I Have put this up because it ties in with Stuarts latest blog post concerning the disclosure of evidence.
Please leave comments but no slagging
If you disagree with senator Syvret please leave constructive arguments so we can look at the facts
( have you got that bencher )
rs
27th August 2009
THE PROSECUTION AGAINST:
Stuart Syvret
Tape late in being switched on, recorded from 14.16.03.
DEFENDANT: … today certainly, and I would hope I could take a few moments to respond to some of the points made by Advocate Baker.
JUDGE SHAW: Well all I want to deal with today is, is there a prospect of you obtaining Legal Aid. Now if Legal Aid were granted (inter)
DEFENDANT: In the near future, no.
JUDGE SHAW: Very good. Therefore we’ll proceed for the moment with you representing yourself, if you become legally represented as the proceedings progress, decisions that have been taken could be reviewed if there are new arguments to be put that haven’t already been put and we’ll leave that door open. We would do that in the case of a defendant for example who had entered a guilty plea whilst not represented and then if he receives representation and there is a legal argument to be put on his behalf, then it’s his right that the matter be reopened. If somebody is already represented and enters a guilty plea normally the court would not allow that matter to be revisited. Do you understand the (indistinct)
ADV BAKER: Madam will you then give me ten minutes to consider your suggestion?
JUDGE SHAW: Yes.
ADV BAKER: Because it seems to me that the future conduct of the case will depend upon that decision alone.
JUDGE SHAW: Yes. I’ll just outline perhaps for Mr. Syvret’s benefit as well as anyone else’s the issues. Abuse of process argument that Mr. Syvret brings alleges that there is in a sense a conspiracy against him to bring him to trial for improper purposes, I think that would put the matter in a nutshell. The overriding consideration in abuse of process is whether someone can obtain a fair trial. There is also the issue of whether the authorities have acted with such repugnance that the court ought not to entertain a prosecution in a particular case. It’s, I believe has been the practice in the United Kingdom more and more often to deal with abuse of process as part of the trial process, because a lot of these issues turn on evidence and you don’t know what the evidence is until you’ve heard it, it can be a waste of time to call those witnesses first to deal with a separate abuse of process argument and they’d have to recall them at a later stage. Alternatively there is the case of… of course we have the issue in this case where there are two trials and therefore somebody whom the Defence may say is a relevant witness may be a witness to fact in one case but may be a witness as Mr. Syvret would say to relevantly overall conspiracy theory which would apply only to abuse of process, so it may not be relevant to the other trial. I’ll leave you to think about that, do you understand the issue that I’ve raised with Mr. Baker?
DEFENDANT: I believe so yes, I mean is it possible for me to say a few words before the adjournment?
JUDGE SHAW: Is there anything that you wish me to rule on at this stage? You can discuss the matter by all means with Mr. Baker as to what both parties think would be the correct approach and you may both make submissions to me after you’ve discussed it. It’s just that I’ve raised this uhm… which obviously Mr. Baker hasn’t had an opportunity to give a great deal of thought to, neither I assume have you. So what I would propose to do at this stage is adjourn for ten minutes or so to give you both an opportunity to think it over before hearing any submissions.
DEFENDANT: It’s just that I am increasingly getting the feeling that I’m appearing at these hearings and Advocate Baker speaks for ten minutes, whatever, outlining his case and the Crown case against me and I don’t get a chance to respond.
JUDGE SHAW: We’re at a very early stage at the moment, you will have an opportunity to outline uhm… all Advocate Baker is doing today is outlining a timetable. Now if you disagree with any of that, clearly I’m going to hear from you but at this stage what I want to hear from both of you is on the question of abuse of process. Should it be a distinct hearing or should we deal with the issues of abuse of process within the context of each trial.
DEFENDANT: My personal view is that it should be dealt with as a distinct process.
JUDGE SHAW: Well that’s why I’m going to give you some time to think that over and Mr. Baker some time to think that over because there are advantages and disadvantages of whichever way we deal with it.
Court Rise
Court Resume
JUDGE SHAW: Just one moment Mr. Baker and Mr. Syvret. The Greffier tells me that the recording, the court recording equipment wasn’t working for the first few minutes of our hearing today. I think the only matter that has been missed is the schedule of the timetable Mr. Baker laid out but I’m going to go through that with you anyway Mr. Syvret and then I’ll make orders at the end, thank you very much. Will you sit down for the moment Mr. Syvret.
ADV BAKER: Madam, these are words you’re probably likely to hear rarely in this case I anticipate but I’m pleased to say that Mr. Syvret and the Crown have reached an agreement. We both agree that there should be a separate hearing in relation to the abuse and we also believe that there should be no evidence heard today. So the witness Miss Labey has been told that she can leave court.
JUDGE SHAW: Very good.
ADV BAKER: In which case Madam you need to move to consider the directions needed to progress this case to trial and firstly to abuse of process. Can I say that in relation to abuse of process, the abuse of process hearing should deal with both Road Traffic matters and the Data Protection, there can be no question of two abuse of process hearings.
JUDGE SHAW: Well a lot of the issues are the same.
ADV BAKER: Yes. The Crown take the view that the central allegation that there’s some form of criminal conspiracy to prosecute Mr. Syvret should be dealt with before trial.
JUDGE SHAW: You’ve no witnesses to call for that?
ADV BAKER: No.
JUDGE SHAW: Do you wish to make any further submissions beyond your skeleton argument?
ADV BAKER: No Madam, the Crown’s position set out in the skeleton and the enclosed correspondence. There is… the uhm… the Crown position presently is that the matter can be dealt with on the papers. I’ve made it plain that there is no unused material in the possession of the Crown which in any way indicates some conspiracy by dark forces to prosecute Mr. Syvret. If there was it would be obviously disclosed and in fact this prosecution discontinued. However, I also make it plain that the obligation for disclosure is a continuing one and Mr. Syvret’s disclosed to me a lot of material today, I’ve had the chance to skim some of it. I’ve said it appears to be much of the same though there’s some new material that he’s… I’ve noticed that he’s put forward. I will review that and continue to review that and continue to consider it my duties in that regard.
JUDGE SHAW: Very good, and I shall always make it plain to Mr. Syvret that the Prosecution has as Mr. Baker says a continuing duty to disclose any evidence which is relevant which may come into the Prosecution’s possession during the course of any hearing and any subsequent trial. Also that if we deal with the abuse of process as a distinct hearing at the beginning, that’s not the end of the matter. If during the trial issues arise which show an abuse of process then the court still has power to stop the trial, that matter is always kept under review, do you understand, is that quite clear, thank you.
ADV BAKER: Madam, you asked me about your powers in relation to disclosure.
JUDGE SHAW: Mm.
ADV BAKER: The Magistrate’s Court and in fact the Royal Court, operate under the old English common law system, the test in Keen, the gist of which is that relevant material, potentially relevant material should be disclosed and that you have a power to control the proceedings in your court to ensure that justice is done and if you order the Crown to disclose material, then subject to the usual procedure, and the Crown will abide by your rulings. So I accept that you have the power to make rulings.
JUDGE SHAW: Very good. Do you accept… my view is that the question of relevance is primarily a matter for the Prosecution.
ADV BAKER: My responsibility.
JUDGE SHAW: It’s your… entirely your responsibility, therefore if the Defence is saying that you have something that is relevant and you decide it is not relevant, then is it for the Judge to judge to make a decision on that matter?
ADV BAKER: Well if Mr. Syvret persuades you that I’ve got it wrong then you should direct me that you (inter)
JUDGE SHAW: Mr. Syvret would have to persuade me that you were wrong.
ADV BAKER: Yes.
JUDGE SHAW: And then I… my view is that I would order you to reveal or disclose an item, but only if I thought that without that item Mr. Syvret could not obtain a fair trial.
ADV BAKER: Absolutely.
JUDGE SHAW: I’m operating under the provisions which require you to have a fair trial under the Human Rights (Jersey) Law, because there’s no other legislation which enables me to order the Prosecution to disclose any particular document, but there must be an overarching responsibility of the court to ensure a fair trial and if the Prosecution do not comply then I would have to stop the prosecution as an abuse of process. That’s the view I take.
