Draft Criminal Offences (Jersey) Law 200.

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A decision made (12/01/2007) regarding: Draft Criminal Offences (Jersey) Law 200-.

Subject:	Draft Criminal Offences (Jersey) Law 200-
Decision Reference:	MD-C-2007-0001		Exempt clause(s):	n/a
Type of Report: (oral or written)	Written		Person Giving Report (if oral):	n/a
Telephone or e-mail Meeting?	n/a		Report File ref:
Written report – Title	Draft Criminal Offences (Jersey) Law 200-
Written report – Author (name and job title)	Ben Griffiths, Research and Project Officer
Decision(s): To approve a draft law, entitled the draft Criminal Offences (Jersey) Law 200-. The purpose of this draft Law is to clarify and codify the law relating to subsidiary offences (where the offender is not the principle actor or the offence is incomplete) and to remove an antiquated distinction between crimes and délits. Specifically:- 1) to abolish the distinction between crimes and délits; 2) to clarify the law relating to attempt; 3) to codify the law relating to conspiracy and incitement; 4) to codify the law on aiding, abetting, counselling or procuring the commission of an offence; 5) to codify the law on criminal liability of persons whose consent connivance or negligence is responsible for offences committed by bodies corporate or by limited liability partnerships.
Reason(s) for decision: The existing law relating to these offences is potentially unclear. The draft legislation would remove this lack of clarity and avoid situations where customary law could come into conflict with statutory law. Furthermore, this legislation relates to some of the most basic principles of criminal law in Jersey. It is considered an important step forward in clarifying and codifying the law. This is especially important with respect to removing uncertainty over the ability to charge persons with attempt, conspiracy and incitement when they are concomitant with statutory offences.
Action required: BG to arrange with the States Greffe for the draft law to be lodged ‘au Greffe’ for consideration by the States on 27th February 2007.
Signature:		Date of Decision: 12 January 2007

Draft Criminal Offences (Jersey) Law 200.

Report to the Chief Minister

Draft Criminal Offences (Jersey) Law 200-

Introduction

The Chief Minister is asked to approve the draft Criminal Offences (Jersey) Law 200-, the purpose of which is to clarify and codify the law relating to subsidiary offences (where the offender is not the principle actor or the offence is incomplete) and to remove an antiquated distinction between crimes and délits. Specifically:-

1) to abolish the distinction between crimes and délits;

2) to clarify the law relating to attempt;

3) to codify the law relating to conspiracy and incitement;

4) to codify the law on aiding, abetting, counselling or procuring the commission of an offence;

5) to codify the law on criminal liability of persons whose consent connivance or negligence is responsible for offences committed by bodies corporate or by limited liability partnerships.

Background

The distinction between crimes and délits is an antiquated legal function that has become functionally obsolete since the Criminal Procedure (Prescription of Offences) (Jersey) Law 1999.[1]

The provisions in the draft law will help to clarify some basic principles relating to criminal law in Jersey. Especially in relation to the law relating to attempt, conspiracy and incitement, the new law will help to resolve any doubt that there might be about the ability to charge persons with attempt, conspiracy and incitement when they are concomitant with statutory offences. This is of particular relevance to financial crime.

This proposal does not have any resource implications, as confirmed below –

Financial: Nil

Manpower: Nil

Property: Nil

ICT: Nil

Law Drafting: Nil (the draft legislation has already been drafted and is attached to this report)

The draft Law has been considered by the Legislation Advisory Panel and it has their support. The Panel’s recommendation to the Chief Minister is that it should be approved and lodged ‘au Greffe’ for consideration by the States.

Recommendation:

It is recommended that the Chief Minister should approve the draft Law and agree that it be lodged ‘au Greffe’ for consideration by the States on 27th February 2007.

Ben Griffiths,

Research and Project Officer

10th January 2007

REPORT

The purpose of this draft Law is fivefold:-

(i) to abolish the distinction between crimes and délits;

(ii) to clarify the law relating to attempt;

(iii) to codify the law relating to conspiracy and incitement;

(iv) to codify the law on aiding, abetting, counselling or procuring the commission of an offence;

(v) to codify the law on criminal liability of persons whose consent, connivance or negligence is responsible for offences committed by bodies corporate or by limited liability partnerships.

Abolition of the distinction between crimes and délits

Both crimes and délits are customary law offences. The distinction between the two is simple but blurred: crimes are the more serious offences; délits the less serious. The distinction between the two has its roots in what was known as the cause en adjonction. This was an action in respect of a délit (the word “délit” being used in its civil sense of delict or tort) in which the Attorney General was joined in the proceedings, thus enabling the Royal Court in the same proceedings to award civil damages and impose a fine or other penalty [2]. Thus the civil and criminal elements in, for example, a common assault, were fused. However, in the case of a grave and criminal assault (assaut grave et criminel)[3] there was an outright prosecution at the instance of the Attorney General.

With the emergence of a more formal police force in the nineteenth century, délits came to be regarded as simple criminal offences, analogous to misdemeanours, and prosecuted independently of civil delictual proceedings. However, one important civil feature still attached to délits: prescription. A prosecution in respect of a délit had to be brought within a year and a day. This mirrored the prescription period in civil proceedings for a tort. The Law Reform (Miscellaneous Provisions) (Jersey) Law, 1960, extended the prescription period in respect of civil tort to three years. The Law Reform (Miscellaneous Provisions) (Jersey) Law, 1978, followed suit and increased the prescription period in relation to délits to three years.

