Draft Criminal Justice (Procedures) (Jersey) Amendment Law 202- (P.38/2026): comments

STATES OF JERSEY

DRAFT CRIMINAL JUSTICE
(PROCEDURES) (JERSEY)
AMENDMENT LAW 202- (P.38/2026): COMMENTS

Presented to the States on 19th March 2026

by the Children, Education and Home Affairs Scrutiny Panel

STATES GREFFE

2026  P.38 Com.

COMMENTS

The Draft Criminal Justice (Procedures) (Jersey) Amendment Law 202- [P.38/2026]

(the Amendment Law') was lodged on 10th February 2026. The Children, Education and Home Affairs Scrutiny Panel (the Panel') was briefed by the Minister for Justice and  Home  Affairs  and  Officers  on  Monday  23rd  February  2026.  The  Minister subsequently lodged an Amendment to the Amendment Law (the Amendment'), on 10th March 2026. The Panel will address the Amendment within these Comments.

Background

The Panel understands that the Amendment Law will make a number of updates to the Criminal Procedure (Jersey) Law 2018 (the CP Law') which prescribes the procedure to  be  followed  in  connection  with  criminal  proceedings.  It  was  advised  that  the Amendment Law is required in order to:

• Make  minor  updates  and  improvements  to  amend  issues  that  have  been identified in the CP Law, for example, largely around administrative matters and including a regulation making power specific to the Amendment Law;

• Allow for one retrial in the case of a hung jury;

• Administration changes relating to the quashing of acquittals, in order to clarify and standardise existing practice for the Court of Appeal; and

• Changing the constitution of the Superior Number of the Royal Court, from

inclusion of 5 Jurats to 3 Jurats.

The  Panel  wrote  to  various  parties  to  ask  for  opinions  or  comments  about  the Amendment Law, however, limited responses were received. The Panel notes that the proposition was lodged at a late stage in the electoral term which, combined with existing work pressures, reduced the time available to consider it in the depth that would have been possible had it been lodged earlier.

The Panel had written to the Bailiff to invite any comments about any aspects of the Amendment Law and to ask about the consultation that the office had undertaken in relation to it. The Bailiff 's response invited the Panel to meet in person, and this provided the Panel with the opportunity to discuss a number of queries about the proposition. The Panel is grateful for his time and assistance.

Panel queries

The report accompanying the proposition sets out the various changes proposed by the Amendment Law and these Comments will not reiterate each of these in detail but will focus  on  the  queries  and  concerns  raised.  The  following  areas  of  interest  were highlighted by the Panel:

Defence case statements

Article 83 of the CP Law is Duty to give a defence case statement'. Paragraph (3) is currently that "If the defendant has no legal representative the court may, on the application of the defendant or of the court's own motion, dispense with the requirement to give a defence case statement."

The Amendment Law had originally proposed a minor change to extend the possibility of a waiver to individuals who were legally represented, as well as those who were not. This change is proposed to be removed by the Minister's Amendment.

Prior to the Amendment being lodged the Panel had asked in what circumstances such a waiver might be used. Officers explained that the intention had been to provide greater flexibility in situations where late pleas made it impractical to produce a defence case statement at a very advanced stage. However, the Panel was not given examples where this had caused difficulties in practice. The Panel remained concerned about the lack of clarity surrounding the rationale for the proposal and requested further information.

The Amendment to the Amendment Law has subsequently been lodged which removes the provision to allow a court to waive the requirement for a defence case statement to be submitted by defendants with a legal representative. The Panel understands that this was following concerns highlighted by practitioners that new issues could arise, for example, adding new lines of argument that defendants should be allowed a waiver which may not benefit any party of the case.

The Panel notes that the Amendment does not change the proposals in the Amendment Law to allow greater flexibility in directing costs arising from a defence case statement, when required.

On the above basis the Panel is supportive of the Amendment to the Amendment Law. Retrials following instances of a hung jury'

Article 11 of the Amendment Law inserts a new Article 75A into the CP Law, which will establish procedures for retrials. As background, in 2018 the original drafting of the CP Law in 2018 included a provision for retrials, however, during the Assembly debate the provision was removed following an amendment by the Education and Home Affairs Panel of the time.

The Amendment Law would introduce the ability for one retrial to take place in an instance where the jury is unable to deliver either a unanimous or majority verdict. The Panel was advised that hung juries are rare, however, when they do occur, they can create potential unfairness for both victims and defendants due to the absence of a verdict. In such cases, the defendant is neither found guilty' nor not guilty', which can leave all parties with a sense of unresolved outcome.

It was further advised that it would be the Attorney General who had the power to request a retrial following consideration, and it would be likely that this would only be in exceptional cases where there was strong evidence that required re-examination, with thought taken of public interest, justice, cost, and the rarity of relevant cases.