ADV BAKER: Madam yes. Madam it must be the case that the common law ensures there’s a fair trial.
JUDGE SHAW: Yes, very good. Mr. Syvret, Mr. Baker has produced a schedule and perhaps for the benefit of the recording I will go through this to be very clear. He estimates that the abuse of process hearing will take one day and I’ll go through the proposed directions and then come back and you can make representations on each one individually if you wish to do so. He wishes to ask if your skeleton argument is final and if so the Prosecution require 14 days in order to respond. He wishes provisional trial dates I think to be set for the Data Protection trial and Road Traffic trial because… I say provisional because of course if your abuse of process argument succeeds there would be no trial. The issue has to be tackled as to what witnesses can be required to attend court. Whether the Prosecution say they have no more disclosure to give you in relation to the abuse of process or in relation to the Road Traffic. They say there is some more to be served in the Data Protection case, two more primary statements, one from Mr. Faudemer and one from Mrs. Martins, and some unused material. They say they have reviewed the unused material in the abuse of process and the Road Traffic case and it is their view that there is nothing further of relevance to disclose to you, if you wish to contest that then that’s a matter you have to bring before me. The… any orders as to disclosure should be made at this stage and witness orders should be made. Now firstly let’s deal with the abuse of process argument, you’ve agreed that that should be a distinct hearing. The Prosecution say that that should take one day, now do you agree with that timescale?
DEFENDANT: Possibly. I mean it would take at least one day I would imagine, it’s not inconceivable it could continue longer.
JUDGE SHAW: Well that will depend largely on which witnesses you propose to call and whether those witnesses will attend and whether they are compellable. So we’ll deal with that later as regards to witnesses. Now the court has a proposed date for the abuse of process hearing…
GREFFIER: (indistinct)
JUDGE SHAW: The court can accommodate the hearing on Monday the 19th of October. That would be an all day hearing. If all evidence was not heard and the case was not concluded by the end of the Monday the 19th, the afternoons of Tuesday the 20th and Wednesday the 21st are also available.
ADV BAKER: Madam that date is convenient to the Crown.
JUDGE SHAW: Is that convenient to you Mr. Syvret?
DEFENDANT: It is.
JUDGE SHAW: The next question Mr. Syvret is, the skeleton argument that you have served on the court, is that the extent of your argument?
DEFENDANT: To the best of my knowledge at the moment, I mean if… it may help the court if I could just explain my key positions for a few minutes.
JUDGE SHAW: Is there anything else of substance you’re going to add to what you have already served, that’s the question?
DEFENDANT: Well I have served… I mean I accept, first of all I apologise for the lateness in the serving of the documents but as I’ve said before, I’m working single handily on this as a non lawyer and what was going to be the Defence argument was rather kyboshed by the non calling of the Defence’s witnesses.
JUDGE SHAW: That’s… Mr. Syvret, can I just put you straight at the moment. This hearing is not for calling of witnesses, we’ll discuss the calling of witnesses at a later stage but today was never listed for the calling of witnesses.
DEFENDANT: Well I mean… obviously you’re the expert in these matters but it seemed to me that as we are talking about such issues as disclosure, things of that nature and the appropriate procedure, it may be that there are evidential matters that may have a bearing on those decisions.
JUDGE SHAW: I’m not proposing to hear any evidence at the moment. If you raise anything today which leads me to believe that I need to hear evidence then we can hear evidence on another occasion before the 19th of October.
DEFENDANT: Yes well I mean if I may just say a few words to outline my position. I’ve been accused by the Crown of seeking to play havoc with the judicial system and that the court should deal with me robustly. That’s an accusation I reject, I would remind Advocate Baker that I did in fact produce a detailed 16 page letter describing the broad thrust of the Defence’s arguments and the Defence’s disclosure requirements which was given to the Crown on the 26th of June, and since then, indeed some disclosures have been forthcoming but nothing like the disclosures that the Defence considers adequate and necessary to its defence, and if I may just quote a few words from my… that skeleton argument uhm… Advocate Baker in his skeleton argument wrote similar words to those which he has spoken earlier this afternoon, but if I could just quote what I’ve written in response. ‘Now it is a fact that any person facing charges does in fact have the right to use such legal principles as recusal applications, abuse of process applications and applications for stays of proceedings. It is also a fact that any person, even a non establishment politician has the same rights as any other person to make certain applications to the court and to receive a fair and impartial consideration from that court. It may not be common for the average defendant to seek to make such applications before this court, but in point of fact other defendants are not prevented from so doing. The defendant in this case, me, is simply exercising the same rights available to all people and I do believe that that is a view that the court, I would hope, would hold in mind.’ It may also help the court and indeed Advocate Baker, and I accept he has not had time to read this material yet, but I do think I should just quote a few paragraphs of that which I’ve written here concerning the issue with disclosure as it is plainly going to be the core fundamental argument about which certainly the whole abuse of process issue is going to hinge, and I do think this is of relevance. I’ve written, ‘The disclosure requirements of ECHR case law’ uhm… I’ll quote a few paragraphs if that’s okay with the court?
JUDGE SHAW: Do you have a copy of this, is this your (inter)
DEFENDANT: This is my skeleton argument, it begins on page 13.
JUDGE SHAW: I don’t think I’ve got a copy of this, have I got a copy of it?
GREFFIER: (indistinct)
DEFENDANT: I will proceed just to quote the relevant facts (inter)
JUDGE SHAW: Just one moment. It would be helpful if I… the Greffier has printed the matters you have emailed this morning but I haven’t had an opportunity to read them. What’s the date of the document you’re reading from?
DEFENDANT: Well I finished it last night and emailed it out early this morning.
JUDGE SHAW: Is this dated the 27th of August 09.44 Defence stay of proceedings?
DEFENDANT: Yes.
JUDGE SHAW: It begins pre-amble, the Defence is making an application.
DEFENDANT: That’s right. I’ll just quote the bits, the parts that I consider are relevant.
JUDGE SHAW: If you just give me the page numbers.
DEFENDANT: Page 13 onwards.
JUDGE SHAW: 13?
DEFENDANT: 13, yes. ‘The refusal to disclose much of the necessary evidence actually goes further to the proof of the Defence’s contention that this is a politically motivated process. It should also be noted that the credibility of the Prosecution’s refusals to disclose in this case is further badly damaged by the seeming non compatibility with the Attorney General’s own guidelines. However, even setting aside those considerations, the Defence must draw the court’s attention to paragraph 6.178 of Human Rights Practice, Sweet and Maxwell, which is headed Prosecution’s Duty of Disclosure. The Defence makes this point concerning disclosure, and this is a point that I would ask the court to (inter)
JUDGE SHAW: Do you copy that paragraph anywhere?
