Bryce-Richards v Attorney General of Jersey & Anor

A person arrested in England under a Jersey warrant may be detained and returned under section 13 of the Indictable Offences Act 1848 where the statutory requirements have been met. The detention must be lawful under domestic law, satisfy the Convention requirements of accessibility and foreseeability, and be free from arbitrariness, bad faith and disproportionality. The English court need not determine the merits of the foreign criminal charges. Concerns about a future trial in Jersey do not justify habeas corpus where the available evidence indicates that the accused will receive an independent and impartial trial, adequate defence representation and appropriate appellate safeguards. The accused cannot ordinarily choose the forum for prosecution merely because evidence or assets are located elsewhere.

The applicant faced 14 proposed charges of fraudulent conversion in Jersey. A Jersey Bailiff issued an arrest warrant, which was endorsed by a Cardiff justice of the peace under section 13 of the Indictable Offences Act 1848. After her arrest in England, she sought habeas corpus and challenged both her detention and removal to Jersey.

She alleged breaches of Articles 5, 6 and 8 of the Convention, including concerns about the independence and impartiality of the Jersey courts, legal representation, her husband's health and the proper forum for trial. The central issues were whether the detention was lawful and whether the proposed return created a sufficiently established risk of Convention breaches.

1. Outcome. The application for habeas corpus was refused. The applicant was to be returned to Jersey pursuant to the endorsed warrant. Bail was continued until the time for applying to the House of Lords for leave to appeal expired, and leave to appeal was refused.
2. Article 5. The respondents bore the burden of showing lawful detention. Section 13 of the Indictable Offences Act 1848 had been complied with, so the detention was lawful under domestic law. Applying the framework adopted by Lord Hope in R v Governor of Brockhill Prison ex parte Evans (number 2) [2000] 4 All ER 15, the court considered that the statutory procedure was accessible and sufficiently precise, and that the detention was neither arbitrary, disproportionate nor undertaken in bad faith. It fell within Article 5(1)(c), and the requirements of Articles 5.2, 5.3 and 5.4 were satisfied or would be satisfied on return.
3. Article 6. The court assumed, without deciding, that the applicant could rely on anticipated Article 6 breaches in habeas corpus proceedings. The principles in McGonnell v the United Kingdom [2000] 30 EHHR 289 concerned the particular combination of administrative and judicial functions in that case. The Bailiff's functions in issuing warrants and related orders were judicial, and did not establish a lack of independence or impartiality. The Jersey legal aid system was sufficiently flexible, and the trial court would not permit a serious criminal trial to proceed without proper representation.
4. The reasoning in Re Hayes (Divisional Court transcript, 9th October 2000) applied with greater force because section 13 was a reciprocal procedure between England and the Channel Islands. R v Metropolitan Police Commissioner ex parte Hammond [1965] AC 810 was not inconsistent with the present detention.
5. Article 8 and forum arguments also failed. Separation from the applicant's husband, if medically necessary, did not entitle her to evade trial. The applicant could raise bail, abuse of process and other matters before the Jersey courts. The principal events underlying the charges occurred in Jersey, and there was no rational basis for criticising Jersey as the forum.

The judgment itself describes interim habeas corpus proceedings before Mr Justice Neuberger, who ordered that the applicant not be taken to Jersey pending the Divisional Court hearing. The Divisional Court refused habeas corpus, ordered her return pursuant to the warrant, refused leave to appeal, and continued bail until the time for applying for leave to appeal expired.