Law of Jersey
The law of Jersey has been influenced by several different legal traditions, in particular
Sources of law
Legislation adopted by the States
Jersey's legislature, the States Assembly makes legislation affecting most areas of activity.[2]
Laws
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.
The law is then submitted via the
After a law receives royal assent, the final step is for it be registered with the
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[8] website.
Other types of legislation
In Jersey, there are other types of legislation in addition to laws.[9]
- 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 generally made by a minister, within the scope of powers set out in a law.
Case law
The principal source for decisions on Jersey law are decisions of the Royal Court, which has a reputation for sound judgement.[10]
Jersey law also draws from cases in other jurisdictions, particularly England and Wales. In criminal law, English law is drawn upon and its continuation seems to be inevitable, although in some key areas such as sentencing, Jersey has taken a distinct path from England and Wales. However, in land and succession law, English law is of little relevance. The Norman coutume is too far removed from English law for English law to be a useful tool. In contract law, English cases are cited and often followed. In trust law, English cases are a persuasive force over decision making. In tort law, English law has largely won out over French law in its influence in tort law's development in the island. However, Jersey law does sometimes decline to follow decisions of the English legal system, for example in the case of The Siskina in the House of Lords.[10]
Customary law
Custom holds a significant position within the legal system of Jersey. It is regarded as the foundation of Jersey law and has been described as 'the product of generally accepted usage and practice'.
Customary law has no formal, authoritative backing; it relies on 'the general consensus of opinion within the community'.[11] This differs from English common law, in which judicial statements of a judge in a senior court establish binding laws simply because they are stated by a judge.[11] The texts of legal 'commentators' and the case law of Jersey courts provide discussions of many customary law rules. However, where these do not adequately address a specific situation, Jersey courts examine factual evidence to work out the 'generally accepted usage and practice'.[12]
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).
Ancienne coutume of Normandy
The northern and western regions of
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).[19] 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".[20]
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'".[21]
In the 16th century, two commentaries on the Grand Coutumier, written in Normandy, have been influential in Jersey law. Guillaume Rouillé of Alençon (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".[22]
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.[23] In 2009, an English translation of the Latin text by J. A. Everard was published.[24]
Coutume Reformée of Normandy
The second period in the development of Norman custom was the Coutume reformée (the reformed custom), in force between 1583 and 1804.
The reformed custom was a result of a 1453 directive of
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 to be part of the Duchy of Normandy, and it was a text sanctioned by the King of France. Nonetheless, Jersey lawyers and courts have 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.[25]
Commentators on the Coutume reformée include:
- Henri Basnage de Franquesnay[26]
- Jacques Bathelier d'Aviron
- Josias Bérault[27]
- Jean-Baptiste Flaust[28]
- Jacques Godefroy
- David Hoüard[29]
- Charles Routier.[30]
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.[31]
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 customary law, the age of majority was 20 years; the Age of Majority (Jersey) Law 1999 reduces this to 18 years.
- "The rule under customary law that all gifts to a concubine are null is hereby abolished" (Wills and Successions (Jersey) Law 1993).
- Customary law did not permit a cause of action for/against a person to survive the person's death against/for the benefit of the person's estate; Customary Law Amendment (Jersey) Law 1948 reversed this situation.
- The année de jouissance (the right of an executor to have the income arising during the administration of a moveable estate for a year and a day) was abolished by the Wills and Successions (Jersey) Law 1993.
Influence of English and French law
Some fields of Jersey, such as negligence and administrative law, are heavily influenced by
Human rights
The Human Rights (Jersey) Law 2000,[5] 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.[34]
Language
During the 20th century, the main working language of the Jersey legal system changed from French to English.[35] 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.[36]
The conveyancing of immoveable property was carried out using contracts drafted in French until October 2006,[37] after which contracts were required to be in English.[38] Several French words and expressions used in Jersey differ from Standard French.
Precedent and law reporting
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
In 1950,
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".[44] 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.
