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Friday, 22 March 2013

Appeals from the Ecclesiastical Court of Jersey

I have been intrigued by the recent discussion of the legal framework for matters bought before the Ecclesiastical Court of Jersey.

For those of you not so interested in religion as I there are one or two points which are worth noting; firstly the Church of England is largely a 'Catholic' church and not a 'Protestant' or 'Dissenter' church and therefore the overarching law is Canonical Law.

Cases normally originate in the tribunal of the particular church (i.e. the diocese or eparchy) of the parties to the case. This tribunal in canon law is called the tribunal of first instance. The bishop of the church possesses the power to judge for his church; however, since the bishop has many different duties in his diocese, most cases are handled by judges whom he appoints, led by a priest known as the judicial vicar or officials.

The appellate tribunal is known as the tribunal of second instance. Normally the second instance tribunal is the tribunal of the metropolitan bishop. It has been suggested that if the Dean is the subject of a complaint then the Bailiff takes over as judge, however this is not the case, the appeal is heard directly by the appellate tribunal.

So where does Jersey fit into this? The Channel Islands were previously part of the Diocese of Coutances. Following an unsuccessful attempt to transfer the Islands to the Diocese of Salisbury, Pope Alexander VI transferred them to Winchester by a Bull dated 20th January 1499/1500. However, the Bishops of Coutances continued to exercise de facto jurisdiction and it was not until an Order in Council of 11th March 1569 (during the reign of Elizabeth I) that the Channel Islands were finally placed under the Episcopal jurisdiction of the Bishop of Winchester.

Unlike the Isle of Man the Church in Jersey does not set out its legislative stall, nor does the States of Jersey pass legislation as does the Tynwald regarding the operation of the church.

However even in the Isle of Man the suzerainty of the General Synod and the English Law is acknowledged, it appears that the Attorney General in offering the advice that the Church in Jersey is not subject to regulation from the higher authority of the bishop, Archbishop of Canterbury and the Queen is making a serious challenge to some 2000 years of precedent.

To suggest that the Church in Jersey can walk out of step with the rest of the world appears to be illogical, contrary to the discoveries of law to date and thus one would suggest an argument made solely for the sake of making an argument. To suggest that there is no avenue for appeal from the Ecclesiastical Court of Jersey to a higher Ecclesiastical Court is not a suggestion that one would expect to come from a trained lawyer, there are several levels of appeal beyond Jersey.

To suggest that the Dean of Jersey once appointed is on a par with either the Archbishop of Canterbury or the Pope and is the ultimate spiritual authority on earth is clearly ludicrous. But such are the arguments which have been forthcoming from Jersey's Crown Officers in recent days.

Far better to let justice take its course and in future the JEP and the Jersey Establishment will do well to remember that a person is innocent until proven guilty and not guilty until exonerated (as the Dean describes our mindset in the diocese report) a mindset which has been proliferated by the establishment and the JEP which induces us to never question whether the Police or Courts have made a mistake, because the truth is that invariably they do.