Royal Court "might" review prosecution decisions

Wednesday 27 December 2023

A trans woman’s complaint that a JFSC employee was not charged for sharing correspondence including confidential information about her gender identity with a third party has opened up the question of whether the Royal Court can review prosecutors’ decisions.

While the Royal Court ultimately said that ‘X’ – as the complainant was referred to in the Royal Court judgment – had brought her request for judicial review too late to be able to progress, the Bailiff, Sir Timothy Le Cocq, found that there was an “arguable” case over whether a decision not to prosecute by the Attorney General could be judicially reviewed.

The case arose after X wrote to the JFSC officer about a company, of which she was a director and shareholder. She asked him to deal with the matter personally and not to disclose the contents of her letter, or that she was trans, to any other party.

However, he then sent the letter to a junior colleague to deal with and it was, in turn, forwarded to a generic email for a formal response.

After X complained to the police and an inquiry had taken place, the Attorney General decided that no action would be taken against the officer because a provision in the overlapping Companies (Jersey) Law allowed the matter to be dealt with “by any officer on the staff of the commission”.

Dealing with an application to review that decision, the Bailiff did not ultimately rule on X’s argument because he found that the application, made five months after the deadline, was too late to be considered.

But he did address the question of whether a decision not to prosecute fell within the parameters of judicial review.

The Bailiff said: “Whether or not the Attorney General’s decision not to prosecute should be capable of being judicially reviewed is very much an arguable one.

"It seems to me that there is a distinction that may be material between review of a decision to prosecute, which ultimately will have with it all of the protections contained within the trial process and the undoubted jurisdiction of the trial court to deal with injustice if any arises, with a decision not to prosecute which if it cannot be judicially reviewed effectively is final.

“I conclude therefore that the Attorney General’s decision not to prosecute is arguably amenable to judicial review and that the extent of it could, and in an appropriate case should, be subject of full argument and determination before the court.”