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The law of Jersey has been influenced by several different legal traditions, in particular Norman customary law, English common law and modern French civil law.[1] The Bailiwick of Jersey is a separate jurisdiction from that of the United Kingdom, and is also distinct from that of the other Channel Islands such as Guernsey, although they do share some historical developments. Jersey's legal system is 'mixed' or 'pluralistic', and sources of law are in French and English languages, although since the 1950s the main working language of the legal system is English.

Sources of law

Legislation adopted by the States of Jersey

Jersey's legislature, the States Assembly makes legislation affecting most areas of activity.[2]

Laws

Recueil de Lois de Jersey from 1771

The highest form of legislation made by the States is 'laws'. If a proposed Law is likely to be controversial, the general desirability of having new legislation on the topic may be debated before the law is drafted. The procedure for making laws is set out in the Standing Orders of the States of Jersey.[3] Once the law is in draft from, it starts the legislative process as a projet de loi, which may be introduced to the States by a minister, any States member, a scrutiny panel or the Comité des Connétables. At the stage known as 'first reading', the title of the projet is read out and the projet is 'lodged au Greffe' providing a two to six week breathing space for members to read the draft law. Under Article 16 of the Human Rights (Jersey) Law 2000,[4] the minister or other person lodging the projet au Greffe must make a written statement that the provisions of the projet are compatible with Convention rights or "make a statement that although [he or she] is unable to make a statement of compatibility, [he or she] nevertheless wants the States to proceed with the projet". At the next 'second reading' stage, there is a formal debate in the States chamber during which members consider the principle of the projet and then scrutinise the draft in detail. At 'third reading' stage there is an opportunity for minor drafting errors to be corrected. Finally, members vote to adopt the law.

The law is then submitted via the Lieutenant Governor's office for transmission to London, where officials in the Ministry of Justice examine the law. In 2010, the House of Commons Justice Committee was highly critical of the UK Government's approach, finding that "The islands are more than adequately advised by their own law officers and parliamentary counsel. It seems a strange use of Ministry of Justice resources ... to engage in a kind of legislative oversight which does not restrict itself to the constitutional grounds for scrutiny".[5] This process may take several months. In an unusual move in 2011, campaigners against a law that sought to reduce the number of senators in the States petitioned the Privy Council to advise the Queen to refuse royal assent.[6] Once official scrutiny is complete in London, the law is formally presented to Her Majesty for royal assent at a meeting of the Privy Council, usually held at Buckingham Palace or Windsor Castle.

After a law receives royal assent, the final step is for it be registered with the Royal Court of Jersey. At this point it is 'passed'. The law is then brought into force at a date decided by the relevant Jersey minister. There may be a considerable delay between a law being passed and it becoming legally effective if, for example, civil servants need to be trained, computer systems

The highest form of legislation made by the States is 'laws'. If a proposed Law is likely to be controversial, the general desirability of having new legislation on the topic may be debated before the law is drafted. The procedure for making laws is set out in the Standing Orders of the States of Jersey.[3] Once the law is in draft from, it starts the legislative process as a projet de loi, which may be introduced to the States by a minister, any States member, a scrutiny panel or the Comité des Connétables. At the stage known as 'first reading', the title of the projet is read out and the projet is 'lodged au Greffe' providing a two to six week breathing space for members to read the draft law. Under Article 16 of the Human Rights (Jersey) Law 2000,[4] the minister or other person lodging the projet au Greffe must make a written statement that the provisions of the projet are compatible with Convention rights or "make a statement that although [he or she] is unable to make a statement of compatibility, [he or she] nevertheless wants the States to proceed with the projet". At the next 'second reading' stage, there is a formal debate in the States chamber during which members consider the principle of the projet and then scrutinise the draft in detail. At 'third reading' stage there is an opportunity for minor drafting errors to be corrected. Finally, members vote to adopt the law.

