon the strength of the criminal charges which are proposed to be brought in Jersey. Nor is it for this court to comment upon the merits of the applicant's defence as foreshadowed in her affidavit. It is clear that there are substantial issues between the parties which will need to be resolved in due course before the proper court. However, I see nothing in the material before this court which suggests that the detention of the applicant fails the third of Lord Hope's three tests.[50]On the contrary, in my view, it seems clear that the applicant's detention falls within the express provisions of Article 5(1)(c) of the Convention. The applicant has been detained for the purpose of bringing her before a criminal court for trial. Furthermore the applicant has been informed by Detective Sergeant Troy of the reasons for her arrest. She has been so informed in a language which she understands. So there has been compliance with Article 5.2.[51]Article 5.3 is complied with and will be complied with if the applicant is returned to Jersey, because she will promptly be brought before a Jersey court. Furthermore Article 5.4 of the convention has been complied with because the applicant has been enabled to take proceedings in the English courts to challenge the lawfulness of her detention. Indeed she is, at this very moment, in the course of bringing such proceedings.[52]There is, therefore, no breach of Article 5 that I can detect. It is, however, necessary to look at the authorities which have been referred to in the skeleton arguments, although not developed at any length in the submissions today.[53]The applicant, in her skeleton argument, has referred to the decision of the House of Lords in R v Metropolitan Police Commissioner ex parte Hammond [1965] AC 810. That concerned the transfer to Ireland of an individual who was said to have committed an offence in Ireland and the transfer was pursuant to the Petty Sessions (Ireland) Act of 1851. The applicant applied for Habeas Corpus. There was a technical defect in the process of backing the warrant and the applicant succeeded in his claim for Habeas Corpus.[54]Some reliance has been placed on counsel's argument giving the history of the backing of warrants in Hammond and also upon certain obiter dicta in the speech of Lord Morris. Suffice it to say that I see nothing inconsistent between the decision of the House of Lords in Hammond and the detention of the applicant in the present case.[55]Rather more relevant, in my view, is the more recent decision of the Divisional Court in Re Hayes, Divisional Court transcript 9th October 2000. In that case warrants were issued in Dublin for the applicant's arrest in respect of alleged sexual offences. Those warrants were endorsed by a magistrate in England in accordance with the Backing of Warrants (Republic of Ireland) Act 1965. The applicant was then arrested and detained in this country. He applied for Habeas Corpus, alleging that the provisions of the 1965 Act were incompatible with the European Convention on Human Rights. It should be noted that there are some limited similarities between the scheme of the 1965 Act, which was under consideration in that case, and section 13 of the 1848 Act, which applies in the present case.[56]In Re Hayes the Divisional Court dismissed the applicant's claim for Habeas Corpus. Mr

Justice Bell, giving the principal judgment, said this on page 5 of the transcript:

"There is no doubt that the 1965 Act is intended to be a simple and expeditious process, more so than extradition procedures under the Extradition Act 1989: see Lord Steyn in Gilligan at page 1255H. This reflects the close geographical and political ties between the Republic and the United Kingdom and the similarities between their criminal laws and procedures see Lord Steyn again at 1256B and D to E, where he said that the Act of 1965 was premised on the basis that the Irish courts were well able to guard against abuse and that Ireland had a special position in English law. The power to discharge a fugitive for abuse of process would undermine the legislative purpose of a single and expeditious procedure between neighbouring countries, and one is not to forget that there remain the protections of section 2(2) of the Act against return for offences of a political character, or related to race, religion or nationality."
[57]Mr Justice Bell went on to hold that there was no incompatibility between the provisions of the 1965 Act and Article 5 of the Convention. He addressed each of the three questions formulated by Lord Hope in Evans and reached conclusions similar to those which I have reached in the present case, as outlined above.[58]Lord Justice Pill, giving the second judgment, agreed. He stated that the English courts had no general jurisdiction to review the conduct of the Irish authorities.[59]It seems to me that the considerations which led to the decision in Re Hayes apply with much greater force in the present case. Jersey is part of the United Kingdom, whereas Ireland is not. It should be noted that section 13 of the 1848 Act contains reciprocal provisions. The first half of section 13 provides for the arrest of persons accused of crimes in England and Wales, who resort to the Channel Islands. The second half of section 13 provides for the arrest of persons accused of crimes in the Channel Islands, who resort to England and Wales.[60]The simple and expeditious procedure, which section 13 of the 1848 Act lays down, is a reflection of the confidence which the English courts have in the criminal justice systems of the Channel Islands and the confidence which the Channel Island courts have in the criminal justice system of England and Wales. Those reciprocal provisions have stood the test of time. Section 13 of the 1848 Act was enacted in the early years of the reign of Queen Victoria. Over the last one and a half centuries Parliament has not seen fit to abandon the simple, expeditious and reciprocal procedure there set out.[61]In the present case the Jersey authorities have complied with the formal requirements of section 13 and, in my view, there has been no breach of Article 5 of the Convention. Part 5. The Impact of Article 6.[62]Article 6 of the European Convention on Human Rights provides: "1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly ... "2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. "3. Everyone charged with a criminal offence has the following minimum rights: "(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; "(b) to have adequate time and facilities for the preparation of his defence; "(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; "(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; "(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court".[63]A threshold issue arises as to whether this court should assess the future compliance with Article 6 by the Jersey courts, in the event of the applicant's return to Jersey. If we should assess such compliance, should we be looking generally at Article 6, or should we only be concerned to see whether there would be what Mr Redgrave, for the respondents, describes as "a flagrant breach"?[64]Mr Jarman, on behalf of the applicant, points out that, in the case of transfers to Jersey, one does not have any of the conventional protections, safeguards or controls that exist in ordinary extradition proceedings. Nor does one have any of the safeguards or controls which apply under the 1965 Act in respect of transfers to the Republic of Ireland. So, submits Mr Jarman, in the circumstances of this case, the court should not be concerned solely with the question of flagrant breach, but rather the court should look critically at what happens and what is likely to happen in Jersey, in order to see whether or not there will be proper compliance with Article 6.[65]For my part I am prepared to assume, for the purposes of today's hearing, (without deciding) that the applicant's arguments relating to Article 6 are a permissible ground for seeking Habeas Corpus in the context of this case. I make this assumption having regard to the absence of the conventional protections and controls which apply in extradition proceedings or in the case of transfers to Ireland under the 1965 Act.[66]Let me consider first whether the applicant will face trial before an independent and impartial tribunal.[67]This is a matter which is dealt with in the applicant's skeleton argument at paragraphs 23, 24 and 28 to 30, and which has been developed helpfully and concisely by Mr Jarman in his submissions today. The point is made in the skeleton argument that the population of Jersey is small. It stood at about 85,000 in 1999 and there is a brief description of the constitution of Jersey helpfully set out in the skeleton. The Bailiff is head of the judiciary. He has a deputy and they are assisted by part-time judges known as commissioners.[68]The skeleton argument makes the point that the legal aid system in Jersey is unusual, in that it is administered and financed by practising lawyers. The senior Advocate, the Batonnier, is responsible for overviewing the conduct of all applications. The day-to-day running of the system is delegated to the Acting-Batonnier, who appoints lawyers to act at no charge on a rota basis in appropriate cases for people who cannot afford to pay anything. Where the defendant can afford to make a partial payment, then the lawyer appointed to act will receive that partial payment.[69]There is a submission developed in paragraphs 28 to 30 that the Royal Court of Jersey is not an independent and impartial tribunal. Particular reliance is placed upon the decision of the European Court of Human Rights in McGonnell v the United Kingdom [2000] 30 EHHR 289.[70]In his submissions today, Mr Jarman took us to the following paragraphs in the McGonnell decision. Numbers 48 and 50 to 53. In paragraph 48, the European Court of Human Rights said that in considering Article 6.1, it is necessary that the tribunal should subjectively be free of personal prejudice or bias. Also it must be impartial from an objective view point. That is it must offer sufficient guarantees to exclude any legitimate doubt in that respect.[71]It should be noted that that statement of principle in McGonnell played a critical role in the decision. In that case the judge who heard the appeal had also acted in an administrative capacity in relation to the planning scheme which arose for consideration in the appeal. It was because the judge in question, the Bailiff, had performed both administrative and judicial functions in relation to the same matter, that the European Court of Human Rights in Strasbourg concluded that there had been a breach of Article 6.[72]In his concurring judgment, Sir John Laws made it plain that the decision of the Court, in that case, arose because of the particular circumstances and the decision of the Strasbourg Court was not a basis for any wider condemnation of the judicial system in the Island of Guernsey. Sir John Laws said this in the second paragraph of his judgment:
"If it were thought arguable (perhaps by reference to the reasoning in paragraph 52) that a violation might be shown on any wider basis, having regard to the Bailiff's multiple roles, I would express my firm dissent from any such view. Where there is no question of actual bias, our task under Article 6.1 must be to determine whether the reasonable bystander -- a fully informed layman who has no axe to grind -- would on objective grounds fear that the Royal Court lacks independence and impartiality. I am clear that but for the coincidence of the Bailiff's presidency over the States in 1990 and over the Royal Court in 1995, there are no such objective grounds whatever."
