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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of the Connetable and the Procureurs du Bien Public of the Parish of St John 15-Mar-2021 [2021] JRC 091 (15 March 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_091.html Cite as: [2021] JRC 091, [2021] JRC 91 |
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Customary supervisory jurisdiction over officers of the Parish of St John
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Before : |
Sir William Bailhache, Commissioner, and Jurats Blampied, Ramsden and Ronge. |
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Between |
HM Attorney General |
Representor |
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And |
Christopher Taylor, Connétable of St. John |
First Respondent |
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Stephen Hewlett |
Second Respondent |
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Michel Larose |
Third Respondent |
AND IN THE MATTER OF THE CONNÉTABLE AND PROCUREURS DU BIEN PUBLIC OF THE PARISH OF ST JOHN
HM Solicitor General, M. T. Jowitt Q.C. for the Attorney General.
Advocate D. S. Steenson for the First Respondent.
Advocate H. B. Mistry for the Second Respondent.
Advocate N. S. H. Benest for the Third Respondent.
judgment
the commissioner:
1. The First Respondent ("the Connétable") is the Connétable of St John. The Second and Third Respondents (the "Procureurs") are Procureurs du Bien Public of the same parish. This representation was brought by HM Attorney General in respect of a prosecution of the Connétable before the Magistrate's Court for dangerous driving and the legal costs incurred by him in respect of that prosecution, some of which at some stage were paid by the Parish of St John, albeit subsequently reimbursed in part by the Parish's insurers and in part by the Connétable personally. In the prayer to the representation, the Attorney General, who brings this representation as the Partie Publique, invited the Court, following a hearing, to exercise its customary supervisory jurisdiction over the officers of the Parish of St John and determine whether any action should be taken against each or any of the Respondents.
2. The representation invited a date to be fixed for the hearing of the matter before the Inferior Number. The Court determined of its motion that, in accordance with custom, the matter should be heard before the Superior Number which we convened for this purpose.
3. We should say at the outset that despite the implied criticism of the Attorney General by the Connétable for bringing this representation, we consider that he has done so in accordance with custom: and in the circumstances it was his duty to bring the matter to the attention of the Court for adjudication and he should not be criticised for it. We will return to the nature of the Court's jurisdiction later in this judgment, but we consider that the hearing and hopefully this judgment will be useful for the honorary service in all the parishes.
4. We also add that Advocate Steenson contended at the outset of the hearing that there was uncertainty as to the allegations which the Connétable faced - we did not share that view and furthermore considered that if there were any doubt on that subject, the matter should have been raised earlier, noting that the directions pre-trial in this case had been made by consent of all the parties. Indeed, despite his objections, Advocate Steenson did not find himself in any apparent difficulty in understanding the nature of the questions he had to address. He was aware they were summarised at paragraph 26 of the Representation namely:
"26. The Representor submits in light of the above that the following matters fall to be considered:
(a) The First Respondent's conduct which gave rise to the conviction for dangerous driving together with the Magistrate's conclusions as to his evidence:
(b) The conduct of all three Respondents, collectively and individually, in terms of their approach to the use of Parish funds to pay the First Respondent's legal fees, both as a matter of general principle and in circumstances where there was an obvious risk that some or all of such funds would not be recouped from DAS [Legal Expenses Insurance Company Limited] and/or through a defence costs order in the event of the First Respondent's acquittal or at all; and
(c) The possibility that there may have been an attempt to mislead others that legal advice had been sought from and given by the Attorney General or his Department on the use of Parish funds to pay the First Respondent's legal fees."
The Connétable recognised these were the issues in paragraph 3 of his affidavit.
5. An application was made by the Solicitor General to cross examine the Connétable on his affidavit. As single judge, I rejected that application on the basis that, insofar as concerns the conviction, the facts are as they are and although the evidence from the Connétable on the fees issue would have been helpful, the Connétable was not at the critical meetings; but by choosing as he did not to give evidence, the Connétable must accept that the Court is left with doing the best it can on the evidence it has before it.
6. The Connétable was charged before the Magistrate's Court with having driven a motor car dangerously in the Parish of Trinity on Sunday 2nd June 2019, contrary to Article 22(1) of the Road Traffic (Jersey) Law 1956. The trial took place before the Relief Magistrate, Ms Fitz, on 20th August 2020, and her reasoned decision was handed down some days later. The Connétable was convicted of dangerous driving and disqualified from driving for 18 months, fined £4,000 and ordered to pay £800 towards the costs of the Attorney General. He did not appeal.
7. The prosecution case was that on the day in question, a road race was held by the Caesarean Cycle Club in the Parish of Trinity which required the closure of the north bound lane of La Route de Bechet es Cats to traffic. Signage was put up and there were two marshals in place to ensure safe passage for the cyclists heading south down that road and turning left into Route d'Ebenezer. The marshals wore high visibility vests clearly marked "Race Marshal". The Connétable drove his vehicle past the road closed signs at a fast walking pace of 5 - 6 miles per hour. The car, moving without pause, hit one of the marshals in the lower legs and he was pushed backwards. He shouted for it to stop and, with the flagpole in his right hand, struck the bonnet to attract the driver's attention. The car momentarily stopped but then almost immediately started rolling forward again. The marshal described the driver as angry and shouting. The car stopped again and then started nudging forward. There was no revving of the engine, but the marshal was concerned the driver might lose control of it and he struck the bonnet again shouting "stop". His evidence was that the car stopped some 3 - 4 metres from where it had first struck him, and the driver immediately got out and confronted him. The Connétable told the marshal that he had no power to stop him as he was not the police, and said that he was the Connétable of St John, that he had not given permission for the race and there would never be cycle racing in St John ever again. The Connétable then got back into his car, reversed into Route d'Ebenezer and drove off down Rue Militaire.
8. At 9:12 a.m. the same day, the Connétable sent an email to the Connétable of Trinity in these terms:
"Morning Philip, on my way to work this morning I noticed two Marshals and some Road Closed signs on Rue du Bechet es Cats. The Marshals were controlling traffic and (whilst I know this is your parish) I tried to park up and find out if the race was going through St John. The Marshal yelled at me saying you can't park there, and whacked my car with his flag. When I got out the car he was abusive and when I introduced myself as the Constable of St John he replied "I don't care who the f**k you are you cannot park there can't you see the road is closed?" He had no idea what a Constable was and refused to give his name other than "Dave" so I left before the incident became more inflamed. The last thing I want is to tread on your toes, this was in your parish, but I felt I should let you know straight away. All the best, Chris".
9. The defence case was that the Connétable was heading to the Parish Hall in St John as he normally works there on a Sunday morning. He saw that the road ahead was closed and he was concerned because he knew nothing about its closure. Normally the Connétables are notified of a road closure and as a St John Centenier lived on the closed road, the Connétable thought the Centenier would have notified him if he had known about it and accordingly he concluded that the road had been closed illegally. He said that he was very concerned as he had vulnerable parishioners living on that road and he wondered if they had been notified and provision made for emergency service access. He explained that the land on the left of the road is in St John so the individuals living on the left were St John parishioners. The Connétable had no idea that there was a cycle race and he attempted to park in front of a field entrance. He said then that the marshal ran in front of the car and when he had stopped the car, the marshal banged his fists on the bonnet shouting at him that he could not go there. The Connétable was in a state of shock but became irate. The marshal struck the car with his flag at which point the Connétable got out of the car and introduced himself. As the Connétable could not get any sense out of the marshal, he got back into his car and left.
10. The Relief Magistrate reviewed all the evidence; she found that the Connétable's evidence in Court was not plausible for a number of reasons, and that he had given inconsistent explanations on three different occasions - his email to the Connétable of Trinity, a pre-prepared statement given to the police on 3rd July 2019 and his evidence in the witness box. The evidence of the marshal who had been struck by the Connétable's car was found to be compelling and was supported by other evidence. The Relief Magistrate concluded:
11. Although the Relief Magistrate's judgment was much fuller than is described, we have set out the material parts for the purposes of this hearing. We note that the facts found by the Relief Magistrate not only established the charge of dangerous driving but would almost certainly have established a charge of grave and criminal assault if that had been brought. We have had primary regard therefore to the conduct as established as well as the charge of which the Connétable was convicted. We record that the Connétable disagrees with the Relief Magistrate's conclusions and considers they were wrong. That is still his belief and we will return to that later in this judgment. Advocate Steenson rightly made no submissions that, for the purposes of the hearing, we should do other than proceed on the basis that the Relief Magistrate's findings and judgment are conclusive and cannot be reopened.
