DEFENDANT: No.
UDGE SHAW: Very well. Mr. Syvret before I ask you to enter pleas to these charges, do you have a preliminary point you wish to raise?
DEFENDANT: Several yes, I suppose the first point I must make is Recusal argument in that I don’t consider this Court is capable of dealing with any Jmatter concerning me because I’m a known public figure, also a known public figure in opposition to the current judicial and prosecutory apparatus of Jersey. I have been at a very high level of a political battle against it. All of that is well documented. I can cite some actual documented examples of evidence as to why this Court cannot meet the really quite high test of the appearance of impartiality and objectivity, as is established both in British jurisprudence and very clearly any good deal of European Court of Human Rights jurisprudence. If I would just like to refer to one item of actual evidence (inter)
JUDGE SHAW: Ah well perhaps before we get on to that we ought to look at what the Jersey Law is on this point. I understand you have had some correspondence with, was it Mr. Matthews at the Judicial Greffe?
DEFENDANT: Yes Mr. Matthews and Mr. Houze.
JUDGE SHAW: And pointed out to you the Case Law. The test I would propose to apply is the test in Hirschfield which has been followed subsequently in Jersey cases. The Jersey cases have explicitly followed the European Case Law. The U.K. Case Law is slightly less favourable to the defendant than the European Case Law and it’s been made very clear in the case of Hirschfield and further in the case of Barra Hotel that the Jersey position would follow the European Case Law. Do you understand what I’m saying that is?
DEFENDANT: Yes.
JUDGE SHAW: Very good. The correct test firstly is to establish whether the particular Judge against whom you have an objection has a personal interest in the case, and that’s a matter for the Judge to decide.
DEFENDANT: Hmm. Hmm.
JUDGE SHAW: And the second one, which I think is the one you are relying on is the objective test, the members of the public, if they were looking at the situation how would they feel that it was possible to have a fair trial.
DEFENDANT: Hmm. Hmm.
JUDGE SHAW: And that part of the test the ruling in Hirschfield was that the reasonable suspicion test is the one for the determination of apparent bias, which I think, is the leg that you’re relying on. And that’s been adopted in Jersey as being the easier for the applicant to meet, and also more appropriate having particular regard to Case Law of the European Court of Human Rights. The test was whether a reasonable objective and informed person aware of and having regard to all the correct facts considered there was a real suspicion or apprehension of bias, in that the Judge might unfairly favour or disfavour the case of one of the parties. The burden was on the applicant to establish bias and no application for recusation should be accepted without strong grounds to support it, and Judges should not accede too readily to such applications.
DEFENDANT: Okay.
JUDGE SHAW: That’s what I intend to follow as being the test I have to apply in Jersey. So do I take it that you’re not stating that I as a particular Judge have an interest in either your conviction, acquittal, or if you were convicted the level of penalty.
DEFENDANT: Well it so happens in your particular case yes I would make that argument.
JUDGE SHAW: Very well.
JUDGE SHAW: Would you like to make that argument then.
DEFENDANT: Certainly, I would like to refer to a speech given by the Bailiff at the swearing in of Mrs. Bridget Shaw as Assistant Magistrate on Monday 30th June 2008. I won’t cite the entire speech, it’s a matter of public record on the Bailiff’s web site, but I would quote one paragraph. ‘Mrs. Shaw you take up your post at a time when the Judiciary and those in public office in the Island are for better or for worse under greater scrutiny than has been the case for some time. No one can object of course to holding individual members of the Judiciary to account for their judicial conduct, or indeed for their conduct outside the courtroom. Indeed you have become by virtue of your office a member of the Jersey Judicial Association, which last year adopted a code of ethics and conduct, setting out quite clearly what is expected of Judges and Magistrates in the Island. By wholesale attacks upon the Judiciary, this is in reference to me, and suggestions that they are collectively incapable of dealing with any outcomes of the current child abuse enquiry are ignorant and unwelcome and I deplore them. Senior politicians should know better than attempt to subvert public confidence in our judicial institutions in pursuit of a personal agenda’ and that’s the end of the quote. Now using the uhm… objective test the proverbial man on the Clapham Omnibus could be expected to look at yourself, and indeed for that reason and other reasons this Magistrate’s Court in its entirety as presenting a risk, a danger of bias, because these kind of overt partisan political speeches have been made by the Bailiff, the Head of the Island’s Judiciary and indeed expressly made, during your particular actual swearing in. So I would cite that both as a reason that could lead a reasonable person to have suspicions as to your objectivity and impartiality, because this kind of speech can be expected to have made a strong impression on the people who heard it, the people who it was directed at. You then have to say well can they then be seen to be sufficiently objective and impartial. So in your particular case I do think there are individual grounds for recusal.
JUDGE SHAW: Why are you saying that I would have an interest then in… the question is in actually disposing of your case why would I have an interest in either showing partiality, in either acquitting your or convicting you or the level of sentence I was to impose.
