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A recent decision of the Royal Court of Jersey relating to an unusual appeal on the interpretation of Jersey law made by way of case stated (the “Appeal”).

The Appeal was brought by the appellant, after the Magistrate determined he had no power to award the appellant his wasted costs in respect of a charge which was brought against the appellant but later discontinued by the prosecution only two days prior to trial.

The Royal Court considered the impact of the recent Criminal Procedure (Jersey) Law 2018 (the “2018 Law”), which introduced an entirely new power to the prosecution to discontinue a case against a defendant without first asking for the Court’s approval. Whilst the prosecution accepted there was a general presumption of costs when the prosecution discontinue a case, they argued that the changes in the 2018 Law meant a defendant could only apply for costs if the defendant applied to Court for the case to be continued against him, which would allow the prosecution to formally accept they had insufficient evidence to continue to trial and the court the jurisdiction to order costs. The appellant argued that the introduction of the 2018 Law and the additional power granted to the prosecution did not remove the power to the court to award costs pursuant to Article2(1)(c) of the Costs in Criminal Cases (Jersey) Law 1961, which allowed defendant’s costs when they are “discharged from the prosecution”.

The Royal Court determined that a defendant making an application for the case to be continued, purely so the prosecution can formally offer no evidence, was unfairly prejudicial to defendants stating “It is not possible under Article 80 of the 2018 Law for a defendant to apply for the case to be continued on a limited basis, namely, to give the Court jurisdiction to award costs, and although it is most likely that the prosecution would offer no evidence, the continuance of the prosecution against the defendant must entail an element of risk to that defendant. The mere fact that the case continues is of itself prejudicial.” The Royal Court therefore agreed with the appellant that despite the changes to the 2018 Law, the Magistrate Court did not lose jurisdiction to award costs in circumstances where the prosecution discontinued the case rather than the Court.

The decision will no doubt be viewed as a sensible and fair judgment, avoiding the absurd situation where a defendant can only receive costs by asking a court to continue a case which neither the defendant nor the prosecution want to pursue.

Advocate Christina Hall of Viberts appeared for the Appellant.

Click here for the full judgment: https://www.jerseylaw.je/judgments/unreported/Pages/[2021]JRC199.aspx