The law is then submitted via the Lieutenant Governor's office for transmission to London, where officials in the Ministry of Justice examine the law. In 2010, the House of Commons Justice Committee was highly critical of the UK Government's approach, finding that "The islands are more than adequately advised by their own law officers and parliamentary counsel. It seems a strange use of Ministry of Justice resources ... to engage in a kind of legislative oversight which does not restrict itself to the constitutional grounds for scrutiny".[5] This process may take several months. In an unusual move in 2011, campaigners against a law that sought to reduce the number of senators in the States petitioned the Privy Council to ad

The law is then submitted via the Lieutenant Governor's office for transmission to London, where officials in the Ministry of Justice examine the law. In 2010, the House of Commons Justice Committee was highly critical of the UK Government's approach, finding that "The islands are more than adequately advised by their own law officers and parliamentary counsel. It seems a strange use of Ministry of Justice resources ... to engage in a kind of legislative oversight which does not restrict itself to the constitutional grounds for scrutiny".[5] This process may take several months. In an unusual move in 2011, campaigners against a law that sought to reduce the number of senators in the States petitioned the Privy Council to advise the Queen to refuse royal assent.[6] Once official scrutiny is complete in London, the law is formally presented to Her Majesty for royal assent at a meeting of the Privy Council, usually held at Buckingham Palace or Windsor Castle.

After a law receives royal assent, the final step is for it be registered with the Royal Court of Jersey. At this point it is 'passed'. The law is then brought into force at a date decided by the relevant Jersey minister. There may be a considerable delay between a law being passed and it becoming legally effective if, for example, civil servants need to be trained, computer systems put in place or money found to pay for the new scheme.

Laws adopted and passed are published in print as Recueil de Lois de Jersey and online by the Jersey Legal Information Board on the Jersey Law[7] website.

In Jersey, there are other types of legislation in addition to laws.[8]

  • Regulations: these are used where a law delegates to the States Assembly power to make legally binding rules to implement a named law.
  • Triennial regulations: since the 18th century, the States of Jersey has had power to make provisional regulations of up to three years' duration.
  • Orders and rules: these are g

    Custom is a source of law in the Jersey legal system. It has been described as "the product of generally accepted usage and practice. It has no formal sanction or authority behind it other than the general consensus of opinion within the community".[9] It differs from English common law where rules stated by a judge of a senior court are binding law because they are stated by a judge. In customary law, the role of the judiciary is to look for evidence of what is "generally accepted usage and practice".

    Many rules of customary law have crystallised to such an extent (through repeated acknowledgment by the Royal Court and in the way people conduct their affairs) that everyone accepts them as binding without discussion. The boundaries of the parishes, the existence of the office of Bailiff, and various rules relating to possession of land and inheritance fall into this category. Many rules of customary law are to be found discussed in the texts of the 'commentators' and the case law of the Jersey

    Many rules of customary law have crystallised to such an extent (through repeated acknowledgment by the Royal Court and in the way people conduct their affairs) that everyone accepts them as binding without discussion. The boundaries of the parishes, the existence of the office of Bailiff, and various rules relating to possession of land and inheritance fall into this category. Many rules of customary law are to be found discussed in the texts of the 'commentators' and the case law of the Jersey courts. Where the works of the commentators do not deal with situation, the Jersey courts look at factual evidence to work out is the "generally accepted usage and practice".[10]

    The customary law of the Duchy of Normandy is particularly influential as a source of law in Jersey, even though Jersey ceased to part of Normandy in 1204. Norman law developed in two main epochs – the "Ancienne coutume" (1199–1538) and the "Coutume reformée" (1538–1804).

    The northern and western regions of medieval Europe "were a patchwork of territorial areas in which the main source of law was customs, usages and practices which had become relatively fixed and settled".[11] Norman law was based on oral tradition and repeated practices in feudal society.[12] The earliest known written account of the Ancienne coutume of Normandy is the "Très-ancienne coutume", first set down in Latin manuscript around 1199 to 1223. It was translated into French, probably in about 1230.[13][14] It is thought to be the work of scholars or court officials, designed to be a manual for legal practitioners.[15] A modern edition was compiled from various sources in 1903 by Professor E. J. Tardiff.[16]

    Of more importance to Jersey law is "Le Grand Coutume de Normandie" written in the period 1245–1258, originally in Latin manuscript (Summa de Legibus).[17] The first printed version dates to 1438. It sets out the law and practice of Normandy in the form of 125 articles. It is probable that the original compiler "was an individual legal practitioner or scholar, rather than it being in any sense an official work".[18]

    When in 1309 Edward II of England sent Justices to Jersey, the people of Jersey were "asked by what law they claimed to be governed, the law of England, of Normandy, or by some special customs of their own? They answered 'By the law of Normandy, and referred the Justices to the Summa of Malcael [the Jersey name for the Grand Coutumier], where the Norman laws are well embodied' ... But they added, and this a clause that caused much trouble later, 'except that we have certain customs used in this island from time immemorial'".[19]

    In the 16th century, two commentaries on the Grand Coutumier, written in Normandy, have been influential in Jersey law. Guillaume Rouillé of AlençonEdward II of England sent Justices to Jersey, the people of Jersey were "asked by what law they claimed to be governed, the law of England, of Normandy, or by some special customs of their own? They answered 'By the law of Normandy, and referred the Justices to the Summa of Malcael [the Jersey name for the Grand Coutumier], where the Norman laws are well embodied' ... But they added, and this a clause that caused much trouble later, 'except that we have certain customs used in this island from time immemorial'".[19]

    In the 16th century, two commentaries on the Grand Coutumier, written in Normandy, have been influential in Jersey law. Guillaume Rouillé of Alençon [fr] (also known as Le Rouillé) was the author of Le Grant Coustumier du pays & duché de Normendie : tres utile & profitable a tous practiciens (1534; 1539). He also produced commentary on the neighbouring province of Maine (pictured).

    Guillaume Terrien's Commentaires du droit civil, tant public que privé, observé au pays et Duché de Normandie was first published in 1574. Dawes explains: "Terrien's own work comprised the selecting of texts from the Grand Coutumier, putting them into an order which suited his scheme (even to the point of cutting and pasting quite disparate texts) and then commenting on the resulting amalgam. To this commentary a further author added notes headed 'Additio', more often than not in Latin".[20]

    Two modern versions of the text of the Grand Coutumier have been produced. The first was by Jurat William Laurence de Gruchy entitled L'Ancienne Coutume de Normandie: Réimpression, éditée avec de légères annotations (1881), based on Le Rouillé's 1539 edition, using a double-column format setting out the Latin and French texts side by side.[21] In 2009, an English translation of the Latin text by J. A. Everard was published.[22]

    The second period in the development of Norman custom was between 1583 and 1804 and is known as the Coutume reformée (the reformed custom). In 1453, Charles VII of France issued orders that all the customary laws of France should be "redacted", in other words set out systematically and approved under royal authority. The Duchy of Normandy was the last part of France to comply with this order but the new text was eventually prepared and received royal approval in 1585 by Henry III of France.

    There are two reasons why the Coutume reformée might be thought to have little relevance to Jersey: it was created 380 years after Jersey had ceased formally to be part of the Duchy of Normandy and it was a text sanctioned by the king of France. Nonetheless, Jersey lawyers and courts made frequent references to the Coutume reformée and by virtue of its assimilation into Jersey law over the centuries it is regarded as a source of the island's law.[23]

    Commentators on the Coutume reformée include:

    • Henri Basnage de Franquesnay [fr][24]
    • Ja

      There are two reasons why the Coutume reformée might be thought to have little relevance to Jersey: it was created 380 years after Jersey had ceased formally to be part of the Duchy of Normandy and it was a text sanctioned by the king of France. Nonetheless, Jersey lawyers and courts made frequent references to the Coutume reformée and by virtue of its assimilation into Jersey law over the centuries it is regarded as a source of the island's law.[23]

      Commentators on the Coutume reformée include:

      Within France, customary law was abolished in 1804 with the introduction of uniform codes of civil and criminal law across the whole of France.

      Jersey commentators on custom

      As well as relying on commentaries produced in France, Jersey has an indigenous legal literature on custom. In the 17th century, Jean Poingdestre (1609–1691) and Philippe Le Geyt (1635–1716) wrote several works. Some chapters of C. S. Le Gros' 20th-century work, Traité du Droit Coutumier d l'Ile de Jersey also remain relevant.[29]

      Legislative reforms of custom

      Many rules of customary law have been amended or abolished by legislation in the later 19th and 20th centuries. Examples of this include:

      • "Any rule of customary law, that a contract passed before the Royal Court for the transfer of immovable property may be annulled, at the instance of the heirs or devisees, as the case may be, of the transferor, if he or she dies within 40 days of the passing of the contract, is abolished" (Customary Law Amendment (No. 2) (Jersey) Law 1984).As well as relying on commentaries produced in France, Jersey has an indigenous legal literature on custom. In the 17th century, Jean Poingdestre (1609–1691) and Philippe Le Geyt (1635–1716) wrote several works. Some chapters of C. S. Le Gros' 20th-century work, Traité du Droit Coutumier d l'Ile de Jersey also remain relevant.[29]

        Legislative reforms of custom

        Many rules of customary law have been amended or abolished by legislation in the later 19th and 20th centuries. Examples of this include:

        • "Any rule of customary law, that a contract passed before the Royal Court for the transfer of immovable property may be annulled, at the instance of the heirs or devisees, as the case may be, of the transferor, if he or she dies within 40 days of the passing of the contract, is abolished" (Customary Law Amendment (No. 2) (Jersey) Law 1984).
        • In cus

          Some fields of Jersey, such as negligence and administrative law, are heavily influenced by English common law. In other branches of law, notably contract, Jersey courts may have regard to French civil law.[30][31]

          Human rights

          The Human Rights (Jersey) Law 2000,[4] based closely on the United Kingdom's Human Rights Act 1998, requires Jersey courts so far as possible to interpret legislation so that it is compatible with rights and freedoms guaranteed by the European Convention on Human Rights. Jersey public bodies are required to act in conformity with Convention rights.

          In January 2012, Jersey introduced laws to recognise same-sex civil partnerships.[32]

          Language of Jersey lawThe Human Rights (Jersey) Law 2000,[4] based closely on the United Kingdom's Human Rights Act 1998, requires Jersey courts so far as possible to interpret legislation so that it is compatible with rights and freedoms guaranteed by the European Convention on Human Rights. Jersey public bodies are required to act in conformity with Convention rights.

          In January 2012, Jersey introduced laws to recognise same-sex civil partnerships.[32]

          Language of Jersey law[32]

          During the 20th century, the main working language of the Jersey legal system changed from French to English.[33] Before the 1930s, almost all legislation passed by the States Assembly was in French. Since then, French is used only where new legislation makes amendments to legislation originally drafted in French.[34]

          The conveyancing of immoveable property was carried out using contracts drafted in French until October 2006,[35] after which contracts were required to be in English.[36] Several

          The conveyancing of immoveable property was carried out using contracts drafted in French until October 2006,[35] after which contracts were required to be in English.[36] Several French words and expressions used in Jersey differ from Standard French.

          The Jersey legal system does not follow the strict rules of binding precedent that exist in common law jurisdictions such as England and Wales.[37] The Royal Court is not bound by its own previous decisions on a point of law but it will generally follow them unless persuaded that the earlier decision was wrongly decided. A similar approach is taken by the Court of Appeal. All Jersey courts are, however, bound by points of law decided by the Judicial Committee of the Privy Council in previous Jersey appeals to that court.

          During the 19th and 20th centuries a series of improvements to the system of writing and reporting judgments was put in place. In 1885, the Royal Court began to publish the Tables des Décisions de la Cour Royal de Jersey – a subject index to decided cases, prepared by the Greffier.[38]

          In 1950, Charles Thomas Le Quesne KC returned to Jersey from practice at the English Bar and was appointed Lieutenant Bailiff. Up to this point, the Royal Court's judgments were in the French style of jugements motivés,[citation needed<

          During the 19th and 20th centuries a series of improvements to the system of writing and reporting judgments was put in place. In 1885, the Royal Court began to publish the Tables des Décisions de la Cour Royal de Jersey – a subject index to decided cases, prepared by the Greffier.[38]

          In 1950, Charles Thomas Le Quesne KC returned to Jersey from practice at the English Bar and was appointed Lieutenant Bailiff. Up to this point, the Royal Court's judgments were in the French style of jugements motivés,[citation needed] written in French by the Greffier rather than the judge, and expressing the reasons for the court's decision only very briefly. Le Quesne changed the language of judgments to English and adopted the common law style of judgments, where the judge gives detailed reasons for accepting or rejecting the rival submissions made at trial by counsel.[39] Between 1950 and 1984, the Royal Court published its and the Court of Appeal judgments in a series of law reports known as the Jersey Judgments (eleven volumes in total). From 1984, judgments have been published a new series of law reports known as the Jersey Law Reports.[40]

          In 2004, the Jersey Legal Information Board (JLIB) was set up to promote "accessibility of the written law and legal processes to the public and of an integrated and efficient legal system, through the use of information technology and by other means".[41] Judgments of the Royal Court and Court of Appeal are published online on www.jerseylaw.je, with open access to "unreported" judgments as part of the Free Access to Law Movement.

          The head of the judiciary in Jersey is the Bailiff, who as well as performing the judicial functions of a chief justice is also the President (presiding officer) of the States of Jersey and has certain civic, ceremonial and executive functions. The Bailiff's functions may be exercised by the Deputy Bailiff.

          Judicial appointments processes

          All courts in Jersey are required under Article 6 of the European Convention on Human Rights to be 'independent and impartial'.[4] In 2000, the <

          All courts in Jersey are required under Article 6 of the European Convention on Human Rights to be 'independent and impartial'.[4] In 2000, the European Court of Human Rights held in McGonnell v United Kingdom[60] that there was a breach of Article 6 in Guernsey where the Bailiff or Deputy Bailiff sat as President of the States of Guernsey when proposed legislation was being debated and then subsequently sat as a judge of the Royal Court of Guernsey in a case where that legislation was relevant. The Court, noting that there was no suggestion that the Bailiff 'was subjectively biased', stated that the 'mere fact' that this happened was capable of casting doubt on the Bailiff's impartiality. A Bailiff and Deputy Bailiff in Jersey is able to avoid a McGonnell situation simply by not sitting in the Royal Court in cases concerned with legislation that was debated when he presided in the States. The current Bailiff, Mr Michael Birt has conceded that 'we probably need to improve our systems to be very compliant with McGonnell and that one probably ought to keep a running list of those statutes where I have presided so at least I could invite the parties to consider whether they wanted to object or not'.[61] In a recent review chaired by Lord Carswell, set up by the States of Jersey, a legal opinion was commissioned from Rabinder Singh QC in which he expressed the view that 'there is no reason in law why the present constitutional arrangements in respect of the Bailiff should be altered. However, the trend suggests that the tide of history is in favour of reform and that the legal position will be different in 10 years time'.[62] The report of Lord Carswell's inquiry concluded that Mr Singh's opinion 'provides an additional reason why the Bailiff should cease to be the President of the States'.[63] The States of Jersey have not accepted this aspect of the Carswell report. Many prominent islanders do not believe that any change is necessary or desirable.[64]

          Stuart Syvret litigation

          The Jersey legal profession has three types of Jersey-qualified lawyers – advocates, solicitors and notaries public.[69][70] Advocates have rights of audience to represent clients in all courts. Jersey solicitors have no general rights of audience. Notaries have no rights of audience. The Law Society of Jersey[71] is the professional body responsible for professional conduct. Notaries are regulated by the Faculty Office of the Archbishop of Canterbury through the Dean of the Arches, referred to as the Master of the Faculties, who is normally an English QC.[72]

          Some law firms focus on legal practice relating to Jersey's finance industry, the largest being: Appleby; Bedell Cristin; Carey Olsen; Mourant Ozannes; and Ogier, all of which are regarded as part of the "offshore magic circle". Smaller firms and sole practitioners also provide a wide range of legal services.[73] Several law firms now have offices in both Jersey and Guernsey but the legal professions of the two islands are separate, as they are separate from those in England, Wales and Scotland. Most notaries in Jersey are employed by, or are partners in, local firms of Jersey advocates or solicitors, although some are in English solicitors firms or practising purely as notaries, independent of the general legal professi

          Some law firms focus on legal practice relating to Jersey's finance industry, the largest being: Appleby; Bedell Cristin; Carey Olsen; Mourant Ozannes; and Ogier, all of which are regarded as part of the "offshore magic circle". Smaller firms and sole practitioners also provide a wide range of legal services.[73] Several law firms now have offices in both Jersey and Guernsey but the legal professions of the two islands are separate, as they are separate from those in England, Wales and Scotland. Most notaries in Jersey are employed by, or are partners in, local firms of Jersey advocates or solicitors, although some are in English solicitors firms or practising purely as notaries, independent of the general legal profession. There is a local Jersey Notaries Society.

          The Law Officers of the Crown are responsible for criminal prosecution work and for providing legal advice to the Crown, ministers and other members of the Assembly of the States of Jersey. The Attorney General and his deputy, the Solicitor General, are non-voting members of the States Assembly.[74]

          The process of qualifying as a Jersey lawyer is regulated by the Advocates and Solicitors (Jersey) Law 1997[69] and is similar for both advocates and solicitors. Since 2009, candidates for the Jersey law examinations are required to enrol on the Jersey Law Course run by the Institute of Law, Jersey.[75] They are required to take five compulsory papers: (i) Jersey legal system and constitutional Law; (ii) Law of contract and the law relating to security on moveable property and bankruptcy; (iii) testate and intestate succession; law of immoveable property and conveyancing; and civil and criminal procedure. In addition, candidates must take one of three option papers: (i) company law; (ii) trusts law; or (iii) family law.

          The admission of lawyers as notaries in Jersey is governed by an order of the Master of the Faculties. It is necessary to show that a prospective notary has been in actual practise in Jersey as a Jersey-qualified Advocate or Solicitor for a period of 5 years and is required to pass an examination in notarial practice. The Master does however retain a discretion to admit those who are not so qualified "...in appropriate circumstances".[76]

          There is no publicly funded legal aid system in Jersey, though the States of Jersey may exercise discretion to pay defence legal fees in serious criminal trials[77] and in cases involving children.[78] During their first 15 years of practice, Jersey Advocates and Solicitors, but not Notaries, are required to participate in a scheme organised by the profession to ensure so far as possible that people without sufficient resources are not prevented from pursuing or defending civil and criminal cases in the island's courts. The scheme is administered on behalf by the Bâtonnier (a senior member of the profession). Cases accepted by the Bâtonnier as eligible are allocated to lawyers on the basis of the 'Tour de Rôle' (i.e. according to one's turn). Depending on the litigants' income and assets, lawyers may work pro bono or charge a reasonable fee in accordance with published guidelines.[79] A lawyer assigned a legal aid case may choose to pay another lawyer to handle the case and several firms have established specialist legal aid departments.[80] There have been numerous and long-standing calls for reform of the present system.[81]

          Law reformThe Jersey Law Commission was established by the States of Jersey in 1996 to keep Jersey law under review and bring forward proposals for law reform.[82]

          See also