DEFENDANT: I’m going on to quote relevant parts of it yes. ‘The Defence makes this point in particular because it deals not only with the determination of guilt or innocence but also with such questions as mitigation. Article 6 of the ECHR guarantees to citizens of signatory state certain fundamental rights in respect of obtaining a fair trial.’ The Defence quote from Human Rights Practice section 6.178 and this is titled The Prosecution’s Duty of Disclosure. ‘In Edwards v- The United Kingdom the court held that ‘it is a requirement of fairness, indeed one which is recognised under English Law, that the Prosecution must disclose to the Defence all material evidence for or against the accused. However, the entitlement to disclose is not an absolute right.’ I then go on ‘Here it is seen that the court has taken a view that the standards of disclosure whilst not absolute or boundless, nevertheless impose a very high burden of disclosure upon the Prosecution. Indeed the court made specific reference to the disclosure requirement being recognised and established in English law. It is therefore established that disclosure is a powerful right of the Defence which a prosecution must comply with. But it is also stated that the right to disclosure is not an absolute right. We therefore must pose the question, in the present case involving these four charges against the defendant, where does that boundary fall, that threshold up to which the Defence rightly demands disclosure and beyond which the Prosecution can legitimately refuse disclosure? When reading the reference work will be seen that it goes on to make reference to public interest immunity as being a ground which may be cited by a prosecution to a trial judge in the event of a prosecution wishing to withhold material from the Defence when of the opinion such disclosure would endanger national security. Suffice it to observe that legitimate grounds for refusing disclosure are rare and must achieve a very high threshold of necessity.’ This interpretation is made crystal clear from the very next line of section 6.178 of Human Rights Practice which says this, and I quote ‘In Gespers -v- Belgian the Commission held that this duty extended to the investigating authorities as well and included an obligation to disclose not only any material which is in the possession of the police or the Prosecution but also any material to which they could gain access. It applied to material which might assist the accused, might assist the accused in exonerating himself or’ and I’ll ask the court to note this, ‘or in obtaining a reduction in his sentence, and included material which might undermine the credibility of a Prosecution witness. Non disclosure of evidence may also raise an issue under Article 6.3.’ The Defence must also draw the court’s attention specifically to the final section of 6.179 of Human Rights Practice which says this, ‘A procedure whereby the Prosecution itself attempts to assess the importance of concealed information to the Defence and waives against the public interest in keeping the information secret cannot comply with the requirements of Article 6.1.’ I repeat that, ‘cannot, it cannot comply with the requirements of Article 6.1.’ So that concludes the direct quotation Mam from my skeleton argument but in summary I would suggest that on that basis and these are extremely authoritative sources, works, ECHR case law. It is in fact very clear that the requirement to disclose evidence is in fact a good deal broader. Whilst not boundless, I accept it is nevertheless I think quite plainly a good deal broader in law than that which is contended by the Prosecution.
JUDGE SHAW: Mr. Syvret. Do you have any comment on that Mr. Baker?
ADV BAKER: Just very briefly Madam. I don’t blame Mr. Syvret for this he’s not a lawyer, but the last comment which he put so much emphasis on refers to a system where a prosecuting lawyer has decided that some material is relevant to the Defence and then himself goes on to decide but it’s not in the public interest to disclose it to the Defence, that’s not the system here. If there was material which I’ve considered was relevant to Mr. Syvret and I didn’t want to disclose it, then I would have to put that before the court and the court would decide whether it should or shouldn’t be disclosed. So I don’t… obviously of course I don’t criticize him for it but he’s misunderstood it.
JUDGE SHAW: Mr. Syvret.
DEFENDANT: Uhm… but I mean, I think we’ve seen the problem illustrated in what Advocate Baker has just said, he has said that any evidence that he considers might be relevant to the Defence case he would put before you Mam for consideration but first of all of course, that evidence has to overcome the views and the objectives of the Crown before achieving that disclosure to yourself to test whether it is admissible or not, and I would just make the point that it is important to remember that we are not talking merely about a question of determining guilt or innocence here, we are also talking about serious, and I think well evidenced abuse of process arguments which I think requires disclosure of evidence that would be broader than that merely constrained to the actual charges themselves. And also I refer again to the point of an accused person, a defendant having a right to obtain evidence which even in the event of them being found guilty, would go to their mitigation to lessen the penalty upon them and that in the hypothetical event of guilt being established in my case I’m very strongly of the belief that a very, very powerful and well evidenced plea of mitigation for any penalty could be made but it can only be made if the relevant evidence is disclosed.
JUDGE SHAW: Thank you Mr. Syvret. Mr. Syvret, disclosure as Mr. Baker says is governed by… in Jersey by the English common law case which has been adopted in Jersey and that’s the case of Keen, and the case of Keen very clearly said that it is the responsibility of the Prosecution to assess relevance. Firstly relevance as to the case that they are putting so that they would give you any what we call primary disclosure, that’s the evidence the Prosecution wish to bring against you, and if you plead not guilty and give the Prosecution an indication of the basis of your plea, which you have done so, then the Prosecution will reassess any evidence then they must also serve their unused material at this stage, and they will assess what will assist the Defence or might undermine the Prosecution case, and that’s a matter for the Prosecution to do to make that assessment. Now if there is any particular document which you have notice of which you believe is relevant and you can convince me is relevant then I would… and you can convince me it would be necessary for you to have sight of that in order to conduct your trial, then I could order the Prosecution to reveal that to you.
DEFENDANT: Is that an argument you want me to hear… you would wish to hear from me now?
JUDGE SHAW: Well Mr. Syvret, it is not for the court to assess relevance, it’s the matter… that’s a matter for the Prosecution. If there is a particular document that you can point to when you say the Prosecution has made the wrong assessment, then you would have to persuade me that I should order the Prosecution to disclose it. If I thought that it was necessary to achieve as a fair trial to disclose that document, then I would order the Prosecution to do so. I believe that you would be in agreement with that state of uhm… (inter)
ADV BAKER: Yes Madam.
DEFENDANT: Would it help the court if I were to ask through you Mam a question of Advocate Baker uhm… does he accept that the issues of the abuse of process dispute as it were, and the potential issue of mitigation are matters that are of relevance in determining whether evidence is disclosable?
JUDGE SHAW: I don’t think Mr. Baker would contest that.
ADV BAKER: Madam there is an obligation to disclose relevant material as regards abuse of process applications.
JUDGE SHAW: There’s no doubt about that.
DEFENDANT: There was an (inter)
JUDGE SHAW: Because that’s part of your case Mr. Syvret.
DEFENDANT: Indeed abuse of process is a fundamental part of my case. I don’t remember off the top of my head all of the precise detail of all of the information I described in my 16 page letter of the 26th of June but I can point to two specific branches of evidence which I believe to be of relevance, perhaps three in fact of significant relevance to this case. That is firstly any communications that took place between the Attorney General and the Parish Constable in connection with any of the Actions taken against me and in particular the raid and searching of Deputy Labey’s home, because as you will see once you have time to read it, it is very strongly contended by the Defence that that arrest and consequent searching of the property was in fact unlawful.
JUDGE SHAW: Mm.
DEFENDANT: We believe there are powerful grounds for believing that.
JUDGE SHAW: Can you point to any piece of correspondence, do you know there has been any correspondence between the Attorney General and the Parish Constable?
DEFENDANT: Well I’ve asked that question in my letter of the 26th for any such correspondence and the Prosecution certainly as far as I recollect have not come back to me and said there was no such correspondence, they’ve simply declined to address most of these questions.
JUDGE SHAW: That’s not what Mr. Baker said in his correspondence, Mr. Baker said that he has carried out his duty and his duty is to assess any relevant correspondence, anything, anything in the possession of the Prosecution which is relevant. If this was a matter which was in the possession of a third party then that’s another matter, but Mr. Baker is there…
ADV BAKER: There’s nothing to disclose, there’s no relevant material to disclose.
DEFENDANT: Well obviously that’s a view… I disagree with and well I mean the evidence I’ve just described is one item of evidence, there are two other items of evidence. Again the uhm… Advocate Baker has said that there would be a further statement coming from the Data Protection Commissioner. Now, personally I have no view as to whether the information I have requested comes in the form of a written statement from the Data Protection Commissioner or the actual statistical data that I originally requested, but this is actually fundamentally important to the Defence. I’ve asked for the records of the registration or otherwise of all States Members I think for the last five years or something like that for the purposes of the Data Protection Law, and that’s statistical data, and I’ve asked for that evidence because it is my belief that it will show that certainly for the last two years uhm… I in particular have been singled out for Data Protection, well harassment as I would term it, where as it’s been common practice for many States Members to proceed without in fact being registered as data controllers. Now, that is my belief and understanding at the moment, this statistical data I’ve asked for would clarify that point.
JUDGE SHAW: Is it your understanding that the statement which is to come will cover that?
ADV BAKER: It will.
JUDGE SHAW: It will, very well then you’ll have that.
DEFENDANT: And finally then, the final central piece of evidence which is the crux of this case are the two statements written by the Chief of Police Graham Power and Detective Inspector Alison Fossey in the summer of 2007. Graham Power attended a Corporate Management Board meeting on the 25th and Detective Inspector Fossey attended what I think was an emergency meeting of the Jersey Child Protection Committee on the same day. It is my understanding, and Graham Power did when he was still in work, formally notify me following a complaint from me that the police possessed certain evidence which went to the strength of my complaint.
