(2) Subject as otherwise provided in this Law and to Rules of Court, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the Superior Number of the Royal Court when exercising original jurisdiction in any civil cause or matter."
In that case the Court of Appeal held that the Court had jurisdiction to entertain the appeal on the basis that it was in a "civil cause or matter". Nevertheless it was a case which had involved throughout the Superior Number when exercising original jurisdiction, although sitting in a somewhat special capacity, as the Court noted.
The Court had concluded this part of the judgment by stating that it was very desirable that urgent consideration should be given to the question of making agreed rules as to procedure in disciplinary matters both for the benefit of the public and of the Bar itself. Members of the Bar should know clearly what is their position in the event of complaint and the public should know that a satisfactory system exists for properly investigating and dealing with complaints. I am told that no rules or guidelines have been introduced since 1978, but I take into account the recognised practice of referring complaints of this nature to the Superior Number of the Royal Court. However, I have come to the conclusion that it is unnecessary for me in the context of this case to determine whether there is any further room for a special situation as argued by Mr. Le Cornu. For the reasons which I have already given I reject the application to récuse the Jurats and in those circumstances it is unnecessary to investigate further what would be a hypothetical situation. The appropriate tribunal, in my judgment, must be the Royal Court sitting as the Superior Number and I see no reason to depart from the acknowledged practice based on precedent.
Finally, I have considered the objection advanced by Mr. Le Cornu to the participation of a Crown Advocate on behalf of the Attorney General at the hearing of the Bâtonnier's complaint. As Mr. Michel has pointed out in his submissions, the criticisms of the Attorney General by Mr. Sinel in his affidavit relate to the present office holder and not to the office itself. Mr. Santos Costa would be acting as Amicus Curiae on behalf of the office of Attorney General. It would be no part of his function to defend the Attorney General against any allegations which have been made against him. He would be present to give assistance to the Court in such circumstances as it might require it. Historically, that is to say before 1963, the Superior Number of the Royal Court was not properly constituted without the presence of the Attorney General or the Solicitor General. But for the objection raised here his presence would be taken for granted today at a hearing of this nature. I have been referred to a definition of the term Amicus Curiae in a Canadian case Grice -v- The Queen, Ex. Rel. [1957] 11 DLR (2d) 699:
"An Amicus Curiae, properly so called, is a person or bystander, usually a lawyer, who has no interest in the proceedings and intervenes simply to call the attention of the Court to some point of law or fact which has escaped its notice."
Mr. Le Cornu has argued that anyone who is connected with the Attorney General's office would not give the appearance of being impartial and that an advocate appointed on the Attorney General's behalf is not to be regarded as truly independent and would not be seen to be independent.
Mr. Santos Costa, in reply to my invitation to address the Court, emphasised the distinction between the rôle of a Crown Advocate in independent private practice but representing the Crown on particular occasions and the Law Officers who have the status of permanent office holders. He pointed out that Mr. Le Cornu is also a Crown Advocate.
I have carefully considered these objections but I reject the proposition that the Court might be adversely affected or prejudiced by the assistance of Mr. Santos Costa as an Amicus Curiae .
Authorities
(Reissue) Halsbury 1(1): paras. 84-86, 89, 101.
R -v- Bow Street Metropolitan Stipendiary Magistrate & Ors ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272 at 288, 289, 290, 293.
(Reissue) Halsbury 3(1): para. 504.
Grice -v- The Queen Ex. Rel. (1957) 11 DLR (2d) 699.
In re an Advocate [1978] JJ 193.
Royal Court (Jersey) Law, 1948, as amended: Articles 13 and 13B.
Representation of Bâtonnier re Advocate Sinel (14 th May, 1998) Jersey Unreported.
R -v- Gough [1993] AC 646 .
Drew -v- AG [1994] JLR 1 CofA.
Greffier of the States -v- Les Pas Holdings (24 th June, 1998) Jersey Unreported CofA; (1998) JLR 196 CofA.
Snooks -v- AG [1997] JLR 253 CofA.
Court of Appeal (Jersey) Law, 1961: Article 12.