12. The Connétable was charged on 20th January 2020. According to his affidavit he informed the Procureurs immediately and met them later that week. The Connétable felt that he had been acting in his capacity as Connétable, because, as we understand it, he had been driving to the Parish Hall to work on behalf of the Parish and/or because his parishioners lived on the western side of the road in question and/or because he had a legitimate concern that the road had been closed unlawfully, thus putting them at risk. (In fact he was right that the closure of the road by the Connétable of Trinity was not lawful because it was not a parish road but a public road, but it is unclear whether he would have known that at the time.) He deposed that the Procureurs agreed that he was serving in that capacity and it was felt that he should see the Parish lawyer and claim on the Parish insurance. The Connétable was hopeful of defending himself successfully and he believed in that event his costs would be covered by a costs order in his favour. He thought that any shortfall would be covered by insurance, but he said in his affidavit that he made it plain to the Procureurs that if there was a shortfall, he would pay personally - similarly if he was convicted or if there was a problem with the insurance. He had no intention that the Parish should ever be out of pocket.
13. The Second Respondent told us that when he was informed in June 2019 that the Connétable considered he had been on Parish business in checking why the road in question was closed, he felt able to accept that statement without question. It was a surprise to him when the Connétable was subsequently charged with dangerous driving. He considered that at some point after the first fee note was received from the Connétable's lawyers, it was suggested that if the Parish paid those fees in the first instance, it would be easier to claim reimbursement from the insurers, as the insurers would view that payment as a parish expense. The Third Respondent thought this might have been a suggestion made by the Connétable. Neither Procureur was involved in the negotiations with the insurance brokers, which were handled by the Connétable personally.
14. As we have not heard from the Connétable, we are not acquainted with the detail of the negotiations with insurers, which he dealt with, and can go only on the documents we have seen. There is an email dated 17th February 2020 to the Connétable from Islands Insurance informing him of his own Motor Policy DAS reference number and likewise the DAS policy number for the Constables and Honorary Police. This appears to be an overarching policy arranged by the Comité de Connétables for the Connétables and the Honorary Police. There is reference to a conversation between Islands Insurance and the Connétable the previous week to the effect that they thought it best that the Connétable use the Constables policy. On 18th February 2020, the Connétable replied - he had been in touch with DAS and had received the strong impression that they would not honour the claim. On 25th February 2020 DAS indicated in writing they would consider the claim but they needed full details of the case from the Connétable's lawyer. The Connétable provided a copy of this response to the Parish Secretary.
15. On 2nd March 2020, Island Insurance wrote to the Connétable to say that there was a problem with the Connétable's lawyers who had not been approved by DAS. There was an option to go to a firm of DAS approved lawyers. The company agreed to meet the Connétable's claim if he used a lawyer who would agree to its terms. The Connétable challenged this on 8th March 2020 and the following day received an email from Islands Insurance to the effect that they were chasing DAS "to try to get them to pay towards your legal costs." There is a further email to the Connétable on 12th March 2020 to the effect that DAS had confirmed that they would be prepared to consider reasonable costs from the Connétable's lawyer (not Advocate Steenson at that stage).
16. On 17th March 2020 DAS confirmed that they would contribute towards the Connétable's legal costs.
17. The first invoice from the Connétable's lawyers in the sum of £2,921.36 (which included GST) was addressed to him personally at his home address and dated 28th February 2020. The Parish was not mentioned in the invoice. The Third Respondent told us that shortly before 9th March, there was a meeting at the Parish Hall involving the Connétable and the two Procureurs. It was then that it was suggested - he thought by the Connétable - that it would be easier to claim reimbursement of the defence costs from the insurers if the Parish paid the fees in the first instance. The Connétable gave assurances that he had been told the insurers would pay. Some days later, the Connétable came to the Third Respondent's house with a cheque in favour of the lawyers settling their first invoice. The Third Respondent was uneasy about paying it and refused to sign it. A few days later, the Connétable returned with the same cheque, now already signed by the Second Respondent. The Connétable gave his absolute assurance that he would reimburse whatever the insurers did not pay. The Third Respondent trusted the Connétable to be a man of his word, and he countersigned the cheque on that basis. He later countersigned two further cheques, to settle further invoices, both including GST one for £2,415 on 27th April and the other for £2,095 on 4th July 2020, confident in his understanding that there would be full reimbursement from the Connétable if the insurers did not pay the full amount.
18. The Second Respondent told us that when he was advised that there was a potential issue with insurers, he got out the parish insurance policy and studied it. He had worked as a director of the Jersey Mutual following his retirement from business and he felt confident in his ability to study the policy. He had always thought that the Connétable would repay any shortfall; he did not get that in writing but he had known the Connétable for 40 years and he had had no reason to question his integrity. In fact, the parish policy - not the DAS policy - does not seem to have covered the Connétable for legal expenses in defending the charge brought.
19. The Second Respondent told us that his position was that the Connétable was acting in the course of his duties as Connétable of the Parish; he was aware that the Connétable denied that he had done anything wrong, and he, the Procureur, was of the opinion that where allegations were made against an officer of the Parish, the Parish has a moral obligation to assist that officer and protect him. It was not for him as Procureur or anyone else except a court to make findings about guilt; but nonetheless he described the prosecution as a witch-hunt.
20. On this basis, the various legal fees incurred by the Connétable were paid by the Parish pending reimbursement from the insurers and/or the Connétable. At the time the first lawyers' bill was paid, no confirmation had been received from the insurers that, even in principle, they would meet the claim. At the time subsequent bills were paid, although the claim had been accepted in principle, there remained doubt as to the extent of the cover.
21. By 30th April 2020, (the Parish year-end) there was a balance of £7,078 (excluding GST) which had been advanced or provided by the Parish towards the Connétable's legal fees and thus was shown in the Parish Accounts. The insurers were not expected to reimburse the Parish until after the final account had been rendered. We have not heard from him but it appears the Parish auditor challenged the payment by the Parish of the interim legal fees charged to the Connétable by his lawyers and was apparently satisfied with the answer that the Connétable was on Parish business and that there had been a claim on the Parish insurance cover. According to Mr Crocker, one of the churchwardens, the auditor thought there was a fine line between parish and personal business but in any event he agreed to show the fees as an expense of the Parish.
22. The draft accounts were considered at the meeting of the Comité Paroissial on 7th July 2020. The context for the discussion is set out in the Rector's affidavit evidence:
"6. At the Meeting of the Comité Paroissial on 7 July 2020, the Parish Accounts were presented and discussed. It was explained that the increase in spending for Legal Fees was in respect of the First Respondent's legal fees for defending the charges against him for dangerous driving. The minutes of this meeting are at BLS 1/pp. 1-4 and my note to Dean covering this and the following meeting is at BLS 1/pp. 6-7.
7. It was explained at the meeting by the Parish's auditor, Don Connolly (of Alex Picot) that, following a meeting the week previously, it had been agreed that the Connétable had incurred fees whilst carrying out his official duties as Connétable and therefore it was correct for them to be included in the Parish Accounts. The auditor had explained that he had been given a note saying that the Procureurs and Connétable had agreed to do this. We have not had sight of any such minute. The auditor himself in his explanation said that it was a very fine line whether personal or parish.
8. It was agreed at the meeting that a note would be added to the accounts stating that it was hoped that most, if not all, the money would be reimbursed by the insurers.
9. I, as Rector, and the Churchwardens raised questions about this to the effect of whether it was appropriate use of parish funds. There was discussion about insurance cover. We emphasized that this was public money and a sensitive issue, and not to be 'buried'.
10. Mr Nicholas Crocker, Church Warden, asked if there was any precedent of this being done in other Parishes. Mr Connolly said he was not aware of anything similar.
11. Mr Stuart Langhorn, also a Church Warden, had asked that the First Respondent leave the room whilst these questions were being asked, and he did leave the room. He queried whether anything had been done to mitigate the level of the legal expenses."
23. In relation to the suggestion of the churchwarden, Mr Langhorn, that the Connétable should leave the meeting while there was discussion about the legal expenses shown (which he did without demur) the Second Respondent was apparently offended by this request being made. However, the Connétable did withdraw and when he returned, it was explained that the Rector and Church Wardens considered there should be full transparency and there should be a note in the accounts to the effect that the insurance cover was expected to provide reimbursement of at least some of the monies disbursed; and a note was duly drafted and agreed. The issue was raised because the account showed an overspend in legal fees of £7,033 over budget; and the Note read: "Included with Legal and Professional Fees is an amount of £7,078 relating to legal services incurred by the Constable in relation to a matter which occurred while acting in his capacity as Constable of the Parish. There is a reasonable expectation that the Parish will receive reimbursement, either in full or in part, for the amounts paid by the Parish in this respect."
