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Tuesday, 7 May 2013

The Wisdom of the Court

William Bailhache presided
I was privileged today to be able to assist a lady in bringing an application for leave to appeal out of time. I shall of course be discrete with some of the facts and identities of the persons involved in the case as they related to a child.

The lady in question was involved in a troubled relationship during which she suffered some violence and as a result turned to alcohol as a coping mechanism.

At a time when she was gathering the courage to move on from the relationship and as a result of other factors which caused a high level of emotional and mental distress she found herself unable to cope with the responsibility of looking after her four year old daughter. In a moment of extreme need she turned to the States of Jersey Police for assistance in ensuring the safety of her child.

The response of the Police was to imprison her under the Mental Health Act for fear that she would harm herself and after a night in the custody suite she was charged with an offence under Article 35 (1) (b) of the Children's Law (Jersey) 2002 the relevant law being:

35    Causing harm to or neglecting children under 16
(1)    If any person who has responsibility for a child under the age of 16 intentionally or recklessly –
(a)     causes any harm to that child;
(b)     exposes the child to a risk of harm; or
(c)     neglects the child in a manner likely to cause the child harm,
the person shall be guilty of an offence and liable to imprisonment for a term of 10 years and to a fine.

Now this is a very hard charge to counter; most things that most people do exposes their child to some form of risk.

The specifics of this prosecution case were that she had been drinking and there was unopened prescription medication within reach of the child. The lady was represented under Legal Aid and effectively told to plead guilty. The sentence given was 1 month's imprisonment.

However for the past three years this has played upon her conscience but was unable to receive legal assistance to bring the matter on appeal so I offered to assist as far as possible. Therefore we had to seek not only to appeal but leave to appeal out of time.

The Court very quickly concluded that the Attorney General had been ill advised to bring a case of this nature and that it is not 'in the public interest' to bring charges against people who turn to the States of Jersey for assistance in ensuring the health and well being of their children and that no prosecutions of this nature should be bought in future.

The Lady was unwilling to undergo a re-trial and so the Royal Court concluded that the best way forward would be to amend the sentence to that which would most quickly be 'spent' under the Rehabilitation of Offenders act and amended the sentence to a £400 fine (already paid in full due to time served 'in default'). The Court also ordered that the Police National Computer records be clearly amended to show that this was reckless neglect and not intentional neglect as it erroneously showed on the printout presented by the AG to the Court.

I believe that had the lady in question been willing to prolong matters that the re-trial would not have proceeded, although as the case was never tried the evidence which the prosecution might present is not known. Still there is a mental burden in undergoing Court proceedings and I fully respect her wishes just to have the matter resolved and move on in her life; should anyone ask in future then there will soon be a judgement that she can show to anyone so interested.

So I left Court with a warm, fuzzy feeling of doing good; not just for this particular lady, but to any person who might find themselves in a similar situation in the future who can now request assistance without fear of prosecution. Jersey Courts have once again shown that they can and do act in the interests of justice.