The Panel was also advised that a retrial would likely happen 3-6 months after the original trial. Clarification was sought on the implications for the defendant in such cases  and  was  informed  that  remand  would  be  unlikely  unless  the  relevant  risk thresholds were met, meaning that extended periods in custody would be rare.

The Panel received a submission from the Jersey Human Rights Group (JHRG') on 17th March 2026, which primarily focussed on the point of whether retrials should be

allowed in cases of a hung jury.1 The submission (which can be read in full here) expressed the position that this change to the CP Law should not be permitted and it highlighted the long standing principle of the prosecution needing to prove their case beyond reasonable doubt in criminal trials. It suggested that a re-trial could shift the balance of fairness towards the prosecution and that the Minister for Justice and Home Affairs had not made a sufficiently strong case to justify the cost, distress and likely prejudice to a fair trial that would be caused by the change.2

The Panel was mindful of commentary suggesting that a retrial in Jersey might not be feasible or appropriate due to media reporting and public awareness of events in a small community. While the media is prohibited from publishing detailed information about evidence or facts before a trial begins, this restriction changes once proceedings are underway. Concerns were raised that, in a small jurisdiction such as Jersey, such reporting could affect the defendant's ability to receive a fair retrial. When the Panel questioned this, cases where a retrial had occurred following the quashing of a verdict were cited to the Panel, for example, Warn v Attorney General (2021). The Panel also understands that, compared to other jurisdictions, Jersey is in a unique position with regards to retrials, and that as a mechanism, retrials are used in small communities across the United Kingdom. However, the submission to the Panel from the JHRG highlighted the criminal procedure in Scotland, where failure to reach the majority for a guilty verdict is treated as a verdict of not guilty, therefore, it is not possible to have a hung jury. The JHRG propose that the same principle should apply in Jersey.

Following  consideration,  the  Panel  is  supportive  of  the  proposed  change, notwithstanding the submission received from the JHRG.

Changing the constitution of the Superior Number

The Amendment Law proposes changes to the Royal Court (Jersey) Law 1948 (the RC Law') which would change the consistency of the Superior Number from the Bailiff and 5 Jurats, to the Bailiff and 3 Jurats.

During the briefing with the Minister for Justice and Home Affairs and the subsequent meeting with the Bailiff , the Panel queried the implications of reducing the Superior Number. Although this process had been used under the emergency regulations in place during the Covid-19 pandemic, during discussions the Panel noted its concern that making a permanent reduction to the Superior Number could alter the justice system and diminish the value of the experience that Jurats bring when sitting as part of the Superior Number.

The Panel understands that the 3 Jurats would be set as the very minimum and that this would only be for certain trials. The new wording of Article 16(1) of the RC Law would be:

The Superior Number of the Royal Court must for all purposes, criminal or civil, be duly constituted only if it consists of the Bailiff and not less than 3 Jurats.

1 Submission – Jersey Human Rights Group to CEHA Scrutiny panel re P.38/2026 – 17th March 2026

2 Ibid

The Panel was advised by the Bailiff that trials before the Superior Number comprising only 3 Jurats would be limited to drug-related cases, in which sentencing involves minimal  discretion  due  to  the  requirement  to  follow  specific  guidelines.  It  was confirmed to the Panel that the Superior Number would continue to use 5 Jurats for trials involving sexual assault.

It was explained that reducing the number of Jurats sitting in the Superior Number would also bring practical benefits. In particular, cases involving smaller panels could be heard in the Magistrate's Court building, rather than the Royal Court, due to the physical space available on the bench. This would support more efficient use of judicial resources.

The Panel was also referred to the recently published review by Eleanor Laws KC, which recommended that Jersey Courts hold sentencing hearings within eight weeks of a defendant entering a guilty plea or being convicted. The Panel understands that enabling more cases to be heard in the Magistrate's Court will help address some of the practical challenges in meeting this recommendation.

Subject to the approval of the  Amendment Law in the States  Assembly and the subsequent agreement of the Jurats, the Bailiff has confirmed to the Panel that he will publish a practice direction which makes it clear that the Superior Number would remain at 5 for cases other than drug trafficking, or unless there is another special reason for it to be 3.

Following consideration and the confirmation from the Bailiff that a practice direction would be issued, should the Amendment Law be adopted, the Panel is supportive of the proposed change.

Conclusion  

In summary, the Panel is supportive of the proposition to adopt the Amendment Law (as amended by the Minister's Amendment). However, the Panel wishes to highlight that it has only been able to undertake a limited examination of this Proposition, as it has not had as much time as it would have wished to fully review and consider the changes proposed.