24. It is to be noted that the explanatory note did not indicate that the Connétable would make reimbursement if the insurers did not pay the full amount of its outlay back to the parish. The Churchwardens explained in evidence that they had been taken by surprise at the meeting of the Comité Paroissial and this was what they came up with at short notice. We also note the evidence of Mr Langhorn, one of the churchwardens, to the effect that he did not vote in favour of the draft accounts, even with the addition of the Note, although the draft minutes suggest the accounts were approved unanimously. Mr Langhorn agreed that he did not vote against.
25. The Second Respondent considered that the Connétable had been transparent in advising his colleagues that the insurers had said that they would cover something but he could not say how much, the context for which was that they would not make payment until the case was completed. He confirmed to us that the Connétable had always made it clear that he would cover the costs if for any reason the insurance company did not underwrite them, and that the Parish would not be at a loss although he did not know precisely when that confirmation had been given. We note that the Connétable in his affidavit evidence before the court has not given us any expressed reason as to why he was in fact acting on Parish business.
26. On 14th July 2020, the day before the Parish Assembly, Mr Crocker, the other churchwarden, emailed the Procureurs, copying his email to the auditor, the Rector and Mr Langhorn. The email represented the joint views of Rector and Churchwardens and had been discussed in advance by them. In it, Mr Crocker concluded that the Procureurs should now take legal advice and seek Royal Court guidance on whether and how far it had been lawful and correct to use parish funds to pay the legal fees. Unless the legal advice was that such payment was lawful, Mr Crocker suggested that the amount spent should be treated as a loan to the Connétable, to be repaid by him promptly. He had no reply to this email. The Second Respondent told us he had not received it. He had checked all the records in his computer system. The Third Respondent may not have seen it as he was less likely to check his emails regularly.
27. That the Second Respondent was aware of the email is clear from an email sent subsequently by the auditor to the Second Respondent when the records were reviewed at the end of August. It was plain from that email that he spoke with the Second Respondent at 12:32 on 15th July 2020 to advise that the accounts be revised to show the Connétable's legal fees as a loan to him by the Parish rather than as an expense of the parish. It was agreed that a revised version of the accounts would be drawn up while the Second Respondent would attempt to contact the Connétable to discuss the matter. Revised accounts were drawn up accordingly and were considered at a meeting of the Procureurs with the auditor at the Parish hall immediately before the Assembly. The Second Respondent apparently advised that the Connétable was unable to agree them due to his ill health. The auditor suggested the Assembly be cancelled but the Procureurs decided to proceed with presenting the accounts to the Assembly as originally agreed at the Comité Paroissial.
28. The Parish Assembly to consider the accounts was held on 15th July 2020, but for medical reasons, the Connétable was unable to attend. Accordingly the meeting was chaired by the Third Respondent. The Procureurs and the Church witnesses agreed that the Assembly had been awkward and ill tempered.
29. It is said by the Rector and both churchwardens that the Second Respondent informed the Assembly that the Comité Paroissial had unanimously approved the draft accounts, which was not wholly accurate as Mr Langhorn had not voted, and that he (the Second Respondent) had taken advice from the Attorney General with the clear implication at the very least that the approach taken in relation to the fees of the Connétable was appropriate. The Second Respondent told us that it was true he said he had taken advice but he never said that he had taken it from the Attorney General or the Royal Court. As a result of the advice he had received, he thought that the payments made towards legal fees may not have been strictly legal. He considered he had made that position clear to the Assembly and had not misled anyone. The Third Respondent's recollection is that the Second Respondent did say that he had taken advice as to the payment of the fees, but he did not specify whether it was legal advice or some other advice. The Third Respondent said that he recalled speaking to the Second Respondent after the meeting, to ask him about the advice which he had taken, and the Second Respondent confirmed that he had spoken to the insurers.
30. Given the Parish Assembly had been bad tempered, and in the light of all that had been said, the two Procureurs attended, at the instance of the Third Respondent, upon the Connétable at his home on 16th July 2020, to request that he immediately reimburse the Parish with the full amount of the legal fees that had been advanced on his behalf. The Connétable agreed without any demur that he would do so, and he did. The Third Respondent had said that it was always his understanding that the Parish would not ultimately be paying the defence legal fees which would either be reimbursed by the insurers or by the Connétable. The Procureurs accept there is no formal written record of this arrangement or agreement. The Third Respondent said to us that with the benefit of hindsight it would have been better to have had it minuted for the record to avoid misunderstandings.
31. We heard evidence from the Procureurs as well as from the Rector, the Reverend Beverley Sproats, and the two church wardens, Mr Stuart Langhorn and Mr Nicholas Crocker. We consider that the evidence of all bar Mr Hewlett was truthful and reliable. We do not doubt Mr Hewlett tried to give his evidence truthfully and fairly, but we found him to have been less reliable in his recollections - the evidence over the email from Mr Crocker on 14th July 2020 which he said he did not receive is one example of why we have reached that conclusion - and he gave us the impression that his loyalty to the Connétable, which is very admirable in many ways and speaks well for the two of them, may have clouded the evidence he gave where the conduct of either of them might have given rise to criticism. He implied that these proceedings themselves were all a bit unnecessary, caused by the complaints of a few trouble makers. We were satisfied that he did make the assertion, no doubt under pressure, at the Parish Assembly that he had taken advice from the Attorney General, and of course having made such a statement, it was difficult to resile from it, other than by a denial it had been made.
32. The Royal Court is a court of inherent jurisdiction. Until 1771, it had the power to make ordinances, or laws, quite apart from its power to deliver judgment in individual cases.
33. For centuries, the Connétables, as with many other parish officials, have taken their oath of office before the Royal Court. In our view, that promise to the Court carries with it an obligation to the Court, which is part of the justification, with the court's inherent jurisdiction, for the disciplinary power exercised by the Court over those in honorary service in the parishes, as is clear from the authorities. Indeed, the court's supervisory jurisdiction can be seen from the Visites Royales, which normally take place twice a year, each parish being visited once every six years. Although these historically (from at least the thirteenth century) were concerned with the upkeep of the parish roads, that has progressively been extended until today where the whole parochial administration is reviewed, including the accounts of the parish and a report from the Chef de Police on the conduct of parish hall enquiries. What is also clear is that the administration of the oath of office to those elected or appointed to honorary parochial office was not a mere ministerial act of the court. There was a judicial discretion attached to its exercise. Thus in AG v Le Brun [1954] 248 Ex 382, the court was informed by the Attorney General that Mr Le Brun, who had been elected to the office of Procureur du Bien Public in the Parish of St. John, had been sentenced by the Royal Court on 19th February 1949 to a fine of £250 for contravening the provision of the Milk Control (Jersey) Order 1947, with six months' imprisonment in default. The court ruled that he was eligible for the said office, notwithstanding the sentence which had been imposed. By contrast, in re the Connétable de St Pierre 1888 10 CR 400, the court declared the candidate was ineligible for election to the office of Connétable and fresh elections were ordered. A similar outcome can be seen in relation to a Constable's Officer in Procureur General v Dupre 1886 211 Ex 115.
34. That the Royal Court maintained its jurisdiction over these parochial offices can be demonstrated in other cases as well. In Re Vautier [1902] 221 Ex 400, the court declared that the offices of Centenier and Procureur du Bien Public were incompatible. In Balleine v Giffard 1888 212 Ex 540, referred to the full court at 10 CR 397, the court declared that the Connétable of a parish must live in that parish. Exception has been made for St Helier by the Parish of St Helier (Qualifications for Office) (Jersey) Law 1976, on the assumption that the office of Connétable remains an honorary office as provided for by that law. In Re Arthur 1888 212 Ex 536 and in Re Binet 1926 234 Ex 90, the court made orders permitting the Connétable to resign on health grounds.
35. This very brief review demonstrates that by the turn of the 20th Century, the court's jurisdiction over the municipality of the parishes had been undeniably established. Some changes have been made in the legislation adopted by the States, to which reference is made below, but to this day, all members of the Honorary Police as well as members of the parish municipality appear in court in person, generally on a Friday, to take their oaths of office. Such ceremonies are usually attended not only by members of the officer's family and friends but also by representatives of the parish, confirming those links between the parishes and the court. They affect hundreds of people directly and many more indirectly. They form part of the traditional fabric of the Island.