Judiciary
The head of the
Jurats
Until 1948, the Jurats were judges of law as well as fact.[40]
Judicial appointments processes
The posts of Bailiff and
This process has not been used for appointment to the office of Bailiff on the basis that "The Secretary of State has accepted that the position of Deputy Bailiff is a training ground for the position of Bailiff, and that, therefore, all things being equal, you would expect to move up, assuming of course that you have performed to everyone's satisfaction".[46]
Jurats are elected by an electoral college consisting of the Bailiff, the Jurats, the Connétables, the elected members of the states, advocates and solicitors of the Royal Court.[47] Voting is by secret ballot.
Commissioners of the Royal Court are appointed by the Bailiff for the hearing of a specified cause or matter or a specified term.[48]
The Bailiff appoints the Magistrate and the Assistant Magistrate (who hold full-time salaried posts) and part-time Relief Magistrates (legal practitioners who carry out duties on a daily fee-paid basis).[49] It is now normal for the Bailiff to convene a panel to advise on salaried appointments.[50]
Removal from office
The Bailiff, Deputy Bailiff and members of the
Jurats hold office up to the age of 72 years. A Jurat who 'in the opinion of the Court, is permanently unable, through physical or mental incapacity, or for any other reason, efficiently to carry out the duties of the office, may be called upon by the Court to resign'. A Jurat who refuses to resign may be removed from office by Order of Her Majesty in Council on the petition of the Superior Number (the Bailiff and five or more Jurats) of the Royal Court.[54]
The Bailiff may if he 'thinks fit, terminate the appointment of a Commissioner on the ground of incapacity or misbehaviour'.[48]
The Magistrates, who are also appointed by the Bailiff not the Crown, may not be removed from office 'except by virtue of an Order of Her Majesty in Council'.
Judicial independence in Jersey
Code of Conduct
All judges in Jersey are bound by a code of conduct promulgated by the Jersey Judicial Association in 2007. This requires judges to 'uphold the integrity and independence of the judiciary and perform their duties with competence, diligence and dedication'.[62]
ECHR Article 6
All courts in Jersey are required under
Stuart Syvret litigation
From 2009 to 2015, a former
Jersey legal profession
Some law firms focus on legal practice relating to Jersey's
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
The process of qualifying as a Jersey lawyer is regulated by the Advocates and Solicitors (Jersey) Law 1997
They are required to take five compulsory papers:
- Jersey legal system and constitutional Law
- Law of contract and the law relating to security on moveable property and bankruptcy
- 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:
- company law
- trusts law
- 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".[79]
Legal aid
This section needs to be updated. The reason given is: Update to reflect changes to the legal aid system in Jersey.(November 2022) |
There is no publicly funded
Law reform
The Jersey Law Commission was established by the
See also
- Courts of Jersey
- List of members of the judiciary of Jersey
- Order of Justice
- Politics of Jersey
- List of laws of Jersey
- Royal charters applying to the Channel Islands
References
- ISBN 978-0-9557611-3-3. and "Study Guide on Jersey Legal System and Constitutional Law" (PDF). Jersey: Institute of Law. Archived from the original(PDF) on 2013-12-29.
- ^ "Study Guide for Jersey Legal System and Constitutional Law, chapter 8". Institute of Law. Archived from the original on 2013-12-28.
- ^ "Standing Orders of the States Assembly" (PDF). States Assembly. 27 June 2022.
- Jersey Legal Information Board.
- ^ Jersey Legal Information Board.
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- ^ "Save Senators plea reaches Privy Council". Jersey Evening Post. 7 June 2011. Archived from the original on September 19, 2011.
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- ISBN 978-1-908716-00-2. Archived from the original(PDF) on 2012-03-14. Retrieved 2012-03-27.
- ^ a b Southwell, Richard QC (2005) The Sources of Jersey Law. In: Bailhache, Sir Philip (ed.). A Celebration of Autonomy. 1204-2004: 800 years of Channel Islands' Law. pp. 31-40. Jersey Law Review, St Helier. ISBN 0-9535903-7-2
- ^ a b c Snell v Beadle [2001] UKPC 5 at [16] http://www.bailii.org/uk/cases/UKPC/2001/5.html
- ^ Jersey Legal Information Board. 2012-01-13.
- ISBN 978-1-908716-00-2. Archived from the original(PDF) on 2012-03-14. Retrieved 2012-03-27.
- ^ Les Normands, peuple d'Europe. "Norman customary law". Le patrimonie normand européen, 10th – 12th siècles. Retrieved 27 August 2011.
- ^ Harvard Law School. "French Coutumes". Archived from the original on 12 August 2010. Retrieved 27 August 2011.
- ^ "Rechtsgeschiedenis Blog (Legal history with a Dutch view)". Centuries of law in Normandy. Retrieved 27 August 2011.
- ^ Besnier, Robert (1935). La coutume de Normandie: histoire externe. Librairie du Recueil Sirey, société anonyme.
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- ^ Archives départementales de Seine-Maritime. "Tresors d'archives". Grand coutumier de Normandie, manuscrit sur parchemin, fin XVe siècle. Archived from the original on 2012-03-18.
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- ^ Les Œuvres de maître Henri Basnage contenant ses commentaires sur la Coutume de Normandie, et son Traité des hypothèques (Rouen, Maurry, 1709).
- ^ (with Godefroy and d'Aviron), Coutumes du pays et duché de Normandie : anciens ressorts & enclaves d’icelui, augmentées de plusieurs edits, déclarations, arrêts & nouveaux réglemens, tant du Conseil que de la Cour, rendus jusqu'à present, comme il est marqué en la table du recueil à la suite de celle des titres ci-après ; & en outre, les articles rectifiez par les textes d'Aviron & de Berault. Avec les extraits sommaires des edits, declarations, ordonnances & arrêts concernans les mariages ; et d'une table des matières, tant pour la coûtume que pour les articles placitez. articles placitez, Rouen, Chez Pierre le Boucher, 1731
- ^ Explication de la coutume et de la jurisprudence de Normandie, dans un ordre simple et facile, Rouen, Flaust, 1781
- ^ Dictionnaire analytique, historique, étymologique, critique et interprétatif de la coutume de Normandie, ou l'on trouve la résolution des questions les plus intéressantes du droit civil & ecclésiastique de cette province, conformément à la jurisprudence des arrêts, Rouen, Le Boucher le jeune, 1780
- ^ Principes généraux du droit civil et coutumier de la province de Normandie : contenant les régles générales & particuliéres, tirées du texte de cette coutume & des réglemens de la court, donnez en interprétation d'icelle, suivant leur ordre naturel. Rédigées sur trois objets. Des personnes, des choses, & des actions, Rouen, Pierre Le Boucher, 1748.
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- ^ "Consultation Paper No. 5: The Jersey Law of Contract". Jersey Law Commission. October 2002. Archived from the original on 2012-07-24. Retrieved 2011-08-05.
- ^ "Study Guide on Jersey Contract Law". Institute of Law. Archived from the original on 2013-12-28.
- ^ "Jersey recognises civil partnerships". BBC News. 13 January 2012.
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- ^ All legislation is available on the Jersey Law website.
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- ^ Qatar v Al Thani 1999 Jersey Law Reports 118.
- ^ a b Dixon, Dennis (2020). "Binding Precedent In The Channel Islands". Jersey Legal Information Board. The Jersey & Guernsey Law Review. Retrieved 2023-06-18.
- ^ Institute of Law, Jersey, Jersey Legal System and Constitutional Law (2011), chapter 1.
- ^ Attorney General v Weston 1979 Jersey Judgments 141.
- ^ "JERSEY | Law Reports International". Retrieved 2020-02-12.
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- ^ "Evidence of Mr M Birt (Bailiff), public hearing 4 May 2010" (PDF). Review of the Roles of the Crown Officers. pp. 5–15.
- ^ "Evidence of Mr M Birt (Bailiff), public hearing 4 May 2010" (PDF). Review of the Roles of the Crown Officers. p. 14.
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- ^ Jersey Legal Information Board. JerseyLaw. Archived from the originalon 2012-03-16.
