ATTORNEY GENERAL S REVIEW - gov.je · Attorney General’s Review 2008 over a prosecution decision. That should only show that the checks and balances in the system work and that

ATTORNEY GENERAL’S

REVIEW

2008

Attorney General’s Review 2006


ATTORNEY GENERAL’S REVIEW 2008

CONTENTS Page Section 1 Introduction by H.M. Attorney General Section 2 About the Law Officers' Department ................................................... 1 Section 3 Objectives of the Law Officers’ Department......................................... 5 Section 4 Statistical Report on the Work of the Department in 2007 .................... 7 Serious Crime Group................................................................................................. 8 Constitution, Human Rights, European and Legislation (‘CHEL’) Group.................................................................................... 12 General Group........................................................................................................ 19 Office of the Legal Adviser to the Police ................................................................. 34 Conveyancing Group............................................................................................... 36 Section 5 2007 Business Plan Activities – Report on Progress ........................... 39 Section 6 Accounting Officer’s Statement ......................................................... 41 Appendix Current Organisation of the Department



SECTION 1

INTRODUCTION BY H.M. ATTORNEY GENERAL

I have pleasure in introducing the Attorney General’s Review of 2008. This will be the last such Review which I expect to introduce and it will therefore be a little more discursive and wide ranging than merely a review of a single year. Nonetheless the events of the year have brought to the surface many of the issues which we in the Law Officers’ Department currently have to face. The starting point was the historic child abuse investigation which hit the national and international media towards the end of February but which had been formally opened in 2007. Some cases still continue in the Courts, and comment thus must be of a more general rather than a

specific nature. Nonetheless there are things which it is important to say. The early part of the police investigation was adversely affected by distrust of the Law Officers and Crown lawyers by senior police officers. I believe some of this may be down to misunderstandings on either side, some of it down to some police officers losing their objectivity, some of it perhaps to an unfortunate willingness to believe theories which were not rooted in fact. Some of the problem must, I am sure, have been exacerbated by faults on the side of the Law Officers, whether of communication or otherwise. Whatever the cause, the result was that the law enforcement agencies did not work together as they should. Because there is sometimes such a basic lack of public understanding, as to how law enforcement agencies should work, it is worth emphasizing this. Working co-operatively together does not mean abrogating your duty to perform the functions of your office. It does not mean you always agree. But it does mean that, unless there is a solid reason to do otherwise, you desist from criticism of your working partners’ competence and integrity. The police are an independent investigative force for whom the Minister for Home Affairs is politically accountable. It is not for the Attorney to try to direct what should or should not be investigated, and although the police have sometimes been asked to look into a particular matter, they have never been directed that no investigation take place. Indeed I would emphasize that had any such direction been given or attempted, it would undoubtedly have been met, and rightly so, with a firm rebuff. The prosecution deal with the product of a police investigation. In deciding whether the evidential test is passed there is of course room for tension between professionals – the police who have investigated and the lawyers whose job it is to argue in Court if there is a prosecution. Sometimes the police and the lawyers might privately disagree


over a prosecution decision. That should only show that the checks and balances in the system work and that each agency is doing its job. Without more, it does not show that either the police or the lawyers do not carry out their functions professionally, objectively and with integrity. A public disagreement, however, is capable of damaging the public perceptions of the criminal justice system, and there was a risk of that last year. I am very pleased to say that since the arrival of Acting Chief Officer David Warcup, there has been a return to the co-operative working relationship between police and lawyers which we had in the early years of this decade. That is in the interests of justice because there is no doubt that it is the best way the different agencies can fulfil their functions, independently and with integrity, so that those who commit criminal offences answer for them in accordance with the criminal justice rules which our society has adopted. It is very important that the public should have confidence in the fairness and effectiveness of the criminal justice system, and this confidence has been challenged last year and this. It is for that reason that I have had to make public statements in circumstances where the normal approach would not be to give any explanation of the decisions taken. That is the normal approach because it is very difficult to make a meaningful public statement which is at the same time fair to both the suspect and the complainant or witnesses. In this small place, some people seem to find it difficult to distinguish the criminal justice system from the individuals within it. However, the system is bigger than any one man or woman. Any impartial review of the prosecution approach to the historic chid abuse enquiry immediately demonstrates that the system has included numbers of lawyers both within and outside the Law Officers’ Department all of whom have examined the case files independently. This process demonstrates the prosecution system working objectively and, I hope, effectively, and I believe has persuaded the vast majority of the public that there is nothing in the challenges to the integrity of the prosecution service which have been made by some. Before leaving the historic child abuse investigation, I would like to add this. While there have been some complaints of serious offences having been committed, the investigation has covered an enormous amount of ground, and perhaps has gone rather wider than was first intended when it was originally conceived. Certainly the completed investigation files which lawyers have had to consider in the context of deciding whether or not to prosecute, have quite frequently revealed complaints of alleged assault which would have been at the lowest end of the scale even if the case files had been produced a week after the incident in question. Complaints of slaps to the head, being flicked with a wet towel, or being made to take cold showers and the like, are so far divorced from the public’s perception of the nature of this enquiry that it is right to say that at least in relation to a significant number of the case files received, the complaints, even if capable of being proved to the criminal standard, which in most cases has not been thought possible, are not matters which are suitable for the criminal courts even today, let alone 30 years after the event. There have also been complaints which do not carry any intrinsic credibility because the complainant was not even present in the Children’s Home in question at the time


the alleged assailant was working there, and therefore would not have come across him or her; or because the complaints match all too closely the lurid headlines of media reporting which are shown to be without foundation, and were made for the first time after those reports; or are not only without any form of corroboration, but simply on their own merits appear to have been significantly exaggerated. Nonetheless, leaving those categories of case aside, there are case files, even where decisions are taken not to prosecute, where the complainants do carry credibility. In these cases, the decision not to prosecute is based upon the fact that there is no other sufficient evidence than that of the complainant, and if one has to satisfy at least 10 jurors out of 12 to the criminal standard of proof - beyond all reasonable doubt - that a criminal offence was committed by this particular accused 25 years ago, the evidence of one person against another is very rarely likely to be enough to pass the evidential test. The successes which prosecutors have had in historic child abuse prosecutions where these have taken place are a tribute to their ability, their determination and their care in working with their partner agencies to protect the public of the Island. However, when there is a decision not to prosecute, this does not mean that we have the evidential test wrong, nor that the analysis of the evidence is in any way flawed. What it does show is that the criminal law is a blunt weapon for the purposes of good administration of childcare homes, and that it is also not a good basis upon which to consider what, if any, wrongdoing might have taken place. Where a prosecution decision is that no charges should be brought, it is not necessarily that the case that the complainant’s story is not believed; in the majority of cases, it is that there is not enough evidence to be satisfied to the criminal standard that a conviction is more likely than not. Moving on to something rather different, the end of the year saw the review of the Island by the International Monetary Fund, in respect of its anti-money laundering defences. That review had been expected for many months, and it was as intensive as had been anticipated. In the run up to the IMF review, a considerable amount of work had to be done, in legislative terms, to ensure that the Island’s statutory legislative base met international standards. Much work was also needed in the context of some International Conventions of importance, particularly the UN Convention against Corruption and the Palermo Convention on Transnational Organised Crime, with a view to having the UK’s ratification of these Conventions extended to Jersey before the IMF visit. The work which was involved was extensive, and considerable liaison with the Ministry of Justice and other Departments in London was necessary, with mixed success. At the time of the visit itself of the IMF officials, the defences against money laundering and the law enforcement treatment of criminality in this respect came under close scrutiny. Although the report has not as yet been published, all the indications are that it should be substantially favourable. Particular attention was paid to the investigations and prosecutions which have taken place in relation to regulatory and criminal offences in respect of money laundering, and although I am aware that sometimes the approach taken by the prosecution in these matters has been considered to be rather demanding, the net result of the approach not only taken by the Jersey Financial Services Commission but also by the Law Officers in dealing with mutual legal assistance and the investigation of fraud and money laundering has been substantially to the credit of the Island’s international reputation.