36. Although the Connétables also take their oath of office before the Royal Court, the office of Connétable is different from those of the other parochial officers because the Connétable is a member of the States of Jersey. It is of interest that as recently as 1966, by Article 17 of the States of Jersey Law that year, there is provided:
37. Thus it is that Bois in his Constitutional History of Jersey (1972) stated at 5/98:
38. It should not be thought that the court's jurisdiction is purely historical. In re the Connétable of St John (14 July 1994), the Superior Number sat to consider the representation of the Attorney General occasioned by the conviction of the then Connétable of an infraction under Article 16A (1) of the Road Traffic (Jersey) Law 1956 - driving a motor vehicle with excess alcohol in his blood. Compared with some of the cases the Magistrate has to deal with, the excess alcohol reading was relatively low, the Connétable having given a blood sample showing 100 milligrams of alcohol per millilitre of blood, the limit being 80 milligrams. The Royal Court decided that it would be appropriate that the Connétable be required to resign his office. The basis for this conclusion was not a consideration of the position of the Connétable as a States Member, but as head of the police of his parish which as the court put it "would normally carry with it a requirement not to offend against the criminal law in this way". The Court expressed itself unanimously of the opinion that a case of that nature should normally require the Connétable to resign, subject to any special circumstances that would entitle a court not to enforce that principle. In that particular case the court also reached these conclusions:
(1) Special circumstances meant circumstances relating to the offence and the event itself and not to the offender.
(2) The personal long service of the Connétable in question could not exonerate him and thus constitute those special circumstances.
(3) The fact that the parish electors might wish the Connétable to remain in office was "an important consideration because it is an elected post, but the court .... is considering the Constable's position from the point of view of his position as head of the police; he is not like a constable or inspector in the police in England, he is a parish chief constable. The court has no doubt that if a chief constable in England were convicted of a drink driving offence then inevitably he would resign."
39. It is true, as Advocate Steenson contends, that there was no reasoned argument as to the Court's jurisdiction in that case. We do not find that to be particularly significant. The fact that everybody proceeded by accepting that the Court had this jurisdiction shows only that, as it were from time immemorial and certainly as demonstrated by our review, the Court had exercised a similar jurisdiction and the issue simply did not arise.
40. In re the Connétable of St Helier [Jersey Unreported 2001/51], the Superior Number of this Court sat to consider a reference by the Attorney General of conduct which fell short of the Connétable's duty under the Honorary Police Regulations 1977 to investigate complaints against the Honorary police and inform the Attorney General that such complaints had been made and to refer investigation of prescribed offences to the States of Jersey Police pursuant to the same regulations. The Court proceeded on the basis that it had jurisdiction to deal with the referral and indeed that jurisdiction was not challenged. The Court noted there was no suggestion of dishonesty and no intention to obstruct the course of justice. It viewed the omissions as mistaken and not deliberate. It weighed the years of honorary service which that Connétable had given both in that capacity and as Centenier and Constable's Officer. He was accordingly reprimanded for his breach of duty. Thus, the Court took into account in that case personal characteristics of the Connétable in reaching a view about a sanction.
41. In re Pallett [2008] JRC 026, the Superior Number considered whether it was appropriate for the respondent in that case to be sworn in as a Centenier given a conviction 30 years earlier for fraudulently converting the sum of £80, for which he had been bound over. A year later, in the context of some minor motoring offences, he had pleaded guilty to giving false information to the police and had been fined £10. The question arose as to whether these convictions disqualified that respondent from becoming a Centenier, despite being elected to that office, given the centrality of the role of Centenier in the prosecution service in the Magistrate's Court.
42. The Court held that public confidence and the integrity of the police was of the highest importance and applicants whose character and record of convictions would call that integrity into question could not be accepted. Unless there were exceptional circumstances, which there were in that case, a conviction for an offence of dishonesty would be a bar to becoming a member of the Honorary Police. The decision in the respondent's favour took into account that the offences were very minor as was indicated by the sentences imposed; they were committed when he was a teenager; nearly 30 years had passed since they had been committed and that he had led an unblemished life since, giving much time and effort to the benefit of the community; he had been a Constable's Officer for two years and fulfilled his functions in an exemplary manner, and had the support of the parish in the present application; and at all times had disclosed previous convictions to the electorate.
43. It is apparent that, on that occasion as well therefore, the Court did not take a narrow view of "special circumstances" because it had regard to circumstances relevant to the individual as well as to the offence in question.
44. The last recent case in which the Court has been concerned with official positions in the parish arose with re A Procureur du Bien Public of St. Peter [2008 JLR 163]. In that case, the central question was whether the customary law required that a person had to be resident in the parish if he were to be sworn in as a Procureur du Bien Public. The Procureur in that case had been re-elected to that position after moving to live in another parish. The Court found that he could not be sworn in because he was no longer resident in the parish which elected him.
45. As a matter of customary law, we think there is no doubt at all that the Royal Court has exercised a jurisdiction over the eligibility and fitness for office for particular parish offices, the incompatibility of holding two offices contemporaneously, as well as those cases where Connétables and Centeniers have been permitted to, or for example in the case of the then Connétable of St John directed to, resign. As we will see, this customary law jurisdiction has also been expressly recognised by statute.
46. That being so, it becomes necessary to examine the duties of the Connétables and the extent to which, if at all, those duties and the jurisdiction of the Court have been amended by statute.
47. As to the Connétables, according to Bois (op cit):
48. That the Connétables were independent is clear from a charter of Henry VII dated 17 June 1495, which in translation provides:
49. In his Constitutional History of Jersey in 1856, Le Quesne described the office of Connétable thus:
50. Of course, Le Quesne was writing at a time when only men would hold political office and thus his description is not in the gender neutral form we would expect today. Furthermore, the nature of some of the duties of the Connétables has changed as we will see.
51. The statutory provisions affecting the office of Connétable start with the Code of Laws of 1771, where there is the following entry:
52. Until amended, the oath of office of Connétables appears in the Code in this way:
53. This can be translated as follows:
54. The content of the oath of office is picked up by the duties of the Connétable under the Loi (1804) au sujet des assemblées paroissiales, where we see provision for the Principals of the parish to include the Rector, the Procureurs du Bien Public, the Churchwardens, the Almoners and honorary police, and for the holding of parish and ecclesiastical assemblies. At Article 8 of that law, provision is made for the consideration of the accounts for the Trésor and la Charité by ecclesiastical assemblies, which again picks up a reference in the Code of 1771 which touches upon the duty of Connétable and Procureurs in relation to these church accounts:
55. There have been a number of statutes adopted by the States Assembly in connection with the Connétables and other officers of the Parish since 1771. The Loi (1897) sur les élections publiques, as amended, created a comprehensive system for the public election of Senators, Connétables, Deputies and Centeniers - the elections were to be overseen by the Jurats who would be the returning officers in each parish, and parish assemblies would be convened for the purposes of nomination meetings. In a contested election, the votes would be cast on election day, the Law making provision for scrutiny of the count, challenges to the election result and various election offences. With some amendments, this Law remained in place until it was repealed by the Public Elections (Jersey) Law 2002 (the "2002 Law"). This legislation made provision for who was entitled to vote and who was disqualified from voting, for election registers, for the holding of public elections, for nomination meetings, the taking of a poll, including postal and pre poll voting, the count and the process after the result had been obtained. There was also provision for disputed elections and the creation of various offences. The 2002 Law when first adopted, governed the election of Connétables, Centeniers, Senators and Deputies. More recently, that legislation has been adopted for elections to the office of Procureur du Bien Public as well.
56. In so far as the legislature is concerned, the Assembly of the States (Jersey) Law 1948 removed from the States the Jurats and the Rectors, introduced the office of Senator, and fixed an increased number of Deputies but otherwise left the position of the Connétables, as Members of the States, unchanged. The States of Jersey Law 1966 provided that the Connétables (they are described as Constables) of the 12 parishes would be Members of the States by virtue of their office. There was provision in Article 7 of the 1966 Law for the oath of office of Senators and Deputies (but not Connétables) and there was provision for disqualifying a person from being elected or from being a Senator or a Deputy in the circumstances provided in Article 8 of that Law. That they were described in the 1966 Law as members of the States by virtue of their office, as mentioned above, carried for some years a duty to designate a member of the Honorary Police to attend meetings of the States if the Connétable were unable to do so. This was repealed in 1974, but otherwise the 1966 Law did not, other than provide for the Connétables to be Members of the States, make any provision for them at all. This was entirely consistent with the Connétables being subject to the jurisdiction of the Royal Court, and indeed that provision continued with the passage of the States of Jersey Law 2005 (the "2005 Law"). By Article 2 of the 2005 Law, the Connétables of the 12 parishes are still described as members of the States by virtue of their office.
