Friday, December 16, 2011


Jersey’s government could soon be appearing in Strasbourg, though not to enjoy the fine skiing opportunities around this city in Eastern France.

This time it is the Island’s international reputation that will be exposed yet again to scrutiny. Now Jersey could be on trial as an alleged abuser of Human Rights before the
European Court
at the Council of Europe (which has nothing to do with the European Union although they used to share the same building).

Guernsey has appeared here already. I am delighted to have helped Gerald and Yvonne Gillow to present their successful housing rights case here when the snow was thick on the ground in 1986. Alas, they are now deceased and sadly missed.

But this will be a first for Jersey (no previous complaints having reached the Court) and it is the UK Government that has to share the international shame as the High Contracting Party for the backwards looking Crown Dependencies.

In fact, this will make the complete set because the Isle of Man was taken to the Court decades ago over its birching policies (see re Tyer 1978 v UK ECHR).

The process is especially important because the decisions that arise from such disputes in small places like these can have international implications. As we all know, even insignificant little dots on the map like Sark can harbour grievances that, once exposed, can cut down the ancient office of Lord Chancellor or even shake a Bailiff’s constitution – not to mention reforming local feudal institutions or government forms.

Now, Jersey is heading for the European Court of Human Rights because of defects at La Moye Prison. The particular case arises from the detention in 2008 of a 17 years old Jersey girl at HMP La Moye lacking proper and separate facilities for young males and females.
This youngster had been sentenced to11 months detention but there was no separate young offenders’ accommodation for females - unlike males.

Therefore, all female children served their sentences in an adult mixed prison.

During her detention this young female was bullied by other females, she shared a cell with an adult drug user and was harassed by an adult male prisoner.

She appealed her sentence before the Island courts and argued that serving her sentence in an adult prison was unlawful, ultra vires and in violation of Articles 5 (liberty and security) and 14 (discrimination) under the European Convention on Human Rights.

The case is now being supported by the Howard League for Penal Reform and the AIRE Centre (Advice on Individual Rights in Europe Centre) as “interveners”.

Some people may remember the Human Rights conference I organised in conjunction with Highlands College many years ago at which AIRE Centre lawyers were the principle presenters.
The Howard League takes its name and purposes from John Howard the 18th century penal reformer who visited prisons all over Europe and campaigned for many years.
It is significant that the UK Lottery fund gave £2.6 millions to the League in 2009 specifically to establish a national programme of support for young people in custody.
John Howard’s work thus carries on after more than two centuries.

The Howard League produced a major report (2008) on child custody in Jersey at the instigation of (Senator) Stuart Syvret which made many recommendations; not least that Jersey must ratify the UN Convention on the Rights of the Child (CRC) like virtually every other territory in the world.
Of course, Jersey has still not done so and this issue, plus many more, was discussed with Senator Le Marquand – Jersey Home Affairs Minister – in the extensive (6 part) interview posted on this blog on 9 September 2011.
They will also feature prominently if the case is heard at Strasbourg where affluent places like Jersey are not given the same special dispensations as poverty stricken communities on other continents.

Clearly, Human Rights compliance was not a priority with Senator Le Marquand in previous administrations.  
It remains to be seen whether Senator Gorst as Chief Minister will demonstrate a keener interest in the subject but he will probably find that the Strasbourg experience will strengthen his enthusiasm for ratification and compliance.

The Jersey youngster – now a young woman working and living in the Island – has had the benefit of some very experienced lawyers.
In Jersey it is understood that Advocate Caitriona Fogarty of Ogiers was initially instructed - with Samantha Knights of Matrix Chambers in London advising
The legal arguments between Jersey Government and the litigant would now seem to have ended in stalemate. There has been no “friendly settlement” of this dispute – the usual preferred option at Strasbourg, which seeks to resolve disputes as far as possible, out of court.
Now all the legal arguments could be heard and Jersey’s penal, human rights and child welfare inadequacies subjected to international scrutiny. The papers will now be considered by a Judge at Strasbourg and if “admissible” proceed to the full hearing - but it is still possible that the matter will be dismissed in private.

This case will probably be discussed at a Jersey Human Rights Group meeting in the New Year. The legal arguments are complex and probably not yet in the general public domain so do not lend themselves to further analysis here. But if any of Jersey’s 250 lawyers or 51 States Members are tired of too much Xmas opulence, their comments would be especially welcomed here.

Meanwhile – Yippee…Strasbourg here we come!


  1. Tom Gruchy.

    As we know there is at least one other case that will be going to the ECHR and with States Members petitioning the Privy Council on a number of issues next year, then it's only a matter of time before people start asking just what the hell is going on with the Jersey Administration?

  2. Yippee…Strasbourg here we come!

    Yippee in deed!

    Maureen Pinwill