There is no doubt at all that in the 9½ years that I have been Attorney General, there has been considerable emphasis placed on improving the international reputation which the Island has. I think the international playing field is far from level in this respect and it is probably true to say that more is expected of small financial centres such as Jersey than of our larger competitors, but the fruits of establishing that we are serious about meeting international standards in this area are significant and indeed form the bedrock upon which the Island’s prosperity will hopefully grow. I believe the approach to the investigation and prosecution of fraud and money laundering must remain a priority policy for the Law Officers and the Island and I hope there will be continued political support for the funding of it. What follows in this Review are of course a number of statistics and reports. What runs through all those statistics, and runs through all the comments which I have made in this rather lengthy introduction, is a commitment by all those in my Department, both lawyers and support staff, to ensuring that we meet the substantial demands placed upon us in respect of our different functions, competently and efficiently albeit to a slower timetable than we would have ideally desired. That timetable, however, has not been down to unwillingness on our part but to the imbalance between the amount there is to do and the resources which have been made available to do it and in that connection I am delighted that the States Assembly agreed in the amendments to the Business Plan in 2008 to increase resources to the Department in 2009, despite the pressures on the Island’s budgets. I would like to finish therefore by thanking all the staff in the Law Officers’ Department for all they have done both in 2008 and in previous years. I cannot however close without noting that 2008 also marked the appointment of a new Solicitor General, Timothy Le Cocq, QC. I was very pleased to welcome him in March last year and I am as pleased now to acknowledge his help with, and thoughtful contribution to, the workload we have. We have nearly worked together in private practice on a couple of occasions over the last twenty years and my current experience is such that I am only sorry that on neither occasion previously did it come to pass. If there has been any downside in Tim’s arrival, it lies in the fact that it was caused by the retirement of the former Solicitor General, Stéphanie Nicolle QC. Stéphanie gave exemplary service to the States for many years both in the Judicial Greffe and in the Law Officers’ Department before becoming Solicitor General in 1994, and that onerous post she then filled for 14 years. While my Solicitor General, she not only routinely gave very good advice to Committees and Ministers but also to me. She was in addition a tremendous support to me personally and I am very grateful to her for that and I wish her a long and happy retirement. William J Bailhache Q.C. H. M. Attorney General

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SECTION 2

ABOUT THE LAW OFFICERS’ DEPARTMENT

WHO WE ARE

The Department employed a total of 40.9 full time equivalent staff at December 31st 2008, organised to deliver services as follows:

• The Attorney General is in overall charge of the Department.

• The Solicitor General deputises for the Attorney General as necessary and is also head of the General and Conveyancing Groups.

• The Serious Crime Group is responsible for the prosecution of serious crime in the Island with particular emphasis on the investigation and prosecution of financial crime, including money laundering. It is also responsible for co-operation with overseas authorities in the investigation and prosecution of crime in other jurisdictions.

• The Constitution, Human Rights, European and Legislation (“CHEL”) Group , as its title suggests, deals with matters concerning the constitutional relationship between the Island and the UK, as well as the Island’s international obligations, human rights advice, applicability of EC law and Jersey legislation. This latter subject includes advice to Ministers and their Departments on proposals for new legislation (including advice on human rights compatibility), preparation of legal reports for the Privy Council, giving drafting instructions for some major new legislation including the preparation of Orders in Council extending Acts of Parliament to the Island, and advice as to whether such extensions are necessary or desirable. The Group also has responsibility for drafting Rules of Court and

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providing advice and support to the Legislation Advisory Panel.

• The General Group, headed by the Solicitor General, deals with advice to Ministers and their Departments in areas not covered by other Groups of the Department, less serious criminal prosecutions, curatorships, various childcare and family matters and a wide variety of other legal work.

• Members of the Office of the Legal Adviser to the Police work closely with both States and Honorary officers, providing advice and assistance in the early stages of investigations and prosecuting cases in the Magistrate’s Court.

• The Conveyancing Group deals with all sales and purchases of property by States departments, and many other property related enquiries.

• Support is provided to each group by a small number of staff who deal with the ancillary matters essential to the smooth running of an organisation such as finance, information management, IT, human resources matters etc.

WHAT WE DO

The overall aim of the Department is to provide efficient and effective legal advice to the Crown and the States, including Ministers, Departments and where possible Scrutiny Panels, and to provide and oversee a high quality criminal prosecution service and to assist the Attorney General in the performance of his other duties.

OUR VISION /VALUES

The Department supports and subscribes to the Core Values of the States as set out in the Five Year Vision for the Public Sector and agreed by the States:

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• Treat our customers and each other as individuals, with respect, dignity and courtesy;

• Provide a publicly accountable service that is responsive, listens and learns and acts in the best interest of Jersey;

• Act with integrity, professionalism and respect confidentiality;

• Provide choice and added value, making a difference and taking pride in all that we do;

• Respond in an appropriate, honest and trustworthy manner; be reliable, consistent and fair;

• Demonstrate the power of teams, working creatively and innovatively;

• Feel valued and appreciated, as do our customers.

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SECTION 3

OBJECTIVES OF THE LAW OFFICERS’ DEPARTMENT 1. To provide objective strategic advice to the States of Jersey directly

or through the Council of Ministers having regard to constitutional and legal developments.

2. To provide objective legal advice of a high quality within reasonable timescales to the Crown, the States of Jersey and all others it serves.

3. To provide and oversee a high quality prosecution service working in the interests of justice and contributing to a reduction in the level of crime in the Island.

4. To ensure that the interests of the Crown and the States of Jersey are protected by acting on their behalf in civil proceedings brought by or against the Crown or the States.

5. To ensure that the functions and duties of the Attorney General arising from custom or statute are performed to a high standard and in a timely manner.

6. To offer effective assistance within reasonable timescales to overseas judicial and law enforcement agencies in criminal matters.

7. To provide an efficient conveyancing service in relation to property matters affecting the Crown and the States of Jersey.

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SECTION 4

STATISTICAL REVIEW OF THE WORK OF THE

DEPARTMENT IN 2008 This section sets out the work carried out by the Department during 2008 and is organised along the lines of the different groups into which the Department itself is organised. This is the third year in which the information is provided in this format. The Department is divided into five groups. These are:

• Serious Crime Group;

• Constitution, Human Rights, European and Legislation

(“CHEL”) Group;

• General Group;

• Legal Adviser to the Police and

• Conveyancing Group

The work of each group during 2008 will be described in turn.

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Serious Crime Group The Serious Crime Group consists of a Principal Legal Adviser, two Senior Legal Advisers, a Senior Assistant Legal Adviser, an Assistant Legal Adviser and a full time Secretary. The Serious Crime Group is responsible for the prosecution of the more serious crime in Jersey with particular emphasis on financial crime, money laundering and serious drugs offences. A significant part of the work of the Group involves co-operation with overseas jurisdictions in their investigation of serious crime with links to Jersey or where evidence is required from Jersey.

Criminal Prosecutions By far the largest and most complicated case in which the Group was involved in 2008 was the continuing prosecution of a case which it is alleged arises from multi-million pound money laundering having connections to the Abacha regime in Nigeria. The case is expected to come to trial in 2009. In addition to providing support and guidance to the Historic Child Abuse enquiry which so dominated both local and international media, there were a number of other significant cases which proceeded through the courts in Jersey during 2008. These included: • A 37 year old man, who following a trial, was convicted of two

charges of rape and sentenced to 14 years imprisonment; • A 31 year old man convicted of importing over 5,000 ecstasy tablets

into Jersey who was sentenced to 6 years’ imprisonment; • A 39 year old man who imported cannabis resin with a street value of

over £150,000 who also received 6 years’ imprisonment; • A 33 year old man who imported heroin valued at over £8,000 into

Jersey who was sentenced to 4 years imprisonment; • A 69 year old man convicted of historic sexual offences in respect of

young children when he was in a position of trust who, following a trial, received 3 years imprisonment;

• A 30 year old man who had indecent images of children on his computer who received 12 months imprisonment;

• A 34 year old man who was convicted of grave and criminal assault having stabbed his victim who received 5 years’ imprisonment and

• An 18 year old woman who was convicted of grave and criminal assault following a trial and is awaiting sentence having allegedly committed a further offence.

Significant preparatory and investigatory work was performed on other complicated and high profile money laundering, fraud and drugs cases many of which have international dimensions.

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International Meetings In October 2008, a delegation from the International Monetary Fund visited Jersey to assess the measures which Jersey has put in place to counter money laundering and the financing of terrorism. The Serious Crime Group prepared detailed submissions for the IMF and had several lengthy meetings with members of the delegation. The Group has continued to play its full part in the international community and to forge and develop strong links with our colleagues in other jurisdictions. This has involved members of the Group travelling to the United States, France and Austria. During the year we hosted visitors from law enforcement agencies from Australia, Nigeria and the UK.

Interaction with Foreign Jurisdictions Confidentiality precludes us from reporting the details of individual requests for assistance which we have provided to foreign jurisdictions but, in 2008, we provided significant assistance to the authorities in Australia and Hong Kong and UK authorities including the Serious Fraud Office and the Serious and Organised Crime Agency. The Group has three members of staff who devote most of their time to providing Mutual Legal Assistance. Details of how to apply for assistance now appear on our website at www.gov.je/LawOfficers. In 2008, officials from the Serious Crime Group travelled to various jurisdictions to facilitate the investigation and prosecution of some of the Group’s cases. The following chart shows a breakdown by alleged offence of over 100 Requests for Assistance to which we responded in 2008.

29%

15%5%12%

9%

12%

18%

Fraud

Corruptionand briberyTheft andburglaryMoneylaunderingTax fraudand evasionDrugs

Other

Requests for Mutual Legal Assistance during 2008

In the past year, 6 new letters of request for assistance have been sent by Jersey to other jurisdictions (2007 – 16).

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The Laws most frequently used to render assistance are the Investigation of Fraud (Jersey) Law 1991 (“the Fraud Law”) and the Criminal Justice (International Co-operation) (Jersey) Law 2001 (“the 2001 Law”). The total number of new Requests received from overseas jurisdictions (and the Notices/Order served as a result) for the period 2000 to 2008 is set out on the following table: 2000

2001 2002 2003 2004 2005 2006 2007 2008

Total Requests received

119 120 94 104 101 107 77 77 91

Total notices / orders*

120 181 103 247 219 182 184 113 95

*These figures include notices and orders in respect of on-going investigations begun in previous years.

This information is shown graphically below.

0

50

100

150

200

250

2000

2001

2002

2003

2004

2005

2006

2007

2008

Total RequestsReceivedTotal Notices/orders

Requests for Assistance and Notices/Orders Issued

In addition to the new requests received in 2008, a number of Supplementary Requests or pre-2008 Requests were dealt with during the year. The new requests were dealt with as follows:

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Documentary evidence gathered 50 Voluntary witness statements obtained 3 Oral evidence hearing arranged 2 Fraud interviews arranged 1 Saisie judiciaire obtained or External Confiscation Order registered 3 Request refused or withdrawn 6 Request under consideration or awaiting further information at end of year 26 Total 91

Assistance was largely provided pursuant to Article 5 of the 2001 Law or Article 2 of the Investigation of Fraud (Jersey) Law 1991. The chart below shows the geographical distribution of the other jurisdictions requesting assistance.

49%

4%5%5%4%

33%UK

US

Poland

Netherlands

Spain

Other

Several hearings were held before the Viscount Substitute under Article 5 of the 2001 Law at the request of various overseas authorities.

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Constitution, Human Rights, European and Legislation (“CHEL”) Group

At the time of writing, the Group consists of one Principal Legal Adviser, two Senior Legal Advisers, one Legal Adviser, one Senior Assistant Legal Adviser and two Assistant Legal Advisers. There is one secretary who supports the Principal and Senior Legal Advisers, while other secretarial and administrative support is provided by the general administrative staff in the Department. The areas of law reflected in the CHEL acronym summarise CHEL’s original core responsibilities, which include the provision to the public sector of legal advice relating to the following: • The constitutional relationship between Jersey and the United

Kingdom, and Jersey’s international legal obligations; • Human rights; • The relationship between Jersey and the European Community;

and • New and existing legislation. The work undertaken in respect of legislation includes giving advice to Ministers and their Departments on proposals for new enactments (including, importantly, advice on human rights compatibility and penalty provisions), preparation of reports for the Privy Council, assisting with drafting instructions for some major items of new legislation, including the preparation of Orders in Council extending Acts of Parliament (with any necessary adaptations) to Jersey, and advice as to whether such extensions are necessary or desirable. The drafting of Rules of Court (which are made by the Superior Number of the Royal Court) is also undertaken from within CHEL. The Group provides advice and support to the Legislation Advisory Panel which advises the Chief Minister on items of new legislation which do not fall conveniently into the portfolio of a particular Minister. In addition to the matters mentioned above, CHEL also deals with a very wide range of other advisory work. This includes –

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• advice to the Honorary Police and, in public law matters, to the Parish administrations generally;

• legal advice to the States’ administrations relating to a variety

of commercial and other contracts;

• advice on employment law issues for the States as an employer;

• assisting in the preparation of Law Officers’ advice to the

Scrutiny Panels; and • advice on data protection law.

Other functions undertaken by members of CHEL include in-house notarial work and translating legal documents to and from French. Members of the Group gave advice on issues relating to the development of an Island-wide contingency plan to deal with an outbreak of pandemic influenza and the Principal Legal Adviser is a member of the Pandemic ‘Flu Strategy Group. In respect of new and forthcoming legislation, several items were of particular note. Work on a new Law to create the post of Director of Civil Aviation to regulate civil aviation safety in Jersey was completed and the Law was enacted towards the end of the year, as was a new air navigation Order, ahead of the International Civil Aviation Organisation audit, due in February 2009, of the UK, Crown Dependencies and Overseas territories regulatory regimes. Work continued on a draft Sex Offenders Law, which was eventually lodged au Greffe towards the end of the year. Amendments of the Court of Appeal (Jersey) Law 1961 to implement a variety of reforms of procedure before the Court of Appeal received Royal Assent in 2008. The reforms relate, among other things – (i) (in civil appeals) to jurisdiction, limitation on appeals, practice

and procedure and powers exercisable by a single judge; and (ii) (in criminal appeals) to time for appealing, the right to be

present, admission to bail, records of proceedings at trial, review of unduly lenient sentences and rights of appeal concerning confiscation orders.

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Work is still required to finalise Rules of Court to be made by the Court of Appeal in order finally to implement the reforms. Amendments to the Legitimacy (Jersey) Law 1973 were passed by the States facilitating the use of DNA evidence to rebut the presumption of legitimacy; and widening the entitlement to apply to the Royal Court for a declaration of illegitimacy.

Further work was undertaken on the Inheritance (Legitimacy and Provision for Family and Dependants) (Jersey) Law 200- and on an amendment of the Wills and Successions (Jersey) Law 1993 to reform the rights of illegitimate children and, if approved, to replace Jersey's laws of reserved rights of inheritance with a jurisdiction vested in the Royal Court to order that provision be made out of an estate for family and dependants.

Work continued on proposals for reform of the law relating to the capacity of minors (which has developed from the earlier Law Society proposals for reform of the law on tutelles). In the wider area of law reform, CHEL has also been tasked with the preparation of a law drafting brief for an overall reform of the legislation relating to security on immovable property. Notably, in 2008, the legislative apparatus was finally put in place to secure enforcement throughout the whole of the United Kingdom of maintenance orders made by Jersey courts. 2008 also saw the passing by the States of the ‘Supply of Goods and Services (Jersey) Law’ providing a statutory framework governing the obligations and rights of buyers and sellers of goods. That Law has just received Royal Assent, but still requires to be brought into force by Act of the States. Other matters progressed in 2008 included legislation relating to the International Criminal Court, the Armed Forces, as well as Regulations under the Burials and Exhumations Law and, as concerns Parish and Honorary Police matters, provision of a statutory basis for the Comité des Connétables and legislation to increase the jurisdiction of centeniers at Parish Hall enquiries. As for the Royal Court Rules, they were amended to empower the Master to undertake summary taxation of costs of interlocutory hearings. Amendments of the Advocates and Solicitors (Jersey) Law 1997 and the Qualifying Examination Rules revised the vocational requirements for admission to the Jersey Bar and as a solicitor (écrivain) of the Royal Court; and also enabled a conditional pass to be awarded in certain circumstances.

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Work was also undertaken (and is ongoing) in connection with the proposed central law library under the aegis of the Institute of Law (which was incorporated by the Royal Court on 14th November 2008). CHEL was able to assist in continuing discussions with the Ministry of Justice and representatives of the UK Border Agency on immigration matters affecting the Crown Dependencies, including e-borders, information sharing and matters of administration concerning the Common Travel Area. Work continued to implement the Financial Action Task Force recommendations on money laundering and terrorist financing through amending and new legislation in anticipation of the International Monetary Fund’s (“IMF”) visit to the Island in October, 2008 for the purpose of reviewing the regulation of the Island’s financial sector. Also for the same purpose, obligations under international treaties were considered and where the Island authorities had agreed to be party to such agreements, and the relevant obligations had been implemented, steps were taken to provide for these treaties to be ratified on behalf of the Island. As at the end of 2008 this process, involving the Ministry of Justice, was ongoing in respect of the majority of the international agreements that were being progressed. Work also continues on a regular basis of the consideration of whether various items of new European legislation might be applicable to Jersey by virtue of Protocol 3 to the UK’s Act of Accession to the EC treaty. One major item of work completed during the year was advice as to the implementation of EC law relating to importation of bovine semen. This followed the decision to allow such importations, in order to preserve the standards of the Jersey breed of cattle in its place of origin, after a period of some 250 years as a “closed herd”. Much work was also undertaken on the introduction of a new Gender Recognition Law, which was lodged au Greffe near the end of the year. Members of the Group provided support and assistance (as appropriate) in respect of States-wide matters e.g. Sanctions Working Group, Ministerial Decisions Working Group, Security Policy Group etc.

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One of the Senior Legal Advisers had the opportunity to attend the International Labour Organisation (an agency of the United Nations) as an observer at its sittings in June 2008 in Geneva.

General comments and the view to 2009 In the course of the year, a Senior Assistant Legal Adviser decided to move on to pursue further academic studies in the UK. On a positive note, the Group has been strengthened by the welcome addition of two Assistant Legal Advisers – one recruited from the private sector and the other from within the Department. A Senior Assistant Legal Adviser was successful in completing the examinations for the purposes of qualifying as a local advocate. The imperative of enabling Jersey to obtain as favourable a report as possible from the IMF inspectors meant that this had to be accorded priority over some other matters. With this work completed and CHEL Group slightly strengthened in numbers, it is felt that the Group is somewhat better positioned to respond to the demanding workflows for the year ahead. But, it is likely that resources will be severely stretched, if not actually inadequate, in some areas, if the planned reorganisation of the Department results in a reduction of the existing legal advice resources.

Orders in Council and Privy Council Reports 2008 was again a busy year for the States, with 43 new Laws being adopted (although two were later re-submitted). As is customary, all were presented at the next available sitting of the Royal Court after return from the Department for Constitutional Affairs, following Royal Assent. The Attorney General has a duty to report to the Privy Council following the adoption of legislation by the States and to draw to the attention of the Privy Council any features of that legislation which might affect the interests of the Crown. A new form of report was developed by the Attorney during the year and agreed with the Ministry of Justice. This should facilitate a speedier grant of royal assent than hitherto. A total of 41 reports for the Privy Council were prepared in 2008 (45 in 2007). These reports are sent in the first instance to His Excellency the Lieutenant Governor. The Department’s aim (and therefore the Group’s target) is to forward reports to the Lieutenant Governor

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within four weeks of States approval. Further efficiencies in this process have been achieved by the introduction of the use of electronic mailings to and from the Department for Constitutional Affairs. It is noteworthy that the target was achieved in every case during the year. The 41 reports in 2008 were transmitted within the following timescales:- 2004 2005 2006 2007 2008 Less than 10 days 23 31 22 36 17 Between 11 and 20 days 5 10 6 6 13 Between 21 and 30 days 1 1 2 2 11 Between 31 and 40 days 1 0 0 0 0 Between 41 and 50 days 1 0 0 0 0 Over 51 days 0 0 0 1 0 TOTAL 31 42 30 45 41 All reports were therefore transmitted within one month. The average time for transmission was 13.5 days (performance indicator 28 days). In addition to the Orders in Council relating to Laws passed by the States of Jersey a total of 3 Statutory Instruments and Orders in Council extending UK legislation to the Island were registered in the Royal Court. (2 in 2007).

Hague Convention – Service of Documents Dealing as it does with some international matters, the Group is also responsible for the administration of requests from overseas authorities for the service of judicial documents under the 1965 Hague Convention on the Service of Documents. In 2008, 47 sets of documents were received (52 sets in 2007) and processed. The total reverts therefore to a level comparable to those occurring during some past years. The data are shown graphically below.

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83

64

105

5247

0

20

40

60

80

100

120

2004 2005 2006 2007 2008

Documents received for service under the Hague Convention 2004 - 2008

Loi (1862) sur les teneures en fidéicommis et l’incorporation d’associations

The CHEL Group also oversees applications to the Royal Court for the incorporation of associations under the Loi (1862) sur les teneures en fidéicommis et l’incorporation d’associations. The constitutions of 4 new associations were approved by the Department in 2007 (2007 total – 9 constitutions) and Acts of Incorporation granted by the Royal Court.

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General Group The General Group deals with advice to Ministers, States Departments and others in areas not covered by other Groups of the Department, criminal prosecutions other than the most serious, curatorships, child care and family matters and a wide variety of other legal work. The Group is headed by H.M. Solicitor General. Stéphanie Nicolle retired from the post of Solicitor General at the end of March and was replaced by Crown Advocate Timothy Le Cocq who took up the position at the beginning of April. At the start of 2008, the General Group also included two Crown Advocates, one of whom increasingly specialises in serious criminal prosecutions, and four Assistant Legal Advisers some of whom assisted on an occasional basis with Magistrate’s Court prosecutions. The Crown Advocate who retired in 2007 has assisted in the Group on an ad hoc basis during the year. One of the Assistant Legal Advisers qualified as an advocate during the year and was later promoted to Legal Adviser. She now takes the lead in the rapidly growing area of childcare and family law. One of the other Assistant Legal Advisers also qualified as an advocate and moved to Police Headquarters in order to cover a vacant post there. He has also been promoted to Legal Adviser during the year. Secretarial assistance is provided by two secretaries.

Advice to Ministers and Departments The Department continued to advise Ministers and Departments on a wide range of legal issues. Advice on many matters referred in previous years continued and the total number of new formal requests for advice during the year (excluding Conveyancing enquiries, advice to the States Police and some other organisations) was as follows:- 2004 2005 2006 2007 2008 Economic Development 33 48 29 25 29 Constables 30 37 33 28 40 Data Protection Registrar 4 0 2 5 3 Education, Sport and Culture 17 18 19 12 13 Employment & Social Security 26 10 21 19 9 Treasury and Resources 11 28 20 9 19 Harbours & Airport 19 73 19 10 13 Health & Social Services 69 35 68 63 63 Home Affairs 49 37 38 39 32 Housing 27 2 25 19 21 Income Tax 7 4 7 3 3 Licensing 11 18 14 9 9 Planning and Environment 80 33 30 56 72

20


Population Office 9 20 19 Transport & Technical Services 36 26 29 16 27 States Human Resources 9 9 6 0 9 Chief Minister’s Department 115 50 95 72 89 Scrutiny 8 14 15 States Member (Individual) 15 19 7 4 8 Total 558 447 479 423 493 (N.B. Not all of these new requests were dealt with by the General Group.)

This information is shown graphically below but these figures do not of course include the many informal requests for advice which are dealt with over the telephone or by e-mail where no separate or new file is established.

Number of New Requests for Advice

558

447 479423

493

0

100

200

300

400

500

600

2004

2005

2006

2007

2008

In addition the Department continued to provide advice to Departments where new issues arose out of existing matters and to H.M. Receiver General in relation to legal matters. Advice on Human Rights matters (part of the remit of the CHEL Group) is included in the above figures and will continue to form an increasing part of the Department’s work, particularly in the consideration of new legislation which requires a statement of Human Rights compatibility before being presented to the States Assembly for debate.