57. The 2005 Law made provision for the term of office of Senators and Deputies and for the election of Senators and Deputies, including qualifications and disqualifications for those officers. There is provision for the oath of office and, perhaps interestingly, at Article 12 there is provision that a Senator or Deputy may at any time resign his or her office by notice in writing signed by him or her and delivered to the Bailiff. That is a different provision from the customary law affecting Connétables, who are required to seek the permission of the Court to resign.
58. Thus the position remained that although the Connétables were full Members of the States, they were still subject to the jurisdiction of the Royal Court in respect of all their obligations and permissions necessary to remain in office.
59. As there is dispute as to whether the Royal Court has a continuing jurisdiction in this respect, and because, if it continues to exist, the exercise of that jurisdiction will be influenced by the duties the Connétables have, the statutory position set out in the Connétables (Jersey) Law 2008 (the "2008 Law"), and the Connétables (Miscellaneous Provisions) (Jersey) Law 2012 (the "2012 Law") comes under scrutiny, and for context it is right to have regard to some extraneous material.
60. The first such material, which is relevant for contextualising the legislation which was subsequently adopted was the decision of the States to establish a review body in July 1996 to consider policing in the Island. That review body was chaired by Sir Cecil Clothier and its report on the policing of the Island has become known as "Clothier 1" in the light of a subsequent report to which we will come shortly.
61. Clothier 1 recommended that it was inappropriate for the Connétables, as members of the legislature, to have policing functions; but the proposals for change did not attract universal approval and changes were not made in this respect until 2012. A second working party set up under the chairmanship of Sir Cecil Clothier some three or four years later ("Clothier 2") into the machinery of government in the Island recommended, among other recommendations, that there should be only one class of States member, from which it would follow that the Connétables would no longer be members of the States. This too has proved to be controversial, but following on from debates on Clothier 2, the position of the Connétables was partially amended by the States by the 2008 Law which introduced these changes:
(1) Provision was made for an ordinary election for Connétables to take place every third year within 7 days of 15 October. This was intended to synchronise the dates of the Connétables' elections (which had previously not been the case) and to do so shortly before the elections for Senators and Deputies. Subsequently that has been further amended so that there is a general election day on which all members of the States are elected.
(2) There was provision for filling casual vacancies.
(3) A paragraph from the Code of 1771 inconsistent with the statutory change in (1) above, under the heading "Connétables" was deleted, leaving in place the paragraph in the Code which is cited at paragraph 51 above.
62. We conclude that in 2008 the States, having in mind the Code of 1771, deliberately left in place the obligation to convene the honorary police once a month to enquire into criminal offences committed in the parish.
63. The next piece of legislation affecting the Connétables was the 2012 Law. The long title indicates that it is a law "to repeal the policing functions of the Connétables, to empower a Procureur du Bien Public to deputise for a Connétable in certain circumstances, to remove certain other functions from the Connétables and to make ancillary and consequential amendments."
64. The main effect of the amendment was to abrogate the customary law to the extent that it provided for the exercise of any policing function by a Connétable. The policing function was defined in detail but in essence it extended to any direct responsibility for policing, for keeping the peace, or for charging a person, arresting a person, or granting bail.
65. For the purposes of that change, the 2012 Law also provided for the amendment of the Code of 1771, by deleting the obligation of the Connétable to present defendants before the court, and for the amendment of the oath of office of Connétable. The policing functions were removed from the oath and whereas previously the Connétables had the obligation of keeping the peace, they would thereafter have the obligation of causing the peace to be kept - in other words they would not do it themselves but they would have the obligation to ensure that it was done. The 2012 Law confirms by implication that the customary law power of the Connétable to appoint the Chef de Police remains.
66. The 2012 Law also made provision for those cases where the functions of the Connétable could be exercised by a Procureur du Bien Public. Whereas previously, under the customary law the Chef de Police would deputise for the Connétable, from this moment the Procureur would do so.
67. It is not the place of this Court to determine the extent to which the 2012 Law achieved the recommendations of Clothier 1, but it is fair to comment that in summary the position at this stage is that direct policing functions have been removed from the Connétables, who nonetheless retain some overall responsibilities:
(1) The Connétable has the obligation to cause to be assembled once a month his or her officers in order to enquire into the criminal offences which have been committed, and to be aware of delinquents in the parish in accordance with the obligations of his oath. It may be said that the obligation to cause the officers to meet does not necessarily mean that the Connétable will personally attend such a meeting himself or herself. We understand that the practice of the Connétables at the date of the hearing before us is varied in this respect.
(2) The oath of the Connétable reflects the obligation to hold regular meetings of the officers of the parish in order that the Connétable might be informed of matters which he or she needed to know concerning the parish.
(3) The appointment of the Chef de Police.
68. Leaving aside the question of the policing functions, we look briefly at the position of the Connétable under the Rates (Jersey) Law 2005. So far as is relevant, Article 21 of that Law provides as follows:
69. Having regard to this material and our knowledge of the administration of the parishes today we think it is right to summarise the principal duties of the Connétables in this way. They are the Head of the Parish - described frequently as the Father or the Mother of the Parish - and in that capacity are still sometimes referred to as mayors. They act, in modern parlance, as the chief executive officers of their parish. They are governed by their oath of office and by both the customary and statutory law which affects them, and while they have substantial executive authority within the parish, they are expected in their conduct as chief executives to have regard to the advice of the Principals (the Principals came together for many years as the Comité Paroissial but in some parishes today it may be that that language has been changed), and for the purposes of financing initiatives in the parish, to the accounts and budget approved by the parish assembly. The latter is a consequence of the provisions of Article 21 et seq of the Rates (Jersey) Law 2005 cited above. The Second Respondent described the parish accounts as "the Connétable's accounts". For the avoidance of doubt, we think that is incorrect. They are the parish accounts because they deal with ratepayers' money. The Connétables have a duty to produce the accounts to a parish assembly and to obtain approval of the rate to be levied for the current year, for they have no power by themselves to levy that rate. While they no doubt have power to apply ratepayers' money outside the strict boundaries of the budget which the assembly has approved, they are subject to the advice of the Procureurs and must respect the oaths which the latter themselves have taken. They no longer have active policing functions in relation to particular offenders, but they are responsible for the organisation and supervision of the parish honorary police. They have some fiduciary obligations not only in relation to parish funds, but also in relation to the church funds described in the Code of 1771 as the Trésor and la Charité.
70. In other words, the Connétables are not autocrats in the parish. They are subject to a requirement to act in accordance with the advice of the Procureurs and Principals. They are subject to the parish assembly if given directions in a parish matter by a resolution properly adopted, and of course in terms of fixing the rate.
71. However, it is noteworthy that notwithstanding their executive functions in the parish, the Connétables, once elected cannot be dismissed nor sanctioned in any way by their electorate. By contrast, Ministers who have executive responsibility in the States are liable to be sanctioned, albeit not by the electorate but by their colleagues. Although there are similarities, there are also differences between the Connétables and other States members under the legislative changes to which we will shortly come.
72. The last piece of legislation affecting the Connétable is the Connétables (Amendment No. 2) (Jersey) Law 2018 (the "2018 Amendment"). The projet for an earlier draft of this Law was lodged with the Greffier of the States on 31st October 2017. The report of the Privileges and Procedures Committee which accompanied that draft Law informed Members that the draft was proposed in order to standardise the requirements relating to the qualification and disqualification for election in the States Assembly so that all Members (Connétables, Senators and Deputies) would be subject to the same requirements. It was said, therefore, that the draft Law would bring into effect, if adopted, provisions for the qualification and disqualification for election as Connétable which were in the same terms as those affecting other States Members.
73. On 14th November 2017, the projet was withdrawn by the Privileges and Procedures Committee prior to debate and a new projet was lodged with the draft 2018 Amendment. With one exception, the 2018 Amendment was substantially identical to the previous draft. In bringing it forward, the Privileges and Procedures Committee emphasised its intention to standardise the requirements relating to the qualification and disqualification for election in the States Assembly so that all Members would be subject to the same requirements. The one significant difference, however, was the addition of a new Article 4D which reads as follows:
74. The explanation for this provision was given in the report of the Committee as follows:
75. This report was inaccurate for two reasons. First, the supervisory jurisdiction of the Royal Court does not exist only in relation to the election of Connétables. Indeed, elections are governed by the 2002 Law and the 2008 Law. Secondly, as we will see, there are not the same statutory provisions which apply to all classes of States member.