JUDGE SHAW: Your complaint being?
DEFENDANT: My complaint being uhm… a conspiracy to pervert the course of justice and (inter)
JUDGE SHAW: In relation to these cases?
DEFENDANT: Yes, because I believe that people like the Attorney General and the Data Protection Commissioner were very active during that controversial period in opposing me and trying to politically nullify me in one way or another. But to be honest, it isn’t really the Attorney General, the Data Protection Commissioner that’s the main point of concern. It is my understanding, I don’t know what’s in those two sets of notes but it is my understanding from what I’ve been told that the two police officers were so concerned at what they were hearing and observing, that they did make these notes quite specifically because it concerned them that basically uhm… the, what may well be the unlawful engineering of my dismissal was taking place.
JUDGE SHAW: This was in 2007?
DEFENDANT: Indeed.
JUDGE SHAW: That is two years previous to the matters we’re dealing with now, how do you say that these are connected?
DEFENDANT: It is connected because of abuse of process proceedings because it may be that the evidence revealed in those notes would lead the Defence to other avenues of investigation, other pieces of evidence perhaps that would (inter)
JUDGE SHAW: You don’t know what’s in these notes so you don’t know that they’re relevant.
DEFENDANT: I do know, I (inter)
JUDGE SHAW: You think that they might be relevant.
DEFENDANT: I believe that they might be relevant yes and I won’t know for certain until I see them. But certainly Mr. Power when he was acting, gave me a pretty clear indication of the nature of the content of these notes.
JUDGE SHAW: Well what did he tell you?
DEFENDANT: He essentially said that following the complaint I had raised with the police (inter)
JUDGE SHAW: Which complaint is that?
DEFENDANT: A complaint of conspiracy to pervert the course of justice and misconduct in public office.
JUDGE SHAW: By whom?
DEFENDANT: By a number of senior civil servants, principally those in charge of Education and Health and Social Services, but also including the States Chief Executive Bill Ogley, who were engaged in a process to engineer my removal and dismissal from office in an attempt to carry on disguising the fact that the States of Jersey had for years been running a manifestly unlawful regime of punitive and coercive solitary confinement against children.
JUDGE SHAW: Yes uhm… I still don’t see how this connects to this case Mr. Syvret.
DEFENDANT: Well it is the… if you read the skeleton argument you will see that it is very strongly the contention of the Defence that these events are merely a… the latest and most extreme episode of a very well evidenced pattern of biased, unethical, frankly improper action conducted against me in the past and these notes are of fundamental importance to enable me to understand the picture of what took place, how it took place and of what evidential value they would be to possibly an abuse of process pleadings, but certainly I would refer again to the quote I gave concerning, from the Human Rights Act concerning the right of an accused person, even if found guilty to be able to access evidence that might go to their mitigation or to the lessening of any penalty placed upon them, and I believe very, very strongly that those notes and perhaps other similar types of evidence would in fact do just that thing.
JUDGE SHAW: Thank you very much.
ADV BAKER: Madam, we have obtained the notes and reviewed them and there is nothing in them to be disclosed, there is nothing to suggest that Mr. Syvret’s dismissal as Health Minister in 2007 has anything whatsoever to do with his prosecution in 2009 for Data Protection matters. There’s a document behind divider 2, page 103
JUDGE SHAW: Is this in Mr. Syvret’s bundle?
ADV BAKER: They’re in my bundle.
JUDGE SHAW: Is this your advanced disclosure or your (inter)
ADV BAKER: It’s the bundle for today, the black lever arch file headed Case Management Hearing, it was emailed to you or delivered to the court yesterday afternoon, you do have that.
JUDGE SHAW: Oh yes, yes. Sorry, where is it in your (inter)
ADV BAKER: Its divider number 2, there’s some A B C D’s you’ll see at the beginning.
JUDGE SHAW: Yes.
ADV BAKER: And then some white dividers.
JUDGE SHAW: Divider 2 I have a statement of Benjamin Le Lay.
ADV BAKER: That’s right, if you go to page 103
JUDGE SHAW: Yes.
ADV BAKER: ‘On Friday the 20th of March 2009 12.55 am, To: David Warcup, Shaun Du Val, Michael Gradwell, Alison Fossey, the murders of X******, importance high.
JUDGE SHAW: Yes.
ADV BAKER: ‘The States of Jersey Police. I realise the concept of cover-ups by the Jersey oligarchy will come as a deep shock to Mr. Warcup and Mr. Gradwell but experienced Jersey cops will recognise what I reveal here with weary resignation.’ And then he says that he’s putting on his website details of an old police report that he has in the investigation into the Data Protection. This Data Protection offence began after that. There’s nothing at all to suggest that what happened in 2007 in Mr. Syvret’s political career has anything to do with this prosecution.
DEFENDANT: If I may just make an observation in response to that. It is my understanding from what I’ve read in recent weeks that the court has also has a duty to bear in mind such factors as the overall public interest and the public good.
JUDGE SHAW: Are you talking about public interest immunity?
DEFENDANT: No I’m just speaking generally about having regard for what is in the public interest, for example, sometimes prosecutions are not embarked upon because the officers involved determine it not to be in the public interest. But I have to ask myself why the desperate desire of the Prosecution to keep these two sets of notes from me if there is nothing in them that would go to say, for example, just hypothetically, a plea of mitigation in the event of any guilty verdict being established. I mean, if in fact one has been the victim of a, basically a conspiracy by a number of people who wished to disguise their own malfeasances and past failings, and has been thrown out of one’s job because of it, it does tend to lead one to a rather stressful time and I believe that evidence from that period and onwards which has a bearing on the true nature of what was going on behind me and what was being done is in fact of relevance, may well be of relevance to the abuse of process issues, but is certainly and without question, of relevance to the uhm… any potential hypothetical plea of mitigation.
JUDGE SHAW: Thank you. Anything further Mr. Baker?
ADV BAKER: Do you want me to repeat (indistinct) Madam?
JUDGE SHAW: As far as mitigation is concerned, is there anything that could possibly be relevant?
ADV BAKER: Well in relation to… no there’s not but uhm… no, no there’s not. I simply say that if Mr. Syvret is trying to say to the court he’s guilty because he was acting under stress, I doubt that er… he’s guilty but he was acting at a stressful time, I doubt there’ll be much dispute about that.
JUDGE SHAW: Mr. Baker do you wish me to review these documents?
ADV BAKER: No.
JUDGE SHAW: You don’t, very well. Mr. Syvret, from what I’ve heard, I’m not convinced that you cannot get a fair trial without seeing these documents. If you want to raise issues making allegations that people have brought these proceedings, these particular proceedings against you for reasons which are not proper reasons, the correspondence… sorry, notes of meetings that police officers made two years before and not directly relevant to this matter, I do not see can be disclosable. (sic)
DEFENDANT: If I may just say Mam, once you’ve had an opportunity to read the skeleton argument you will see that it is strongly contested… contended by the Defence that the raid that took place in April was in fact undertaken for a number of different motives and in fact may not have been legal, and indeed maybe even had some conceivably criminal element to it which was why Deputy Labey was here for example ready to take the stand and be questioned about it. We are dealing here with a pattern of incidents that have occurred over a period of some years, and it is also clear as I’ve again described in the skeleton argument, that the police force, the States of Jersey Police force were aware that I was in possession of the report in question from I think November 2007. Because as soon as I became aware of the covert child abuse investigation, suddenly my confidence in the police force was massively increased and I felt able to draw their attention back to that case and ask them if they would in fact investigate it again because it remained deeply, deeply concerning to me. Now I had no response to that and understandably given of course that it’s a cold case as it were and the police were very busy with the child protection issues, but the States of Jersey Police force, and there was email evidence to this effect, I think the Prosecution has this evidence, knew that I had a copy of this report and that I might be minded to show it to third parties from November 2007. Yet from me sending that email to the States of Jersey Police force until the raid this year in April, not one word has been… not one word of warning, of caution, of any description has been expressed to me by the States of Jersey Police concerning the report in question.