21


As an indicator of the level of activity of the Department, the number of files opened and closed each year is shown below. This is a relatively crude indicator but should, over time, show whether the amount of work undertaken by the Department is increasing or decreasing. The information is taken directly from the Department’s filing/time recording system on which all work is recorded. Housekeeping to close files which are no longer active is carried out on a regular basis. 2003 2004 2005 2006 2007 2008

Files Opened

2124 2098 1742 1790 1780 1657

Files Closed

1327 1415 1336 2487 2374 973

0

500

1000

1500

2000

2500

3000

2003 2004 2005 2006 2007 2008

Files Opened

Files Closed

Files Opened and Closed 2002 – 2006

Criminal Matters

During 2008 a total of 119 new criminal prosecutions were committed from the Magistrate’s Court to the Royal Court or indicted directly into the Royal Court, seven more than in 2007 suggesting a rising trend compared to the previous couple of years.

22


83 86 82

149

124

151

129

143

123

104

126

10595

113 112119

0

20

40

60

80

100

120

140

160

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Royal Court – New Criminal Cases 1993 to 2008

Not all of the new prosecutions referred to above were completed during 2008 while some from the previous year were dealt with during the year. In 2008 the principal offence for the cases dealt with in the Royal Court was as follows: (The 2004 to 2007 figures are given as a comparison) 2004 2005 2006 2007 2008 Drugs offences 50 39 39 36 40 Violence against the person 20 18 34 21 26 Murder/manslaughter 1 0 0 1 2 Breaking & Entry/Illegal Entry 7 11 5 9 8 Larceny and receiving stolen property 4 8 5 6 4 Sexual offences 3 5 11 10 9 Fraud and other offences of dishonesty 5 2 6 3 5 Motoring offences 2 3 2 7 1 Public order offences/resisting arrest 4 0 3 5 0 Arson/maliciously setting fire 0 1 0 1 0 Income Tax infractions 0 0 0 1 0 Health & Safety infractions 0 4 1 5 2 Housing infractions 0 0 0 6 6 Planning infractions 2 0 2 0 0

23


Social Security infractions1 0 0 0 0 0 Possession of explosives/firearms 1 0 2 1 0 Proceeds of crime 1 1 0 0 0 Other miscellaneous criminal offences2 5 0 2 0 1 Other miscellaneous infractions3 0 3 1 0 2 TOTAL 105 95 113 112 106

The proportion of cases relating to drug offences increased from 35% in 2007 to 38% in 2008. The 106 new cases were dealt with in the following manner:-

During 2008, 18 trials took place in the Royal Court, of which some were ordered during 2007 and others during 2008. Some ordered in 2008 will take place in the 2009. The tables below show the outcome of those cases sent for trial: During the year there were a total of 8 Criminal Assize trials and 1 trial before the Inferior Number.

1 The Department also referred a number of infractions to the Legal Adviser to the Police for prosecution in the Magistrate’s Court 2 Includes such offences as perverting the course of justice, child cruelty, demanding money with menaces etc 3 Includes, for example, infractions under the Licensing, Food Hygiene, Sea Fisheries, Data Protection, Residential Homes, Water Pollution and Fire Safety Laws.

Sentenced by Inferior Number following guilty plea 64

Sentenced by Superior Number following guilty plea 15

Not guilty plea – remanded for trial 24

Other (E.g. failed to appear - arrest ordered, case abandoned, etc)

3

Tried before Criminal Assizes 8 Tried before Inferior Number 1 Change of plea to guilty before trial date 7 Other (e.g. Prosecution abandoned before trial, defendant failed to appear etc)

2

TOTAL 18

24


19

96

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Criminal Assizes

5 12 8 7 8 10 12 15 8 8 5 6 8

Inferior No. Trials

7 4 4 2 6 4 2 7 8 8 5 4 1

Total Trials

12 16 12 9 14 14 14 22 16 16 10 10 9

These figures are shown graphically below:

12

16

12

9

14 14 14

22

16 16

10 109

0

5

10

15

20

25

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Royal Court Trials Held 1996 – 2008 In the 10 trials, there were a total of 11 accused (2007 – 12). Of these, 6 were found guilty (2007 – 9) and 5 acquitted (2007 – 3). The Department monitors the progress of criminal cases. The table below shows the results for the period 2003 to 2007 for those processes over which the Morier House administration has control. The performance indicators are set out in more detail in the Department’s Business Plans.

25


Performance Indicator 2004 2005 2006 2007 2008

Receipt by Chief Clerk of case file from Legal Adviser to the Police

within 14 days of committal

PI Achieved

76.0% Longest 40

days

PI Achieved

66.2% Longest 64

days

PI Achieved

63.5% Longest 76

days

PI Achieved

61.5% Longest 83

days

PI Achieved

40.9% Longest 92

days

Allocation of case to

Crown Advocate within 7 days of receipt of papers

PI Achieved

97.3% Longest 8

days

PI Achieved

94.6% Longest 26

days

PI Achieved

95.7% Longest 11

days

PI Achieved 100.0%

Longest 6 days

PI Achieved

94.5% Longest 23

days

Indictment within 35 days of receipt of

papers

PI Achieved

98.7% Longest 38

days

PI Achieved

91.8% Longest 52

days

PI Achieved

96.8% Longest 44

days

PI Achieved 100.0%

Longest 35 days

PI Achieved

92.0% Longest 44

days

The Department will continue to monitor and report the progress of cases through the Royal Court and seek to improve processes where bottlenecks occur. As can be seen from the table above, the latter two performance indictors were achieved in over 90% of cases although they failed to meet the target of 95%. Fines and costs awarded to the Crown by the Royal Court during the year amounted to £82,000. Previous years’ figures are shown below: 2004 2005 2006 2007 2008 Total fines and costs awarded

£9,000 £192,500 £55,500 £82,000 £41,750

(N.B. Default terms of imprisonment are often ordered by the Court which may result in a lower level of fines being collected than appears here. No adjustment has been made for any reduction in fines ordered by the Court of Appeal. Levels of fines can vary greatly from year to year as a result of one or two large fines on companies for serious cases.)

Court of Appeal – Criminal Appeals In 2008, there were 9 appellants in criminal matters from Royal Court to the Court of Appeal or to the Superior Number exercising appellate jurisdiction, who applied for leave to appeal against their conviction and/or sentence. (2007 – 29) In addition there was one ‘case stated’ appeal by the Attorney General against a decision of the Magistrate. That appeal is excluded from the table below. The results of these appeals were as follows:

26


Leave to appeal refused 3 Appeals against conviction Appeal allowed – conviction

quashed and/or re-trial ordered 1

Appeal dismissed or abandoned 4 Appeals against sentence Appeal allowed – sentence

reduced 0

Appeal dismissed 1

Magistrate’s Court Appeals There were three appellants from the Magistrate’s Court in 2008. The result of those appeals is as follows: 2004 2005 2006 2007 2008 Appeals against conviction

Appeal allowed – conviction quashed

0 2 1 0 0

Appeal dismissed

0 2 1 1 2

Appeals against sentence

Appeal dismissed 0 0 1 2 1

Appeal allowed – sentence reduced or amended

2 2 0 0 0

Appeal allowed – remitted to Magistrate

0 0 0 0 0

In addition to the three appeals above, there was a further appeal by the Attorney General where the Magistrate failed to impose a mandatory sentence of disqualification from driving for a second driving offence committed within a ten year period. The Court allowed the Attorney General’s appeal and substituted a three year period of disqualification.

Bail Applications There were two applications for bail made in the Royal Court in 2007 (excluding applications made on indictment). (2007 – 1 application). The outcomes of those applications are as follows: 2004 2005 2006 2007 2008

27


Review of Magistrate’s decision – bail refused

1 0 0 0 0

Review of Magistrate’s decision – bail granted

0 1 2 0 0

Remitted to the Magistrate 0 0 1 0 0 Original applications – bail refused 1 2 3 1 0 Original applications – bail granted 1 1 1 0 2 Two defendants who breached the conditions of their bail were reprimanded by the Court.