76. In our judgment, Article 4D of the 2008 Law, as amended, has the wide meaning which its ordinary language suggests. It is clear from the report that the Privileges and Procedures Committee, at least, did not consider that the statutory changes which had been introduced in relation to the position of the Connétable had, to that date in 2018, affected the supervisory jurisdiction of the Royal Court, and in so far as that jurisdiction would otherwise have been affected by Article 4B and 4C of the 2008 Law as introduced by the 2018 Amendment, the provisions of Article 4D expressly preserve it. There never has been any clear statutory language to remove it, and we see no reason to depart from the ordinary meaning to be ascribed to the language of Article 4D.
77. Support for this view can also be found in a comparison between the disqualification provisions in the 2005 Law, affecting Senators and Deputies and in the 2008 Law, as amended, affecting the Connétables. In the 2005 Law, Article 8 provides, as one relevant example:
78. By contrast, Article 4C of the 2008 Law provides:
79. It is clear that the words "or for being" which appear in line 1 of Article 8(1) of the 2005 Law do not appear in line 1 of Article 4C(1) of the 2018 Amendment. In other words, the disqualification goes to the provisions for election, but it is the Royal Court which would exercise the supervisory jurisdiction to disqualify the Connétable if any of the sub paragraphs of Article 4C(1) apply to that person after his election. There is no reason to think that as the States considered it right to place this disqualification on Senators and Deputies, should these circumstances come about during their term of office, the Connétables should be treated differently - other than the intention, formalised in Article 4D, to preserve the jurisdiction of the Court. The Connétables would not lose office automatically. It would be down to the Court to apply the same rules if it considered it appropriate to do so. It may be hard to think of circumstances where the Court would not disqualify a Connétable from continuing in office, but nonetheless the legislation does not make it mandatory in respect of a Connétable although it is mandatory in respect of the Senators and Deputies.
80. By contrast, Article 4C(2) indicates that a person "shall be disqualified from holding office as a Connétable" if ceasing to be a British Citizen or not resident in Jersey for more than six months. In Article 8(2) of the 2005 Law the language is that a person shall be disqualified "for being a Senator or Deputy" in the same circumstances. In other words the 2018 Amendment does include a disqualification provision which purports to go outside and qualify in part (notwithstanding the non-derogation provision of Article 4D) the supervisory jurisdiction of the Royal Court, and that is to be compared with the lack of mandatory disqualification after election which is to be found in relation to Article 4C(1). The issue does not arise in this case and so we note, without resolving it, the potential confusion which is lurking in the language of Articles 4C(2) and 4D.
81. We should, however, also review Article 4C(1)(h) of the 2008 Law as amended. It is in these terms:
82. We have considered whether that provision affects the present case. There are two points which arise from this unhappily drafted clause. The first is that the words "or since that election" could be interpreted as meaning that the disqualification under this sub-paragraph applied in the same way as that of Article 4C(2) - the disqualification is against holding office because it applies both before and after election. The Solicitor General urged us not to accept that construction, notwithstanding that it would seem to represent the natural meaning of the words used. He contended that it was helpful to look at the heading of the Article which distinguishes between election and office, and compare that with the opening lines of paragraphs (1) and (2) of the Article; the former refers to "election" and the latter to "holding office". With some hesitation, we think that this is probably the right construction of the statute, notwithstanding that we are then bound to question whether any meaning can be given to the words "or since that election".
83. Apart from the use of the heading as a construction tool, the main reason we think that this is the right approach lies in a comparison of the provisions affecting Senators and Deputies on the one hand and those affecting the Connétables on the other. Article 8(1)(h) of the 2005 Law provides for the disqualification only where the commission of the offence has led to a sentence of not less than three months imprisonment. By contrast, Article 4C(1)(h) of the 2008 Law provides for such a disqualification where there has been a conviction of an offence which would make the Connétable liable to a term of imprisonment for not less than three months. This has two consequences - the Connétable of St John in the present case will be disqualified from standing again under the current legislation, because he has committed the offence of dangerous driving which by Article 22(2) of the Road Traffic (Jersey) Law 1956 and is thus liable to a sentence of up to two years imprisonment or a fine or both which that offence carries. Secondly, to provide that he was automatically disqualified would mean that the Court's supervisory jurisdiction, preserved by Article 4D, would have little effect.
84. Of course it is open to the States, as the legislature, if they see fit, to change these provisions, which may perhaps not reflect what was intended by the promoters of the 2018 Amendment. The job of this Court, however, is to apply the law as it currently stands. In our judgment, for the reasons given, the Court has a full discretion, subject perhaps to Article 4C (2) of the 2008 Law, as to whether a Connétable should be relieved of office after election but may take into account that the States have provided the ground of disqualification they have for subsequent elections by Article 4C (1)(h) of the 2008 Law.
85. This conclusion now needs to be reviewed against the Human Rights (Jersey) Law 2000 (the "2000 Law") and in particular Article 3 of Protocol 1 to the European Convention on Human Rights, which is in these terms:
86. By virtue of the 2000 Law, the Convention is part of the domestic Law of this Island, and the Court is charged to give effect to it. This applies not only in the way in which legislation is to be construed and given effect, but also because the Court itself is a public authority under Article 7 of the 2000 Law and is required not to act in a way which is incompatible with a convention right. By Part 2 of the First Schedule, the Article 3 right conferred by the First Protocol is part of the Law of this island. The Procureurs are not of course members of the legislature and Article 3 of Protocol 1 does not therefore apply in our consideration of their position.
87. We accept the submissions of the Solicitor General that the Court's jurisdiction does not fall foul of Article 3 of Protocol 1 to the Convention. The exercise of the jurisdiction has a legitimate aim, namely the protection of the democratic order insofar as concerns the parochial administration, the Connétable having an executive power in the parish which is otherwise untrammelled by controls, unlike the power of Ministers which can be controlled by the States Assembly. The jurisdiction is well settled by authority at customary law and it existed long before the Connétable was elected to office; and he was or should have been aware of it from the outset of his service as Connétable. It is expressly preserved by statute, as we have found. The jurisdiction must be exercised proportionately; and as long as it is, the exercise of jurisdiction falls within the margin of appreciation which Contracting States are allowed in their internal constitutional arrangements.
88. We start by saying that we find the exercise of the discretion which the law affords us is one that is always likely to be personally uncomfortable as decision takers in this small community; but the existence of it is nonetheless one we recognise as important, and one which in the interests of the wider community we must not shirk. We are dealing with the potential tension between the expressions of the democratic will on the one hand - because whether there is a contested election or not, each of the Respondents has been elected to office - and on the other hand with the standards of public office which any court would expect to be upheld in circumstances where the office holder owes significant duties of care to the public which elected him or her as well as a responsibility to the court which administered the oath of office.
89. In the case of each of the Respondents, we have no doubt as to the commitment they have demonstrated to their parish and its parishioners. For the Connétable, there is a modest salary which is paid from central funds, which many would view objectively as moderate when weighed against the hours spent in, and the responsibility of, performing the duties of office. In the case of the Procureurs, the commitment is demonstrated by their occupation of positions which attract no salary or remuneration but do also involve both responsibility and potentially significant amounts of time. That is likely to be true of other positions in the parochial municipality. That the Court should sit in judgment on men and women who devote, sometimes for decades, their time and emotional energy to serving their parish without any or any substantial reward, save that of knowing they are doing their duty to the parish as best they can, is a responsibility for us which must be exercised with appreciation of the commitment made, with realism as to what can reasonably be expected of those who give voluntary service, with determination in seeking an appropriate level of public confidence in the parochial administration, and with the humanity that comes from the knowledge that each of us is fallible.
90. We are asked in effect to assess the conduct of the Connétable against the question of whether that conduct affects his fitness for office. Insofar as the conviction is concerned, the material parts of that conduct are:
(i) The facts of the offence of which he was convicted - driving a motor car three times at a person on foot who was wearing a marshal's jacket and striking him albeit at a slow speed. This was described by the Relief Magistrate, who heard the evidence, as a deliberate act where the vehicle was used at best as intimidation and at worst as a weapon. The risk of injury was obvious.