[73]It seems to me that when one applies the principles emerging from paragraph 48 of the Court's judgment and from the second paragraph of Lord Justice Laws' judgment, there is no breach of Article 6.1 in the present case. The Bailiff in this case, who may or may not be the trial judge, has not performed any administrative functions in relation to the applicant's affairs. It is quite true that the Bailiff has signed the warrant for the applicant's arrest. He did so when evidence was presented to him, sworn by Detective Sergeant Troy. The Bailiff also signed the saisie judiciaire dated 21st October 2003. Indeed the Bailiff also signed a search warrant for searching the applicant's home, dated 25th September 2001. However, in taking all these steps, the Bailiff was performing judicial functions. He was acting upon evidence presented to him in the context of adversarial proceedings and I see no breach of Article 6 whatsoever because the Bailiff has taken those steps.[74]It is not uncommon in a complex fraud case in this country for the trial judge to make a number of early orders before those proceedings come to trial.[75]Let me now look at paragraphs 50 to 53 of McGonnell, upon which Mr Jarman also placed reliance today. Those paragraphs seem to me really to illustrate the point which I have just made. They all focus upon the particular nature of the Bailiff's administrative functions in the McGonnell case and set out the reasoning which led to the Court's decision.[76]Mr Jarman, both in his skeleton argument and in his oral submissions, refers to the conduct of the Financial Crimes Unit of the police and to the fact that documents were seized from the applicant on the strength of a warrant signed by the Bailiff. It should be noted that the warrant signed by the Bailiff was a warrant which Detective Sergeant Troy of the Jersey police sought after complaint had been made by Mrs Edmonds and it was a warrant judicially issued for proper purposes.[77]Mr Jarman makes the point that there have been parallel investigations. First, an investigation by the States of Jersey police into the matters arising from Mrs Edmonds' complaint. Secondly, an investigation by the Financial Services Commission of Jersey in respect of the conduct of Crystal. I see nothing in the fact that those parallel investigations have taken place, to support any suggestion of a breach of Article 6.[78]If the claimant stands trial in Jersey and if the Jersey courts are persuaded that it would not be appropriate for the Bailiff to be the trial judge, then some other judge could hear the case. Either a deputy bailiff or, if necessary, some commissioner from outside Jersey could be the trial judge.[79]I have every confidence that the Jersey courts will address all the concerns which may be raised by the applicant in respect of Article 6. If there are reasons, which do not feature in this judgment, which merit a trial before someone other than the Bailiff, then the Jersey court is well placed to decide that issue and will make the appropriate order.[80]The second point which should be borne in mind in this regard is that there is a Channel Islands' Appeal Court. That court is staffed by distinguished Queen's Counsel from this country. I do not say that a proper appellate procedure would cure any breach of Article 6. Nevertheless, the fact that there does exist the Channel Islands' Court of Appeal is yet another reason why one could be confident that the trial at first instance will comply with Article 6. It will be known that, if there is any breach in that regard, there lies an appeal to the Channel Islands' Court of Appeal. Indeed there also is the possibility of an appeal from that court to the Privy Council, if circumstances of the case make it appropriate.[81]The next part of the applicant's grounds in relation to Article 6 is focused upon Article 6.3 (b) and (c). Under those provisions the applicant must have adequate time and facilities for the preparation of her defence, and she must be able to defend herself in person or through legal assistance of her choosing, in appropriate cases, if she is unable to pay.[82]The evidence put forward on behalf of the applicant is to the effect that the applicant's solicitors have made enquiries of a number of firms of advocates in Jersey. Those firms of advocates in Jersey, who do legal aid work, either cannot act because they have a conflict of interest or, alternatively, they lack sufficient experience and expertise to take on a case of this weight.[83]I am not persuaded by the evidence which has been placed before this court that there is no competent advocate in Jersey who would be willing to and would, in fact, act for the claimant in the criminal proceedings pursuant to Jersey's legal aid system. That legal aid system is described in an affidavit sworn by Mr Whelan, who is a Crown advocate of the Royal Court of Jersey, with great experience in these matters. The system is flexible. It has worked for many years and it has provided satisfactory defence facilities for defendants, who have been unable to afford representation in cases where representation is required.[84]In the unlikely event that there is no advocate available to defend the applicant, under the legal aid system, and if it be the case that the applicant has no means to pay for her defence because her assets have been frozen, I am quite confident that the trial judge would take whatever steps are necessary to ensure that the applicant, who faces serious criminal charges, is properly represented. He would not allow such a trial to go forward without proper defence representation.[85]In the course of argument, I enquired of counsel for the respondent, Mr Redgrave, whether the fact that there is no legal aid advocate available, if such be the case, would be a ground for obtaining a variation of the freezing order (the saisie judiciaire). Whilst of course Mr Redgrave was not in a position to give any undertaking which would be binding on the Jersey Court, he acknowledged that it would appear, on the face of it, to be a good ground for seeking a variation, if such was needed, to ensure that the applicant was properly represented in her defence.[86]I wish to place that matter on record in this judgment for the assistance of the Jersey courts.[87]Mr Redgrave also said, in the course of his submissions, that it would be inconceivable that the Royal Court would allow the trial to go forward where the applicant does not have proper representation. In my view, Mr Redgrave is plainly right and no doubt the Royal Court of Jersey will welcome the fact that that has been stated in open court in this jurisdiction.[88]Let me now draw the threads together. I take the view that none of the suggested breaches of Article 6 will arise, if the applicant is returned to Jersey. On the contrary, I am quite satisfied from all that I have read that, if the applicant stands trial in Jersey, there will be compliance with Article 6. Part 6. Other Grounds of Challenge.[89]There has been a ground of challenge not pressed to any great extent, that, if the applicant is transported to Jersey, there will be a breach of Article 8 of the European Convention on Human Rights. Article 8 provides: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. "2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".[90]In support of this ground Mr Jarman makes the point that the applicant would be forced to live in Jersey. She would be separated from her husband, who is currently in Spain. She would be unable to care for him.[91]In argument Lord Justice Rose observed that it appeared, on the evidence, that the Jersey authorities may be taking steps to secure the presence of Mr Bryce-Richards in Jersey, in order to stand trial. Mr Jarman submitted that that would not be possible owing to his state of health.[92]Unfortunately, the medical evidence concerning Mr Bryce-Richards' state of health, which is currently before this court, is not extensive. It is a medical report which extends to two and a half lines, and it is quite impossible to tell from that whether or not the applicant's husband is in a fit state to stand trial in Jersey. However, I have no doubt that the authorities will have proper regard to any medical reports on Mr Bryce-Richards' condition. Indeed Mr Redgrave confirmed that they would do so in the course of his submissions. It cannot, however, be the case that if, for health reasons, Mr Bryce-Ricahrds remains in Spain, then the applicant can evade trial in Jersey on that account. In that situation Article 8.2 would apply. The applicant would have to be separated from her husband while standing trial on the criminal charges in Jersey.[93]There has also been an argument, advanced on behalf of the applicant, that the proper forum for the criminal prosecution is England and Wales, in particular Cardiff, rather than Jersey. As my Lord has pointed out, it is a novel proposition that a defendant should choose the forum in which he or she is prosecuted. Quite apart from that, however, it seems to me that the principal events which have given rise to the charges against the applicant, are events which have occurred in Jersey. I do not see any rational basis for criticising Jersey as a proper forum for the criminal proceedings.[94]The reality of the position is this: if the applicant is returned to Jersey, she will be able to make to the Jersey courts all applications which she might have made in this country, if she were tried here. The applicant could, for example, apply for bail at the first opportunity when she is produced in Jersey.[95]At this point I should place on record that Mr Redgrave, for the respondents, has said that the Jersey police would not oppose an application for bail in Jersey, if appropriately stringent conditions are imposed and can be met by the applicant.[96]Furthermore, the applicant would be able to challenge the case against her, both at the stage of the committal proceedings, and at the substantive trial. The applicant would be able to make any application as to abuse of process, if so advised. Furthermore, when the case comes to trial, all questions of fact will be decided by the jury and not by the judge. In other words, the applicant will receive a trial in Jersey similar to that which she could expect if she were tried in this country.[97]For all these reasons I see no force in any of the other grounds of challenge. Part 7. Conclusion.[98]These are Habeas Corpus proceedings. The burden rests upon the respondents to show that the applicant's detention is lawful.[99]In my view, the respondents have demonstrated that the applicant is detained lawfully pursuant to section 13 of the 1848 Act. The respondents have shown that there has not been, and is not likely to be, any breach of Article 5 or Article 6 of the European Convention on Human Rights.[100]I take the view, for the reasons set out in parts 4, 5 and 6 of this judgment, that each of the applicant's grounds for claiming Habeas Corpus must fail.[101]The applicant must stand trial in Jersey on the charges which she faces in that jurisdiction. If my Lord agrees, this application for Habeas Corpus will be refused.

