Court critical of LG over human rights warning

Thursday 19 July 2018

A decision by Jersey's Lieutenant Governor to try and deport a convicted sex offender has been criticised by the Royal Court for ignoring his human rights.

In a recent court judgement, the Bailiff issued carefully worded criticism of the Queen's representative, Sir Stephen Dalton, stating that he appeared to have taken a UK-style approach to the issue - and ignored the offender's human rights in the process.

Sir Stephen, who was formerly responsible for making deportation orders before a law change last year that saw the role pass to the Home Affairs Minister, was reported to have made the decision in July. 

He argued that the man – a 27-year-old on the Sex Offenders' register – should be sent off the island after his jail term because his presence was “detrimental.”

But that order was then scrapped by the Bailiff, Sir William Bailhache, who concluded in April that sending him to a place where he had no friends, family or cultural understanding would leave him, quite literally, “a stranger in a foreign country.”

Now the circumstances have become clearer in new judgement in which the Bailiff takes issue with the approach taken by the Queen’s representative.

Pictured: The Bailiff made carefully worded criticism of the Lieutenant Governor's decision in the judgement.

In his judgement, the Bailiff described how Sir Stephen had gone against the advice of around a dozen legal officials - Crown prosecutors, two judges and seven jurats - who all believed deportation to be unreasonable, as it was against Article 8 of his human rights - a right to respect one's private and family life, and home. He said that he would have expected the Lieutenant Governor to find the human rights arguments "more than persuasive", but, in making the order, he apparently did not.

"...the decision taker was aware that the human rights considerations had been sufficiently influential that both the prosecution and the sentencing court considered that no deportation order should be sought or made as the case might be.  In those circumstances, it was necessary to look particularly closely whether there were any changes in circumstance which were sufficient enough that they might affect the outcome, and the reality is that no such changes existed," he said.

The decision, he said, was the likely effect of applying UK rules, rather than respecting Jersey's differences - an approach he said that "does not necessarily translate... to an appropriate approach in Jersey."

"There may be particular insular features which would make that inappropriate, and I give two examples.  The first is that the culture and practice of the Portuguese community in Jersey, is frequently not to seek out British nationality although they have been resident in the Island for a very long time and regard Jersey as their home; and the second is that in drugs cases the sentencing regime in Jersey is generally thought to be more severe on the offender than in the United Kingdom and it may well be the case that in such cases the application of the United Kingdom designed four year rule, which is reflected in the current rules on deportation in Jersey needs to be reconsidered," he concluded.

His comments came in the context of a judgement relating to whether the Lieutenant Governor should have to reimburse the 27-year-old's legal fees because he had been successful in his appeal.

Although the man had used legal aid, the court concluded that this case would set a precedent for whether the Minister of Home Affairs, who is now responsible for deportation orders, should have to pay back the litigation costs of those who successfully fight against them.

It was argued during the case that Ministers having to pay legal costs back might stop them from making difficult deportation decisions in future for fear of legal and monetary repercussions. The Bailiff said that he "accept[ed] that there is at least a possibility of the Minister who has to take these decisions in future being unprepared to take a controversial decision in circumstances where the departmental budget for the year was under pressure."

However, he did not agree in the end, stating: "...Having regard to the particular circumstances of this case, and recognising that in future it is possible that no costs order would be made against the Minister who was unsuccessful in resisting a challenge by way of judicial review to a deportation order, I have exercised my discretion to award standard costs in favour of the Applicant."