(ii) The fact that it is clear from the judgment that there was no middle ground between the account of the Connétable and the account suggested by the prosecution witnesses. Given that the Connétable would have been given the benefit of any doubt - he would be acquitted if it was thought his explanation was true or that it might be true - it is hard to see how the Relief Magistrate could have contemplated that he might merely have been an unreliable witness. Indeed, she made a detailed review of the evidence and described that of the Connétable as "implausible". She accepted the incident had happened as the complainant described it, and not as described by the Connétable. His differing accounts of what had happened showed an inconsistency which counted against him, but the important finding in this respect was that the Connétable had deliberately driven his car into the legs of the complainant. It follows that she must have considered that the Connétable was not telling the truth in his evidence.
(iii) The fact that the Connétable was angry and aggressive, informing the marshal that he had no right to stop him and that he was the Connétable of St John and had given no permission for the road in question to be used. He said there would never be cycle racing in St John ever again.
91. On the day of this hearing, the Connétable was contacted by a journalist at the Jersey Evening Post to ask him what stance he would be taking in relation to the hearing. The Connétable's response was "I am an innocent man who has been convicted of a crime I did not commit." This response was consistent with what the Connétable said in his affidavit before this court when he said "I do not accept, however, that the Relief Magistrate was correct to find as she did and I maintain my innocence." We invited Advocate Steenson to address us on this exchange. The response was that, to the extent it was relevant, the Connétable considered he was not guilty of dangerous driving and he was entitled to maintain that. He submitted that there was nothing wrong with that.
92. In his affidavit, the Connétable accepted that he had been told (rightly) that the Royal Court would not look behind the decision of the Relief Magistrate by permitting him to give evidence as to why she was wrong in her conclusions. We understand that some defendants are personally unable to accept the decision of a criminal court. That is for them. The law does not make a window into men's souls, nor could it. If the matter rested with the assertion in an affidavit, to which the Court might not have referred in its judgment, it would perhaps leave the Court with an uneasy feeling about the Connétable, but it would go no further than that. However, for the Connétable to volunteer a statement to a journalist that he was innocent and had been convicted of a crime he did not commit is different. The Connétable, like all those in public office, has an obligation to uphold the rule of law. Under the Code of 1771 he has particular obligations towards the supervision of the honorary police of his parish and these are found again in Article 4 of the 2012 Law. Under his oath of office in the Royal Court, he promises to ensure the Queen's peace is kept. It is very hard to see how expressing to the media his private views, to which he was entitled, sits comfortably with the public obligations which he has as Connétable. We would not have felt it appropriate to consider any direction for resignation if we were considering this issue alone. However, we cannot look at the totality of the matters to which we were referred without appreciating them through the lens of the reaction of the Connétable to the media, any more than we would have disregarded submissions made to us on the day which amounted to the same thing. We are bound to look not only at what the Connétable did with regard to the conviction but also how he has reacted to it.
93. We have asked ourselves how we could reach a conclusion that a person could be fit for the office of Connétable, the Father or Mother of the Parish, if found to have driven his car at the legs of a race marshal, using the vehicle as a weapon or at best a form of intimidation, in circumstances where the lower court heard that person's evidence on oath and did not believe it, and where that person continued to maintain in public that he had not acted in the way the court below had found proved beyond reasonable doubt. While the Court applies its own judgment as to whether a Connétable is fit for office, which we have, any court is bound to test its view by asking itself in a matter of this kind what the public would make of the decision - and in this case, we think that the public would wonder how a court could possibly conclude the Connétable was fit for office in the circumstances described.
94. In particular, in our view this conduct is inconsistent with the Connétable's oath to cause the Queen's peace to be kept. The commission of some criminal offences would not lead to this conclusion, but there comes a point at which the level of criminality is simply inconsistent with the obligation to ensure the peace is kept.
95. Although it is probably unnecessary to say so, particularly in this case where the evidence before us is that the Connétable has served his parish well inter alia in keeping the rates unchanged for some years, it may be appropriate to add that when dealing with the question of fitness for office, the court is not dealing with competence (or incompetence) in office - that is a matter for the electorate. There is a qualitative difference between "good/not very good" and "unfit". The latter is an objective evaluative decision not, as with the former, a subjective assessment which is for electors.
96. It is also perhaps right to add that petulance, arrogance, a failure to follow a manifesto or any other political reasons, perhaps even a refusal to respect institutions such as the courts of the island, are undesirable characteristics in any member of the States but would not be grounds for a court to require a Connétable to resign.
97. Although we have found that the amendment to the 2008 Law does not have the mandatory consequence that the Connétable must leave office, we note that Article 4C(1)(h) of that Law must mean that the Connétable will be disqualified from standing again if we had allowed him to serve out the balance of his term. That is what the States must be taken to have intended from this poorly drafted provision. While we have accepted that the matter is for our discretion and does not come about as a matter of law, it would be a strange conclusion if we took the view that the States considered an offence of this nature meant that a person was disqualified in the future from standing for Connétable, presumably because he or she was unfit for office, and yet the Court could sit back and permit that person to remain for the residue of the term notwithstanding its jurisdiction to remove him. On some particular facts, that might be a legitimate conclusion, but in our judgment, not so on the facts before us now. This is a further reason why we have decided as we have, and indeed why we think any other decision would be simply incomprehensible to the public.
98. Advocate Steenson submitted that to remove the Connétable from office would amount to double jeopardy. We do not think that submission is well founded. First, these are disciplinary proceedings in the context of the Court's supervisory jurisdiction and not criminal proceedings where the doctrine of double jeopardy is relevant. Secondly, the Relief Magistrate had no jurisdiction to take the step we are now taking. Thirdly, Advocate Steenson himself accepted, rightly, that there were some offences the committing of which would justify the exercise of the jurisdiction to remove a Connétable from office. If that is so, then that consequence flows despite any suggestion of double jeopardy. In our judgment the objection of double jeopardy cannot apply in some cases and not others - it is a principled argument that either does or does not apply. Thus if, as Advocate Steenson accepted, there are some cases where it would not apply, it cannot apply here either. Finally, the Court has exercised similar disciplinary control over advocates who have committed criminal offences. No question of double jeopardy exists in such cases. We do not consider the argument to have any foundation.
99. For these reasons, and with sadness that his years of valuable service to his parish should come to an end in such a way, we conclude that the Connétable is not fit for office and we direct that he must resign it. Subject to any further order, the Attorney General should apply to the Court as soon as convenient in order that dates for a nomination meeting and a fresh election can be set. Until the person who is elected takes oath before the Court, the Connétable continues in office pursuant to Article 1(3) of the 2008 Law.
100. The Court heard evidence and submissions as to the costs of the Connétable's defence which were initially charged to the Parish. For the most part, this evidence was relevant to the Procureurs rather than the Connétable, and, having regard to all the circumstances, we would not have considered that what took place should lead to any conclusion on that evidence alone that the Connétable was unfit for office. However, we would have concluded that words of advice to the Connétable were appropriate.
101. In the administration of parish finances, the parochial authorities are dealing with public money - ratepayers' money. There is a special obligation of trust in these situations and the appearance of what is done is sometimes nearly as important as the fact of what is done. In the present case, the Connétable was sure that he was acting on parish business and, thus, that the parish's insurance cover would be available to him for his defence. However, he ought to have realised that that was not a given and that if there were any problem in that respect, the parish would be at risk of paying out ratepayers' money on his personal defence to criminal proceedings. There was certainly room for the insurers to have legitimately taken a different view. In fact, there was argument with the insurers, which the Connétable handled himself, ultimately prevailing in his view that the cover was available. But at the time the first bill was received, addressed to the Connétable personally at his home address, and not to the parish, it was certainly not clear that the bill would be reimbursed by insurers in full or indeed at all. Nonetheless, he invited the Procureurs to pay it.
102. We think the Connétable should have done more to distance himself from these arrangements. He had an obvious conflict of interest - his own personal interests against those of the parish. He should have taken a step back and until it became clear that the insurers would pay, he should have assumed and recorded the obligation to pay for his own defence costs directly; and once insurers had agreed in principle, he should have similarly assumed and recorded direct responsibility for meeting any shortfall.
103. At some point - it is unclear exactly when, but presumably not until early to mid-March when the Connétable first brought a cheque to the Third Respondent to sign in respect of the lawyers' initial bill - the Connétable gave some form of undertaking to the Procureurs that he would reimburse the parish for the amount of the fees if the insurers did not. This was an important undertaking. It was all very well for the Procureurs to trust the Connétable, and we will come to that in more detail later in this judgment, but matters as important as using parish money to give a potential financial advantage to a parish official, especially the Connétable, are too important to be left in that way. The Connétable should have realised this and not put the Procureurs in that position. He should have volunteered the undertaking in writing so as to ensure there was no difficulty about it.