Review of Royal Court Probation Orders There were 15 reviews of probation and community service orders by the Royal Court during 2008 (2007 total – 9) of which one offender where the review resulted in imprisonment, thirteen offenders had their Orders extended or amended and one where the Order was discharged. (These figures do not include any cases where an offender breached an order by re-offending.)

Naturalisations and Applications under the British Nationality Act

The Department deals with some of the administrative work which these applications require and which are dealt with in the Samedi Court. The number, and hence the work involved, has risen over the last few years although in 2008 there were 67 naturalisations and applications, a reduction on recent years. The figures for the last few years are shown graphically below.

3324

98 102112

8167

0

20

40

60

80

100

120

2002 2003 2004 2005 2006 2007 2008

Naturalisations 2002 - 2008

28


Administrative Appeals As in previous years, members of the Department have represented Ministers and other States bodies during the year.

Debts The work of the Department’s Finance and Court Proceedings Officer resulted in:- Petty Debts Court 2004 2005 2006 2007 2008

Summonses sent 1587 1450 960 1087 1148

Total for summonses issued £2,783,465 £3,514,479 £1,526,739 £2,448,785 £2,613,378

No. of cases to court

1146 967 477 632 688

Total for cases to court

£2,265,229 £2,686,850 £943,450 £1,631,559 £1,728,122

500

700

900

1100

1300

1500

1700

2004

2005

2006

2007

2008

(Cas

es)

Summonses sent

Cases to court

Petty Debts Court Summonses and Cases (Number of Cases)

29


0

1000

2000

3000

4000

2004

2005

2006

2007

2008

(£00

0's)

Value ofsummonses issued(£000's)Value of cases tocourt (£000's)

Petty Debts Court Summonses and Cases (Value) Royal Court 2004 2005 2006 2007 2008

Summonses sent 512 110 82 133 154

Total for summonses issued

£4,588,743 £2,444,842 £2,351,907 £3,788,342 £3,833,479

No. of cases to court 407 92 51 90 97

Total for cases to court

£3,277,599 £1,755,156 £986,806 £1,859,798 £2,007,676

A total of £2,741,057 was recovered before the court date and £38,277 was recovered via the Viscount’s Department. (Monies paid direct to individual departments after an Act of Court has been obtained and wage arrests are not included in the above figures.) This information is shown graphically below:

30


0

100

200

300

400

500

600

700

2004

2005

2006

2007

2008

(Cas

es)

Summonses sent

Cases to court

Royal Court Summonses and Cases (Number of Cases)

0

1000

2000

3000

4000

5000

2004

2005

2006

2007

2008

(£00

0's)

Value ofsummonses issued(£000's)Value of cases tocourt (£000's)

Royal Court Summonses and Cases (Value)

The level of activity in the Petty Debts Court as measured by the number of summonses sent during 2007 showed a significant increase on the previous year and the trend continued to increase in 2008. The number of summonses sent to the Royal Court in 2007 increased significantly from the previous year and the results for 2008 suggest a continuing upward trend. The debts collected by the Department as a result of undertaking this work for other States departments represent a significant income for the States as a whole. Although the Department charges for this work, it represents a significant saving to the other Departments if this work was carried out by private sector companies. The number of summonses sent to both the Petty Debts

31


and Royal Courts dipped very significantly between 2004 and 2005 but has risen steadily since then. It is thought that the changes to the collection of income tax through the introduction of ITIS reduced the number of arrears of income tax payment resulting in court action at that time. It seems likely that the current economic downturn may result in more debts being owed to States departments and that the work of the Department’s Finance and Court Proceedings Officer will continue to rise over the foreseeable future. The Department will continue to monitor the position closely.

Claims against Departments The Department dealt with new civil claims against Ministers and other States Departments where proceedings were issued or threatened. Where appropriate, all were referred to the States’ insurers within the time specified by the performance indicator in the Business Plan. The claims were as follows: 2004 2005 2006 2007 2008 Economic Development 0 0 0 1 0 Education, Sport and Culture 1 1 6 1 2 Employment & Social Security 0 0 1 0 1 Harbours and Airport 0 0 1 0 0 Health and Social Services 5 5 5 4 3 Housing 3 0 1 1 0 Home Affairs 3 0 3 3 5 Transport & Technical Services 4 3 5 1 2 Planning & Environment - - 0 0 0 States of Jersey Police 0 0 1 1 1 Other 0 2 0 0 1 Total 16 11 23 12 15

Legitimacy Petitions Two new petitions were reviewed by the Department during the year (2007 total – 3). The performance indicator for this area of work is that an initial response should be given within three weeks of receipt of the initial letter. A response was given in the following times for the three new cases: 2004 2005 2006 2007 2008 1 to 7 days 3 3 2 3 2 8 to 14 days 1 0 0 0 0 15 to 21 days 1 0 0 0 0 22 to 28 days 1 0 0 0 0

32


28 to 30 days 1 2 0 0 0 Both petitions received in 2007 were processed within the target time.

Children’s Matters The Department acts for the Children’s Service in care order proceedings, adoptions and various other matters. These matters can be extremely urgent and time consuming and represent a significant work load for those members of the Department who deal with them. In 2008, the Department dealt with 40 new matters (2007 total – 29) of this sort. The nature of many of these cases is that the work continues until the child attains his or her majority and there is a cumulative factor which makes the Department’s workload increasingly onerous as well as being of vital importance.

1 2

10 11

25

1821

32

24

29

34

29

40

0

5

10

15

20

25

30

35

40

45

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

New Children’s Matters Referred to the Department

Curatorships The General Group carries out the administrative work associated with the establishment of curatorships where a person is appointed by the court to look after the financial affairs of another deemed incapable of doing so themselves through mental incapacity. In 2008, the Department dealt with 77 (2007 total – 88) new curatorships for new interdicts but this figure does not include the work done on existing curatorships such as for changes of curators or for curatorships not proceeded with. This represents a continuing increased work load as can be seen from the graph below:

33


59

74 71

5461 64

41

60

79

69 68

95

84

101

73

8894

90 88

77

0

20

40

60

80

100

120

1989

1991

1993

1995

1997

1999

2001

2003

2005

2007

Curatorships – 1989 - 2008

34


Office of the Legal Adviser to the Police During 2008, the Legal Adviser to the Police’s team dealt with 246 prosecutions in the Magistrate’s Court (2007 total – 200), 46 more than in the previous year and the highest number for over five years. This is shown graphically below:-

97 95

189210

184

143 144

200

246

0

50

100

150

200

250

300

2000

2001

2002

2003

2004

2005

2006

2007

2008

Magistrate’s Court Prosecutions

The principal offences for the cases dealt with in the Magistrate’s Court (i.e. excluding those committed to the Royal Court) by members of the Legal Adviser’s Office for the last four years were as follows:- 2004 2005 2006 2007 2008 Drugs offences 18 11 11 14 23 Violence against the person 56 50 51 62 63 Breaking and entry / Illegal entry 5 4 5 8 9 Larceny and receiving stolen property 21 16 8 13 10 Sexual offences 4 4 12 12 13 Fraud and other offences of dishonesty 6 6 6 8 7 Motoring offences 19 14 14 30 36 Public order offences / Resisting arrest 23 12 9 18 27 Infractions 1 2 0 4 11 DIC 14 16 13 14 16 Miscellaneous 15 4 13 12 27 Malicious damage 2 4 2 5 4 TOTAL 184 143 144 200 246

35


The Legal Adviser answered 276 requests for advice from various agencies in the criminal justice system (2007 total – 199) which represents a significant increase in workload since the previous year and is comparable to the previous four years. Again this is shown graphically below:-

151 150

191

247232

272290

199

276

0

50

100

150

200

250

300

350

2000

2001

2002

2003

2004

2005

2006

2007

2008

Requests for Advice Answered 137 files were prepared for the Royal Court during the year (2007 total – 111) although not all of these were indicted before the Royal Court during 2007.

115 117 116135

113 107

137

111

137

0

20

40

60

80

100

120

140

160

2000

2001

2002

2003

2004

2005

2006

2007

2008

Royal Court Files Prepared

36


Conveyancing Group

Unlike previous years the majority of the conveyancing section’s time during 2008 was taken up implementing the sales of social rented housing in accordance with the Social Housing Property Plan 2007-2016 (P6/2007). According to P6 the properties were either categorised as those to be sold to existing tenants under the deferred payment scheme or those to be sold on the open market. Before we could proceed with the sales under the deferred payment scheme it was decided that a robust system for the future management of the communal areas within the estates ie. the roads, pavements, landscaped areas etc. should be set up. An amendment to the “Loi (1862) sur les teneures en fidécommis et l’incorporation d’Associations” which came into force in November 2007 made it possible to form an Association of the property owners of a housing estate and register that Association with the Royal Court. The constitution of the Association was based on the resident associations formed under the flying freehold law. The drafting of the constitution, the contract transferring the communal areas into the name of the Association and the contracts of sale of the individual properties were difficult. They all had to support each other and contain sufficient rights for all the parties concerned while ensuring as much autonomy as possible for the Association. The sales of the properties on the open market proceeded simultaneously at a steady pace and while these transactions were comparatively straightforward they were still time consuming. In addition the section still had to deal with the usual requests for advice and information from other States Departments. The increased workload combined with a depleted workforce due to maternity leave made 2008 a busy and challenging year. The conveyancing section completed the following transactions before the Royal Court during 2008.

37


The Conveyancing Section of the Department undertook the following transactions before the Royal Court during 2007:- 2004 2005 2006 2007 2008 Property sales and sales of rights

42 57 41 47 55

Property purchases

9 18 1 3 9

Deeds of arrangements and parties to contract

49 33 27 33 32

Contracts with Jersey Electricity Company

3 4 2 0 2

Other contract leases

6 7 3 7 7

Mortgages secured by simple conventional hypothec

0 1 0 0 0

New Agricultural loans and other loans served by judicial hypothec**

0 1* 0 1 26

Existing agricultural loans re-registered

11 7 6 5 2

*Judicial Hypothec – Caledonia Close, £585,000, repayable 30th June 2006 ** Housing Department stock sell-offs

38


The values of the transactions for which the Conveyancing Group were responsible during the year were as follows:- 2004 2005 2006 2007 2008 Gross value of sales completed on behalf of the Public and the Crown

£6,430,598 £9,970,352 £20,654,5784 £8,540,1785 £10,375,8016

Gross value of purchases completed on behalf of the Public and the Crown

£517,381 £3,480,340 £10 Nil £755,420

Gross value of all new loans registered

£70,718 £109,000 - £79,033 £2,052,915

Gross value of all existing loans re-registered

£691,175 £770,622 £345,036 £147,646 £89,071

Gross amount of legal fees recovered from third parties

£21,890 £15,210 £91,690 £24,000 £23,405

JEC Leases annual rental receipts (total paid in advance)

£425 £34,0007

Crown Leases annual rental receipts

£20 p.a. x 21 yrs

Public Leases annual rental receipts (6)

£130,299

Considerations received on Deeds of Arrangement

£6,200

Fees paid by Public to Lawyers £11,850

4 Includes £1,998,9673 AHP sales/transfers 5 Includes £746,452 approx AHP sales/transfers and £2,500 Crown sale 6 Includes £1,333,508 AHP repayment of States loans. Discounted prices of housing sales used. Balance shown under new loans registered below. 7 Aviation Beauport – commencing rental

39


SECTION 5

2008 BUSINESS PLAN DEVELOPMENT ACTIVITIES REPORT ON PROGRESS

The Department did not publish a Business Plan during 2008 as there were difficulties setting a balanced budget for the year. This resulted in lengthy negotiations with the Treasury and Resources Department, finally reaching a satisfactory conclusion towards the middle of the year. The Department continued to progress the development activities set out in the 2007 Business Plan and progress on these is shown below.

Activities that have been achieved are shown in green. Activities that are only partially complete or are on-going are shown in blue. Activities that have not yet been undertaken are shown in red.

2007 Key Activities Relating to Organisation and Management of the Department Continued into 2008

4.1 Consider the results of the

States-wide staff survey and implement changes to Department procedures as appropriate.

Slow and limited progress has continued but was overtaken by the next survey. However, one of the changes suggested by staff, that of flexitime, has been introduced in 2009. Introduction of flexitime was unfortunately delayed by problems with the installation of the software to record staff time.

4.2 Complete recruitment of additional staff, particularly the property lawyer.

Completed in 2007

4.3 Continue discussions with police over accommodation for the Legal Adviser to the Police and his staff, in particular with regard to the new Police Headquarters building.

The new building is currently not being progressed due to lack of available financial resources. The Management Team continues to be concerned about the facilities available to Law Officers' Department staff there.

4.4 Consider report on the file referencing review and plan for changes if appropriate.

The new filing system was piloted by one section of the Department but its full implementation is now being held over until the appointment of a Records Manager to a new post agreed in late 2008.

4.5 Review the debt recovery Assistance has been obtained from ISD and

40


system and investigate the feasibility of moving from the current Dataease-based system to an Access system.

a new bespoke system that complies with States’ standards will be piloted in 2009.

4.6 Continue revision of staff handbook to Lexcel standards.

This work is on-going although the Department does not have the resources currently to move to full Lexcel accreditation.

4.7 Introduce case management system for file handling to Lexcel standards.

Limited system introduced for criminal prosecutions but see also 4.9 below.

4.8 Consider other changes to Departmental procedures to comply with Lexcel standards

On-going but see 4.6 above.

4.9 Use case management system to collect performance data with a view to publication in 2008 onwards.

As a result of the review of the file referencing system, a new time recording was sourced and installed during 2008. Once the new file referencing system is in place, this topic will be re-visited using the new time recording system.

4.10 Produce 2008 Business Plan to agreed corporate standards

Not completed due to problems setting a balanced budget but the 2009 Business Plan will be published in the first quarter of the year.

4.11 Produce 2007 Attorney General’s Review.

The 2007 Attorney General’s Review was published in the first quarter of the 2008.

41


SECTION 6

This Section was introduced in 2006 and reproduces the Statement of Internal Control made by the Accounting Officer for the Department (the Chief Clerk) as a requirement of Financial Direction 2.2. Progress made on the significant control issues identified within the Statement over the year will be reported in the next Review.

Statement on Internal Control at December 2008

Law Officers’ Department

This section outlines the main features of the Law Officers' Department system of internal control and internal audit arrangements. The Statement of Internal Control is a requirement of Financial Direction 2.2.

1. Scope of responsibility

Under the terms of the Public Finances (Jersey) Law, 2005, the Accounting Officer of a States funded body is personally accountable for the proper financial management of the resources of the body in accordance with that Law.

The Accounting Officer of a States funded body must, in particular, ensure –

a. that the expenditure of the body does not exceed the amount appropriated to it by a head of expenditure and is used for the purpose for which it was appropriated;

b. that, in so far as practical, all money owed to the body is promptly collected and paid into an appropriate bank account, and that all money owed by the body is duly paid;

c. that the body keeps proper accounts of all its financial transactions and proper records of those accounts;

d. that the records of the body are promptly provided when required by the Treasurer for the production of the annual financial statement;

e. that the body is administered in a prudent and economical manner;

f. that the resources of the body are used efficiently and effectively; and

g. that the provisions of the Law in their application to the States funded body are otherwise complied with.

42


In the Law Officers' Department, the Chief Clerk is the Accounting Officer and is responsible for all financial matters relating to the Department. 2. Purpose of internal control The system of internal control is designed to manage risk to a reasonable level rather than to eliminate all risk of failure to achieve or maintain policies, aims and objectives. It can therefore only provide reasonable and not absolute assurance of effectiveness. The system of internal control is based on an ongoing process designed to identify and prioritise the risks to the achievement of the Department’s policies, aims and objectives, to evaluate the likelihood of those risks being realised and the impact should they be realised, and to manage them efficiently, effectively and economically. The system of internal control has been in place in the Department for the year ended 31st December 2008 and up to the date of approval of the annual report accounts. 3. The risk and control framework The Department’s Annual Business Plan provides the framework for the use of resources, the ways in which the Department will contribute to the States’ strategic objectives and internal improvements in the way in which the Department functions and is managed. The Business Plan complies with State standards as appropriate to a non-executive, judicial Department and is published in both hard copy and on the States internet site. The possible risks to the success of implementing the Business Plan are identified in the Plan. The performance of the Department is reported annually in the Attorney General’s Review and includes statistical measures of performance, financial data and reports on performance indicators. Again, the Review is published in hard copy and on the internet. As a small department, there is no delegation of budgets to anyone other than the Finance Manager and Chief Clerk who have regular informal meetings on an almost daily basis, where any problems are discussed and agreement reached on solutions. The Department complies with Financial Directions as appropriate (see below regarding capital expenditure, for example) and with other States policies as appropriate to a non-

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executive, judicial Department. Any omissions from the requirements of the Financial Directions are shown below. The States Strategic Plan includes a commitment to adopt Generally Accepted Accounting Principles. A project has commenced to implement Resource Based Accounting and Budgeting (RAB), a major element of which is the adoption of GAAP based standards. The adoption of GAAP is scheduled for 1st January 2009.

4. Review of effectiveness Income Systems have been documented and communicated to the appropriate staff for claiming and collecting income due to the Department. Regular income is confined to conveyancing fees and fees due from other States departments for debt recovery. The Finance Manager reconciles income/debtors on a quarterly basis to ensure that all income is fully accounted for and chased up where outstanding. Costs – The Crown is occasionally awarded costs by the Court, either a total amount or in settlement of a bill of costs in the normal way. Similarly, occasionally confiscations and asset sharing agreements with other jurisdictions produce monies which are to be credited to the Criminal Offences Confiscation Fund. Such awards and confiscations are only made occasionally and are therefore easy to identify and alert to the prosecuting crown advocate the possibility of income generation. Expenditure The Department complies with Financial Regulations on expenditure. High Cost Cases – The Department has a number of criminal investigations and prosecutions which result in high expenditure which is charged to the Court and Case Costs account. Following reviews by the Internal Audit Department of the Treasury and by the National Audit Office, procedures recommended by those reviews have been put in place to monitor and control expenditure. In addition, regular internal review meetings are held to monitor progress of the investigations and their costs. Quarterly Reports – The Department’s budget is monitored centrally through the reports which are sent on a quarterly basis to the Treasury which include forecasts of expenditure to the year end and possible overspends. In addition, the Senior Management

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Team reviews income and expenditure each quarter at its regular monthly meetings. Payments – The Department uses the Shared Services section of the Treasury to make payments to suppliers. The Finance Manager reconciles all payments to the JDE records and ensures that any errors are corrected. Stock Control and Petty Cash – The Department’s stock of stamps for contracts is reconciled on a regular basis and at end of year by the Court Proceedings and Finance Officer and verified by the Finance Manager. Petty cash floats are similarly reconciled by their holders and verified by the Finance Manager. Capital Expenditure The Department is not responsible for nor involved in any capital projects. Asset Register A register of assets, including IT and office equipment, is now complete. The Department has no individual pieces of equipment with a value greater than £5,000. Assurance Statements Statements have been supplied by the Accounting Officers of the Treasury and Resources Department, the Information Services Department and the Human Resources Department that the systems in place for services provided by them which the Department uses comply with the requirements of the Public Finances (Jersey) Law, 2005. Audit Reviews The Comptroller and Auditor General (CAG) Mr Chris Swinson carried out a review of Department resources in 2008. The review covered the resources available to the Department, both financial and staffing, and the organisation and efficiency of the Department. As a result, a major re-organisation of the management structures and responsibilities within the Department will be undertaken during 2009. The Internal Audit plan for 2008 included a review of the Non-executive departments and autonomous bodies internal control environment. The aim of the review was to provide assurance to Chief Officer(s) / Heads of Department that the basic financial controls over cash and other assets are operating effectively. An internal audit was also conducted to review the systems, procedures and controls of the departments subject to Court & Case Costs. Two departments with the most significant costs

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were reviewed, these being the Judicial Greffe and Law Officers Department. Audit control environment rating The control effectiveness of the financial controls within the Law Officers’ department was rated ‘Adequate’ (rating 3). However, the opinion on adequacy of control on funding from the COCF was considered to be inadequate, as in a previous review by the CAG of the COCF, the CAG recommended that both the COCF and the DTCF should be transferred to general States revenues. Alternative funding arrangements need to be made for the Department to receive funds equivalent to those currently received from the COCF if these Funds are indeed subsumed into general revenues. The adequacy of the internal control environment to manage risk for Court & Case Costs was rated ‘Adequate’ (rating 3). The opinion of the way management are delivering the recommendations and attitude to pro-active development of the issues raised was rated ‘Improving Well’ (rating 3). 5. Significant control issues

Control Issue Mitigating Actions Officer Responsible and

Time Scale COCF funding. The department’s performance with respect to the budget may not be seen to portray an accurate and transparent view of the overall budgetary position of the department.

Implementation of the CAG’s recommendation that the Law Officers’ department’s budget be ‘augmented to cover the amount utilised from the COCF’.

This is expected to be completed once the RAB framework has been fully implemented.

There is no formal written procedure manual regarding Court and Case Costs.

Without an approved procedures manual there is an increased risk that controls and procedures relating to court and case costs may not be performed or may be incorrectly adhered to.

Chief Clerk/ Director of Services - Judicial Greffe/ Finance Director - Treasury Corporate Group. A formal procedures manual covering all aspects of

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court and case costs from budgeting and Case Management Plans to year end accounting adjustments will be produced for all departments to adopt.

Third party service providers are frequently engaged by the Law Officers Department where there is limited time for tender or a specialised service is required. Although procedures for engaging third parties are followed in line with the Financial Direction 5.1 “Engagement & use of consultants”, the decision making process and approval is often not documented as required by the direction.

Without documented evidence of the decision making process and approval of the engagement of third party service providers it is difficult to evidence that Financial Direction 5.1. has been followed

Accounting Officers - Ongoing. CMPs will include a section for documenting the decision making (including cost considerations) and approval of the appointment of third party service providers in line with the financial direction.

The departments have noted they have historically received little communication particularly in the run up to the year end on how the year end adjustments would be made to ensure that none of the departments overspent on their budget. In previous

The year end adjustments provide for transfers between departments so that eligible withdrawals can be made from the COCF to balance the overspends. This often leads to published figures differing significantly from the actual departmental results increasing the risk of misinterpretation from

Chief Clerk/Director of Services - Judicial Greffe/ Finance Director - Treasury Corporate Group. Discussions between Treasury and the departments will take place on a timely basis throughout the year to establish

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years a complex series of accounting adjustments have been necessary between departments and the COCF in order to present a picture where the transfers from the COCF balance departmental budgets. Given the Accounting Officers are not allowed to overspend their budgets by law they have felt pressured into agreeing to these adjustments.

external readers. Further, these adjustments are only possible to the extent that eligible transfers can be made from the COCF, a situation which is not sustainable. It has been recommended that the COCF is to be transferred into the States of Jersey general revenue in 2010.

the provisions for the year end adjustments based on the budgets and forecasts.

Court & Case Costs are demand-led & exceptionally volatile in a way that cannot be controlled by a Department. In addition, the expenditure is so large that departments cannot be expected to absorb the effects of volatility.

Given the unpredictable nature of court and case costs annual budget overspends and underspends occur frequently.

As part of the introduction of States wide GAAP accounting a new classification, Annually Managed Expenditure (“AME”), is to be created to cover expenses that are difficult to control. It is understood that court and case costs may be reclassified in to this category. A feature of this category is the loosening of the accountability of accounting officers under the law with regard to budget overspends

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Errors in making payments to suppliers by staff of Shared Services section

Finance Manager reconciles all payments to JDE records and arranges corrections as appropriate

Finance Manager On-going

6. Closing statement To the best of my knowledge, the internal control environment, as identified above, has been effectively operated during the year, subject to the actions identified the previous section. Signed: Tim Allen Date: January 2009 (Chief Clerk & Accounting Officer)

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APPENDIX The organisation chart below shows the structure of the Department as at the end of 2008. A fundamental restructuring of the Department is due to take place during the first half of 2009.

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