Faulty court recording threatens convict with retrial

Monday 10 June 2019

A grave and criminal assault convict, who denies he is truly guilty, may have to face another trial because the court's recording equipment failed, meaning that there is no transcript of the original hearing.

The man, who was convicted following a trial in the Magistrate's Court, wants to appeal against the finding, but has faced a major roadblock in doing so because he cannot obtain a written record of the trial that found him 'guilty' of the offence – meaning all the evidence may have to be recalled.

The unusual appeal case was heard in the Royal Court so that Commissioner Julian Clyde-Smith – presiding as a single judge – could give guidance on how to proceed. 

Representing the man, Advocate Olaf Blakeley told the Court that efforts to find the digital recording of the original trial had been unsuccessful, leaving his client in what he described as “a vacuum”.

Pictured: The faulty court recording equipment has proved an obstacle for this appeal case.

The Court heard that all proceedings in the Magistrate’s Court are routinely recorded and that a transcript of the trial is then available to lawyers and to the Royal Court in the case of a subsequent appeal.

Advocate Blakeley argued: “I accept that there is no legal requirement for a transcript but, with the best will in the world, it is very difficult to take full notes in court. It is totally reasonable for the Advocate to take it as read that there will be a transcript and to proceed on that basis.”

One of the grounds of appeal in the present case is that the original evidence could not support the conviction and Advocate Blakeley’s Notice of Appeal states: “Fuller and more particularised grounds will be set out following receipt of the transcript of the trial.”

However, the Court heard that, despite IT specialists' involvement, it had not been possible to recover any part of the trial recording from the equipment in the Magistrate’s Court. The only record of the original proceedings, therefore, were the notes made by the Magistrate who presided over the case and the two lawyers involved.

Pictured: Advocate Blakeley's appeal has thrown open a number of questions for the Royal Court.

In what Advocate Blakeley described as a “most unfortunate set of circumstances”, the Royal Court has now been approached to decide how the matter should proceed. 

As a further issue, the case has also raised question marks over a 70-year-old law.

Representing his client, Advocate Blakeley threw open the question of whether the eight-day window which lawyers have to file conviction appeals should run from the date the defendant is convicted or the date they are sentenced. 

Article 18 of the Magistrate’s Court (Miscellaneous Proceedings) (Jersey) Law 1949 states: “An appeal under Article 17 shall be commenced by the appellant’s giving notice of appeal to the Judicial Greffier within eight days after the day on which the decision of the Magistrate’s Court was given.”

The ambiguity arises from the meaning of the word ‘decision’ in a 1949 Law setting out the circumstances in which a person can appeal against a decision in the Magistrate’s Court, and the period of time in which they must submit their appeal. 

Pictured: Another fundamental question in this case arises from the interpretation of appeal law.

However, the Court heard that “the decision of the Magistrate’s Court” was largely interpreted as meaning the Court’s verdict rather than its sentence which meant that the eight-day period came into force after the person learnt of their guilt.

Advocate Blakeley submitted that this was effectively a misreading of the Law and that his client had the right to appeal because the appeal had been lodged within eight days of learning of his sentence.

The process of sentencing – often involving reports which could take up to a month to prepare – had changed since the Law was passed, he said. If his reading of the Law were not correct, a person wishing to appeal against their sentence would often be out of time before they knew what the sentence was, he contended.

However, Advocate Blakeley also sought leave to appeal by way of an extension of the given timeframe in the event that the Court took a different view.

Commissioner Clyde-Smith will deliver his judgment on the case this week.