An introduction to Guernsey's legal system18 Aug 2015
This briefing is intended to provide a high-level overview of Guernsey's status as a self-governing jurisdiction with its own independent legal system and jurisprudence. It will be of interest to clients who may not be familiar with Guernsey's unique constitutional background or its principal judicial organs.
In keeping with its location within sight of the French coast, Guernsey was originally part of the ancient Duchy of Normandy. At the time of the Norman Conquest of England in 1066, therefore, Guernsey was on the side of the invaders. After the Conquest, Guernsey continued to be administered as part of the Duchy, rather than the Kingdom of England, even though for most of this period the Duke of Normandy and the King of England was one and the same person.
In 1204, however, the Duchy was confiscated by King Philippe II of France, whose armies drove English King John's troops out of Normandy and most of his remaining French possessions besides. Peace negotiations culminated in the 1259 Treaty of Paris, when John's son Henry III formally renounced English legal claims to sovereignty in Normandy and the title of Duke. However, in respect of those islands which had not been occupied by French forces, the Treaty of Paris left de facto sovereignty where it lay.
Since that time, those islands (which are now known as the British Channel Islands) have remained dependencies of the English Crown, as notional successor to the ancient Dukes. However, they are not and never have been part of England or of the United Kingdom, send no representatives to Westminster, and are not subject to the jurisdiction of the English courts. This unique constitutional position has enabled Guernsey (and, separately, its sister island Jersey) to develop and maintain a legal and political independence from both the European continent and the United Kingdom, which is a tradition that continues strongly today.
The modern constitutional position
For practical purposes, Guernsey and its parliamentary assembly, the States of Deliberation, have complete political and legislative independence from the United Kingdom in all matters except foreign affairs, defence, and other matters touching upon the Royal Prerogative. The United Kingdom Parliament has asserted a theoretical ability to legislate for Guernsey, but historical attempts to do so outside those strictly limited areas were always resisted, and largely successfully. The modern constitutional position, accepted on both sides, is that the United Kingdom would not attempt to legislate for Guernsey in respect of domestic matters unless there was a serious breakdown of civil order. Similarly, when the United Kingdom government proposes to enter international obligations which may affect Guernsey, it is obliged by constitutional convention to consult the Guernsey authorities in advance.
Relations with Europe
Guernsey is not a member of the European Union, and the provisions of the various European Treaties have been extended to Guernsey only to a very limited extent. Guernsey is bound to observe European Union law in respect of certain aspects of free trade (principally in agricultural produce) and to respect the principles of free movement of persons and non-discrimination between European Union citizens of different nationalities. Otherwise, Guernsey has a fast-track ability to adopt European legislation as it sees fit, but this is a matter for the Guernsey authorities and is principally used as the most efficient means of adopting international sanctions and customs tariffs.
Guernsey's legal heritage
Guernsey reaffirmed its position as a civil law jurisdiction, following largely the customary laws of Normandy, in 1583. Whilst the influence of common law principles is clear in modern company and commercial legislation, the roots of Guernsey's legal system continue to reflect the ancient customary laws of Normandy, such that even today Guernsey lawyers are required to attend the University of Caen before they can be admitted to the Bar as Advocates. In appropriate cases, it is still necessary to refer in court to medieval Norman or early modern French legal texts. This is particularly so in areas such as land law and the laws of inheritance, which contain concepts that many English lawyers would find quite alien. The influence of French law can also be felt in areas of the law of contract, although the law of tort now largely reflects the law of England.
In those areas where common law principles are dominant, such as the law of trusts, corporate law and financial services law more generally, English and other common law authorities are regularly relied upon before the Guernsey courts. However, although such authorities are always respected and often viewed as highly persuasive, they are not binding on Guernsey judges, who are free to adopt alternative solutions in appropriate cases.
Guernsey's civil courts
The Royal Court of Guernsey is the court of first instance for all Guernsey civil cases with a value above £10,000.
The Royal Court is presided over by the Bailiff, who is the Island's chief justice, president of the Royal Court and Court of Appeal, and the civic head of the Island. If the Bailiff does not preside at a sitting of the Royal Court, then the Deputy Bailiff, an appointed Lieutenant Bailiff or a Judge of the Royal Court will do so.
When the Royal Court sits in a civil capacity, it usually comprises a judge sitting with two or three jurats – their full title being "jurés justiciers". The role of the jurats is one of the distinct features of Guernsey's legal system. They are not lawyers and are elected by the States of Election, which has a wider membership than but includes all the members of the legislative States of Deliberation. Whilst jurats are lay members of the court, they are frequently elected to fulfil the role by virtue of having some particular relevant professional experience, such as in banking or accountancy. Their function is to determine questions of fact and they also decide on sentencing in criminal cases. A judge of the Royal Court may sit without jurats when deciding a question of law or ruling on costs. By virtue of recent reforms, and provided all the parties agree, it is now also possible for civil trials to proceed before a judge sitting alone.
Procedural or other interlocutory matters are heard routinely by either the Deputy Bailiff or a Lieutenant Bailiff (often a senior practitioner or QC from the English Bar).
The Royal Court sits in different formations, the most common being as a Full Court (a judge plus up to twelve jurats), an Ordinary Court (a judge either sitting alone or, if jurats are required, with two or, more commonly, three jurats) and an Interlocutory Court (a judge sitting alone to deal with procedural and various interlocutory applications).
Rights of appeal proceed from the Royal Court to the Guernsey Court of Appeal, which sits once a quarter and whose membership panel comprises the Bailiffs of Guernsey and Jersey and a number of senior judges from England and Scotland. Appeals are generally heard by three Judges of Appeal. The final right of appeal is to the Judicial Committee of the Privy Council in London, whose membership is identical to the United Kingdom Supreme Court. At all stages, it is Guernsey law that is applied.
In cases which touch on the extremely limited areas in which Guernsey is bound to observe European Union law, there is the possibility of referring cases to the European Court of First Instance or the European Court of Justice. No such references are known to have been made by the Guernsey courts to date.
Guernsey's legal system has an ancient pedigree and remains clearly distinct and independent from neighbouring legal systems. However, its rich and unique traditions are combined with a distinctly modern and flexible outlook, especially in commercial and financial services matters. It is well placed to deal with the demands of litigation in the 21st Century.