DEFENDANT: The point is the Bailiff who is Head of the Island’s Judiciary made this political speech at your swearing in, and in these kind of legal cases my understanding is that it’s quite well established that one of the tests is whether there could be an appearance, a suspicion of (inter)
JUDGE SHAW: Well no the first one you have to do is the subjective one, is there an actual interest held by the Judge.
DEFENDANT: I believe you have a political interest yes.
JUDGE SHAW: You believe I have a political interest (inter)
DEFENDANT: Yes.
JUDGE SHAW: In whether you are acquitted, convicted, or the level of penalty.
DEFENDANT: Yes.
JUDGE SHAW: Very well, thank you. And now you need to go on to the objective test.
DEFENDANT: I would refer to e-mail correspondence I had with the Magistrate’s Court Judicial Greffier in June… no sorry December 2008 and this was in connection with me seeking certain information which were effectively judicial directions and policies written and issued by the then Magistrate Mr. Ian Le Marquand in connection with the approaches and methodology to be used in jailing children. There is a strong case to be argued that the actions of the Court in that practice were of themselves illegal, for example children were proactively sentenced to significant periods of time in jail. Significant periods of time were spent by some children who were troublesome in solitary confinement conditions that would be simply unlawful were they even inflicted upon adults let alone children. And I have had this correspondence in which I am strongly arguing that the Magistrate Court, the Jersey Magistrate’s Court system itself is criminally culpable, and legally negligent for its conduct in the way that it has taken to itself these policies of effectively breaking the Law and inflicting unlawful degrading inhuman and damaging and abusive treatment on already vulnerable and problematic children. And it did actually take quite some time to get the relevant documentation, but I did in fact in the end. So that proves the dispute I have with the Magistrate’s Court in Jersey as an entity. Turning to E.C.H.R. Case Law, and I’m quoting from Human Rights Practice Sweet and Maxwell.
JUDGE SHAW: Could you give me the reference please?
DEFENDANT: Uhm… this is on page 6067, Human Rights Practice by Sweet and Maxwell. And I’ll quote what the book says. ‘Appearance of independence and impartiality is important because ‘what is at stake is the confidence which the courts in democratic society must inspire in the public’ and that refers to the case of Incal v Turkey.
JUDGE SHAW: It’s the Turkey case yes?
DEFENDANT: Yes, the applicable test has been described in the following ways, whether the public is ‘reasonably entitled’ to entertain doubts as to the independence or impartiality of the tribunal that refers to Campbell and Fell v United Kingdom. Whether there are legitimate grounds for fearing that the tribunal is not independent or impartial, that refers to Langborger v Sweden 1989. Whether there are ascertainable facts that may raise doubts and I think that there are, we already covered some of those, as to independence or impartiality. That’s referring to the case of Castillo Algar v Spain, or whether such doubts can be objectively justified. 13. That’s Hauschildt v Denmark, this test was adopted by the English Court of Appeal in Medicaments and Related Classes of Goods, so modifying the previous test for bias established in R.V. Goff which required that a real danger of bias be shown. In Porter v Magull Lord Hope of Craighead approved that... approved that modification stating the question is whether the fair minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased. Moving on to another matter, and I refer back to the Parish Hall Enquiry here, which of itself is of a kind of quasi judicial process that determined that the express request of the States of Jersey Police that this matter be referred to the Court.
JUDGE SHAW: But was that both matters or one matter Mr. Syvret?
DEFENDANT: Both of them, that’s my understanding.
JUDGE SHAW: The matter of no driving licence I don’t believe the Parish Hall has the power to deal with that. So what I’m saying I don’t think a discretion could have been exercised in that case.
DEFENDANT: Maybe but that isn’t actually the relevant point. The fact is turning to page 6070 of the same book, chapter 6.128 Judge as member of the armed forces or police force, and it talks about Judges being involved in military capacity. It goes on to say and I’ll quote. ‘The same objectively justified doubts were found to exist where a member of the police force sits on a tribunal’ because. ‘The ordinary citizen will tend to see him as a member of the police force subordinate to his superiors and loyal to his colleagues. The situation of this kind may undermine the confidence which must be inspired by the court in a democratic society. In short the applicant could legitimately have doubts as to the independence and organisational impartiality of the police board, and I would suggest that that actually is applicable to the Parish Hall Enquiry as a process and especially so in my particular case, because the Connetable of that Parish has waged a significant political war against myself and indeed my partner.
JUDGE SHAW: So can I just clarify what you are saying about the Parish Hall Enquiry, that (inter)
DEFENDANT: We have arrived at this point (inter)
JUDGE SHAW: Just one moment Mr. Syvret, I just want to make this clear, as I understand it. I believe there is only one matter in which the Parish Hall would have had any discretion as to whether to deal with your case or not, and that deals with the registration of the car, the other matter has to go to the Court. So as far as the registration of the car is saying is concerned, you’re saying because the Honorary Police are involved in that process, they cannot be impartial in a Judicial process, and because they have decided to refer the matter to the Court then that somehow taints the Court’s credibility in sitting, I don’t quite see the connection.