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- ^ "Senior Courts Act (previously known as the Supreme Court Act) 1981, section 11(3)". Legislation.gov.uk.
"Judges and parliament". Judiciary of England and Wales. - ^ "Debates vol 208 cc93-4W". Parliamentary Debates (Hansard). House of Commons. 19 May 1992.
Dyer (13 May 1992). "'Dismissal of "slow" Judge angers Jersey". The Guardian.
Cohen, Nick (13 May 1992). "Jersey in revolt after Clarke sacks judge". The Independent.
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- ^ "What next for fraud judge?". Jersey Evening Post. 27 July 2012. Archived from the original on December 26, 2013.
{{cite web}}
: CS1 maint: unfit URL (link) - ^ "New inquiry to decide whether Christmas retains his position". Jersey Evening Post. 25 September 2012. Archived from the original on September 28, 2012.
{{cite web}}
: CS1 maint: unfit URL (link) - ^ "Ian Christmas: the Legal Background". Tony's musings. 9 October 2012.
- ^ "Code of conduct for members of the judiciary of Jersey, paragraph 1". Government of Jersey. 2007.
- ^ "McGonnell v United Kingdom (2000) ECHR 62". British and Irish Legal Information Institute.
- ^ Pages 46–47, Review of the Roles of the Crown Officers, Public Hearing 4 May 2010
- ^ "Report into Review of Crown Officers". Government of Jersey. 6 December 2010.
- ^ Para 5.16 of Report into Review of Crown Officers
- ^ See e.g. Jeune, Reg (20 December 2010). "Let's not throw out 800 years of history and good governance". Jersey Evening Post. Archived from the original on October 15, 2018.
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"Written submissions on role of Crown Officers". Review of the Roles of the Crown Officers. - . channelonline.tv. Retrieved 5 September 2011.
- ^ See, for example:
"Nursing a grievance in Jersey". Private Eye (no 1288). 13 May 2011. p. 30.
"Former Jersey senator jailed over data-breach blog". The Daily Telegraph. 19 November 2010. p. 11.
"Hemming shields man". Birmingham Evening Mail. 26 October 2009. p. 8. (referring to Liberal Democrat MP John Hemming's assistance to Syvret)
Hough, Andrew (26 October 2009). "Jersey senator to claim asylum at Commons". The Daily Telegraph. p. 16.
"Charge against senator in abuse cover-up claim". The Times. 20 July 2009. p. 26. - Jersey Legal Information Board. 28 July 2011. Archived from the originalon 24 December 2013.
- Jersey Legal Information Board. Retrieved 2020-02-11.
- ^ Jersey Legal Information Board. Archived from the originalon 2012-03-16.
- ^ "Public Notaries Act 1843". (United Kingdom), section 4
- ^ Law Society of Jersey
- ^ "Faculty Office".
- ^ "Law Firms". Law Society of Jersey. Archived from the original on 2011-06-13.
- ^ "Law Officers". Government of Jersey.
- ^ Institute of Law
- ^ "The Notaries (Jersey and Guernsey) Admission Order 2012" (PDF). Faculty Office. 5 December 2012.
- ^ "A system in need of overhaul". Jersey Evening Post. 15 September 2010..
Byrne, Elaine (21 October 2009). "£3m cost may lead to legal aid review". Jersey Evening Post. - ^ Cowburn, Dolores (15 September 2010). "Serious case review cost the Island over £600,000". Jersey Evening Post.
"The Bailiff champions welfare of children". Jersey Evening Post. 1 July 2008. - ^ "Legal Aid". Jersey Citizen's Advice Bureau.
- ^ McRandle, Harry (5 November 2005). "Law firm stops taking legal aid divorce cases". Jersey Evening Post. Archived from the original on February 4, 2013.
{{cite web}}
: CS1 maint: unfit URL (link) - ^ Quérée, Ben (14 September 2007). "Public should pay for legal aid, says Bailiff". Jersey Evening Post.
Sibcy, Andy (12 September 2003). "Taxpayers "may have to foot bill for legal aid"". Jersey Evening Post.