JUDGE SHAW: And your point is?
DEFENDANT: Well my point is that there is I think a variety of different motives behind the action that was taken on the night and it doesn’t seem to me that the action was compatible even with the requirements of the Data Protection Law which has a specific search warrant requirement in it, and (inter)
JUDGE SHAW: Well we’ll get on to that matter when we deal with the abuse of process, you can put all those… you can put those points, but the questions we’re dealing with today are to do with disclosure at the moment and as far as those notes are concerned, I don’t see that those are relevant to your defence and therefore I’m not going to order the Prosecution to disclose them to you. We need to move on to item 3, I think you’ve made your point about the skeleton argument, as far as I know you’re not going to serve anything else at this stage and Mr. Baker I’ll give you 14 days to respond to that argument.
ADV BAKER: Thank you Madam.
JUDGE SHAW: The trial dates for the Data Protection and the Road Traffic trials, are you able to fix these at the moment Greffier?
ADV BAKER: No Madam (indistinct)
JUDGE SHAW: Well we’ll hold those over and identify prospective dates which would only as I say, come into force if the abuse of process argument fails, but to be fair to any prospective witnesses the court will communicate with both parties and identify a date as soon as possible.
ADV BAKER: Thank you Madam.
JUDGE SHAW: Could we have a time estimate for both trials?
ADV BAKER: The Road Traffic trial, a couple of hours maximum if it’s really a trial, I’m sure that it will be.
JUDGE SHAW: The Data Protection matter, it may take some…?
ADV BAKER: It may take some time.
JUDGE SHAW: It may take some time, would you estimate perhaps two days?
ADV BAKER: I think maybe longer, maybe up to a week.
JUDGE SHAW: Well it’ll take the court some time to identify that block of time which would be clear in the diary.
DEFENDANT: I mean if it helps the court, I think I would agree with the estimate of Advocate Baker, the Data Protection issues are by far the more serious of the four charges and they are the one’s that will be the most strongly contested, vigorously contested by the Defence, indeed as is explained in my argument, and indeed as evidence furnished very recently I accept, shows that frankly these charges are hopeless.
JUDGE SHAW: Well we’ll deal with that when we come to take the evidence if we get to the trial stage Mr. Syvret. As far as other directions are concerned today, Mr. Baker tells me that you’ve served full disclosure on the Road Traffic matters, the… you… as far as the Road Traffic is concerned, you wish Mr. Syvret to indicate which witnesses you require to be called, which witnesses you wish to cross examine and which witnesses you would accept to be read, for their statements to be read or you could make certain admissions.
DEFENDANT: Is this in respect of the Road Traffic matters?
JUDGE SHAW: Yes, we’re making provisional arrangements for trial (inter, indistinct)
DEFENDANT: If it helps the court, I won’t be calling witnesses.
JUDGE SHAW: You won’t be calling witnesses.
DEFENDANT: For the Road Traffic matters.
JUDGE SHAW: Which of the Prosecution witnesses would you wish to cross examine, if any?
DEFENDANT: I won’t.
JUDGE SHAW: You won’t, so the Prosecution then can read all the statements. So all Prosecution statements are agreed and no witnesses for the Defence. Now going back to the Data Protection matters. Mr. Baker you say you expect a statement from Mr. Faudemer shortly?
ADV BAKER: Yes, I’d ask for seven days to serve that.
JUDGE SHAW: Seven days to serve that, seven days from today’s date you will serve that on Mr. Syvret.
ADV BAKER: And Miss Martins.
JUDGE SHAW: And Miss Martins statement likewise.
ADV BAKER: Same period please.
JUDGE SHAW: I give the Prosecution seven days in which to serve additional statements of Mr. Faudemer and Mrs. Martins on Mr. Syvret. You have further unused material to deal with.
ADV BAKER: Madam that’s right, it needs to be dealt with by me and Mr. Faudemer and I’d ask for fourteen days to disclose that please.
JUDGE SHAW: Very well, fourteen days to disclose unused material in the Data Protection case.
ADV BAKER: Yes Madam.
JUDGE SHAW: Clearly your… should anything further come to light (indistinct) remind Mr. Syvret your duty is to as you know, continue.
ADV BAKER: Of course.
JUDGE SHAW: We’ve dealt I think with orders for disclosure, we now need to move to witnesses.
ADV BAKER: We do Madam. I’m not sure there’s in fact any dispute as to what the law is between us on this but I’ll take you to that first and given Mr. Syvret isn’t a lawyer, I could deal with it with you properly. Madam I’ll deal with this from paragraph 25 of my skeleton argument, have you had the opportunity to read it?
JUDGE SHAW: Yes I have read it Mr. Baker, but if you would…
ADV BAKER: I’ll remind you of the key passages Madam.
JUDGE SHAW: Take me to the key passages, thank you.
ADV BAKER: The law relating to the summoning of witnesses is found in the 1864 Law Article 15 with which you will be familiar, this is behind tab 6 divider G right at the back. I’ll give you the gist of it if I may, the (inter)
JUDGE SHAW: Spare us the French please Mr…
ADV BAKER: I will, you will be delighted to know you will be spared the French Madam. The gist of it is that a person who’s been arrested must be presented to the Magistrate’s Court as soon as possible by the Constable of the parish, thereafter the Constable of the parish personally or through the Honorary Police shall warn for the appearance in court those witnesses he considers should be heard and equally he should warn those witnesses who the accused requires to attend, the accused has the alternative option of causing the Viscount to warn those latter witnesses. So read literally, those provisions do not stipulate any requirement on the Defence or indeed the Prosecution to satisfy the court that the evidence to be given by those people sought to be called is material to the matter before it and in the implications of reading the statute absolutely literally, the defendant could require for his trial the production (indistinct) of the entire population of Jersey, regardless of whether they had anything useful to say and that can’t possibly be the proper position. The reason for that is that it’s an established principle of statutory construction that the objective is to ascertain the purposes of the legislature, not to take a purely literal approach regardless of the consequences and court seek to avoid a construction that produces an absurd result unless it is clear that the legislature intended that result. So the Crown submits that the only way for this legislation to operate without producing an absurd result is to read the word témoin witness as meaning a person with relevant evidence to give. To aware the Constable or Viscount presented with a request by a defendant to procure the attendance of a witness is uncertain whether or not to do so, it’s admitted that he should seek the view of the court and the court is best placed to say, having considered submissions from the parties whether or not the person is likely to have relevant evidence and whether or not they will be prepared to attend voluntarily, this obviating the need for the Constable or Viscount to compel their attendance. In any event, even if persons sought by the Defence are produced to court by the Constable or Viscount, the loire does not oblige the court to hear evidence from any person simply because they’ve been produced and the court must be able to manage its own affairs to the extent of not being forced to hear evidence if it considers it irrelevant. The law makes no provision for the attendance of witnesses at any hearing other than the trial of the offence, though I of course accept that the abuse of process should be considered as part of the trial, traditionally a plea (indistinct) The power to require the production by the Attorney General of relevant documents derives not from subpoenas but from its inherent power to ensure a fair trial, and we touched upon that earlier today.
JUDGE SHAW: Yes.
