Subject-Matter Index

Application of UK statutes

registration

registration in Guernsey by local Order-in-Council may only be for information, without operative effect—to be operative, statute to be made applicable to Guernsey by own terms or applied by UK Order-in-Council, e.g. registration in Guernsey of Bankruptcy Act 1914 only for information but mutual assistance provisions (ss. 122–123) applicable to Channel Islands by own terms—Insolvency Act 1986, s.426 applies to Channel Islands by own terms and also by Insolvency Act 1986 (Guernsey) Order 1989: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

repeal

if UK Act applied to Guernsey, repeal for purposes of UK may not repeal operation in Guernsey which may need to be explicit: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

Breadth of statute. See Interpretation—breadth of statute

Criminal and penal statutes. See Interpretation—criminal and penal statutes

Existing rights. See Interpretation—statute affecting existing rights

Extra-territorial application. See Interpretation—extra-territorial application. CONSTITUTIONAL LAW (States of Guernsey—legislation)

Interpretation

breadth of statute

arguments about breadth of statute to be distinguished from arguments about legal certainty—intended breadth may be clear but statute applied too broadly: Law Officers v. Le Billon (C.A.), 2011–12 GLR 128

to justify broad offence, to be demonstrated that need for law and breadth not disproportionate to means, but proportionality test not criterion of legal certainty—if law overly broad, powers of prosecution to determine whether prosecution in public interest, limited powers of court to review determination, and power of court to reflect oppressive prosecution practices in sentencing dispositions sufficient to guard against unfairness: Law Officers v. Le Billon (C.A.), 2011–12 GLR 128

criminal and penal statutes

presumption that criminal offence requires mens rea—presumption particularly strong if character of offence “truly criminal”—presumption only displaced if clearly or necessarily implicitly effect of statute dealing with issues of social concern (e.g. public safety), and strict liability effective to promote objects of statute by encouraging greater vigilance to prevent commission of offence: Law Officers v. Le Billon (C.A.), 2011–12 GLR 128

words to be construed according to natural meaning—for purposes of Import and Export (Control) (Guernsey) Law 1946, “medicinal product” has definition given by art. 1(2) of Council Directive 2001/83/EC—cannot infer requirement that medicinal product has therapeutic benefit and function of treating or preventing disease: Law Officers v. Le Billon (C.A.), 2011–12 GLR 128

extra-territorial application

clear language needed in statute to give extra-territorial effect—plain and natural words of Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999, Part I limit operation of restraint orders to property in and enforcement of orders within Guernsey, including beneficial interests in Guernsey property under Guernsey trust—extended territorial definition of “property” in s.50 inapplicable in context of Part I: King v. H.M. Procureur (Royal Ct.), 2011–12 GLR 285

reference to other statutes

existence of express provision for appeal from Royal Court to Court of Appeal in comparable statutes (providing for appeals from States Committees) no bar to such appeal under Island Development (Guernsey) Law 1966, which contains no such provision: Island Dev. Cttee. v. Portholme Properties Ltd. (C.A.), 2000–02 GLR 417

retrospective effect

1990 addition of “gross negligence” to categories in Trusts (Guernsey) Law 1989, s.34(7) for which trustee’s liability cannot be excluded applies retrospectively—statement of trustee’s liability for gross negligence declaratory of law existing before 1989: Hutcheson v. Spread Trustee Co. Ltd. (Royal Ct.), 2009–10 GLR 197

European Convention not to be applied retrospectively, i.e. to cases determined prior to enactment of Human Rights (Bailiwick of Guernsey) Law 2000: In re Sherry (Royal Ct.), 2011–12 GLR N [12]

no action against States under Human Rights (Bailiwick of Guernsey) Law 2000, s.8 for unlawful arrest and detention by police and customs officers contrary to European Convention, art. 5(5), if arrest and detention before Law comes into force: Le Huray v. States (Royal Ct.), 2011–12 GLR 61

Le Huray v. States (Royal Ct.), 2011–12 GLR 396

no retrospective effect given to 1990 addition of “gross negligence” to categories in Trusts (Guernsey) Law 1989, s.34(7) for which trustee’s liability cannot be excluded—Guernsey trusts law always permitted exclusion of liability for gross negligence—historically reliant on English not Scots trusts law: Spread Trustee Co. Ltd. v. Hutcheson (P.C.), 2011–12 GLR 164

omission of “or gross negligence” from Trusts (Guernsey) Law 1989, s.34(7) not mistake but deliberate, since trustee always able in Guernsey law to exclude liability for gross negligence—no retrospectivity given to addition of “or gross negligence” to categories in s.34(7) for which trustee’s liability cannot be excluded: Spread Trustee Co. Ltd. v. Hutcheson (P.C.), 2011–12 GLR 164

omission of “or gross negligence” from Trusts (Guernsey) Law 1989, s.34(7) probably mistake, since trustee never been able to exclude liability for acts of gross negligence—Trusts (Guernsey) (Amendment) Law 1990, s.1(f) declaratory of existing law, therefore no question of retrospectivity in addition of “or gross negligence” to s.34(7): Spread Trustee Co. Ltd. v. Hutcheson (C.A.), 2009–10 GLR 403

terms of Criminal Justice (Supervision of Offenders) (Bailiwick of Guernsey) Law 2004 clearly indicate that extended sentence may be passed for offence whether committed before or after 2004—presumption against retrospective effect overridden: G v. Law Officers (C.A.), 2013 GLR 190

statute affecting existing rights

in absence of clear provision to contrary, Trusts (Guernsey) Law 1989 not presumed to remove existing rights—clarifies and removes uncertainty in previously existing law: Stuart-Hutcheson v. Spread Trustee Co. Ltd. (C.A.), 2000–02 GLR 388

Ordinances. See CONSTITUTIONAL LAW (States of Guernsey—legislation)

Projet de loi. See CONSTITUTIONAL LAW (States of Guernsey—legislation)

Reference to other statutes. See Interpretation—reference to other statutes

Repeal of common (customary) law. See TELECOMMUNICATIONS (Licensing—television licences)

Retrospective effect. See Interpretation—retrospective effect

Retrospective legislation. See Interpretation—retrospective effect

Severance

ultra vires provisions

provisions beyond restricted competence of legislature may be severed and reduced to intra vires provisions—Sea Fish Licensing (Guernsey) Ordinance 2003, if invalid for extra-territorial application, may be severed by reducing application from extra-territorial to territorial waters: : States v. Jersey Fishermen’s Assn. Ltd. (C.A.), 2005–06 GLR 226

provisions beyond restricted competence of legislature may be severed “textually” by eliminating invalid portion or by application of “substantial severability” test if legislation could equally apply to severed and remaining portion—Sea Fish Licensing (Guernsey) Ordinance 2003 severed by reducing application from extra-territorial to territorial waters: Jersey Fishermen’s Assn. Ltd. v. States (Privy Council), 2007–08 GLR 36

Statute affecting existing rights. See Interpretation—statute affecting existing rights

Transitional provisions. See COMPANIES (Directors—exclusion of liability), (Directors—indemnity against liability)

Ultra vires provisions. See Severance—ultra vires provisions