Justice for Families Ltd v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,MR JUSTICE TUGENDHAT |
| Judgment Date | 17 March 2009 |
| Neutral Citation | [2009] EWHC 1508 (Admin) |
| Docket Number | CO/7695/2008 |
| Date | 17 March 2009 |
| Court | Queen's Bench Division (Administrative Court) |
[2009] EWHC 1508 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Richards
Mr Justice Tugendhat
CO/7695/2008
The Claimants appeared in person (Senator S Syvret and Mr J Hemming)
Mr James Strachan (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
: These proceedings relate to what is described in the claim form as “the investigation, charging and prosecution of matters relating to child abuse in institutions under the control of the States of Jersey, other cases of child abuse in Jersey and any civil matters arising from such abuses”, compendiously defined in the claim as “the Jersey matter”.
The claimant is Justice for Families Limited, a company which has been represented before us by one of its directors, Senator Stuart Syvret of Jersey, assisted by Mr John Hemming, Member of Parliament. Mr Syvret, despite his lack of experience as a court room advocate, has presented the case with great clarity, coherence and conviction. The claim is bought against the Secretary of State for Justice and the Minister of State at the Ministry of Justice.
I should put on record that the court informed the parties at the outset of the hearing that Mr Justice Tugendhat, one of the members of this constitution, sat as a judge of the Jersey Court of Appeal between the late 1990s and his appointment to the English High Court Bench in 2003 and that in his capacity as a judge of the Jersey Court of Appeal he has met some of the office holders in Jersey whose names are mentioned in these proceedings. He has met them on social occasions as well as in a professional context. That was made clear to the parties. Mr Syvret, for his part on behalf of the claimant, made it equally clear in response that the claimant did not object to this court hearing the case as presently constituted but that was without prejudice to the concerns expressed by the claimant in these proceedings about the legal system in Jersey and the close connections that exist between various office holders in Jersey.
The nature of the case that is brought is in essence that the prosecutorial and judicial processes in Jersey are contaminated by personal, professional and political conflicts of interest that undermine the independence and impartiality of the relevant decision makers, or at least the perception of independence and impartiality, and that the rule of law in Jersey is deficient. As Mr Syvret put it in oral argument, the administration of the justice system in Jersey is simply not functioning as it should; good governance has failed.
These proceedings are directed in consequence at securing direct intervention by Her Majesty's Government in Jersey. This is shown by the nature of the relief sought, namely (1) a declaration that the defendant ministers have a duty to maintain the rule of law in Crown dependencies in accordance with the European Convention on Human Rights and the Constitutional Reform Act 2005 and (2) an order that the defendant ministers impose independent judicial control of charging, prosecution and trials, criminal or civil, of cases relating to the Jersey matter. The relief is expressed in very general terms. Mr Syvret has explained that what is contemplated is the possibility of legislative change in Jersey and possibly the appointment of a Royal Commission or other inquiry chaired by an independent lawyer to examine the system in Jersey and the nature of any changes that may be required. For the proposition that Her Majesty's Government has ultimate responsibility for good government in Jersey and for compliance by Jersey with its international law obligations, reference is made to R (on the application of Barclay and others) v Secretary of State for Justice [2008] EWCA Civ 1319, for example at paragraph 18.
Keene LJ considered the present application on the papers and adjourned it to today's oral hearing on notice to the defendants, observing that the defendants in their summary grounds had put forward a strong case that the claim was misconceived and/or premature but that, in view of the nature of the claim and the issues raised, he did not consider it appropriate to shut the claimant out on paper. So it is that the matter comes before us as an oral application for permission.
The evidence in support of the claim is wide ranging and a substantial body of additional material has been lodged with the court since the claim was filed in mid August 2008. That makes it all the more important to maintain a focus on the statements of facts and grounds in the claim form, which has not been amended. They make clear that the case arises out of the police investigation in relation to Haut de la Garenne, a former children's home managed by the States of Jersey. It is alleged that the investigation has uncovered evidence of gross child abuse over many decades and possibly of child murders. It is further alleged that when clear examples of child abuse have come to the attention of the Jersey authorities their reaction has been to engage in cover ups and that the entire edifice of public administration in Jersey has a clear and substantial reputational stake in the Jersey matter which renders them incapable of appearing disinterested and objective in relation to any charges or proceedings arising from that matter. A matter emphasised in oral submissions is the small size of the community in Jersey, which it is said aggravates the problem. The position is said to be similar to that in Sark, as described in the Barclay case, already cited, at paragraph 67.
Those general matters lead into a more specific allegation that various conflicts of interest arise through the structure of public offices in Jersey and the activities of office holders. One point made is that the Bailiff and Deputy Bailiff are not only speaker and deputy speaker of Jersey's legislative assembly, known as the States, but also head and deputy head of the judiciary; and it is said that the Bailiff has made overtly political speeches, including an attack on the child abuse investigation, which are acceptable for a politician but not for the head of the judiciary.
It is said further that Jersey's Attorney General and Solicitor General, who are responsible for determining prosecutions, and in that respect have the powers of a Director of Public Prosecutions, are also routinely involved in providing day to day legal advice to the Executive and to the Assembly, advice which it is said frequently strays into the political. The overlap of functions is submitted in any event to create an inescapable conflict of interest. An example given concerns the Attorney General's role in deciding whether to bring prosecutions in relation to alleged child abuse whilst at the same time advising the Executive in relation to the issue of potential civil claims for damages by victims of such abuse.
The allegation is made that there have been specific instances of political interference in the normal charging and prosecutorial process relating to the child abuse investigation. I will come back in a moment to evidence relevant to that matter.
These concerns were raised with the defendant ministers by Senator Syvret in a letter or report dated 27th March 2008,...
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