LORD JUSTICE ROSE: In the R v Governor of Belmarsh Prison ex parte Gilligan and Ellis [2001] 1 AC 84, Lord Steyn (at 92 E) referred to the United Kingdom procedure in relation to Irish warrants under the Backing of Warrants (Republic of Ireland) Act, 1965 as being "intended to be a simpler and more expeditious process than extradition procedures."

[103]Such an assessment, to my mind, applies equally, indeed with even greater force, to section 13 of the Indictable Offences Act 1848.[104]The Island of Jersey is part of the United Kingdom. The Court of Appeal of Jersey, as my Lord has said, is constituted largely, if not entirely, by English Queen's Counsel. There is, in an appropriate case, a further right of appeal from that Court of Appeal to the Privy Council.[105]The evidence before us from Mr Whelan shows that, since 1998, human rights principles have been applied by the courts of Jersey.[106]The Human Rights Law 2000, which has received royal sanction, is expected to come into force soon. In these circumstances, it is, to my mind, unthinkable that the applicant, if returned to Jersey, will not be accorded a fair trial, including the opportunity to present her case properly through competent counsel.[107]Accordingly and for the reasons given by my Lord, with which I agree, the Jersey bailiff's warrant was properly endorsed by the Cardiff magistrate.[108]Accordingly this application is refused and we order that the applicant be returned to Jersey pursuant to that warrant.[109]MR REDGRAVE: My Lords, I think there must be still an issue of costs and I would simply invite the court to order that costs follow the event.

LORD JUSTICE ROSE: Does the applicant not have a representation order?

[111]MR JARMAN: My Lord, she does.

LORD JUSTICE ROSE: Does she have a contribution?

[113]MR JARMAN: No.

LORD JUSTICE ROSE: With a nil contribution.

[115]MR REDGRAVE: My Lords, there we are. I simply raise one other matter. I was called in 1997. I started practising in 1997 --

LORD JUSTICE ROSE: Fortunately, Mr Redgrave, nothing whatever turns on that, but thank you for telling us.

[117]MR REDGRAVE: I am grateful.[118]MR JARMAN: My Lords, I have two matters, if I may detain your Lordships slightly. The first is to ask that an order be assessed.

LORD JUSTICE ROSE: I am not sure you need such an order, but if you do, you have it.

[120]MR JARMAN: The second matter is to press an application for permission to appeal. My Lords it is an important matter. The matters under the same act.

LORD JUSTICE ROSE: An appeal from here would go to the House of Lords.

[122]MR JARMAN: In a criminal matter it would.

LORD JUSTICE ROSE: Do you need a certificate in a Habeas Corpus case or not?

[124]MR JARMAN: I do not think I need a certificate but I do need permission from this court.

LORD JUSTICE ROSE: We refuse leave to appeal, Mr Jarman.

[126]MR JARMAN: One other matter, if I may test your Lordships' patience. That is to apply for a continuation of the order of Mr Justice Neuberger, that the applicant should not be taken to Jersey until the time for applying for leave for the House of Lords has expired.

LORD JUSTICE ROSE: That is probably right, Mr Redgrave.

[128]MR REDGRAVE: I think it must be. I do not have at my finger tips what the time to appeal to the House of Lords is, in this situation. Otherwise there would be no effective right of appeal or application to the House of Lords to appeal.

LORD JUSTICE ROSE: We shall continue bail on the same conditions as were ordered by Mr Justice Neuberger until the time for application to the House of Lords for leave to appeal has expired.

[130]MR JARMAN: I am obliged.[131]There is a variation of address. I do not know if I need to trouble your Lordships on that matter or whether it can be dealt with, with my learned friend.

LORD JUSTICE ROSE: I am sure it can be dealt with, provided that the variation is acceptable to the prosecution.

[133]MR JARMAN: I have been given an indication that it is.

LORD JUSTICE ROSE: Anything else?

[135]MR JARMAN: No. Thank you my Lords.