104. The oath of the Procureurs is in these terms:
"VOUS jurez et promettez par la foi et serment que vous devez à Dieu, que vous exercerez la charge de Procureur du bien public de la Paroisse de......; que vous le conserverez et augmenterez comme le votre, et mieux s'il vous est possible; que vous vous réglerez par le bon conseil et avis des Principaux et Officiers, et des Chefs de Famille de ladite Paroisse; et ferez généralement tous autres devoirs qui dépendent de ladite charge."
105. This may be translated as follows:
"You swear and promise by the faith and oath which you owe to God that you will execute the office of Procureur du Bien Public in the parish of ......; that you will conserve and increase [the property] of the Parish as if it were your own, and better if possible; that you will be governed by the good counsel and advice of the Principals and Officers and the Heads of Family of the parish and will generally do all other duties that depend on that charge."
106. Although there is reference to other functions of the Procureurs du Bien Public in the Code of 1771, as well as in other legislation, there is little other help as to what the responsibilities are. Perhaps it has always been regarded as obvious from the terms of the oath.
107. We will make the following observations as to what we consider, as currently advised, the obligations of the Procureurs du Bien Public in the island are. In doing so, we recognise that the Procureurs in this case have in some respects fallen short - more so the Second than the Third Respondent for the reasons which will be apparent - but given our approach to their honorary service and the obvious gaps in any explicit material as to their duties, we make the comments as words of advice rather than as any admonition or reprimand.
108. Given their oath, the Procureurs have a fiduciary duty to ensure that the Parish Assembly is presented with accurate accounts and budgets. From this two things at least follow. The first is that through the course of the Parish financial year, the Procureurs have an obligation to ensure that the Parish assets are applied broadly as the Parish Assembly anticipated. Of course there will be variances. These are only to be expected. However these variances will be considered against the legitimate expectations of ratepayers when the parish budget was settled. The second is that with this obligation comes an obligation to challenge the Connétable when that is appropriate in the same way as a Finance Director might expect to challenge the Managing Director, or an audit committee of directors might expect to challenge the Finance Director. The Connétable and the Procureurs du Bien Public should work closely together on behalf of the parish. They need to work harmoniously in its interest. But working harmoniously does not involve a lack of challenge to what has been done. The relationship will work harmoniously and thus to the benefit of the Parish when each respect the obligations of the other without either surrendering their own performance.
109. The auditors state (in the Parish accounts) that the Connétable is responsible for "the other information presented in the accounts" and for the preparation of the accounts. So he is, but it is not his obligation alone. In order to do their job of safeguarding parish assets, the Procureurs du Bien Public are responsible for ensuring that proper accounting records are kept. The Parish Secretary will no doubt have his or her own contractual obligation along similar lines.
110. Finally, the Connétables are responsible for assessing the Parish's ability to continue as a going concern. The auditors are entitled to have this established to their satisfaction before concluding their audit. That audit is important for ratepayers in the parish, and they thus will look to the Procureurs du Bien Public to ensure that the Connétable's judgment and assessment is scrutinised and challenged where necessary so that if there is a problem, it can be brought to the attention of the Parish Assembly.
111. It is vital that the Procureurs du Bien Public act independently from the Connétables. They should not approve payments or any other transaction merely because the Connétables ask them to do so. This is a difficult area given any personal loyalties and/or fear of giving offence; but it is nevertheless very important. It is also important that the Connétables respect the independence of his or her Procureurs.
112. It is obvious that the Procureur du Bien Public must be assiduous not to mislead either his or her colleague or the Comité Paroissial or the Parish Assembly. The Procureur must be ready to answer questions from ratepayers because they are entitled to ask them. The Procureur must be careful to recognise where conflicts of interest arise, whether on his or her own part or on the part of those with whom s/he deals, and appropriate steps should be taken to ensure such conflicts cause no difficulty.
113. In taking objection to the Connétable being asked to retire from the meeting of the Comité Paroissial when an entry in the accounts affecting the Connétable personally was discussed, the Second Respondent was in error. Although the evidence was that the Connétable left the meeting willingly, it is obvious that the Connétable should have retired from the room without the issue becoming contentious. It is no different from the provision in Article 37(4)(c) of the Rates (Jersey) Law 2005 which requires a member of the Rate Assessment Committee to withdraw when land in which he is personally interested is discussed.
114. In the present case, the Procureurs ought to have questioned whether it was right to ask the insurers to meet the defence costs under the policy because the Parish would be expected to meet the costs of the policy even if it were in fact arranged through the Comité de Connétables. However, even on the assumption that in order to support their elected Constable, the Procureurs were right to endorse his suggestion that the parish pay his defence costs in the first instance, they were wrong not to have procured at the outset an undertaking in writing from the Connétable that he would discharge any shortfall in respect of the insurers' contribution to his defence costs - subject to any insurance policy, these were clearly a personal liability and not a parish liability. Having the undertaking in writing would have obviated any difficulty in formulating the note to the accounts, and removed the question mark in the mind of the Second Respondent as to whether the payment of those fees by the parish had been "strictly legal".
115. In the circumstances they should have accepted Mr Crocker's suggestion that the draft accounts be amended and/or the suggestion of the auditor that the Assembly be adjourned so that the revised accounts could be approved for later consideration. As a result of their failure to do so, the Assembly was presented with, and we understand approved, accounts which were incorrect because the expenditure on legal fees was not recorded as a loan to the Connétable, and instead shown as an expense of the Parish.
116. All this could, of course, have been avoided with a keener challenge to the principles of what the Connétable suggested at the outset as to how his defence costs should be met, or by taking advice from the Parish lawyers.
117. There was some uncertainty in the evidence before us as to the accuracy of the minutes of the Comité Paroissial meeting of 7th July and the minutes of the Parish Assembly of 15th July. Comments on the draft minutes have apparently been submitted inter alia by the Rector but they have not yet been approved, we understand because the Connétable had been advised by his previous lawyer to adjourn consideration of the minutes until judgment had been delivered on this representation. It is of importance that the minutes of previous meetings - which after all should accurately reflect what was actually said and done not what those attending might have wanted to have been said or done - are approved and signed off before they become such ancient history that no one can remember. The Parish Secretary has a particular obligation in this regard.
118. This case has led us to the conclusion that the Comité des Connétables might find it useful to consider, after discussion and widespread consultation with Parish Secretaries, auditors and Procureurs de Bien Publique, what a job description for the office of Procureur might look like; and if thought fit, to submit it through the Attorney General to the Bailiff for consideration by the Full Court. For example, in practice the accounting records will be kept by the Parish Secretary; but the job description of the procureurs might well contain the obligation to review and approve them on a periodic basis. In the case of the Parish of St John accounts, these were produced by one set of accountants and audited by another. But whether this should derogate from the responsibilities of the procureurs is a more open question on which no doubt there will be active consultation. One would think, for example, that there should be monthly reconciliations of the bank statement with the accounting records and the procureurs should approve these reconciliations.
119. We are not certain that we have been shown all the relevant insurance cover that the parishes have available but we think there should certainly be investigation of the equivalent of Directors and Officers insurance cover for any procureurs acting in good faith, if that does not exist at the moment. Indeed, the extent of insurance cover might on the face of it go wider than the Connétable and members of the honorary police and extend to other voluntary officials in service of their parish - rate assessment committee members, roads committee members and roads inspectors and so on to the extent that their duties would take them into areas where they might personally be exposed to claims in damages for things done or omitted in the execution of their duty. This is absolutely an area, in our judgment, for investigation and consultation.
120. On handing down this judgment, the Court will hear argument on any points arising from this judgment including any questions as to costs. As to the latter, we indicate our preliminary view that the Procureurs' costs of and incidental to the Representation be paid on the standard basis from the court and case costs vote maintained by the Judicial Greffe. The matters raised have not previously been the subject of any court judgment and are of general public importance in all the parishes, and, as presently advised, we think could have given rise to an application for a protective costs order. In addition, the Procureurs, although having a direct interest in the matter, have that interest by dint of their honorary service to the parish and while this will not always follow, we are minded to think that on the facts in this case, a costs penalty upon them would be harsh, even in respect of their own costs.
121. Our preliminary view is that the Connétable, or the Parish insurers as we understand a claim has been made, should bear his own costs.