ADV BAKER: Insofar as you need some authority to support that proposition that the purpose of approach is the… the correct approach in Jersey is to be found behind divider 6F, the case of Smith, where the Deputy Bailiff Birt as he then was, gave judgement in a case involving statutory construction and at page 156 paragraphs 16 to 18, that set out the principles that should be applied in Jersey. ‘If one looks back to the actual decisions of the House of Lords on questions of statutory construction over the past 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions,’ he’s quoting there Lord Diplock in Carter -v- Bradbeer, and then he goes on to say himself, ‘That process has accelerated in the quarter of a century since Lord Diplock wrote those words. In my judgement, it is the modern approach. The objective is to ascertain the intention of the legislature.’ He then goes on to say that ‘the court will seek to avoid a construction which provides an absurd result. This principle is summarized in sect. 312 of Bennion, Statutory Interpretation (1) The court seeks to avoid a construction that produces an absurd result, since this unlikely to have been intended by Parliament. Here the courts give a very wide meaning to the concept of ‘absurdity,’ using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial or productive of a disproportionate counter-mischief. (2) In rare cases there are overriding reasons for applying a construction that produces an absurd result, for example where it appears that Parliament really intended it or the literal meaning is too strong.’ And then quotes from Maxwell on Statutes ‘Where possible, a construction should be adopted which will facilitate the smooth working of the scheme of legislation established by the Act, which will avoid producing a prolonging artificiality in the law, and which will not produce anomalous results.’ And I submit to you that applying those principles it’s clear that witness must be a relevant witness.
JUDGE SHAW: Thank you. Mr. Syvret do you have any comment on that?
DEFENDANT: It seems to me that we’re going to have a very similar argument over this point as we are concerning disclosure of actual evidence uhm… it seems plain to me that a number of witnesses I may wish to call will be opposed by the Crown uhm… and you will be asked to rule on their relevance. I do though have to perhaps put the court’s mind at ease that no absurdity such as summonsing the entire population of Jersey or anything of that nature would be attempted by the Defence. But the Defence would for legitimate and relevant reasons wish for example, to call witnesses such as the Attorney General, such as the suspended Chief of Police Graham Power who may well have some interesting and useful testimony to supply on the question of the Data subject and the Crown has after all called a former Police Officer to their case. There may be other witnesses who I would wish to call that would go to the abuse of process aspect, for example there may be witnesses who could testify to the fact that certain abusive or torturous acts or processes took place thus reinforcing the Defence’s abuse of process argument. My difficulty is that I can’t actually give a cast iron list of who my witnesses might be at this stage but I can assure the court that there would be no absurdity in it. I would not for example be seeking to call dozens and dozens of witnesses to take up days and days and days of the court’s time. The witnesses (inter)
JUDGE SHAW: Mr. Syvret you’ve got to keep clearly in mind what the issues in the case are. The court will not want to hear evidence from, for example a person who said that they did suffer abuse in order to show that somebody else might have taken steps to cover that up. The issue is whether a prosecution is being brought against you which is not bona fide.
DEFENDANT: Mm.
JUDGE SHAW: And therefore the court will not stray into details of the underlying reasons why you were in conflict with various figures which you say may have been party to bring these proceedings in the way you say that they did.
DEFENDANT: I was not thinking of survivors of child abuse particularly as witnesses in this case, they didn’t seem to me to be of relevance. But it does seem to me that as the Crown are now contending that actually the report in question was entirely misguided and erroneous, and the data subject is in fact a wonderful chap, it seems to me that as that is plainly a core feature of the Crowns case, the Defence must be able to call witnesses who may have an alternative take.
JUDGE SHAW: Well this is the point Mr. Syvret. I think it’s very, very important to keep clearly in mind what the Crowns case actually is, I don’t think it is the Crowns case necessarily that the man named in your blog was an innocent man. I don’t think that is the… that’s not the basis on which the prosecution is brought, it’s not the evidence which the Prosecution would seek to bring. The question is whether on the Data Protection issue the Crowns substantive case is that you broke the Data Protection Law and your case is that you have a defence to that, that it’s in the public interest. Now, the Prosecution is not trying to establish that the man subject to that report was innocent so we don’t need to stray into areas such as that.
DEFENDANT: I understand that that individual is not on trial but with all due respect my recollection of what was said by Advocate Baker and indeed it’s in the transcripts from the previous hearings, is that, because plainly the core of the Defences case would be public interest disclosure in the event of a full trial. Advocate Baker has made it I think quite strongly clear that the Crown would be combating and fighting that public interest defence, and they would be (inter)
JUDGE SHAW: Yes, yes, they will challenge that but that’s a very different thing to say that they’re trying to establish that that man was innocent, it’s not part of their case. Now I do need to move on from this Mr. Syvret because we’re getting into areas which we will deal with at a later stage. What I want to deal with at this particular stage is the process for calling witnesses.
ADV BAKER: Madam it’s… sorry Mr. Syvret. Madam it seems that we’re in agreement.
JUDGE SHAW: Yes.
ADV BAKER: That it’s relevant witnesses who should be called.
JUDGE SHAW: Is that right Mr. Syvret, you agree that its relevant witnesses, the question is establishing relevance?
ADV BAKER: Yes.
JUDGE SHAW: Thank you.
DEFENDANT: Yes, I believe that’s so and (inter)
JUDGE SHAW: Thank you, I’ll just hear from Mr. Baker.
ADV BAKER: Madam I will come back later to Mr. Syvret’s suggestion that it’s the Crown case that X****** is a wonderful man and innocent but I won’t do that for the moment. Let me turn to witnesses. It’s important to bear in mind the distinction between abuse of process hearing and the trial.
JUDGE SHAW: Yes.
ADV BAKER: Mr. Syvret’s defence at trial is that he acted in the public interest, he raises that and he’s entitled to call evidence relevant to that issue. And it may be for instance that Mr. Power has evidence which is relevant to Mr. Syvret’s defence at trial, I don’t exclude that. If he’s had communications with Mr. Power concerning this case then (inter)
DEFENDANT: I haven’t.
ADV BAKER: The X****** case… well, I don’t exclude the possibility that Mr. Power could have evidence to give at trial. But I want to turn to the abuse of process first.
JUDGE SHAW: Yes I want to deal with the abuse of process first.
ADV BAKER: The Crown will not call the witnesses that Mr. Syvret says that he wishes to call, I make that plain. So firstly, if you rule that these witnesses are relevant they will be his witnesses, subject to the usual rules.
JUDGE SHAW: Yes.
ADV BAKER: He should not be given leave to call these witnesses unless he establishes to you that they are relevant.
JUDGE SHAW: Yes. I’m (inter)
ADV BAKER: I’ll turn first, sorry Madam you want to speak and I’m talking across you, I do apologise.
JUDGE SHAW: Mr. Baker, there are a number of cases, decided cases in the United Kingdom, they deal wi… there is a statute in the United Kingdom which deals with calling of witnesses but it appears to me that the principles engaged in the various cases which have come before the Divisional Court are sound principles which I would propose to follow unless there is an argument to the contrary. The principles which I propose to follow is… and I’ll give you an opportunity to come back to me. The cases that I have particularly in mind, perhaps the Reading Justices being the most recent does summarize the cases which preceded it. The principles are that when dealing with a Justice of the Peace issuing a summons for a witness, first they must be satisfied that its proper to issue the summons, and secondly that the party’s likely to be able to give evidence or produce a document, and thirdly such evidence or document is material evidence in the case, and that is to say that its both relevant and admissible.
ADV BAKER: I agree with that approach.
JUDGE SHAW: Would you have any objections?
ADV BAKER: No it seems an entirely sensible approach.
JUDGE SHAW: Mr. Syvret do you agree that that’s a sensible approach?
DEFENDANT: Well on the surface it appears to be but I’ve no doubt that if I proposed certain witnesses who I considered met those criteria they would still be opposed by the Crown Mam.
JUDGE SHAW: It comes to the court to decide, the court has to be satisfied that those witnesses can give relevant evidence and that evidence is admissible evidence.
DEFENDANT: Mm.
JUDGE SHAW: Very well, I think we’re agreed on that point, thank you.
ADV BAKER: Madam then if I can touch, I hope briefly, upon the… upon certain of the witnesses that Mr. Syvret is asked for a summons to be issued on, first is the Attorney General William Bailhache. Madam before you agree that he should attend at the hearing for abuse you’d have to be satisfied that he had relevant material evidence to give. The only relevant… potentially relevant evidence that he might be asked about is a conspiracy by him and others to wrongly prosecute Mr. Syvret. There is no material to support such an outrageous allegation and before you considered ordering him to attend, Mr. Syvret would have to satisfy you that there was something in that suggestion, and unless he can do that there are no grounds to require the attendance of Her Majesty’s Attorney General.
JUDGE SHAW: Well I’m not going to rule on this point at the moment, I’ll hear your submissions relating to each witness.
ADV BAKER: In relation to Mr. Power in abuse of process, it’s difficult to see what he could possibly say on abuse of process. He’s had absolutely nothing to do with this prosecution. In relation to Miss Labey, it’s difficult to see why she would need to be ordered to attend anyway given that she’s Mr. Syvret’s partner. I’m not sure whether it is his intention to call her on the abuse of process application uhm… he says that she may be able to give evidence about failure to investigate others. Well even if that was so, what on earth has that got to do with abuse of process in this case? And as to Blackwood, it may be that there’s evidence to be given at trial in the public interest possibly, but again it’s difficult to see how a psychiatrist could give any useful evidence as to why this prosecution could amount to an affront of justice. Could you just give me a moment… well, I’ve made the point that the lady was here today to give evidence, there’s no reason for her to be compelled anyway. Those are my submissions.
JUDGE SHAW: Thank you very much. Mr. Syvret, as far as the abuse of process hearing is concerned, have you formulated a list at this stage of those you would wish to have as witnesses at court?
DEFENDANT: Not a completed list but the four mentioned by Advocate Baker may well be amongst that final list. Would it help if I addressed my arguments as to why I consider them relevant?
JUDGE SHAW: Well just one moment, is there anyone else you have in mind at the moment?
DEFENDANT: At the moment no, but I can’t rule out that other relevant witnesses may occur to me in the coming days, and presumably there is sufficient time to alert the Crown and the court should…
JUDGE SHAW: I think sufficient time has been put aside. If there are further witnesses then you would have to come back for a further hearing.
DEFENDANT: Mm.
JUDGE SHAW: If those witness would not come voluntarily, do you understand, is that clear?
DEFENDANT: Yes. I mean, if it helps the court, I issued er… sought to issue the summonses because it was my understanding simply that that was how it was done, there was no (inter)
JUDGE SHAW: It’s not necessarily done in that way.
DEFENDANT: There was no particular… well I mean I had a fairly clear idea that the Attorney General wouldn’t attend on a voluntary basis but I imagine the others would have done.
JUDGE SHAW: Very good. Firstly can I just make a point to you that Mr. Baker has eluded to? If the Prosecution do not call these people as witnesses and if you were to call them as witnesses, they would be your witness. If you are calling a witness you may not cross examine that witness, do you understand? You asked a witness a question, then you would have to accept their answer, because they’re your own witness, you can’t cross examine your own witness, it’s the general position. So for example if it was the Attorney General and you were to ask him are you involved in a criminal conspiracy against me and he said no, then it wouldn’t be open to you to cross examine him and put evidence to him which would contradict that. Do you understand that that would be your position?
DEFENDANT: Mm, well I didn’t but I do now.
JUDGE SHAW: Well do you want to take a moment to think about that when considering which witnesses you would actually wish to call, do you want me to retire for… I’ll retire for a few minutes and I’d like to give you an opportunity to think about the witnesses you actually want because if you want to make submissions and I’ve got to hear about them then I want to be sure that those are the witnesses you wish to call. There are other comments made by Mr. Baker in respect of Mrs. Labey, she attended voluntarily today, normally if a witness attends voluntarily there’s no need for the court to make an order.
DEFENDANT: Mm.
JUDGE SHAW: Mr. Blackwood, it may be that what Mr. Blackwood has to say is more relevant to the trial of the issue and to your defence than to the abuse of process, and we want to make sure the right witnesses come to the right hearing.
DEFENDANT: Indeed, perhaps I could seek your guidance on a point then. My understanding was that a, an argument, a component of an abuse of process argument can be that the charges are manifestly hopeless and amount frankly to a complete waste of the court’s time er… and I believe Doctor Blackwood could make, or give some powerful testimony to the court to that effect in respect of the two Data Protection charges.
JUDGE SHAW: Well (inter)
ADV BAKER: Madam, if you will allow me to respond, I hope usefully to Mr. Syvret. It’s difficult to see how a weakness in a charge, even if its made out could possibly amount to an abuse of process, whether a case is brought or not is a matter for the Prosecution not for the court, and therefore that would be the usual position. Mr. Syvret will listen to what I’ve said and can ponder on it. In relation to Mr. Power, there’s a point that I missed. Mr. Syvret made application for disclosure of various documents earlier.
JUDGE SHAW: Mm.
ADV BAKER: He hasn’t maintained his application for disclosure of a document which he says Mr. Power could produce relating to an operation called Blast, you may have seen something about this in the newspapers uhm… he had made application for disclosure of his file relating… kept by the police, that’s been reviewed and there’s nothing in that which touches upon this case whatsoever. So in those circumstances, I don’t know whether the request for Power is maintained anyway, given that the application for disclosure hasn’t been pursued but the Crown would say that on that topic Power has nothing useful to say, nothing relevant.
JUDGE SHAW: I’m going to retire for the moment Mr. Syvret and I want you to review the application for witnesses in the light of what I’ve said to you and in the light of the comments Mr. Baker has made. Thank you.
Court Rise
Court Resume
JUDGE SHAW: Thank you Mr. Syvret. Now, as far as the abuse of process witnesses are concerned, do you want to tell me who you would like called as a witness?
DEFENDANT: Well, I mean to be honest, I’m not sure I can answer that question now given that issues have been raised about their non relevance and the inability of the Defence to cross examine.
JUDGE SHAW: Well I’ll tell you what I’ll do Mr. Syvret, if we’re going to the 19th of October for the abuse of process hearing, we need to list this matter for an interim hearing in any event. At the moment you have served with your original skeleton argument yesterday, a bundle of correspondence, email correspondence between yourself and the Attorney General. I have seen that, I haven’t seen anything else which would lead me to believe that the Attorney General is a necessary witness. I haven’t read the rest of your bundle which was served today and there may be other matters which you wish to raise or other evidence which you seek to serve. So I’ll put the matter to an interim date for you to make submissions on the calling of witnesses and I think that will give you plenty of time to think about the witnesses, to collate whatever information you wish to put before me to persuade me that these witnesses need to be called. I would also like you to confirm that if you wish Mrs. Labey to attend… is that just in relation to the abuse of process or is that in relation to both that and the substantive matters. Mr. Blackwood I’d like you to give thought as well to whether he is relevant to the abuse of process or only to the substantive matter, and similarly with Mr. Power, and the matter in the Attorney General would only be relevant to the abuse of process argument, I can’t see that he has any bearing on the other substantive matters unless you produce anything which tells me otherwise. I would also like you to consider whether there are any other witnesses you wish to name that you would like me to issue witness summonses in respect of, and whether… sorry, going back to Mrs. Labey, if she’s a voluntary witness in any way… in any event, you need not obtain an order in respect of her. I don’t know whether you’ve asked Mr. Blackwood whether he is willing to attend or whether again you require a witness summons for him and similarly Mr. Power. The court was copied into an email from the Attorney General saying that if the court determined he was a relevant witness then he would attend without the… on the basis of a phone call rather there being a need to actually issue a summons. I would also like you to think about the full list of witnesses in both cases. I think we have put aside sufficient time for witnesses in the abuse of process argument with one day plus the two succeeding afternoons. I believe that all day Thursday is available as well, is that correct Greffier?
GREFFIER: All day Thursday is available.
JUDGE SHAW: All day Thursday is correct.
DEFENDANT: Which date?
JUDGE SHAW: I think is that… the 22nd, is that right?
GREFFIER: The Thursday would be the 22nd Madam.
JUDGE SHAW: The 22nd.
DEFENDANT: September?
JUDGE SHAW: Sorry?
DEFENDANT: September
GREFFIER: October.
DEFENDANT: October, that would be for the full abuse of process hearing?
JUDGE SHAW: Yes, that’s (inter)
DEFENDANT: You suggested an interim hearing?
JUDGE SHAW: An interim hearing, Greffier is there a suitable date, 20… late September…
GREFFIER: (indistinct)
JUDGE SHAW: If I put aside the afternoon of Tuesday the 22nd of September, is that convenient?
ADV BAKER: Madam, is there any prospect of having the hearing before the 16th of September, I’m hoping to begin a substantial trial on the 16th of September and may be able to come out of that to do these abuse of process hearings, and if I can’t I’ll just have to return the case, but if there was a date before the 16th of September it would make my life easier.
JUDGE SHAW: I have a substantial matter beginning on the 15th or 16th of September as well uhm… how long is your trial likely to last?
ADV BAKER: It’s listed for six weeks at the moment but uhm… depending on certain rulings next week it may become a jurat trial, not a jury trial so I’m hoping the court will give me some leeway to come and do this. It’s more likely I’ll be given some leeway of the preliminary hearing and this is before the 16th of September. … …
JUDGE SHAW: Mr. Baker the court can accommodate a hearing on the 14th of September at two o’clock in the afternoon.
ADV BAKER: Madam, yes, thank you.
JUDGE SHAW: Mr. Syvret, the 14th of September? I still think that gives you sufficient time to give thought to your witnesses.
ADV BAKER: Yes, can I (inter)
JUDGE SHAW: Just a minute, I think Mr. Syvret was about to speak.
ADV BAKER: I’m sorry, I do apologise Mr. Syvret.
DEFENDANT: Off the top of my head I believe that date’s suitable for me, I’m just wondering if it coincides with a States meeting.
JUDGE SHAW: It’s a Monday afternoon.
DEFENDANT: That should be fine then yes.
JUDGE SHAW: Monday afternoon. Again (inter)
DEFENDANT: Two o’clock?
JUDGE SHAW: Thank you. Again it’s not anticipated there is a need to call witnesses to that hearing. Again it’s a matter which would be heard on submission of papers. So if you have any material you wish me to consider in order to determine whether a particular witness could give relevant and admissible evidence, and by that I mean actually giving evidence, it’s not an opportunity to call a witness merely for cross examination.
DEFENDANT: Mm.
JUDGE SHAW: Do you understand?
DEFENDANT: …
JUDGE SHAW: The witness would have to give… the material would have to be something a witness… actual evidence a witness could give on your behalf.
DEFENDANT: Mm.
JUDGE SHAW: Yes.
ADV BAKER: Madam, can I say this? If I believe the Attorney General had relevant evidence to give, then I would arrange for him to attend in the usual way.
JUDGE SHAW: Yes.
ADV BAKER: It’s because I submit, he’s got no evidence which is relevant to give that I say that it would have to be Mr. Syvret who called in and gave his evidence in the usual way.
JUDGE SHAW: Yes.
ADV BAKER: But I make it plain, if I believed that he did and if you believe that he does I’ll tender him.
JUDGE SHAW: Very well. That means Mr. Syvret that if I look at the material and say that Mr. Bailhache could give evidence in chief then he would be tendered to you by the Prosecution and you could cross examine him.
DEFENDANT: Very well.
JUDGE SHAW: Do you understand the difference?
DEFENDANT: Yes I do, I think (inter)
JUDGE SHAW: In calling your witness you cannot cross examine him.
DEFENDANT: I understand.
JUDGE SHAW: The Prosecution give you one of their witnesses who they do not believe can add anything to their case but may be able to help yours and they tender him for cross examination.
DEFENDANT: I understand that now.
JUDGE SHAW: You understand that.
DEFENDANT: You said that the matters would be on the 14th, the interim hearing matters would be decided on the papers. I accept that I’ve just issued a substantial argument, I think it runs to 45 pages and a significant number of emailed attachments too. Uhm… obviously I don’t expect anyone in the court to have had an opportunity to read or absorb that material at this stage but on the assumption that it is all read and fully absorbed on the 14th which I’m sure it will be uhm… would that then possibly be an opportunity to invite you to reconsider any issues about for example the relevance of evidence.
JUDGE SHAW: In terms of disclosure?
DEFENDANT: In terms of disclosure yes.
JUDGE SHAW: Yes, well disclosure is an ongoing obligation of the Prosecution.
DEFENDANT: Mm.
JUDGE SHAW: And if something relevant comes out of this paperwork which makes me think that the Prosecution do have something relevant which they disclose to you of course I would reconsider it.
ADV BAKER: Madam, can I (indistinct) as an issue as you read through the papers. I’ve submitted that the matters should be dealt with on the papers in its entirety, the abuse of process, one area for you to look at is the search of Mr. Syvret’s home, that seems to be the most likely area that there could be a dispute but my position is that it should be dealt with on the papers (inter, indistinct)
JUDGE SHAW: Yes, it may be that I want to hear from… if I read the papers and I want to hear from one of the witnesses then clearly on the 14th I shall make that very plain and the Prosecution will clearly call a witness that the court would like to hear.
DEFENDANT: Could I ask for guidance uhm… would I be called as a witness or examined in any way?
JUDGE SHAW: No, you can make your own submissions, we’re not taking evidence and as you’re representing yourself you can put anything you want to put by way of submissions from your position.
DEFENDANT: Certainly Advocate Baker was correct that the search is a source of great contention and frankly I have (inter)
JUDGE SHAW: I’m talking about the 14th of September at the moment.
DEFENDANT: Yes.
JUDGE SHAW: When we come to the abuse of process argument you will give evidence, I presume you would want to give evidence in your own defence and then you would give sworn evidence (inter)
DEFENDANT: Indeed, yes.
JUDGE SHAW: But on the 14th you need not give sworn evidence.
DEFENDANT: Yes indeed, but I was just thinking about issues that may be raised on the 14th in respect of the abuse of process and therefore relevancy of disclosability of evidence and things of that nature. And it does appear to both me and Deputy Labey that the search was unlawful on a number of grounds and simply disproportionality by the ECHR as indeed was my arrest and detention locked in the police cells for seven hours, especially given that there is a provision in the Data Protection Law for a Data… an alleged Data Protection (inter, indistinct) to be dealt with.
JUDGE SHAW: There are two matters Mr. Syvret. One is the bringing of the prosecution in the first place and your contention that that is a malicious prosecution to put it broadly, second is how evidence is gathered and whether evidence is gathered illegally or not, can also be dealt with during the trial because the court would always have a discretion to exclude evidence which has been abnormally obtained. So that matter could come up in both… that was one of the reasons I suggested you may want to hear the abuse of process… deal with the abuse of process during the course of the trial. Is that clear?
DEFENDANT: I understand.
JUDGE SHAW: Very good. Very well, the court will adjourn to 14.00 hours on the 14th of September. On that date we will deal with the question of witness summonses if any are required, we will not hear live evidence and I would want from you Mr. Syvret a full list of everyone you wish to call at both hearings, both the abuse of process hearing and the Data Protection hearing should we get to that stage. So that’s whether you… and of those witnesses I want to know whether the witnesses will come voluntarily or not, and I want to know what relevant evidence each of those witnesses could give.
DEFENDANT: Mm.
JUDGE SHAW: Very good. In the meantime I have already stated that the Prosecution will respond to your skeleton argument within 14 days. It is expected that the Data Protection trial… that the abuse of process matter will take possibly one day but there is provision to go over into two further afternoons and a further full day starting on the 19th of October. The Data Protection matter is likely to take one week, Road Traffic matter will take a couple of hours if that, the … Mr. Syvret you have already indicated that you accept all the Prosecution witnesses in the Road Traffic matters so that they all may be read and that any further primary disclosure from the Prosecution will be served on you within 7 days, any unused material in the Data Protection case will be served on you within 14 days and we will deal with witness orders when we come back on the 14th of September. Very good. Are there any other matters outstanding, Mr. Syvret?
DEFENDANT: It’s clear as far as I can… as far as I am capable of understanding.
JUDGE SHAW: Mr. Syvret if you do wish to make an application for Legal Aid, if you do so at the earliest opportunity so if your lawyer is represented then they can be served with all the relevant material and be up to date to represent you on the 14th of September. The court is adjourned
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