The position was, however, transformed by Article 2 of the Criminal Procedure (Prescription of Offences) (Jersey) Law 1999 which abolished prescription in respect of offences whether customary or statutory. Even though Article 1 of that Law (as it had to) made the distinction between a crime and a délit, that Law effectively rendered the distinction otiose and opened the way for the States to enact a provision to the effect that the distinction at customary law between a crime and a délit be abolished [4].

Article 2 of the draft Law would therefore provide that délits for all legal purposes be merged with crimes.

The law of attempt

At customary law, it is an offence to attempt to commit a customary law offence. It is generally accepted that an attempt to commit a crime itself ranks as a crime; and an attempt to commit a délit itself ranks as a délit.

The position in relation to attempt to commit a statutory offence (une contravention) is less certain. There are differing legal opinions as to whether or not there exists at customary law a general offence of attempt to commit a contravention.

Historically, under the law of England and Wales, it was an offence to attempt to commit a statutory offence. However, statutory offences in that jurisdiction were generally expressed in the statute creating them to be either felonies or misdemeanours, both of which were offences at English common law.

If there were an offence at Jersey customary law of attempting to commit a contravention, there would generally be a right of trial by jury in respect of the alleged attempt but there would be no right of trial by jury in respect of the principal offence. It would also be difficult, if not impossible, to determine in any given case whether an attempt at a contravention ranked as a crime or a délit.

Articles 3 and 4 of the draft Law would clarify once and for all the legal position (including that which pertains when there is an attempt within the Island to commit an offence outside the Island).

The law relating to conspiracy

Frequently, in practice, persons have been indicted on counts of conspiracy [5] and reference to complot is to be found in statute [6]. But exactly what constitutes conspiracy in Jersey law has never authoritatively been determined. The assumption is that the Royal Court would be guided more by contemporary English authorities than by Norman or contemporary French law. But that is only an assumption.

Article 5 of the draft Law would set out the elements of the offence of conspiracy to commit an offence (see the draftsman’s explanatory note for further detail).

The Law relating to soliciting or inciting an offence

Again, persons have been charged with incitement or soliciting [7], however, as with conspiracy, what precisely constitutes such an offence remains, to some extent, a matter of conjecture.

Article 6 of the draft Law would clarify the law (see the draftsman’s explanatory note for further detail).

Aiders and abettors

The offence of aiding and abetting a customary law offence is well established. What is less clear, however, is whether it is an offence to aid and abet the commission of a statutory offence (a contravention) if the statute has not made express provision to the effect that aiding and abetting that particular offence shall, itself, rank as an offence.

Article 9 of the draft Law would put the matter beyond doubt.

Offences by bodies corporate and limited liability partnerships

This is not a matter of customary law, but of statute. As the draftsman’s explanatory note makes clear, Article 10 would make a provision of general application which would avoid the need to make separate provision in each individual statute in this regard.

Offences committed outside Jersey

There is little or no guidance at the moment as to whether criminal liability attaches to acts done in the Island in contemplation of an offence to be committed outside the Island. The draftsman’s explanatory note in respect of Article 11 goes into detail about the provisions that the draft Law would make in this respect. It is unnecessary to repeat that detail in this Report.

Miscellaneous

The draft Law would go on to make certain consequential provisions including an amendment of the Privileges and Immunities (Diplomatic, Consular, etc.) (Jersey) Law 1998 resulting from the codification provisions in the Law (see Articles 12 and 13).

Conclusion

The provisions of this draft Law are an important step forward in clarifying and codifying some of the most basic principles of the criminal law of Jersey.

Especially in relation to the law relating to attempt and to conspiracy and incitement, it is important to resolve any doubt there might be about the ability to charge persons with those offences when they are concomitant with statutory offences. This is of particular relevance to financial crime.

There are no financial or manpower implications for the States arising from the draft Law.

[1] Only one statute depends on the distinction and this would be amended by the draft law without any loss of function. (see p.2 of the accompanying report).

[2] There was apparently no discretion in the Attorney General to prosecute if the victim did not complain; see Le Geyt Privilèges, Loix et Coutumes de l’Isle de Jersey, page 85, Article 1

[3] Note the significance of the word ‘criminel’ indicating that the assault ranks as a crime rather than a délit.

[4] The only remaining statutory provision which depends upon the distinction between a crime and a délit is Article 7(2)(g) of the Privileges and Immunities (Diplomatic, Consular, etc) (Jersey) Law 1998 which reflects certain requirements of the Vienna Convention on Consular Relations having the force of law in the Bailiwick. That provision would be amended by the draft Law to take account of the abolition of the distinction between a crime and a délit.

[5] See, for example, AG -v- McLean and Brown (1979) JJ 93 (Court of Appeal).

[6] See, for example, Article 3 Loi (1884) sur les matières explosives.

[7] See, for example, Manton -v- Postal Committee (1993) JLR Notes - 7