Byrne -v- AG [2016] JRC 210 (16 November 2016)

JUDGMENT THE commissioner: 1. This is an application to review the Magistrate's refusal to grant bail to the defendant on 7 th November, 2016. The background is that the defendant is a financial adviser with no previous convictions. He first appeared before the Magistrate's Court on 10 th October. At that stage he faced one charge of fraud, which involved fraudulently inducing a lady to part with £1,000,000 in connection with some proposed investment. He reserved his plea to that charge. At that stage bail was refused on the ground of a real risk that the defendant would fail to attend trial and a risk of interference with the administration of justice. The matter came back before the Magistrate's Court on 7 th November. The defendant, at that stage, was charged with three further offences to which he also reserved his plea. The first was making a false or misleading statement to induce another woman to invest some £200,000 contrary to the Investors (Prevention of Fraud)(Jersey) Law 1967 . The second was knowingly or recklessly providing the JFSC with false or misleading information, contrary to Article 28 of the Financial Services (Jersey) Law 1998 and the third was failing to comply with a Forthwith Notice issued by the JFSC to provide certain information and documents.

2. At that hearing on 7 th November, Advocate Blakeley, on behalf of the defendant, applied for bail. The Prosecution opposed it on the ground of a risk of failure to attend trial and a risk of interference with the course of justice. The Magistrate refused bail on the second ground only. She based that on an allegation that the defendant had fabricated a document purporting to show that the complainant in the first charge, Mrs H, had lent him money. The actual decision of the Magistrate was expressed as follows:- "I have substantial grounds to believe that, if granted bail, you would interfere with witnesses or obstruct justice. Now the basis on which I have come to that means that I have considered the nature and seriousness of the case against you and particularly I have looked at the fact that this is a very large investigation. Investigations are still continuing and, in terms of how you would respond to that investigation, whether you would be tempted to interfere with it or whether there are substantial grounds for believing you would interfere with it, I look to the loan agreement with Mrs H, which she says is completely false. So, in my view, there is evidence that you have a track record of trying to interfere and make something look like something it is not, namely that your dealings with Mrs H are made to look like a loan agreement and, therefore, in my view, you

would be likely to try to interfere with the rest of the investigation if I grant you bail. I do not see any bail conditions that would prevent you from doing that. So, you will be further remanded in custody." 3. We remind ourselves of the test on review which is very well established. It is to review the Magistrate's decision on the conventional grounds of errors of law, errors in procedure or reaching a decision which is irrational. However, we have been provided with significantly more information than that which was available to the Magistrate. It has been emphasised to us that it is only the addendum which the defendant admits has been backdated, that is a document not purportedly signed by Mrs H. The genuineness of the original loan agreement is of course an issue, but that is a matter which will be resolved one way or the other at trial and is something which forms the substance of the charge. However, although it relates to the addendum, the defendant does admit that he sent the addendum to Mrs H, and we have seen the letter, in terms which suggested that it had been signed back in March at or around the time of the purported original loan agreement. He admits that that was a false statement on his part.

4. We are not surprised that on the information before her, the Magistrate refused to grant bail. Advocate Blakeley sought to pick holes in some of the Magistrate's reasoning but an ex tempore judgment is not to be treated as a statute and that part of his case does not advance him at all. However what is relevant, it seems to us, is that despite what he did in relation to the addendum, the defendant did admit what he had done within a matter of days afterwards to the JFSC, so that the true position has become clear. Nevertheless we must consider whether, in the light of what the defendant did, there are proper grounds for fearing an interference with the administration of justice.

5. Mr Byrne, the Court has found this a very finely balanced decision. What you did in relation to that letter is completely unacceptable and we would not be surprised if consideration were being given to bringing some charge in relation to it. Nevertheless, we have just been persuaded that, given the length of time which is likely to elapse before any trial, and with the fact that you have no previous convictions, it would be disproportionate to remand you in custody because of what you did in relation to the addendum. In particular we are satisfied that, given the fact that your computers, telephones and the records in the Island have been seized, and given the condition which we propose to impose, there is insufficient risk of an obstruction of justice to justify refusing bail.

6. Now we are, in principle, willing to grant bail on the following conditions as put to us, but there is going to be an extra one which we will require Advocate Blakeley to take instructions on. So we think if you are going to have bail you should put up a surety, in order to justify bail in these circumstances. So we will hear from you on how much. Subject to that the conditions are that you must:- (i) Reside at an address which is to be specified, 3 Chevalier Road, St Helier and you must not move from that address without obtaining the prior written consent of the Attorney General. Such consent to be sought not less than two working days prior to the intended change. (ii) You must give notice in writing immediately of any change of address to the various people listed in the bail conditions, which you will be provided with, (iii) You must surrender your passport and any other photographic identification that could be used for travel to the Viscount within twenty-four hours and you must not apply for any replacement identification without the written permission of the Attorney General. (iv) You must not leave or attempt to leave the island without obtaining the prior written consent of the Attorney General, such consent to be sought not less than two working days prior to the date of the intended travel. In the event it is given you must return at least one week before the

date fixed for any hearing. (v) Now this is an important one, you must not approach or contact, directly or indirectly - so that means through any intermediary or through some friend - any client, whether present or former, or any employee, whether present or former, of Lumiere Wealth, or any witness whose name is notified to you by the Prosecution, the exceptions being for your son, your son's girlfriend and Mrs S, who we understand is your sister-in-law. (vi) You must report to Police Headquarters three times a week with any application to temporarily vary that to be made to the Attorney General, two working days prior thereto. (vii) Finally, you must provide a surety in the sum of £10,000 within seven days, in a form acceptable to the Attorney General and the Court.

7. The defendant can be released today but if a surety is not provided within seven days, then the defendant will go back to prison.

8. It is noted that the defendant is unable to trade as a financial adviser as he is no longer employed with a licensed firm. Authorities Investors (Prevention of Fraud)(Jersey) Law 1967. Financial Services (Jersey) Law 1998. Page Last Updated: 22 Nov 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII