AG -v- Bisson [2010] JRC 198 (03 November 2010)

JUDGMENT THE commissioner: 1. The defendant stands indicted for the offence of grave and criminal assault and is now due to stand his trial on 13 th and 14 th December.

2. The defendant has represented himself before the Magistrate's Court and before the Royal Court. On 14 th October, 2010, I sat to hear legal argument on the admission of evidence; the trial was due to start the following Monday. Before dealing with those arguments, Miss Woods for the Crown raised the issue of the defendant's legal representation.

3. At a plea and directions hearing on the 14 th September, the defendant had informed me that he wanted legal representation but could not afford it. The lawyers appointed to him under the legal aid scheme had apparently indicated that the overall cost of his representation would be some £70,000 and he would be liable to contribute some £20,000. The terms imposed by the appointed lawyers were beyond what he could afford and he therefore had no option but to represent himself.

4. Mr Baker had taken up this matter with Mrs Fitz, the Acting Bâtonnier, and she attended the hearing on 14 th October in order to assist the Court on the defendant's position under the legal aid scheme. She confirmed to me that Mourants Ozannes had been appointed under the legal aid scheme to represent the defendant. They had provisionally assessed their fees at some £20,000 for the trial, to which the defendant would only be expected to contribute according to his means. Mourants Ozannes had assessed a monthly contribution of £50 per month which had been referred to her for adjudication. She had written to the defendant on 1 st September, confirming that in her view £50 per month was a reasonable contribution. He was a single man employed as a warehouse manager. He rented a property in Jersey but owned a holiday house in Cyprus, purchased for some €200,000 with a mortgage of €170,000.

5. The defendant produced to me a statement of his income and outgoings from which it seemed clear to me that he could indeed afford the monthly payments being requested, namely some £11.50 per week. If he was acquitted, then Mourants Ozannes would no doubt be awarded their costs, but if he was convicted, he could only be required to contribute towards Mourants Ozannes' final account to the extent that he could afford to do so, and in the event of any dispute, he could refer the matter to the Acting Bâtonnier for adjudication. It was clear that the legal aid system had been fully explained to the defendant.

6. I encouraged the defendant to reconsider his position and gave him time to reflect and to consult further with Mrs Fitz. Having done so, he informed me that he had decided to accept representation by Mourants Ozannes and a contribution to their fees of £50 per month. With the trial starting the following Monday, there was then no alternative to the trial date being vacated and a new date fixed so as to give Mourants Ozannes adequate time to prepare his representation. The case was therefore adjourned to Friday 22 nd October, for a new trial date to be fixed and further directions given.

7. The matter came before Sir Philip Bailhache, Commissioner, on 22 nd October when th and 14 th December were fixed for the trial, but it was clear to the Commissioner that the defendant retained concerns as to the open-ended nature of his commitment to Mourants Ozannes under the legal aid scheme. The matter was therefore referred back to me as the trial judge and I sat to consider the matter further on 27 th October, 2010, at which hearing Mrs Fitz again attended to assist the Court as did Mr Haines, who was the lawyer designated by Mourants Ozannes to represent the defendant.

8. Mr Haines and Mrs Fitz informed me that they had met with the defendant the previous day to go through the terms and conditions set out in Mourants Ozannes' letter of 26 th October, 2010, in order to clarify as far as possible his potential financial liabilities to Mourants Ozannes. The terms upon which Mourants Ozannes would represent the defendant under the legal aid scheme can be summarised as follows:- (i) He would pay a contribution of £50 per month commencing in October. With the trial date in December, that would amount to a total contribution of £150. (ii) If the defendant is acquitted, and assuming Mourants Ozannes were awarded their costs in the usual way, there would be no charge to the defendant but Mourants Ozanne would retain the £150. However Mrs Fitz had indicated that if the matter were referred to her for adjudication, she would require the £150 to be returned to him. (iii) If the defendant was convicted and imprisoned (a possible sentence of 12 months had been indicated in that respect), then no further contribution from that date would be expected from him to his fees. (iv) If the defendant was convicted and received a non-custodial sentence, then Mourants Ozannes would expect him to continue with his monthly contributions of £50 towards a total bill of between £1,500 and £5,000. The range between these two figures would be narrowed once certain further disclosure requested by Mourants Ozannes had been supplied by the defendant. (v) Mourants Ozannes would not seek to recover fees from any equity in the Corfu property if that equity was less than £40,000.

9. I was reminded that in assessing any contribution to their fees, Mourants Ozannes were subject to the overriding requirement that the same should not cause financial hardship to the defendant (see para.2.12.4.3 of the Legal Aid guidelines).

10. The only change to the defendant's financial position since the hearing on 14 th October was that he had lost his lodger, who had contributed £400 per month towards his rent. He was looking to replace the lodger as soon as possible. Mrs Fitz informed me that she had considered this change but in view of the short time between now and the trial, she did not feel that there was any necessity to adjust the monthly payment.

11. Mr Bisson informed me that he was not prepared to accept those terms as now clarified and elaborated and had decided to continue representing himself. He told me that there was more to it than £50 per month contributions and that the terms and conditions were in his view still open to a number of interpretations, in respect of which he did not elaborate.

12. Article 6(3)(c) of the Convention provides as follows:- "Everyone charged with a criminal offence has the following minimum rights:- (c) To defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require." 13. The charge against the defendant is serious in that if he is found guilty, he may face imprisonment. It is therefore in the interests of justice that he be legally represented, but the obligation of the Island to provide legal aid is subject to the means of the defendant (see Archbold 2010 edition , paragraph 16-81). The Acting Bâtonnier has already adjudicated on the amount of the monthly contribution and has found the same to be within his current means. His final contribution, if one is called for, has been set within what can only be described as reasonable parameters pending further disclosure by him, but once again would be subject to adjudication by the Acting Bâtonnier and would be subject to the overriding requirement not to cause the defendant financial hardship.

14. There is nothing in the way that the defendant's application for legal aid has been processed that gives me cause for concern - on the contrary, Mrs Fitz and Mr Haines have gone out of their way to assist the defendant. The defendant has been given every opportunity to be legally represented on financial terms that are and will be within his means and has made an informed decision to decline that representation and to represent himself. The trial will therefore proceed on that basis. Authorities Archbold 2010 Edition. European Convention on Human Rights 2000. Page Last Updated: 26 May 2015 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII